What is really going on?

Sometimes with my lawsuits I really, really wonder what was going on. I am not any sort of conspiracy advocate, but I see how some people can go that way when it does not appear that there is anything that makes sense in what supposed rational adults (judges, even) do.

I thought I say a few things in that regard with my two state lawsuits.

To give some background, I had two state lawsuits against two different Ohio libraries: The Columbus Metropolitan Library and the Fairfield County District Library. In both of them the main issue, as far as I was concerned, was whether the state legislature had even authorized the libraries to make shoe rules. (There were other issues I also pursued, such as whether under the Ohio constitution there was a guarantee of personal freedom. But I was limited in what I could do by the results of my federal lawsuit.)

The general principle in Ohio law is that the Ohio Constitution designates the General Assembly as the legislative body, and that the General Assembly cannot delegate that legislative power to administrative bodies without clear guidelines as to what they are and are not allowed to do. So, to be authorized and constitutional, the underlying statute for any state body (such as a Library Board of Trustees) must be specific in its delegation.

The main (and most recent) Ohio Supreme Court opinion that lays it all out is D.A.B.E., Inc. v. Toledo-Lucas Co. Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-4172. It comes right out an says it in the Syllabus:

Administrative regulations cannot dictate public policy but rather can only develop and administer policy already established by the General Assembly.

Yet, in his opinion, what did the judge do and say? He looked at the statute that said that Library Boards would have “control and management” of the libraries and said that was enough. As the judge put it,

This Court finds and declares that the Library has plenary authority under R.C. §3375.40(H) to adopt rules for the proper operation of facilities it owns or which fall under its jurisdiction.

“Plenary” means “absolute”. That a statute could grant absolute power to a Board of Trustees directly contradicts the entire point of D.A.B.E. that says that this violates the Ohio Constitution. The judge even poked through the D.A.B.E. opinion to find one little piece of language (the regulation under question there was enacted under a “rule-enabling statute”) that justified his ruling while ignoring all the other language that contradicted it.

What was going on? I have no idea. Was he just so sure that libraries could ban bare feet that he’d look for any old excuse?

I hadn’t briefed that particular sentence (after all, you cannot brief the whole decision—you are limited in numbers of pages). But I had briefed the whole point of what the law said. He just cherry-picked a justification.

Then at the appeals level, it becomes like a game of Whack-A-Mole. I carefully briefed that point, and really hit hard on the whole issue that powers granted to administrative bodies like Library Boards have to have an “intelligible principle” from the statute so they know what rules they can make.

And the Court of Appeals pulled another trick: actually quoting the relevant standard, followed by ignoring it.

Applying D.A.B.E., Inc. and Waliga, the board, as a body politic and corporate, has only such power as delegated to it by the General Assembly, and the board also has power that may be fairly implied from an express power where it is reasonably related to the duties of the board. Moreover, in the event there is doubt concerning the board’s grant of power, such doubt is to be resolved against the grant of power.

Notwithstanding plaintiff’s contentions to the contrary, we conclude that, under former R.C. 3375.40(H), the board of trustees had authority to promulgate and enforce a rule that requires footwear to be worn in the library. Former R.C. 3375.40(H), among other things, established an intelligible principle that expressly empowered the board to make and publish rules for the “proper operation and management” of the public library under its jurisdiction. The board’s adoption of a code of conduct for patrons, which includes a footwear requirement for library patrons, directly concerns the proper operation and management of the public library under the board’s jurisdiction and, therefore, bears a reasonable relation to the legislative purpose of former R.C. 3375.40(H).

Did you catch that? “Proper operation and managment” provides the intelligible principle that is used to distinguish between rules that are okay and rules that aren’t. If you can find an intelligible principle in that then you’re a better person than I am. It’s just words that are intended to sound like they justify the ruling.

There was just no way in hell that there were going to find that the Library had exceeded its authority. Boards could do whatever the heck they wanted.

Why? Why would they do that? Were they just locked into their thinking? I wish I knew.

But there is an even better situation that occurred with my second state lawsuit, against the Fairfield County District Library. The opinion in the Columbus case was only binding in Franklin County, so I wanted to try it in another appellate district (plus, there was a book available only in the Fairfield County District Library, in the reference section so I couldn’t check it out, that I wanted to read).

After a bunch of legal shenanigans, the Appeals Court ordered an evidentiary hearing, which was held in March of 2011.

We weren’t on the record yet when he said it, so it’s not in the transcript, but before the trial began, Judge Martin told us that he would rule on the case at the end of the evidentiary hearing, and that he would then have the winning party write up the findings (“findings of fact and conclusions of law”). This is actually fairly common (so don’t go all conspiratorial on me). It saves the judge a lot of work, and then all he has to do is edit it to come up with his opinion.

However, think of the implications of that in this case. One of his parties (me) was not a lawyer. Would he really do that if he expected me to win, so that I’d have to write it? If you were a judge would you have a pro se write the opinion? No. Way. In. Hell.

I am 99% sure the judge went into the hearing expecting the Library lawyer to clean my clock. And that then that lawyer would write the findings of fact and conclusions of law.

But let me tell you what did happen. At the end of the trial, and this time we were still on the record, so it is in the transcript on page 377, here is what he said.

And I may — I know I said at one point earlier today that I was thinking about or going to direct the parties to provide proposed findings of fact and conclusions of law. But I’m not certain that I’m going to do that at this point. If I decide to do that, then I will notify everybody in writing and give you the due date. I’ll probably have a simultaneous filing date. I may not require that at this point.

After seeing what I’d presented in the evidentiary hearing, he changed his mind. My suspicion is that he realized it really wasn’t a simple cut-and-dry library win. He realized that it was complicated and that the library really hadn’t presented much of anything. (Basically, all the library said was, “It’s possible to cut your foot.” And “MRSA!!!!!”)

Just that change meant that I left the hearing feeling pretty good about my chances. The judge had actually learned something in the hearing.

In the end, the judge wrote the entire opinion himself. And I lost again.

It’s a really weak opinion. He (correctly) legally put the burden of proof on the library, and said they needed to come up with a preponderance of the evidence. And then he just said MRSA, MRSA, MRSA. It was a major punt. (Clearly he didn’t need help coming up with “findings of fact and conclusions of law” for that.)

Again, what the heck happened? What was really going on? The library’s case was very weak and the judge recognized that at the end of the evidentiary hearing. But then he found the little nuggets in the hearing that he assembled into some sort of a justification. Was he just unable to get past the idea that a library could make any rule it wanted, and justify it however it wanted?

I don’t know. I do know that Fairfield County is fairly small, and everybody in the courthouse and around the town of Lancaster assuredly know each other. Maybe he just couldn’t get past that. Again, I don’t know.

But I do know that it is incredibly frustrating to get close and then have a possible win veer off in a totally unexpected direction.