Hicks v. Clermont Cty. Sheriff's Office

[Cite as Hicks v. Clermont Cty. Sheriff's Office, 2024-Ohio-2186.]

IN THE COURT OF CLAIMS OF OHIO

CHRISTOPHER R. HICKS Case No. 2024-00345PQ

Requester Special Master Todd Marti

v. ORDER DENYING DISQUALIFICATION

CLERMONT COUNTY SHERIFF’S

OFFICE

Respondent

{¶1} The matter before the special master is Requester’s May 20, 2024, Motion for

Recusal of the Clermont County Prosecutor’s Office from this Matter (“Motion”). That

Motion is denied.

I. Background.

{¶2} This case arises from Requester Chistopher Hicks’ allegation that someone

threatened to harm him and his son. The Respondent Clermont County Sheriff’s Office

(“Sheriff”) investigated those allegations. Complaint, filed April 12, 2024, pp. 2-5.1

{¶3} Hicks made a public records request for records related to the Sheriff’s

investigation. The Sheriff produced redacted records and withheld other records based

on the confidential law enforcement investigatory records provisions of R.C.

149.43(A)(1)(h) and (A)(2) and R.C.2930.07. Id. at pp. 6-69.

{¶4} Hicks brought this case to challenge the Sheriff’s response. The Clermont

County Prosecutor’s Office (“Prosecutor”) has entered an appearance as counsel for the

Sheriff. Notices of Appearance, filed April 23, 2024.

1 All references to specific pages of the Complaint are to the pages of the PDF copy posted on the court’s

online docket.

Case No. 2024-00345PQ -2- ORDER

{¶5} Hicks’ Motion seeks to disqualify the Prosecutor as counsel for the Sheriff. It

is based on the assertion that the Prosecutor has recused himself from criminal

proceedings that Hicks claims are related to the threat against Hicks and his son.

II. Analysis.

{¶6} A “motion to disqualify counsel affects a ‘substantial right,” Guccione v. Hustler

Magazine, 17 Ohio St.3d 88, 89 (1985), and court considering such a motion “should be

mindful that disqualification is a drastic measure.” Centimark Corp. v. Brown Sprinkler

Serv., 85 Ohio App.3d 485, 488, (11th Dist.1993). Disqualification is therefore only

granted when denial of that relief would prejudice the moving party. State ex rel. Kura v.

Sheward, 75 Ohio App.3d 244, 249 (10th Dist.1992); Desmond v. State, 2020-Ohio-181,

(7th Dist.), ¶ 42. The party seeking disqualification has the burden of proving prejudice;

prejudice will not be presumed. Centimark, 85 Ohio App.3d at 489; Desmond, 2020-Ohio-

181, ¶ 42.

{¶7} Hicks has not carried that burden. The only prejudice he properly alleges 2 is

to his ability to participate in what he characterizes as criminal proceedings related to the

threats against him and his son, but that falls short on two levels. Legally, the prejudice

must be to the movant in the case where disqualification is sought. Kura, 75 Ohio App.3d

at 249 (requiring a demonstration of prejudice “to one of the parties to the pending case”)

(emphasis added); Centimark, 85 Ohio App.3d at 489 (requiring evidence “substantially

related to the present action”). Hicks’ concerns about impacts on the criminal case are

therefore insufficient. Factually, Hicks has produced no evidence that the Prosecutor’s

role in this case would impact Hicks’ rights in the criminal proceeding; all he offers is

conclusory surmise.

2 Hicks’ reply in support of the Motion also makes the assertion that the Prosecutor’s representation of the

Sheriff in this case would give the Sheriff additional defenses on the merits, but that fails on two levels.

Procedurally, it is not properly before the court because it was raised for the first time in Hicks’ reply. Cardinal

Fed. S. & L. Ass’n v. Cuyahoga Cty. Bd. of Revision, 44 Ohio St.2d 13, 18 (1975). Substantively, it is hard

to understand how the identity of counsel would impact the disputed records’ availability under R.C. 149.43,

the ultimate benchmark in this case.

Case No. 2024-00345PQ -3- ORDER

III. Conclusion.

Hicks’ Motion is therefore denied.

TODD MARTI

Special Master

Filed May 29, 2024

Sent to S.C. Reporter 6/6/24