State ex rel. Vindicator Printing Co. v. Wolff

[Cite as State ex rel. Vindicator Printing Co. v. Wolff, 132 Ohio St.3d 481, 2012-Ohio-3328.]

THE STATE EX REL. VINDICATOR PRINTING CO. ET AL. v. WOLFF, JUDGE, ET AL.

[Cite as State ex rel. Vindicator Printing Co. v. Wolff,

132 Ohio St.3d 481, 2012-Ohio-3328.]

Public records—Court documents—Sup.R. 44 and 45—Discovery documents and

bills of particulars—Attorney fees.

(No. 2011-0132—Submitted May 22, 2012—Decided July 25, 2012.)

IN MANDAMUS and PROHIBITION.

__________________

Per Curiam.

{¶ 1} This is an original action by relators, the Vindicator Printing

Company and WFMJ Television, Inc., for a writ of mandamus to compel

respondent, Judge William H. Wolff, sitting by assignment in the Mahoning

County Court of Common Pleas, to release all records that were sealed in State v.

Cafaro, Mahoning Cty. C.P. Nos. 2010 CR 800 and 800A, B, C, D, E, F, G, H,

and I, and a writ of prohibition to compel the judge to vacate his December 21,

2010 and August 24, 2011 decisions in those cases and to prohibit him from

issuing further orders presumptively sealing any documents or records in the

cases. Because relators have established their entitlement to the requested

extraordinary relief based on the Superintendence Rules, we grant the writs. This

renders moot relators’ remaining claims based on the United States and Ohio

Constitutions, the common law, and R.C. 149.43, the Ohio Public Records Act.

Relators are not entitled to an award of attorney fees, because the

Superintendence Rules do not specifically authorize such an award.

Facts

{¶ 2} In late July 2010, a Mahoning County grand jury returned a 73-

count indictment charging seven persons, including current and former public

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officials, and three organizations with felony and misdemeanor charges, including

engaging in a pattern of corrupt activity, conspiracy, perjury, bribery, money

laundering, tampering with records, disclosure of confidential information,

conflict of interest, filing a false financial-disclosure statement, and soliciting or

accepting improper compensation. The cases are designated as State v. Cafaro,

Mahoning C.P. Nos. 2010 CR 800 and 800(A) through (I), with the defendants as

follows: 2010 CR 800, Anthony M. Cafaro Sr.; A, the Cafaro Company; B, Ohio

Valley Mall Company; C, the Marion Plaza, Inc.; D, John A. McNally IV; E, John

Reardon; F, Michael V. Sciortino; G, John Zachariah; H, Martin Yavorcik; and I,

Flora Cafaro. Anthony Cafaro is the retired president of the Cafaro Company,

Flora Cafaro is Anthony Cafaro’s sister and a part owner of the Cafaro Company,

Ohio Valley Mall Company and the Marion Plaza, Inc. are affiliates of the Cafaro

Company, McNally is a Mahoning County commissioner, Sciortino is the

Mahoning County auditor, Reardon is the former Mahoning County treasurer,

Zachariah is the former director of the Mahoning County Department of Job and

Family Services, and Yavorcik is an attorney who ran an unsuccessful 2008

campaign for Mahoning County prosecuting attorney. The charges stemmed from

the unsuccessful attempts of Anthony Cafaro and the Cafaro-related entities to

keep the Mahoning County Department of Job and Family Services located at a

site owned by the Ohio Valley Mall Company, operating through Marion Plaza,

Inc., which received rental income from the county while located there.

{¶ 3} The Cafaro defendants—Anthony M. Cafaro Sr., Flora Cafaro, the

Cafaro Company, Ohio Valley Mall Company, and the Marion Plaza, Inc.—filed

a joint motion for a bill of particulars, and the state filed a notice of intent to

voluntarily comply. After the state provided bills of particulars for defendants

Flora Cafaro and Yavorcik that resulted in local newspaper articles, including one

from the Vindicator, the attorneys for the Cafaro defendants submitted a letter to

respondent, Judge William H. Wolff Jr., who is sitting by assignment in the

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underlying criminal cases. In their unfiled letter, the Cafaro defendants requested

that the state be ordered either to produce its bills of particulars 14 days in

advance of filing to afford them the opportunity to apply for relief or to file its

bills of particulars under seal to permit them to move to redact the portions they

challenge. The Cafaro defendants claimed that the presumptive sealing of the

bills of particulars was appropriate because the state’s responses endangered their

ability to receive a fair trial. The state submitted a letter to the judge objecting to

the request. This response was also not filed as a matter of public record.

{¶ 4} The judge held a private, pretrial proceeding with the parties’

counsel that resulted in a September 9, 2010 decision in which he granted the

defendants’ pending discovery motions. The judge ordered that all filings in the

case “shall be under seal with the exception of filings that are clearly procedural

and cannot possibly implicate Defendants’ concern about receiving a fair trial.”

He also specified that the defendants had 14 days from filing to object to the

state’s filing and that the state had 14 days to respond, with counsel permitted to

request a hearing. Following an editorial that appeared in the Vindicator, the

judge issued a supplemental order on September 14, 2010, in which he further

explained that his “filing under seal protocol” was based on the “significant media

coverage” that the criminal cases had attracted and his obligation “to balance the

right of the defendants to a fair trial and the right of the public to be informed of

these proceedings through the media or through personal examination of the

record.” The judge was concerned with whether “fair and impartial potential

jurors can be found in Mahoning County, i.e., potential jurors without

preconceived notions of how this case should be decided that they cannot set

aside due to pretrial publicity.”

{¶ 5} Based on the September 9 and 14, 2010 orders, various filings,

including the Cafaro defendants’ joint motion to dismiss the indictment and

memorandum in support, were filed under seal. The Cafaro defendants also filed

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under seal a motion to seal, until after trial, all bills of particulars and notices of

intent to introduce Evid.R. 404(B) “other acts” evidence.

{¶ 6} In November 2010, relators, the Vindicator Printing Company,

which publishes the Vindicator, a daily newspaper distributed principally in

Mahoning County, and WFMJ Television, Inc., which broadcasts news in

Mahoning County, submitted to the judge and the Mahoning County clerk of

courts requests to inspect and copy filings and documents submitted to the court

in the criminal cases, including those that had been filed under seal. When

relators were not provided with access to some of the requested records, they filed

a motion for an order vacating the September 9 and 14, 2010 sealing orders.

{¶ 7} On December 6, 2010, the court held a hearing on the Cafaro

defendants’ motion to seal the bills of particulars and notices of intent to

introduce evidence under Evid.R. 404(B) and relators’ motion to vacate the prior

sealing orders. At the hearing, the Cafaro defendants submitted the testimony of

their sole witness, Ohio University journalism professor Hugh J. Martin. Martin

testified that the Vindicator was distributed to about 40 percent of Mahoning

County households for Mondays through Saturdays and to almost 50 percent of

county households on Sundays and that WFMJ claimed to have the most-watched

newscasts in Mahoning County. Martin referred to the Vindicator’s coverage of

the criminal cases as “very tough” on the defendants and “sharply drawn” to

emphasize the allegations against them, but he conceded that he could not say

whether the newspaper statements were true or false. The defendants had

themselves issued press releases proclaiming their innocence of the charges and a

cable-TV infomercial. Ultimately, Martin testified that he had “no idea” whether

relators’ coverage of the cases prevented the impaneling of an impartial jury or

tainted the jury pool, because that was not his “area of expertise.” He also

conceded that he could not render an opinion on whether opening the proceedings

(i.e., unsealing the records) would impede the impaneling of a jury. One of the

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Cafaro defendants’ attorneys admitted that he was not saying that they would be

unable to pick a fair jury if the judge unsealed part of the bill of particulars, but

merely that the jury-selection process would be burdened in the absence of a

sealing order.

{¶ 8} On December 21, 2010, the judge issued a decision in which he

granted the Cafaro defendants’ motion to seal the bills of particulars that had not

yet been filed as a public record—the bills of particulars for the Cafaro defendants

and Zachariah—as well as any Evid.R. 404(B) notices. He determined that the

bills of particulars and Evid.R. 404(B) notices of other-acts evidence were in the

nature of discovery and were not entitled to any presumption of public access and

that even if they were entitled to a presumption of public access, that presumption

was outweighed by the substantial probability that the defendants’ right to a fair

trial in Mahoning County would be prejudiced. With these exceptions, the judge

also “sustained prospectively” relators’ motion to vacate his September 9 and 14,

2010 sealing orders. But he continued a protocol in which the state would submit

to defense counsel, prior to filing, any document that “can be reasonably expected

to trigger a concern on the part of defense counsel that publication of the

document will prejudice the impaneling of an impartial jury in Mahoning

County,” thus giving the opportunity for the defendants to file a motion to seal,

which would be served on relators’ counsel, but would not be permitted to be

shared with relators. A subsequent e-mail exchange confirmed that the judge’s

intent was that motions to seal and responses to them be filed under seal, with the

court to determine the motions in camera.

{¶ 9} In January 2011, relators filed this action for a writ of mandamus

to compel the judge to release all records filed with the clerk of courts in the

underlying criminal cases and a writ of prohibition to vacate the December 21,

2010 order, prohibit him from presumptively closing any proceedings or sealing

any documents filed with or otherwise provided to the court, and requiring him to

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comply with all requirements of notice, evidentiary hearing, and findings before

sealing any filed documents or records or closing any proceedings in the criminal

cases. The judge submitted an answer, and the Cafaro defendants filed a motion

to intervene as respondents and an answer. We granted the motion to intervene

and an alternative writ and issued a schedule for the submission of evidence and

briefs. 128 Ohio St.3d 1443, 2011-Ohio-1618, 944 N.E.2d 693.

{¶ 10} After evidence and briefs were submitted, respondents notified this

court that on July 11, 2011, the judge, on motion of the state, dismissed the

indictment in the underlying criminal cases without prejudice, thereby terminating

the prosecution of the cases. According to a later opinion of the judge, the

dismissal was prompted by the refusal of agents of the federal government to

furnish the special prosecutors with materials essential to the special prosecutor’s

duty to provide discovery to the defendants. The respondents filed motions for

leave to file supplemental briefs on postdismissal issues of access to the sealed

records. We granted the motions, and the parties submitted supplemental briefs

on the issue of the effect of the dismissal of the underlying criminal cases on

relators’ mandamus and prohibition claims. 129 Ohio St.3d 1446, 2011-Ohio-

4217, 951 N.E.2d 1044.

{¶ 11} Relators subsequently filed a motion for leave to file an amended

complaint instanter, which indicated that the following additional events had

occurred in the underlying criminal cases after the parties had submitted evidence

and their initial briefs. In June 2011, before the judge dismissed without

prejudice the indictment against the defendants, the Cafaro defendants filed—as a

matter of public record—a motion “to dismiss the indictment to enforce non-

prosecution agreement, and due to prosecutorial misconduct and vindictiveness,

with request for an order releasing grand jury transcripts,” with a 106-page

memorandum in support. The memorandum included 45 pages under the heading

“Relevant factual background,” which purported to detail multiple instances of

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prosecutorial misconduct. In response to the motion and consistent with the

court’s protocol, the state filed under seal a memorandum in opposition, which

included a six-page discussion under the heading “Relevant, non-vindictive

facts.”

{¶ 12} The Cafaro defendants filed under seal a motion to seal the

“relevant, non-vindictive facts” from the state’s memorandum in response to their

motion to dismiss the indictment. Relators’ and the state’s memoranda in

opposition to the motion to seal and the Cafaro defendants’ motion for leave to

file a reply were also submitted under seal. The parties also filed other unrelated

motions, including a motion for return of property and a motion for an extension

of time to respond under seal. And following the court’s dismissal without

prejudice of the indictment, various defendants, including the Cafaro defendants,

filed under seal motions to seal the record of their cases under R.C. 2953.52.

Responses to the motions were also submitted under seal.

{¶ 13} On August 24, 2011, without holding any hearing, the judge

unsealed most of the sealed filings but granted the Cafaro defendants’ motion to

seal the six-page factual discussion in the state’s memorandum in opposition to

the Cafaro defendants’ joint motion to dismiss. He based his sealing order on the

following factors: (1) the sealed portion of the state’s memorandum was not used

by the court to decide the Cafaro defendants’ motion, because the motion was

rendered moot by the court’s dismissal upon the state’s motion of the cases on

July 11, 2011, (2) even if the court had been required to rule on the Cafaro

defendants’ motion, the portion of the memorandum at issue would not have

played a part in the court’s decisional process, and (3) like the bills of particulars

that remain sealed by court order, the “relevant, non-vindictive facts” in the

state’s memorandum “would trigger the same fair trial concerns that prompted the

sealing orders in the first place.”

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{¶ 14} On October 24, 2011, the judge denied the motions of the Cafaro

defendants and defendant Zachariah to seal the records of the dismissed criminal

cases pursuant to R.C. 2953.52. In his decision, he concluded that the legitimate

governmental need to keep the records unsealed due to the ongoing criminal

investigation of the defendants outweighed the defendants’ privacy interests.

{¶ 15} This cause is now before this court for a consideration of the merits

and of relators’ motions for leave to file an amended complaint, for leave to file a

reply brief in support of their supplemental merit brief, and for a court order

instructing the judge to file an unredacted copy of the state’s memorandum in

response to the Cafaro defendants’ motion to dismiss in the underlying criminal

cases.

Legal Analysis

Motion for Leave to Amend Complaint

{¶ 16} Relators request leave to amend their complaint instanter pursuant

to Civ.R. 15 to address the August 24, 2011 order sealing the factual portion of

the state’s memorandum in opposition to the Cafaro defendants’ motion to

dismiss the indictment and the judge’s continued application of an allegedly

improper protocol resulting in the improper sealing of records.

{¶ 17} Under S.Ct.Prac.R. 10.2, the “Ohio Rules of Civil Procedure shall

supplement these rules unless clearly inapplicable.” Civ.R. 15(A) and (E), which

govern amendments of and supplements to pleadings, are not clearly inapplicable

to original actions filed in this court. See generally State ex rel. Essig v.

Blackwell, 103 Ohio St.3d 481, 2004-Ohio-5586, 817 N.E.2d 5, ¶ 16. “Leave of

court shall be freely given when justice so requires.” Civ.R. 15(A). “[T]he

language of Civ.R. 15(A) favors a liberal amendment policy and a motion for

leave to amend should be granted absent a finding of bad faith, undue delay or

undue prejudice to the opposing party.” Hoover v. Sumlin, 12 Ohio St.3d 1, 6,

465 N.E.2d 377 (1984).

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{¶ 18} Moreover, Civ.R. 15(E) permits parties, upon motion and upon

reasonable notice and upon such terms as are just, to “serve a supplemental

pleading setting forth transactions or occurrences or events which have happened

since the date of the pleading sought to be supplemented.” And “in determining

actions involving extraordinary writs, a court is not limited to considering the

facts and circumstances at the time that the writ was requested but can consider

the facts and conditions at the time that entitlement to the writ is considered.”

State ex rel. Howard v. Skow, 102 Ohio St.3d 423, 2004-Ohio-3652, 811 N.E.2d

1128, ¶ 9.

{¶ 19} Therefore, because relators seek to amend their complaint to plead

events that occurred after their original complaint and the submission of evidence

and the initial merit briefs and because respondents did not file a timely

memorandum in opposition, we grant the motion for leave to amend and consider

the merits of the case based on relators’ amended claims.

Relators’ Remaining Motions

{¶ 20} We need not address the merits of relators’ remaining motions—to

order the judge to file under seal the state’s complete memorandum in response to

the Cafaro defendants’ motion to dismiss and for leave to submit a reply

supplemental brief—because they are rendered moot by our disposition of the

case.

Mandamus

{¶ 21} Relators request a writ of mandamus to compel the judge to

provide them with access to the records from the underlying criminal cases that

remain sealed pursuant to his challenged sealing orders, i.e., the bills of

particulars for the Cafaro defendants and defendant Zachariah and the portion of

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the state’s memorandum in opposition to the Cafaro defendants’ motion to

dismiss the indictment under the heading “Relevant, non-vindictive facts.”1

{¶ 22} To be entitled to the requested extraordinary relief in mandamus,

relators must establish a clear legal right to access to the sealed records, a

corresponding clear legal duty on the part of the judge to unseal them, and the

lack of an adequate remedy in the ordinary course of law. See State ex rel.

Dreamer v. Mason, 115 Ohio St.3d 190, 2007-Ohio-4789, 874 N.E.2d 510, ¶ 11.

“We have determined the propriety of access restrictions in the context of

extraordinary-writ actions.” State ex rel. Dispatch Printing Co. v. Geer, 114 Ohio

St.3d 511, 2007-Ohio-4643, 873 N.E.2d 314, ¶ 14. Relators claim entitlement to

the sealed records based on the Rules of Superintendence, the Public Records Act,

the United States and Ohio Constitutions, and the common law.

{¶ 23} We decide this case based on the Rules of Superintendence, which

provide for public access to court records. For the claimed violation of these

rules, a “person aggrieved by the failure of a court or clerk of court to comply

with the requirements of Sup.R. 44 through 47 may pursue an action in

mandamus pursuant to Chapter 2731. of the Revised Code.” Sup.R. 47(B); see

also Sup.R. 47(A). Sup.R. 44 through 47 became effective on July 1, 2009.

Sup.R. 99(KK).

{¶ 24} Under Sup.R. 45(A), “[c]ourt records are presumed open to public

access.” “Court record” for purposes of the public-access superintendence rules

“means both a case document and an administrative document, regardless of

physical form or characteristic, manner of creation, or method of storage.” Sup.R.

44(B). Relators assert that the requested records that remain sealed here—bills of

particulars and a statement of facts in the state’s memorandum in opposition to

1. Although the December 21, 2010 order granting the Cafaro defendants’ motion to seal also

sealed Evid.R. 404(B) notices, no such notices were filed under seal, and we consequently need

not determine whether this portion of the judge’s order was appropriate.

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the Cafaro defendants’ motion to dismiss the indictment—are entitled to the

presumption of public access in Sup.R. 45(A) because they constitute case

documents, which are defined in Sup.R. 44(C):

(C)(1) “Case document” means a document and

information in a document submitted to a court or filed with a clerk

of court in a judicial action or proceeding, including exhibits,

pleadings, motions, orders, and judgments, and any documentation

prepared by the court or clerk in the judicial action or proceeding,

such as journals, dockets, and indices, subject to the exclusions in

division (C)(2) of this rule.

(2) The term “case document” does not include the

following:

(a) A document or information in a document exempt from

disclosure under state, federal, or the common law;

(b) personal identifiers, as defined in division (H) of this

rule;

(c) A document or information in a document to which

public access has been restricted pursuant to division (E) of Sup.R.

45[.]

{¶ 25} In his December 21, 2010 decision sealing the bills of particulars

and his August 24, 2011 decision sealing the factual portion of the state’s

memorandum in response to the Cafaro defendants’ motion to dismiss, the judge

determined that these filed documents were not entitled to presumptive public

access, because they were not used by him to render a decision in the cases.

{¶ 26} But “[t]o interpret court rules, this court applies general principles

of statutory construction. * * * Therefore, we must read undefined words or

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phrases in context and then construe them according to rules of grammar and

common usage.” State ex rel. Law Office of Montgomery Cty. Pub. Defender v.

Rosencrans, 111 Ohio St.3d 338, 2006-Ohio-5793, 856 N.E.2d 250, ¶ 23. “If a

court rule is unambiguous, we apply it as written.” Erwin v. Bryan, 125 Ohio

St.3d 519, 2010-Ohio-2202, 929 N.E.2d 1019, ¶ 22.

{¶ 27} There is no requirement under the Superintendence Rules that a

record or document must be used by the court in a decision to be entitled to the

presumption of public access specified in Sup.R. 45(A). Instead, to qualify as a

case document that is afforded the presumption of openness for court records, the

document or information contained in a document must merely be “submitted to a

court or filed with a clerk of court in a judicial action or proceeding” and not be

subject to the specified exclusions. Sup.R. 44(C)(1). The bills of particulars and

the factual portion of the state’s memorandum in response to the Cafaro

defendants’ motion to dismiss were manifestly submitted to the common pleas

court and filed with the clerk of court in the criminal cases, and there is no

exception in Sup.R. 44(C) for records not used by a court to render a decision.

Therefore, we cannot read this exception into the plain language of the

Superintendence Rules. See State ex rel. Sapp v. Franklin Cty. Court of Appeals,

118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 26.

{¶ 28} Respondents also claim that these sealed records are not entitled to

the Sup.R. 45(A) presumption of public access because they are exempt from

disclosure as discovery materials or work product, citing our decision in State ex

rel. WHIO-TV-7 v. Lowe, 77 Ohio St.3d 350, 673 N.E.2d 1360 (1997), to support

their claim. Our holding in Lowe, however, was limited: “Information that a

criminal prosecutor has disclosed to the defendant for discovery purposes

pursuant to Crim.R. 16 is not thereby subject to release as a ‘public record’

pursuant to R.C. 149.43.” Id. at syllabus.

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{¶ 29} Neither the bills of particulars nor the facts recited in the state’s

memorandum in response to the Cafaro defendants’ motion to dismiss were

“disclosed to the defendant[s] for discovery purposes pursuant to Crim.R. 16.”

And unlike the discovery materials at issue in Lowe, these records were submitted

to and filed with the court.

{¶ 30} Notwithstanding respondents’ assertions, in Ohio, a “bill of

particulars has a limited purpose—to elucidate or particularize the conduct of the

accused alleged to constitute the offense.” State v. Sellards, 17 Ohio St.3d 169,

171, 478 N.E.2d 781 (1985). Its express purpose is not “to serve as a substitute

for discovery.” Id. See also United States v. Smith, 776 F.2d 1104, 1111-1112

(3d Cir.1985), holding that the First Amendment and common-law rights of

access “extend to bills of particulars because we think them more properly

regarded as supplements to the indictment than as the equivalent of civil

discovery.”

{¶ 31} Therefore, the sealed bills of particulars are not exempt from

disclosure under state law as either discovery materials or work product. Nor is a

recitation of facts in a response to a dispositive motion in a criminal case the

equivalent of discovery or work product. Therefore, the sealed records are

entitled to the presumption of access accorded case documents under Sup.R.

45(A).

{¶ 32} Respondents next claim that any presumptive access under Sup.R.

45(A) has been properly overcome under Sup.R. 45(E), which provides the

procedure for restricting public access to a case document:

(E) Restricting public access to a case document

(1) Any party to a judicial action or proceeding or other

person who is the subject of information in a case document may,

by written motion to the court, request that the court restrict public

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access to the information or, if necessary, the entire document.

Additionally, the court may restrict public access to the

information in the case document or, if necessary, the entire

document upon its own order. The court shall give notice of the

motion or order to all parties in the case. The court may schedule a

hearing on the motion.

(2) A court shall restrict public access to information in a

case document or, if necessary, the entire document, if it finds by

clear and convincing evidence that the presumption of allowing

public access is outweighed by a higher interest after considering

each of the following:

(a) Whether public policy is served by restricting public

access;

(b) Whether any state, federal, or common law exempts the

document or information from public access;

(c) Whether factors that support restriction of public access

exist, including risk of injury to persons, individual privacy rights

and interests, proprietary business information, public safety, and

fairness of the adjudicatory process.

{¶ 33} Respondents claim that any presumptive right of access to the

sealed bills of particulars and the statement of facts in the state’s response to the

motion to dismiss the indictment was outweighed under Sup.R. 45(E)(2)(c) by

clear and convincing evidence that the “fairness of the adjudicatory process”

would be compromised by public access to these records, i.e., unsealing these

records would substantially prejudice the defendants’ right to a fair trial.

{¶ 34} Respondent’s claim lacks merit. There was not clear and

convincing evidence to establish that the prejudicial effect of pretrial publicity

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generated by public access to the bills of particulars and the recitation of facts in

the state’s memorandum in response to the Cafaro defendants’ motion to dismiss

the indictment would prevent them from receiving a fair trial. The Cafaro

defendants’ lone witness at the December 6, 2010 hearing, Ohio University

journalism professor Martin, admitted that he had “no idea” whether relators’

coverage of the criminal cases would prevent the impaneling of an impartial jury,

and although he referred to the coverage as “tough” on the defendants, he could

not say whether the reporting was true or false. The judge thus overstated the

prejudicial impact of the pretrial publicity. “ ‘[P]retrial publicity—even

pervasive, adverse publicity—does not inevitably lead to an unfair trial.’ ” State

v. Coley, 93 Ohio St.3d 253, 258, 754 N.E.2d 1129 (2001), quoting Nebraska

Press Assn. v. Stuart, 427 U.S. 539, 554, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976).

In effect, in the absence of clear and convincing evidence establishing that the

defendants’ right to a fair trial would be violated, the judge erroneously relied on

conclusory, speculative assertions. See State ex rel. Toledo Blade Co. v. Henry

Cty. Court of Common Pleas, 125 Ohio St.3d 149, 2010-Ohio-1533, 926 N.E.2d

634, ¶ 39. In the order sealing the factual portion of the state’s memorandum in

response, he did not cite any additional evidence to support the sealing of the

record. Rather, he merely stated that this portion of the memorandum was the

“functional equivalent” of a bill of particulars, which, as discussed, should be

presumptively open to the public.

{¶ 35} Moreover, the constitutional right of the defendants to a fair trial

can be protected by the traditional methods of voir dire, continuances, changes of

venue, jury instructions, or sequestration of the jury. Consequently, the sealing

orders were improper. Id. at ¶ 40-42.

{¶ 36} Finally, the Cafaro defendants claim that after the judge dismissed

the criminal cases upon the state’s motion, their postdismissal privacy interests

outweighed the presumption of public access to the sealed records. Not so. As

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the judge concluded in denying the Cafaro defendants’ postdismissal motion to

seal the entire record in the criminal cases:

Again, the question for the court is whether this legitimate

governmental need [of not restricting the ongoing criminal

investigation] outweighs these defendants' privacy interests. The

court concludes that it does.

As a practical matter, the defendants would gain little, if

anything, from a sealing order. Except for the documents the court

has kept under seal, the entire court record in this case is in the

public domain. Counsel for the Vindicator and WFMJ-TV has

represented that the Vindicator has created its own record of

everything not under seal, and there would be no restriction upon

its use of what it has mined, even if the court were to enter a

sealing order. Further, information about this case is available on

the internet. In short, a sealing order would do little, if anything, to

protect the privacy of the defendants.

Accordingly, in “balancing the public and private

interests,” the privacy interests of the defendants are outweighed

by a legitimate governmental need to keep the records unsealed.

(Citations omitted.)

{¶ 37} Thus, relators have established that the presumption of public

access has not been overcome by the requisite clear and convincing evidence of a

higher interest and that the public is entitled to access to the sealed records under

the Superintendence Rules. Therefore, relators are entitled to a writ of mandamus

to compel the judge to unseal and provide access to the bills of particulars and the

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facts in the state’s memorandum in response to the Cafaro defendants’ motion to

dismiss the indictment.

Prohibition

{¶ 38} Relators also seek a writ of prohibition to vacate the December 21,

2010 and August 24, 2011 decisions and to prohibit the judge from presumptively

sealing any records in the cases. Because the sealing orders were never lifted, this

claim is not moot. Compare State ex rel. Cincinnati Enquirer v. Heath, 121 Ohio

St.3d 165, 2009-Ohio-590, 902 N.E.2d 976, ¶ 11-14 (court held that sealing order

that had been lifted did not moot mandamus claim because it was capable of

repetition, yet evading review).

{¶ 39} Based on the previous discussion concerning relators’ mandamus

claim, they have also established their entitlement to the requested writ of

prohibition. The Cafaro defendants did not submit clear and convincing evidence

to support the court’s sealing orders and sealing protocol presumptively sealing

records, including motions to seal and memoranda in opposition, based on a

claimed infringement on the defendants’ constitutional right to a fair trial.

{¶ 40} Therefore, relators’ prohibition claim has merit.

Constitutional, Common-Law, and R.C. 149.43 Claims

{¶ 41} Relators also claim entitlement to the requested extraordinary relief

based on the United States and Ohio Constitutions, the common law, and R.C.

149.43. We have recognized constitutional and common-law rights to certain

judicial records. See State ex rel. Cincinnati Enquirer v. Winkler, 101 Ohio St.3d

382, 2004-Ohio-1581, 805 N.E.2d 1094, ¶ 8; State ex rel. Scripps Howard

Broadcasting Co. v. Cuyahoga Cty. Court of Common Pleas, Juvenile Div., 73

Ohio St.3d 19, 22, 652 N.E.2d 179 (1995). We have also recognized the propriety

of claims for court records under R.C. 149.43. See State ex rel. Striker v. Smith,

129 Ohio St.3d 168, 2011-Ohio-2878, 950 N.E.2d 952, ¶ 21.

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SUPREME COURT OF OHIO

{¶ 42} Nevertheless, because relators have established their entitlement to

the requested extraordinary relief on the Superintendence Rules, we need not

address other bases for relators’ claims for records, which are rendered moot. See

State ex rel. Am. Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty. Bd. of

Commrs., 128 Ohio St.3d 256, 2011-Ohio-625, 943 N.E.2d 553, ¶ 55. “This

result is consistent with our well-settled precedent that we will not indulge in

advisory opinions.” State ex rel. Keyes v. Ohio Pub. Emps. Retirement Sys., 123

Ohio St.3d 29, 2009-Ohio-4052, 913 N.E.2d 972, ¶ 29.

Attorney Fees

{¶ 43} Relators request an award of attorney fees. But Sup.R. 44 through

47 do not authorize an award of attorney fees to a successful litigant contesting a

court’s denial of access to court records. See Sup.R. 47, which does not include

an award of attorney fees as a remedy for a person aggrieved by the failure of a

court or clerk of court to comply with Sup.R. 44 through 47. Thus, we deny

relators’ request for attorney fees.

Conclusion

{¶ 44} In sum, relators have established their entitlement to the requested

extraordinary relief. We grant a writ of mandamus to compel the judge to unseal

and provide access to the bills of particulars and the factual portion of the state’s

memorandum in opposition to the Cafaro defendants’ motion to dismiss the

indictment. We also grant a writ of prohibition to compel the judge to vacate his

prior sealing orders and to prevent him from issuing further orders presumptively

sealing records in the criminal cases. Relators’ request for attorney fees is denied.

Writs granted.

O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,

LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.

__________________

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January Term, 2012

Zeiger, Tigges & Little, L.L.P., Marion H. Little Jr., and Christopher J.

Hogan, for relators.

Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and

Carley J. Ingram, Assistant Prosecuting Attorney, for respondent, Judge William

H. Wolff.

Law Office of Martin G. Weinberg, P.C., and Martin G. Weinberg, for

intervening respondent Anthony M. Cafaro Sr.

Walter & Haverfield, L.L.P., Ralph E. Cascarilla, Darrell A. Clay, and

Leslie G. Wolfe, for intervening respondent the Cafaro Company.

McLaughlin & McCaffrey, L.L.P., John F. McCaffrey, and Anthony R.

Petruzzi, for intervening respondents Ohio Valley Mall Company and Marion

Plaza, Inc.

Johnson, Bruzzese & Temple and J. Alan Johnson, for intervening

respondent Flora Cafaro.

Lucy A. Dalglish, urging granting of the writs for amicus curiae, the

Reporters Committee for Freedom of the Press.

______________________

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