2020 Ohio 968
Ohio Ct. App.2020Background:
- Christopher Hicks filed an affidavit under R.C. 2935.09(D) alleging Clermont County official L.F. (Fraley) unlawfully employed her stepson; the affidavit was forwarded to the court.
- All local judges recused; a visiting judge held a probable-cause hearing after the county prosecutor recused and the Ohio Attorney General acted as special prosecutor.
- At the hearing two documents were placed in the record (an Aug. 5, 2004 letter and a Mar. 9, 2018 Ethics Commission letter). The trial court found no probable cause and dismissed the affidavit.
- This court reversed in part and remanded, directing referral to the special prosecutor for investigation under R.C. 2935.10(A). The trial court then ordered the two documents produced to the court record and “each participating party.”
- The special prosecutor filed the documents under seal, provided them to the court and Fraley but not to Hicks, and asserted attorney-client privilege for the 2004 letter. Hicks moved for unrestricted access and to hold the special prosecutor in contempt; the trial court denied relief and sealed the documents.
- On appeal the Twelfth District affirmed, holding Hicks lacked party status/standing to pursue those filings and that access claims to court records must be pursued by mandamus under Sup.R. 47, not by appeal.
Issues:
| Issue | Plaintiff's Argument (Hicks) | Defendant's Argument (State/Special Prosecutor) | Held |
|---|---|---|---|
| Whether Hicks had standing/party status to file motions (contempt, access) after filing an affidavit under R.C. 2935.09(D) | Hicks claimed he was a "participating party" entitled to receive court exhibits and to move the court | The state said the affidavit did not create party status; only State and defendant are parties in a criminal matter | Court: Hicks was not a party; R.C. 2935.09/2935.10 grants only filing of an affidavit and possible appellate review, not party status; motions properly denied |
| Whether trial court erred by denying Hicks access and sealing documents (Sup.R.45 public-records claim) | Hicks argued the letters were court records presumptively open under Sup.R. 45 and he was entitled to access | State asserted attorney-client privilege and that the special prosecutor complied with court orders by providing documents to court and subject of investigation; further, relief from restricted access lies in mandamus | Court: Access challenge must be pursued by mandamus (Sup.R.47); sealing as attorney-client privileged was within trial court's authority; appeal inappropriate remedy |
Key Cases Cited
- State ex rel. Brown v. Nusbaum, 152 Ohio St.3d 284, 2017-Ohio-9141 (discusses R.C. 2935.09 and 2935.10 and their interplay)
- State ex rel. Cincinnati Enquirer v. Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354 (person denied access to court records must seek mandamus under Sup.R. 47)
- State v. Ishmail, 54 Ohio St.2d 402 (1978) (appellate courts cannot add matter to the record that was not before the trial court)