611 N.E.2d 520 | Ohio Ct. App. | 1993
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *195
On March 30, 1990, relator, the Beacon Journal Publishing Company, sought to inspect, pursuant to R.C.
Relator filed a complaint in mandamus on May 8, 1990, under R.C.
Upon appeal of the peremptory writ of mandamus, the Ohio Supreme Court found the writ to be prematurely granted and that this court should conduct an in camera inspection of the records at issue. *196
Following the in camera inspection by this court and the within parties, it was determined that seventy-seven criminal cases between the years 1983 and 1989 may have been "sealed" without conforming to the dictates contained in R.C.
It was relator's position that the defendants in the seventy-seven cases had no "property" and/or "liberty" interest whatsoever in the criminal records at issue which would invoke the procedural safeguards of the
We determined that Ohio's legislature, by enacting R.C.
Rather than notify all seventy-seven defendants, relator voluntarily limited the scope of this action to fifteen of the seventy-seven cases that may have been improperly sealed. Of those fifteen, relator successfully accomplished service upon twelve of the individuals by certified mail. However, only six of those twelve individuals chose to respond and/or offer evidentiary material in response to the notification.
Relator was unsuccessful in accomplishing service by certified mail upon the remaining three individuals. The notifications for two of the three individuals were returned "unclaimed" and were resent through ordinary mail to those individuals on October 8, 1992, with no subsequent response. It is presumed, although rebuttably, that those two individuals were therefore properly served pursuant to Civ.R. 4.6 where the ordinary mail envelope was *197
not returned indicating a failure to deliver. See Grant v. Ivy
(1980),
The remaining notification sent by certified mail was returned as "unclaimed." Relator attempted to learn the forwarding address for the individual but was unsuccessful. All relator's efforts, short of publication, to notify the individual were met with defeat. While we previously held that the privacy interest of these individuals was sufficient to invoke the procedural due process guarantees, due process does not require actual notice. If the notification procedure is "reasonably calculated to achieve notice, successful achievement is not necessary to satisfy due process requirements." Day v. J.Brendan Wynne, Inc. (C.A.1, 1983),
We now turn to the primary issue of whether the procedures contained in R.C.
Criminal proceedings are presumptively open to the public.State ex rel. The Repository v. Unger (1986),
One only need look at the current national scene to see the veneer of civilization is mighty thin and the secrecy of government eats it away with resulting violence. Eroding public confidence in the integrity of justice is harshly evidenced by the Los Angeles riots following the Rodney King beating verdict. The numerous questions as to the true cause of John F. Kennedy's death thirty years after the fact demonstrates the public view that corruption festers with governmental secrecy.
To help ensure public confidence and judicial integrity, Ohio enacted R.C.
"`The rule in Ohio is that public records are the people's records, and that the officials in whose custody they happen to be are merely trustees for the people; therefore, anyone may inspect such records at any time, subject only to the limitation that such inspection does not endanger the safety of the record, or unreasonably interfere with the discharge of the duties of the officer having custody of the same.'"
R.C.
R.C.
"(A)(1) Any person, who is found not guilty of an offense by a jury or a court or who is the defendant named in a dismissed complaint, indictment, or information, may apply to the court for an order to seal his official records in the case. Except as provided in section
"* * *
"(B)(1) Upon the filing of an application pursuant to division (A) of this section, the court shall set a date for a hearing and shall notify the prosecutor in the case of the hearing on the application. The prosecutor may object to the granting of the application by filing an objection with the court prior to *199 the date set for the hearing. The prosecutor shall specify in the objection the reasons he believes justify a denial of the application.
"(2) The court shall do each of the following:
"(a) Determine whether the person was found not guilty in the case, or the complaint, indictment, or information in the case was dismissed, or a no bill was returned in the case and a period of two years or a longer period as required by section
"(b) Determine whether criminal proceedings are pending against the person;
"(c) If the prosecutor has filed an objection in accordance with division (B)(1) of this section, consider the reasons against granting the application specified by the prosecutor in the objection;
"(d) Weigh the interests of the person in having the official records pertaining to the case sealed against the legitimate needs, if any, of the government to maintain those records.
"(3) If the court determines, after complying with division (B)(2) of this section, that the person was found not guilty in the case, that the complaint, indictment, or information in the case was dismissed, or that a no bill was returned in the case and that the appropriate period of time has expired from the date of the report to the court of the no bill by the foreman or deputy foreman of the grand jury; that no criminal proceedings are pending against the person; and the interests of the person in having the records pertaining to the case sealed are not outweighed by any legitimate governmental needs to maintain such records, the court shall issue an order directing that all official records pertaining to the case be sealed and that, except as provided in section
Pursuant to R.C.
R.C.
A review of the fifteen cases at issue demonstrates that Judge Virgil Musser did not comply with the procedures outlined in R.C.
Instead, of the affidavits and arguments submitted by four of the individuals who responded to the notifications made by relator, it is clear that Judge Musser generally offered the sealing of the official records as early as pretrial and usually granted a sealing order simultaneously with and in the same entry as the dismissal order. There is no question that Judge Virgil Musser of the Massillon Municipal Court failed to comply with the statutory procedures for sealing criminal records and the evidence submitted on behalf of the individuals whose records in question were sealed by Judge Musser does not alter this conclusion.
Therefore, because Judge Virgil Musser failed to comply with the statutory requirements set forth in R.C.
Writ granted.
SMART, J. concurs.
HOFFMAN, J. concurs in part and dissents in part.
Dissenting Opinion
I fully concur in the rationale and ultimate decision with respect to all but one of the fifteen individual cases subject to our scrutiny in the case sub *201 judice. Prior to expressing my dissent from the decision as to case No. 87CRB523, I wish to commend Judge Gwin for his efforts in the management, scheduling and directing the numerous hearings and conferences required by this case and compliment him for his well-reasoned majority opinion.
I nonetheless dissent with respect to the decision as it relates to case No. 87CRB523. I believe that having properly concluded that the individual defendants whose records were sealed by court order acquired a protected property/privacy right therein, due process requires that they be served notice in accordance with Civ.R. 4 prior to any ruling respecting the efficacy of the sealing order.
The return endorsement in case No. 87CRB523 demonstrates failure of delivery by certified mail. This failure of delivery is insufficient to complete service under Civ.R. 4.6(D). Due diligence on the part of the relator to locate this defendant, though sufficient to justify service by publication under Civ.R. 4.4, does not bear in the analysis of sufficiency of service by certified mail pursuant to Civ.R. 4.6(D).
I would delete case No. 87CRB523 from our judgment entry. *202