State ex rel. Parisi v. Dayton Bar Assn. Certified Grievance Commt. (Slip Opinion)State ex rel. Parisi v. Dayton Bar Assn. Certified Grievance Commt. (Slip Opinion)
FISCHER, J.
{¶ 1} Appellant, Georgianna Parisi, appeals the judgment of the Second District Court of Appeals denying her petition for a writ of mandamus against
I. BACKGROUND
{¶ 2} In 2016, Parisi sent a letter to the executive director of the Dayton Bar Association requesting “any and all records” concerning her in the bar association’s possession, pursuant to
1. [a]ny and all communications related to and/or concerning me, including communications by letter, phone, email, text, voice mail, and the like; and
2. [a]ny and all documents related to and/or concerning me.
The records sought related to her two attorney-discipline cases, Dayton Bar Assn. v. Parisi, case No. 2009-0064 (“Parisi I”), and Dayton Bar Assn. v. Parisi, case No. 2012-0060 (“Parisi II”), both of which had long been resolved. See Dayton Bar Assn. v. Parisi, 131 Ohio St.3d 345, 2012-Ohio-879, 965 N.E.2d 268, ¶ 2; Parisi v. Heck, S.D.Ohio No. 3:14-cv-346, 2015 WL 3999300, *4 (July 1, 2015).
{¶ 3} In a letter dated April 8, 2016, the grievance committee provided an initial response to Parisi’s request. The grievance committee’s letter expressed that it did not believe that the documents Parisi sought were subject to disclosure.
{¶ 4} Parisi then amended her request to include
any and all emails, text messages, and any and all electronic messages, whether made on [the bar association’s] or an individual’s electronic equipment. I am requesting all records concerning me,
and have expanded it to all records which the [bar association] has concerning me, including records associated with Parisi I and Parisi II.
In a letter dated April 22, 2016, the grievance committee formally denied Parisi’s request.
{¶ 5} Parisi filed a petition seeking a writ of mandamus against the bar association and the grievance committee in the Second District Court of Appeals. The bar association and the grievance committee filed a motion to dismiss for failure to state a claim, which the court of appeals converted into a motion for summary judgment. Parisi then filed a cross-motion for summary judgment.
{¶ 6} The court of appeals recognized that, as an initial matter, it was required to determine whether Parisi had utilized the correct vehicle to seek to obtain the requested attorney-discipline records. However, because the parties had not briefed that issue, the court proceeded to decide the merits of Parisi’s petition under
II. ANALYSIS
{¶ 7} Parisi appealed to this court. She also filed a “motion to elect representation.” We find her motion to be without merit. Furthermore, we conclude that because Parisi failed to seek to obtain the attorney-discipline records pursuant to
A. Motion to elect representation
{¶ 8} Parisi has filed a motion captioned “Motion to Elect Representation” requesting that this court order opposing counsel, Lisa Ann Hesse, Stephen Freeze,
{¶ 9} Parisi is essentially seeking to disqualify opposing counsel. She alleges that Freund Freeze’s representation of the bar association and the grievance committee is directly adverse to its prior clients, Ruffalo, Wildermuth, and Beck. Parisi posits the existence of an unwaivable conflict, in violation of
{¶ 10} Freund Freeze represents only the bar association and the grievance committee, the only other parties to this action besides Parisi. Because the other individuals that Parisi mentions are not parties to this action, there is no basis for Freund Freeze to “elect representation” in this case.
{¶ 11} Further, Parisi is not a client of Freund Freeze, and she has not identified any obligations or responsibilities that could serve as a basis for opposing counsel’s disqualification. Therefore, Parisi lacks standing to assert that Freund Freeze has a conflict of interest. See Morgan v. N. Coast Cable Co., 63 Ohio St.3d 156, 586 N.E.2d 88 (1992), syllabus (“a stranger to an attorney-client relationship lacks standing to complain of a conflict of interest in that relationship”).
{¶ 12} Therefore, we deny Parisi’s “motion to elect representation.”
B. Writ of mandamus to obtain records relating to attorney-discipline cases
{¶ 13} Parisi petitioned for a writ of mandamus to compel the bar association and the grievance committee to provide her with documents relating to
{¶ 14} However, as this court has stated in numerous cases since the promulgation of
{¶ 15} Thus, before we may address the merits of the appeal, we must answer this threshold question of which is the proper vehicle to use in seeking to obtain documents related to attorney-discipline cases.
1. Threshold issue
a. Promulgation of Sup.R. 44 through 47
{¶ 16} Prior to the promulgation of
{¶ 17} So, in 2009, after the proposed rules had been published for over two years, with more than 70 individuals and organizations participating in the extensive public-comment periods, this court adopted
b. The effect of Sup.R. 44 through 47
{¶ 18} In promulgating
{¶ 19} This court has adhered to that view and has consistently held that the threshold issue in public-records cases is whether
{¶ 20} This is so even if the issue of the appropriate vehicle is not raised by the parties or by the lower courts. See Shanahan at ¶ 5. Determining whether the Public Records Act or the Rules of Superintendence govern a relator’s request does
c. Determining the appropriate vehicle
{¶ 21} To determine the appropriate vehicle, we consider the nature of the records requested. Generally, if the records requested are held by or were created for the judicial branch, then the party seeking to obtain the records must submit a request pursuant to
{¶ 22} Our recent decision in Husband best illustrates this process. Husband had requested public records relating to his criminal convictions. The records were held by the court and were accessible through the clerk of courts. The trial court had denied his request. Husband petitioned the First District Court of Appeals to issue a writ of mandamus to order the production of the requested documents pursuant to
{¶ 23} This court determined that the parties and the court of appeals had “erroneously applied the Ohio Public Records Act,
2. Records in attorney-discipline cases
{¶ 24} Parisi seeks to obtain records relating to her attorney-discipline cases. Thus, we must determine whether such a records request is subject to
{¶ 25} Attorney-discipline matters are decided exclusively by this court, as we have original jurisdiction over the discipline of persons admitted to the bar and all other matters relating to the practice of law. See
{¶ 27} The concurring opinion expresses concern that this holding will “create confusion” as to whether there is a judicial remedy to compel access to such records. Opinion concurring in part and concurring in judgment only in part at ¶ 64. This concern is misplaced. The process to obtain these records remains unchanged—we are merely clarifying that such records may be sought only through
III. CONCLUSION
{¶ 28} We deny Parisi’s “motion to elect representation.” And because Parisi did not utilize the correct vehicle,
Judgment affirmed.
O’CONNOR, C.J., and FRENCH and DONNELLY, JJ., concur.
KENNEDY, J., concurs in part and concurs in judgment only in part, with an opinion joined by DEWINE and STEWART, JJ.
KENNEDY, J., concurring in part and concurring in judgment only in part.
{¶ 29} I agree that appellant Georgianna Parisi’s motion seeking to disqualify counsel for appellees, the Dayton Bar Association Certified Grievance Committee and the Dayton Bar Association, should be denied. I therefore join Part II, Section A of the majority opinion.
{¶ 30} However, I write separately because I would not consider whether—and cannot subscribe to the majority’s view that—the public-access provisions of the Rules of Superintendence for the Courts of Ohio,
{¶ 31} Nonetheless, I concur in the court’s judgment affirming the judgment of the court of appeals, because the records that Parisi seeks do not fit within the meaning of “public record” as defined by
Judicial Restraint
{¶ 32} Parisi’s petition sought records only under the Public Records Act, and as the majority acknowledges, the court of appeals did not consider whether
{¶ 33} Whether the public-access provisions of the Superintendence Rules apply to a certified grievance committee’s investigatory materials is a question of first impression, and this court lacks the benefit of lower-court consideration and full briefing and argument on it. The answer to that question is not an obvious one,
{¶ 34} Our longstanding policy is not to address an unbriefed issue. E.g., Willoughby Hills Dev. & Distrib., Inc. v. Testa, 155 Ohio St.3d 276, 2018-Ohio-4488, 120 N.E.3d 836, ¶ 14, fn. 1; State v. Roberts, 150 Ohio St.3d 47, 2017-Ohio-2998, 78 N.E.3d 851, ¶ 85; Risner v. Ohio Dept. of Natural Resources, Ohio Div. of Wildlife, 144 Ohio St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718, ¶ 28, citing Sizemore v. Smith, 6 Ohio St.3d 330, 332, 453 N.E.2d 632 (1983), fn. 2. The rationale for this policy, as well as the premise of the adversarial process itself, is that “ ‘ “appellate courts do not sit as self-directed boards of legal inquiry and research, but [preside] essentially as arbiters of legal questions presented and argued by the parties before them.” ’ ” (Brackets sic.) State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 19, quoting State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 78 (O’Donnell, J., concurring in part and dissenting in part), quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983).
{¶ 35} The process of judicial review depends on the parties to identify, preserve, and present issues for appeal. Courts “ ‘do not, or should not, sally forth each day looking for wrongs to right. We wait for cases to come to us, and when they do we normally decide only questions presented by the parties.’ ” Greenlaw v. United States, 554 U.S. 237, 244, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008), quoting United States v. Samuels, 808 F.2d 1298, 1301 (8th Cir.1987) (Arnold, J., concurring in the denial of rehearing en banc). As former Justice Cook once wrote, “even the most measured sense of judicial restraint confines this court to passing upon only those issues developed below.” Fulmer v. Insura Prop. & Cas. Co., 94 Ohio St.3d 85, 100, 760 N.E.2d 392 (2002) (Cook, J., dissenting).
{¶ 36} Our review should therefore be confined to the issue actually litigated by the parties and decided by the court of appeals in the first instance—
The Public Records Act
{¶ 37} The Public Records Act reflects the state’s 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, ¶ 20, and “reinforce[s] the understanding that open access to government papers is an integral entitlement of the people, to be preserved with vigilance and vigor,” Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 17.
{¶ 38}
{¶ 39} This leads to two questions: Are
{¶ 40} We addressed a variant of the first question in State ex rel. Beacon Journal Publishing Co. v. Waters, 67 Ohio St.3d 321, 617 N.E.2d 1110 (1993). At issue in that case was whether
{¶ 41} Similarly,
{¶ 42} That leaves the second question—whether a record that may be discoverable during litigation is subject to release as a public record.
{¶ 43}
{¶ 44}
the complaint and all subsequent proceedings conducted and documents filed in connection with the complaint shall be public except as follows:
* * *
(3) The summary of investigation prepared by the relator shall be confidential as work-product of the relator. All other investigatory materials and any attachments prepared in connection with an investigation conducted pursuant to Section 9 of this rule or submitted with a complaint filed pursuant to Section 10 of this rule shall be discoverable as provided in the Ohio Rules of Civil Procedure.
(Emphasis added.)
{¶ 45}
{¶ 46} That information is discoverable does not make it publicly available. “The rules governing discovery do not envision a third party’s access to the information exchanged”; rather, discovery “ ‘is essentially a private process because the litigants and the courts assume that the sole purpose of discovery is to assist trial preparation.’ ” State ex rel. WHIO-TV-7 v. Lowe, 77 Ohio St.3d 350, 354, 673 N.E.2d 1360 (1997), quoting United States v. Anderson, 799 F.2d 1438, 1441 (11th Cir.1986). We have therefore recognized that when a government office provides documents in discovery to opposing parties in litigation, it does not make those documents public records. See id. at 355.
{¶ 48} That conclusion should end the analysis. Reaching beyond the narrow questions presented in this case even though it is unnecessary to do so would contravene “ ‘the cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more,’ ” State ex rel. LetOhioVote.org v. Brunner, 123 Ohio St.3d 322, 2009-Ohio-4900, 916 N.E.2d 462, ¶ 51, quoting PDK Laboratories, Inc. v. United States Drug Enforcement Administration, 362 F.3d 786, 799 (D.C.Cir.2004) (Roberts, J., concurring in part and concurring in judgment).
The Rules of Superintendence
{¶ 49} The majority today proceeds to answer an unasked question of first impression, and that answer places the public-access provisions of the Superintendence Rules in direct conflict with the Public Records Act.
{¶ 50} This court had long held that Ohio’s Public Records Act,
{¶ 51} We have previously stated in per curiam opinions that
{¶ 52}
{¶ 53} Another type of court rules is authorized by
{¶ 54} In contrast, nothing in
{¶ 55} Ohio courts—including every appellate district—have consistently recognized that the rules adopted pursuant to our supervisory power over lower courts do not supersede statutes with which they are in conflict and do not create
{¶ 56} As the Third District Court of Appeals has 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.”
(Emphasis omitted.) Larson at ¶ 13, quoting State v. Gettys, 49 Ohio App.2d 241, 243, 360 N.E.2d 735 (3d Dist.1976).
Certified Grievance Committees
{¶ 58} The majority reasons that because this court has the constitutional authority to discipline attorneys, the documents prepared and created in attorney-discipline cases by or for certified grievance committees “must be considered records of this court for purposes of disclosure” under
{¶ 59} That conclusion is a non sequitur. The fact that we have constitutional authority to discipline attorneys says nothing about whether a certified grievance committee maintains court records, either on our behalf or on its own.
{¶ 60} The Rules for the Government of the Bar do not make a certified grievance committee an adjunct of this court. Instead, certified grievance committees are created by the Ohio State Bar Association or by local bar associations in Ohio, which may apply to the Board of Professional Conduct for certification,
{¶ 61} In support of its conclusion that “any documents prepared in attorney-discipline cases, like those requested by Parisi, may be sought only through a request made pursuant to
{¶ 62} The majority’s reliance on Cleveland Metro. Bar Assn. Certified Grievance Commt. v. Sliwinski, 142 Ohio St.3d 1224, 2015-Ohio-1276, 29 N.E.3d 987, ¶ 19, and Disciplinary Counsel v. Williams, 147 Ohio St.3d 1242, 2016-Ohio-5717, 65 N.E.3d 761, ¶ 20, is also misplaced, because those decisions are simply boilerplate entries imposing an interim remedial suspension and reciprocal discipline, respectively, and each states that each “case document” filed in the case—i.e., “a document and information in a document submitted to a court or filed with a clerk of court in a judicial action or proceeding,”
{¶ 63} And
{¶ 64}
{¶ 65}
{¶ 67} Similarly, if a bar association’s certified grievance committee is “the Supreme Court” for purposes of
{¶ 68} Further, a writ of mandamus may be issued only against an “inferior” tribunal.
Conclusion
{¶ 69} Parisi’s petition sought records only under the Public Records Act, which does not require release of those records. Because Parisi is not entitled to relief based on the arguments she makes in this court, it is not necessary to go beyond those arguments to resolve this case. As the majority’s decision today demonstrates, reaching to answer questions that have not been the subject of adversarial briefing and lower-court consideration risks an ill-informed decision that may have unintended consequences. And here, the majority assumes that our Superintendence Rules preempt the enactments of the legislative branch, and it relies on a leap of logic to conclude that a bar association’s certified grievance committee is the custodian of this court’s records. The result will be confusion over where a person is to turn to compel the production of public records held by an entity that is in some way affiliated, however tangentially, with this court.
{¶ 70} The preferable course would be to leave these issues for a day when parties preserve and present them for our review. Accordingly, although I would affirm the judgment of the court of appeals, I would do so for reasons different from those expressed in the majority opinion.
DEWINE and STEWART, JJ., concur in the foregoing opinion.