THE STATE EX REL. CINCINNATI ENQUIRER v. FORSTHOEFEL, JUDGE.
No. 2021-0203
SUPREME COURT OF OHIO
Submitted April 12, 2022—Decided October 11, 2022.
Slip Opinion No. 2022-Ohio-3580
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Cincinnati Enquirer v. Forsthoefel, Slip Opinion No. 2022-Ohio-3580.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2022-OHIO-3580
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Cincinnati Enquirer v. Forsthoefel, Slip Opinion No. 2022-Ohio-3580.]
Mandamus and prohibition—Rules of Superintendence for the Courts of Ohio—Common pleas court judge‘s order sealing documents in a dissolution case was overbroad and was not supported by clear and convincing evidence—Writ of prohibition granted barring judge from enforcing
IN MANDAMUS and PROHIBITION.
Per Curiam.
{¶ 1} In this original action, relator, the Cincinnati Enquirer (“the Enquirer“), requests writs of mandamus and prohibition against respondent, Ronald P. Forsthoefel, a judge on the Ashland County Common Pleas Court. The mandamus claim asks us to order Judge Forsthoefel to vacate his order sealing documents in a dissolution case and to permit public access to the documents, and the prohibition claim asks us to bar him from enforcing his sealing order. We earlier granted an alternative writ ordering the submission of evidence and briefs, 163 Ohio St.3d 1499, 2021-Ohio-2307, 170 N.E.3d 886, and we now grant the requested writs in part.
I. BACKGROUND
{¶ 2} In April 2020, Joshua Mandel and Ilana Mandel filed in the Ashland County Common Pleas Court, Domestic Relations Division, a marriage-dissolution petition and a motion to seal 22 related case documents, including the dissolution petition, the separation agreement, and the shared-parenting plan. The motion described Joshua as a “former State Treasurer of Ohio and member of the Ohio House of Representatives” and Ilana as coming from a “very public family in the state” with ties to “national financial and civic communities.” The Mandels requested sealing to “preserve [their] right to protect the confidentiality of personal financial information and help protect the privacy, safety, and security of their minor children.” The motion cited no legal authority to support sealing.
{¶ 3} Judge Forsthoefel granted the motion the day it was filed, summarily concluding that the motion was “well-taken” and stating that 21 of the 22 documents would be “subject to unsealing and review only upon further order of the Court.” The lone document he did not seal had not been presented to him for sealing. He did not hold a hearing in deciding the motion, and his order does not illuminate his reasoning.
{¶ 4} In February 2021, after the Enquirer filed its complaint in this case, members of Joshua‘s staff provided the Enquirer with documents related to the dissolution case. Around this time, the Enquirer published an article titled “‘Differences have arisen‘: Mandel discloses divorce records amid Senate bid.” According to Judge Forsthoefel, the information contained within the article is consistent with the documents that he placed under seal.
II. ANALYSIS
A. Mootness
{¶ 5} Judge Forsthoefel argues that this case is moot because the Enquirer has received documents relating to the dissolution case. In support, he cites State ex rel. Toledo Blade Co. v. Ohio Bur. of Workers’ Comp., 106 Ohio St.3d 113, 2005-Ohio-3549, 832 N.E.2d 711, ¶ 16, in which this court concluded that a newspaper company‘s mandamus claim seeking the production of records under the Public Records Act,
{¶ 6} But Judge Forsthoefel misunderstands the type of relief that the Enquirer seeks. The Enquirer does not seek the production of documents; rather, it seeks an order directing Judge Forsthoefel to vacate his sealing order and provide public access to the sealed documents and an order barring him from enforcing his sealing order. Additionally, the relief sought by the Enquirer in its complaint pertains to the documents in their entirety; Judge Forsthoefel acknowledges that the copies provided to the Enquirer by the Mandels were redacted. We therefore determine that this case presents a live controversy. See Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d 371 (1970) (it is the duty of courts “to decide actual controversies between parties legitimately affected by specific facts and to render judgments which can be carried into effect” and “to refrain from giving opinions on abstract propositions * * * or advice upon potential controversies“).
B. Mandamus
{¶ 7} The Enquirer relies on the Rules of Superintendence to support its mandamus request. We have observed that mandamus is the appropriate remedy to enforce provisions of the Rules of Superintendence requiring courts to provide public access to court records. See State ex rel. Cincinnati Enquirer v. Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354, 14 N.E.3d 989, ¶ 11, citing
{¶ 8} The rules provide that “[c]ourt records are presumed open to public access.”
{¶ 9} A party to a judicial action may by written motion request that the court restrict public access to a case document or information within it.
1. Adequate remedy
{¶ 10} In State ex rel. Cincinnati Enquirer v. Shanahan, 166 Ohio St.3d 382, 2022-Ohio-448, 185 N.E.3d 1089, ¶ 18, we recently concluded that because
2. Clear legal right and clear legal duty
{¶ 11} We conduct our clear-legal-right and clear-legal-duty analyses by “review[ing] the correctness of [the] [j]udge[‘s] order[].” Shanahan at ¶ 19. Our review of the order is de novo. Id.
{¶ 12} The Enquirer argues that it is entitled to a writ of mandamus for two reasons. First, it says that Judge Forsthoefel lacked clear and convincing evidence to support restricting public access to the Mandels’ case documents. Second, it says that Judge Forsthoefel‘s sealing order departs from the requirement that he use the least restrictive means available in restricting public access.
{¶ 13} In restricting public access, a court must consider “[w]hether public policy is served by restricting public access,” “[w]hether any state, federal, or common law exempts the document or information from public access,” or “[w]hether 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.”
{¶ 14} In Shanahan, 166 Ohio St.3d 382, 2022-Ohio-448, 185 N.E.3d 1089, we granted a writ of mandamus ordering a trial judge to allow public access to a police officer‘s affidavit that the judge had sealed over concerns that the officer and his family were at risk of harm. The judge‘s sealing order cited an uptick in violence against law-enforcement officers and a threat that someone might publish the officer‘s personal information. Id. at ¶ 6. Although the judge‘s order did not expressly say so, we surmised that the judge‘s ruling stemmed in part from a social- media post that the officer had attached to his affidavit. Id. at ¶ 7. We determined that the judge‘s order was not supported by clear and convincing evidence of risk of injury to persons, individual privacy rights and interests, or public safety,
{¶ 15} Our analysis in this case is more straightforward than it was in Shanahan because of the lack of evidence to support Judge Forsthoefel‘s order. In Shanahan, the judge‘s reasoning in support of restricting public access was apparent from the face of her order and the evidence she found persuasive was inferable from the documents the officer had filed. Here, Judge Forsthoefel simply announced, without any analysis, that the Mandels’ motion was “well-taken.” He did not disclose what evidence supported his decision. Neither Joshua nor Ilana submitted an affidavit explaining why sealing was necessary to protect their interests. And the joint motion to seal that Joshua‘s attorney filed, which fleshes out the Mandels’ arguments in support of restricting public access, is not evidence. See Woodward v. Woodward, Twelfth Dist. Warren No. 404, 1981 WL 5199, *1 (Sep. 9, 1981) (“The arguments of attorneys are not evidence“).
{¶ 16} The fact that Judge Forsthoefel went so far as to seal the case-designation sheet is, as the Enquirer points out, perhaps the most glaring example of the lack of clear and convincing evidence supporting his order. The case-designation sheet asks for the parties’ names, the case number, and the type of complaint (e.g., dissolution with minor children)—basic information that the Mandels disclosed in their motion to seal and that the parties have freely discussed in briefing. See http://www.ashlandcommonpleas.com/index_files/Page341.htm (template version of the Ashland County Common Pleas Court domestic-relations case-designation sheet). Judge Forsthoefel does not explain how it could be proper for a court to restrict public access to something as innocuous as the case-designation sheet.
{¶ 17} The sweeping nature of Judge Forsthoefel‘s sealing order is also at odds with
{¶ 18} Judge Forsthoefel responds in his brief by pointing to an affidavit he filed in this case, in which he says that he performed the analysis prescribed by the Rules of Superintendence. But this argument does not square with his order, which fails to cite, let alone discuss, the Rules of Superintendence. In any event, Judge Forsthoefel‘s affidavit is beside the point. This court is reviewing the correctness of Judge Forsthoefel‘s order, not his after-the-fact descriptions of that order.
{¶ 19} Next, Judge Forsthoefel points to the order itself, noting that it names the 22 documents that the parties requested be sealed, it shows he crossed out one of the 22 documents on the list and initialed the change, and it shows he signed the order. But the superintendence rules require more than a judge‘s editing and signing of an order to justify restricting public access—they require a court to find through clear and convincing evidence that restricting public access is justified and they require the court to use the least restrictive means available. What is more, Judge Forsthoefel exaggerates the degree to which his edit of the list is evidence that he scrutinized the documents offered for sealing. The only edit he made was to strike a document from the list because, as he noted in his order, it had “[n]ot [been] filed with the Clerk of Courts.”
{¶ 20} Last, Judge Forsthoefel points to dicta in State ex rel. Richfield v. Laria, 138 Ohio St.3d 168, 2014-Ohio-243, 4 N.E.3d 1040, which he claims supports his assertion that mandamus cannot lie to correct a result; rather, he says, mandamus can lie only to force him to make a ruling. Id. at ¶ 11 (“‘Mandamus will not lie to control judicial discretion, even if that discretion is abused‘“), quoting State ex rel. Rashada v. Pianka, 112 Ohio St.3d 44, 2006-Ohio-6366, 857 N.E.2d 1220, ¶ 3. Shanahan, which rejected this standard, forecloses this argument. 166 Ohio St.3d 382, 2022-Ohio-448, 185 N.E.3d 1089, at ¶ 19.
{¶ 21} The Enquirer has established that Judge Forsthoefel‘s order was overbroad and was not supported by clear and convincing evidence. We therefore conclude that the judge erred in issuing the order and the Enquirer is entitled to relief.
{¶ 23} The documents subject to Judge Forsthoefel‘s order have not been filed with the clerk of this court, so we are unable to conclude whether any information contained within the documents is subject to exclusion under
C. Prohibition
{¶ 24} To prevail on its prohibition claim, the Enquirer must establish that Judge Forsthoefel is about to or has exercised unauthorized judicial power and that it lacks an adequate remedy in the ordinary course of law. See State ex rel. Balas-Bratton v. Husted, 138 Ohio St.3d 527, 2014-Ohio-1406, 8 N.E.3d 933, ¶ 15. In Shanahan, 166 Ohio St.3d 382, 2022-Ohio-448, 185 N.E.3d 1089, at ¶ 29, we summarily granted a writ of prohibition barring the trial judge from restricting access to the officer‘s affidavit, reasoning that because the relators had shown entitlement to a writ of mandamus, they were necessarily entitled to a writ of prohibition. Applying Shanahan‘s logic here, we conclude that the Enquirer is entitled to a writ of prohibition because it has shown entitlement to a writ of mandamus.
III. CONCLUSION
{¶ 25} We grant a writ of prohibition barring Judge Forsthoefel from enforcing his order sealing the documents filed in the dissolution case and grant a writ of mandamus ordering him to vacate his sealing order and to conduct a proper review of the documents pursuant to
Writs granted.
O‘CONNOR, C.J., and FISCHER, DONNELLY, STEWART, and BRUNNER, JJ., concur.
KENNEDY, J., concurs in judgment only, with an opinion joined by DEWINE, J.
KENNEDY, J., concurring in judgment only.
{¶ 26} Relator, the Cincinnati Enquirer (“the Enquirer“), seeks (1) a writ of mandamus ordering respondent, Judge Forsthoefel, to vacate his order sealing the documents filed in the dissolution case at issue and (2) a writ of prohibition barring him from enforcing the order. The Enquirer cited the Rules of Superintendence in support of its request for access to the lower-court records. A majority of this court has previously held that those rules govern the release of court records.
{¶ 27} But in my view, this court lacked the authority to issue substantive rules regarding the accessibility of court records through its Rules of Superintendence. Because the superintendence rules regulating judicial records abridge a substantive right of the people created by the Public Records Act, the Public Records Act should control the outcome of this case.
{¶ 28} Nevertheless, because the Enquirer was following the precedent of this court in seeking the records under
Our rulemaking powers
{¶ 29} This court is vested with two types of rulemaking power under the Ohio Constitution—the power to make rules for the superintendence of the courts and the power to make rules governing practice and procedure.
{¶ 30} The purpose of giving this court general superintendence power over lower courts and the authority to promulgate rules was to remedy case-management problems that had caused backlogs in resolving cases. Marburger & Idsvoog, Access with Attitude: An Advocate‘s Guide to Freedom of Information in Ohio 151-152 (2011); Milligan & Pohlman, The 1968 Modern Courts Amendment to the Ohio Constitution, 29 Ohio St.L.J. 811, 821-822 (1968). As we recognized in State v. Steffen, 70 Ohio St.3d 399, 409, 639 N.E.2d 67 (1994), the Rules of Superintendence were “designed ‘(1) to expedite the disposition of both criminal and civil cases in the trial courts of this state, while at the same time safeguarding the inalienable rights of litigants to the just processing of their causes; and (2) to serve that public interest which mandates the prompt disposition of all cases before the courts.‘” Id., quoting State v. Singer, 50 Ohio St.2d 103, 109-110, 362 N.E.2d 1216 (1977).
{¶ 31} In granting us the power to promulgate rules of practice and procedure, the Ohio Constitution strictly prohibits this court from promulgating rules that “abridge, enlarge, or modify any substantive right,”
{¶ 32} Just as the Ohio Constitution empowers this court to promulgate rules of practice and procedure for the lower courts, Congress authorized the United States Supreme Court to promulgate procedural rules for the United States district courts and courts of appeals.
{¶ 33} The United States Supreme Court has interpreted this limitation to mean that the rules must “really regulate[] procedure—the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them.” Sibbach v. Wilson & Co., Inc., 312 U.S. 1, 14, 61 S.Ct. 422, 85 L.Ed. 479 (1941). If the rule “relates merely to ‘the manner and the means by which a right to recover is * * * enforced, ‘” it is “a rule of procedure” and valid; if the rule “operate[s] to abridge, enlarge or modify the rules of decision by which [a] court will adjudicate [a litigant‘s] rights,” it is substantive and not valid. (Ellipsis added in Murphree.) Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 446, 66 S.Ct. 242, 90 L.Ed. 185 (1946), quoting Guaranty Trust Co. v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945).
The Public Records Act and Sup.R. 44 through 47
{¶ 34} The General Assembly codified the public‘s right to access government records in 1963 by enacting the Public Records Act,
{¶ 35} The act requires a “person responsible for public records” to make copies of requested records available “within a reasonable period of time.”
{¶ 36} As promulgated, the superintendence rules regulating judicial records and the release of those records—
{¶ 37} The superintendence rules define “court record,”
{¶ 38} This court has recognized that the legislature has plenary power to enact any law that does not conflict with the United States or Ohio Constitutions. Toledo v. State, 154 Ohio St.3d 41, 2018-Ohio-2358, 110 N.E.3d 1257, ¶ 17. And this court has held that “‘[b]efore any legislative power, as expressed in a statute, can be held invalid, it must appear that such power is clearly denied by some constitutional provision.‘” Tobacco Use Prevention & Control Found. Bd. of Trustees v. Boyce, 127 Ohio St.3d 511, 2010-Ohio-6207, 941 N.E.2d 745, ¶ 10, quoting Williams v. Scudder, 102 Ohio St. 305, 307, 131 N.E. 481 (1921). But this court‘s power to invalidate a statute “is circumscribed by the rule that laws are entitled to a strong presumption of constitutionality.” Yajnik v. Akron Dept. of Health, Hous. Div., 101 Ohio St.3d 106, 2004-Ohio-357, 802 N.E.2d 632, ¶ 16.
{¶ 39} This court has never questioned the constitutionality of the General Assembly‘s inclusion of “any court or judicial agency” within the definition of “state agency” in
Separation of powers
{¶ 40} What exactly was the foundation for this court‘s belief that it has the power to promulgate superintendence rules to regulate the release of records of lower courts? It began with a letter.
{¶ 41} In a letter written by former chief justice Thomas J. Moyer to Ohio attorneys, he declared, “While the courts in Ohio have always acted in accordance with the Public Records Act, the act does not govern the courts.” Moyer, A message from the Chief Justice: Openness is foundation of Ohio Government, 81 Ohio St. Bar Assn. Report 170, 171 (2008). A majority of this court relied on that letter as authority for the position that this court‘s superintending authority under the Ohio Constitution includes the power to regulate court records. State ex rel. Parisi v. Dayton Bar Assn. Certified Grievance Commt., 159 Ohio St.3d 211, 2019-Ohio-5157, 150 N.E.3d 43, ¶ 16. The majority in Parisi agreed with the statement in the former chief justice‘s letter that an “‘important constitutional principle of separation of powers’ required this court to regulate judicial records through its Rules of Superintendence.” (Emphasis added.) Id., citing Steffen, 70 Ohio St.3d at 409, 639 N.E.2d 67, quoting In re Furnishings for Courtroom Two, 66 Ohio St.2d 427, 430, 423 N.E.2d 86 (1981) (“‘courts possess all powers necessary to secure and safeguard the free and untrammeled exercise of their judicial functions‘“).
{¶ 42} Parisi does not explain how the Public Records Act impinges on the judicial power vested in this court; it simply declares that it does. It cites no decision holding that the Public Records Act as applied to courts is constitutionally infirm. In fact, in the past, this court held invalid a local rule of court that “effectively for[bade] public access to public records, thereby conflicting with
{¶ 43} But that defies the constitutional limitation on our enumerated power to promulgate rules. Only properly promulgated
{¶ 44} As the Third District Court of Appeals explained,
“whereas rules of procedure adopted by the Supreme Court require submission to the legislature, rules of superintendence are not so submitted and, hence, are of a different category. They are not the equivalent of rules of procedure and have no force equivalent to a statute. They are purely internal housekeeping rules which are of concern to the judges of the several courts but create no rights in individual defendants.”
Larson v. Larson, 3d Dist. Seneca No. 13-11-25, 2011-Ohio-6013, ¶ 13, quoting State v. Gettys, 49 Ohio App.2d 241, 243, 360 N.E.2d 735 (3d Dist.1976). And every appellate district has consistently recognized that the superintendence rules do not supersede statutes with which they are in conflict and do not create either substantive rights or procedural law. See, e.g., State v. Ventura, 2016-Ohio-5151, 69 N.E.3d 189, ¶ 24 (1st Dist.); State v. Keeble, 2d Dist. Greene No. 03CA84, 2004-Ohio-3785, ¶ 17; Larson, 3d Dist. Seneca No. 13-11-25, 2011-Ohio-6013, at ¶ 13; In re K.W., 2018-Ohio-1933, 111 N.E.3d 368, ¶ 99 (4th Dist.); Sepich v. Bell, 5th Dist. Stark No. CA-7350, 1988 WL 17155, *3 (Feb. 8, 1988); In re T.C., 6th Dist. Lucas No. L-15-1106, 2015-Ohio-3665, ¶ 21; In re Guardianship of Myers, 7th Dist. Mahoning Nos. 02-CA-6 and 02-CA-42, 2003-Ohio-5308, ¶ 21; In re A.P.D., 8th Dist. Cuyahoga No. 100504, 2014-Ohio-1632, ¶ 13; In re Z.H., 2013-Ohio-3904, 995 N.E.2d 295, ¶ 16 (9th Dist.); Myers v. Wade, 10th Dist. Franklin No. 16AP-667, 2017-Ohio-8833, ¶ 22; In re A.R., 11th Dist. Ashtabula No. 2018-A-0078, 2019-Ohio-2166, ¶ 29; In re Guardianship of Bernie, 12th Dist. Butler No. CA2018-01-005, 2019-Ohio-334, ¶¶ 27-28.
{¶ 45} There is a constitutional separation-of-powers problem here, but the problem is one of this court‘s making. Our general superintendence power over “all courts in the state,”
Application of the above to this case
{¶ 46} A court‘s “powers must be delimited with care, for there is danger of overreaching when one branch of Government, without the benefit of cooperation or correction from the others, undertakes to define its own authority.” Degen v. United States, 517 U.S. 820, 823, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996), citing Roadway Express, Inc. v. Piper, 447 U.S. 752, 764, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980). But this is where we find ourselves today.
{¶ 47} This court has egregiously overreached, exceeding the limits of its enumerated constitutional power by using its own rules to exempt itself and lower courts from the Public Records Act. As promulgated, the superintendence rules that regulate judicial records abridge a substantive right of the people. The Public Records Act, not the Rules of Superintendence, should control the release of judicial records in
{¶ 48} But the Enquirer did not ask for a determination pursuant to the Public Records Act. Its failure to do so is understandable: if recent precedent can be taken as a guide, a majority of this court would have dismissed its claim. See Parisi, 159 Ohio St.3d 211, 2019-Ohio-5157, 150 N.E.3d 43, at ¶ 20. Nonetheless, we are constrained to consider only the claims presented. Therefore, I concur in the court‘s judgment granting writs of mandamus and prohibition ordering Judge Forsthoefel to vacate his order sealing the documents, barring him from enforcing the sealing order, and ordering him to conduct a proper review of the documents. “[O]pen access to government papers is an integral entitlement of the people, to be preserved with vigilance and vigor.” Kish, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, at ¶ 17.
DEWINE, J., concurs in the foregoing opinion.
Graydon Head & Ritchey, L.L.P., Darren W. Ford, and Kellie A. Kulka, for relator.
Spengler Nathanson, P.L.L., Teresa L. Grigsby, and Jennifer A. McHugh, for respondent.