State ex rel. Bardwell v. Cuyahoga Cty. Bd. of Commrs.State ex rel. Bardwell v. Cuyahoga Cty. Bd. of Commrs.
FOR RELATOR
Brian Bardwell, pro se
9854 Pebble Brook Lane
Strongsville, Ohio 44149
William D. Mason
Cuyahoga County Prosecutor
BY: Charles E. Hannan, Jr.
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PER CURIAM
{¶ 1} On September 22, 2009, this court held a hearing in order to determine whether sanctions should be imposed upon Brian Bardwell, a pro se litigant and the relator in the original action for a writ of mandamus as filed in State ex rel. Bardwell v. Cuyahoga Cty. Bd. of Commrs., Cuyahoga App. No. 93058, 2009-Ohio-3273. During the course of the sanctions hearing, Bardwell and Assistant Cuyahoga County Prosecutor Charles E. Hannan, Jr. presented testimony and exhibits. Finding Bardwell filed his complaint for a writ of mandamus in bad faith, we find that sanctions are appropriate pursuant to
Facts
Bardwell‘s Request for Public Records
{¶ 2} On March 26, 2009, Bardwell appeared at the office of the Cuyahoga County Prosecutor (“Prosecutor“) and hand-delivered a written request that provided:
“I would like to inspect the following records:
“- records of communications from the Plain Dealer or its
attorneys regarding the release of Medical Mart contracts or drafts of those contracts “- drafts of development agreements related to Medical Mart projects
” - your record[s] [sic] retention schedule
“Thank you.”
{¶ 3} Bardwell was informed that the requested documents were not immediately available, but would be provided in a timely fashion. Bardwell offered to return on the same day to the Prosecutor‘s office on the afternoon of March 26, 2009. Upon his return, Bardwell was provided with a copy of the requested records retention schedule. Bardwell was also informed that copies of the requested communications would be available the next morning, March 27, 2009, but that no drafts of any development agreements would be available until the agreement was actually finalized.
{¶ 4} Bardwell returned to the Prosecutor‘s Office on March 27, 2009, and was provided with all copies of communication records from the Plain Dealer to Cuyahoga County, regarding the rеlease of Medical Mart contracts and drafts. Bardwell was also provided with a written response to his request for records. The written response of March 27, 2009, further provided that the development agreement drafts were exempted records and fell within the attorney-client privilege exception. However, Bardwell was informed that “when an agreement is finalized and ready to be submitted tо the Board of County Commissioners for approval, the final agreement and drafts will be made available.”
{¶ 5} On March 27, 2009, the same day that Bardwell received the requested records and the written response from the Prosecutor, Bardwell filed his complaint for a writ of mandamus. Bardwell‘s complaint was premised upon the alleged failure to provide all requested records and other alleged violations of
Order to Show Cause
{¶ 6} The journal entry and opinion of July 2, 2009, which declined to issue a writ of mandamus, further provided that Bardwell was ordered to show cause as to why sanctions should not be imposed pursuant to
Show Cause Hearing
Legal Analysis
Introduction
{¶ 8} Initially, it must be emphasized that the show cause hearing was not concerned with the right of Bardwell to seek redress with regard to an unfulfilled request for public records. This court has consistently followed established case law, which prоvides that Ohio‘s Public Records Act reflects the policy that “open government serves the public interest and our democratic system.” State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472.
Civ.R.11 and Bad Faith Standard
{¶ 10}
{¶ 11} “The signature of an attorney or pro se party constitutes a certificate by the attorney or party that the attorney party has read the document; that to the best of the attorney‘s or party‘s knowledge, information, and belief there is good ground to support it; * * * For a willful violation of this rule, an attorney or pro se party, upon motion of a party or upon the court‘s own motion, may be subjected to appropriate action, including an award to the opposing party of expenses and reаsonable attorney fees incurred in bringing any motion under this rule * * *” (Emphasis added.)
{¶ 12} The imposition of a sanction, pursuant to
{¶ 13} “A lack of good faith is the equivalent of bad faith, and bad faith, although not susceptible of concrete definition, embraces more than bad judgment or negligence. It imports a dishonest purpose, mоral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud. It also embraces actual intent to mislead or deceive another.” Id., at paragraph two of the syllabus.
{¶ 14} In the case sub judice, we find that Bardwell willfully violated
R.C. 2323.51 and Frivolous Conduct Standard
{¶ 16} Frivolous conduct is defined as behavior that serves “merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose, including, but not limited to, causing unnecessary delay or a needless increase in the cost of litigation.” (Emphasis added.)
{¶ 17} Based upon the hearing conducted before this court on September 22, 2009, we cannot find with certainty that the behavior of Bardwell, in prosecuting the complaint for a writ of mandamus, involved frivolous conduct. However, the conduct of Bardwell does appear to be frivolous by the apparent
{¶ 18} On September 21, 2009, Bardwell filed a complete list of all original actions, as filed pro se or through counsel, within any court of original jurisdiction located within the state of Ohio. (See Exhibit 1.) Bardwell‘s list demonstrates that he has filed nineteen original actions against numerous municipalities and local gоvernmental agencies. In fact, Bardwell filed ten original actions, on the same day, within the Ninth Appellate District. Bardwell has also filed five original actions within this court, each against a governmental entity and each action seeking “statutory damages” for alleged violations of the Ohio Public Records Act. Many of these original actions have “settled” or resulted in the payment of substantial “statutory damages” to Bardwell. See State v. Bardwell v. Parma Police Dept., Cuyahoga App. No. CA-90762; State ex rel. Bardwell v. Rocky River Police Dept., Cuyahoga App. No. 91022, 2009-Ohio-727; State ex rel. Bardwell v. North Ridgeville Police Dept., Ninth App. No. 08-CA-9345; State ex rel. Bardwell v. Southern Lorain Cty. Ambulance Dist., Ninth App. No. 08-CA-9340; State ex rel. Bardwell v. Wellington Community Fire Dist., Ninth App. No. 08-CA-9343; and State ex rel. Bardwell v. Wellington Police Dept., Ninth App. No. 08-CA-9344.
{¶ 20} “It must be questioned whether Relators are presenting a matter requiring judicial declaration, or whether this is merely a ‘gotcha’ exercise for monetary gain. (Footnote omitted.) It is therefore submitted that statutory damages cannot be contemplated in the instant matter, as Relators appear to subterfuge the intended purpose the Public Records Act of promoting openness and public review of government activity. The form of this action contains none of the intended purposes of the Act, but only promotes the impractical or unyielding application of the Act.”
{¶ 21} As stated previously, we cannot find with certainty that Bardwell, through his numerous actions for mandamus, is attempting to employ the Ohio Public Records Act for his own personal gain. Such a conclusion could be inferred, but at this juncture, we decline to make such a finding. Bardwell, however, is cautioned that the continued filing of original actions, under the guise of the Ohio Public Records Act, shall result in additional show cause hearings with the sole purpose of inquiry as to whether his conduct is frivolous under the “improper purpose” provision of
Inherent Authority of this Court to Control its Docket
{¶ 22} In State ex rel. Richard v. Cuyahoga Cty. Bd. of Commrs. (1995), 100 Ohio App.3d 592, 654 N.E.2d 443, we exаmined the inherent authority of this court to control its docket and held that the right of access to the courts does not
{¶ 23} “Frivolous conduct has no place in our judicial system, and relator‘s history of activity portrays a repetitious and perverse course of such conduct. * * *
{¶ 24} “Nevertheless, the inherent authority of this court exists to provide some meaningful relief against an onslaught of frivolous filings. The Supreme Court of Ohio, in explaining the difference between the jurisdiction of a court and the inherent authority of a court, stated as follows:
{¶ 25} ” ‘The difference between the jurisdiction of courts and their inherent powers is toо important to be overlooked. In constitutional governments their jurisdiction is conferred by the provisions of the constitutions and of statutes enacted in the exercise of legislative authority. That, however, is not true with respect to such powers as are necessary to the orderly and efficient exercise of jurisdiction. Such powers, from both their nature and their ancient exercise, must be rеgarded as inherent. They do not depend upon express constitutional grant, nor in any sense upon the legislative will. The power to maintain order, to secure the attendance of witnesses to the end that the rights of parties may be ascertained, and to enforce process to the end that effect may be given to judgments, must inhere in every court or the purpose of its creation fails. Without such power no other could be exercised.’ Hale v. State (1896), 55 Ohio St. 210, 213, 45 N.E. 199, 200; see Slabinski v. Servisteel Holding Co., supra, 33 Ohio
{¶ 26} “Several courts in recent years, whether by statute, rule, or through their inherent authority, have levied sanctions or fashioned remedies to preclude the filing of frivolous and repetitious proceеdings. (Footnote omitted.) In Kondrat v. Byron (1989), 63 Ohio App.3d 495, 579 N.E.2d 287, the court affirmed the issuance of a permanent injunction that enjoined Kondrat from filing future cases pro se absent certain stringent conditions. Over an eleven-year period, Kondrat filed over eighty-five actions in various courts, all of which were unsuccessful. The appellate court stated:
{¶ 27} ” ‘Further, in Bd. of Cty. Commrs. v. Barday (1979), 197 Colo. 519, at 522, 594 P.2d 1057, at 1059, it was stated:
{¶ 28} ” ’ “We recognize that the Colorado Constitution guarantees to every person the right of access to courts of justice in this state.
{¶ 29} ” * * *
{¶ 30} ”
{¶ 31} Based upon the inherent authority of this court to control its docket and to provide meaningful relief against frivolous filings, Bardwell is forewarned that the continued filing of numerous original actions, based upon alleged violations of the Ohio Public Records Act, may result in the imposition of more drastic remedies. These remedies may include a permanent injunction that prohibits Bardwell from filing future cases pro se absent specific restrictive conditions. Any exercise of the inherent authority of the court to control its docket would not encompass an attempt to prevent Bardwell from accessing the remedies of the Ohio Public Records Act, but to prevent the diminution of the court‘s precious judicial resources and the limited resources of the various public оffices located within our jurisdiction.
Sanctions for Violation of Civ.R. 11
{¶ 33} Based upon 20.5 hours of legal services, as expended in defending against the complaint for a writ of mandamus, and the total hourly compensation/benefit rate of $51.24 per hour, we find that Bardwell shall pay, to the Prosecutor, attorney fees in the total amount of $1050.42. The attorney fees shall be paid within fourteen days of the date of this entry. No other costs shall be assessed against any party.
Sanction issued.
KENNETH A. ROCCO, PRESIDING JUDGE
MARY EILEEN KILBANE, JUDGE
LARRY A. JONES, JUDGE