THE STATE EX REL. SHUBERT v. BREAUX, JUDGE.
No. 2024-0675
SUPREME COURT OF OHIO
Decided June 28, 2024
175 Ohio St.3d 255 | 2024-Ohio-2491
IN MANDAMUS AND PROHIBITION.
[This opinion has been published in Ohio Official Reports at 175 Ohio St.3d 255.]
Mandamus—Prohibition—Common-pleas-court judge‘s orders sealing documents in a criminal case were not supported by clear and convincing evidence and did not discuss whether less restrictive means of limiting public access were considered—Writ of prohibition granted barring judge from enforcing sealing orders—Writ of mandamus granted ordering judge to vacate sealing orders and to conduct a proper review of the documents sought to be restricted under
(No. 2024-0675—Submitted June 18, 2024—Decided June 28,
The per curiam opinion below was joined by FISCHER, DEWINE, DONNELLY, STEWART, and DETERS, JJ. KENNEDY, C.J., concurred in judgment only in accordance with her separate opinion in State ex rel. Cincinnati Enquirer v. Forsthoefel, 2022-Ohio-3580. BRUNNER, J., concurred in part and dissented in part and would deny the motion to strike as moot.
Per Curiam.
{¶ 1} Relator, Craig Shubert, filed this original action in mandamus and prohibition against respondent, Summit County Common Pleas Court Judge Alison Breaux. Judge Breaux issued orders restricting public access to records in a criminal case currently pending before her. Shubert, a former journalist and a member of the public interested in that criminal
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual history
{¶ 2} In February 2024, Jeremiah Stoehr was indicted in the Summit County Court of Common Pleas on one count of rape, two counts of kidnapping, one count of gross sexual imposition, and one count of disseminating matter harmful to juveniles. The record contains some ambiguity regarding how many alleged victims there were, but at least one alleged victim was under the age of ten. Stoehr was a high school student when the complaint in this action was filed, and the criminal case against him has received media attention. Judge Breaux is presiding over Stoehr‘s pending criminal case. Shubert states that he is a former journalist who is interested in the proceedings of Stoehr‘s case. Stoehr is not a party to this extraordinary-writ action.
{¶ 3} On May 9, Stoehr filed a motion in the trial court to seal the docket and remove public access to case filings during the pendency of his case. Stoehr‘s motion to seal states that after media began reporting on his case, Stoehr was assaulted and threatened, his parents were followed, and his address was published online. The motion was not supported by any affidavits. The same day the motion was filed, Judge Breaux issued an order granting it.
{¶ 4} On May 16, Judge Breaux sua sponte issued an amended sealing order. The amended order states that before Stoehr filed his motion to seal, the trial court held a meeting in chambers with the prosecution and defense counsel. During the meeting, “it was brought to the attention of the Court” that Stoehr, his family, and his counsel had been threatened, intimidated, and confronted. The prosecution also expressed a concern about the minor victim‘s being identified. The trial court “weigh[ed] the risk of injury to persons, public safety and fairness of the adjudicatory process against the presumption of allowing public access to the docket and [found], by clear and convincing evidence, that the restricting [of] access to information in this case is warranted to protect the parties and counsel.” The amended order directs the Summit County Clerk of Courts to remove any online public access to the docket or images in Stoehr‘s case and to remove any public access to the docket or images “regarding subpoenas, summons returns, search warrants, service returns, any court filing containing information protected under Marsy‘s Law, and any court filing containing private information of the Defendant or other records as provided by state, federal, or common law.”
B. Procedural history
{¶ 5} On May 13, Shubert filed his complaint in this action and a motion for immediate issuance of a peremptory writ of mandamus and peremptory writ of prohibition or, alternatively, for an order directing an expedited response. The initial complaint discusses only Judge Breaux‘s original sealing order because she had not yet issued the amended order. On May 17, Judge Breaux filed a motion to dismiss the complaint.
{¶ 6} On May 20, Shubert filed a memorandum opposing the motion to dismiss. He also filed a motion for leave to file a supplemental and amended complaint, which this court granted. 2024-Ohio-2087. The supplemental complaint includes discussion of the amended sealing order.
{¶ 8} On May 30, this court denied the motion to dismiss the original complaint, issued an alternative writ, ordered Judge Breaux to answer, and ordered the submission of evidence and briefs. 2024-Ohio-2087. As evidence, Judge Breaux submitted her own affidavit, in which she summarizes the reasons that she issued the sealing orders. She also submitted an affidavit from Stoehr‘s father and an affidavit from Stoehr‘s mother. The affidavits from Stoehr‘s parents detail threats that Stoehr received online and in person and state that Stoehr‘s mother reported to the police that a suspicious vehicle had been following her. The three affidavits are dated June 6—three weeks after Judge Breaux issued the amended sealing order.
II. LEGAL ANALYSIS
A. Shubert‘s motion to strike Judge Breaux‘s motion to dismiss
{¶ 9} As an initial matter, after Shubert filed his motion for leave to file a supplemental complaint but before the court granted that motion and accepted the supplemental complaint, Judge Breaux filed a motion to dismiss the supplemental complaint. Shubert has filed a motion to strike that motion to dismiss.
{¶ 10} Judge Breaux filed a motion to dismiss a complaint that we had not yet accepted for filing. Her motion was effectively a nullity. In addition, under
B. Sup.R. 45 and access to court documents
{¶ 11} Certain information in court filings may be confidential under specific provisions of state or federal law or rules. See
{¶ 12} However,
if it finds by clear and convincing evidence that the presumption of allowing public access is outweighed by a higher interest after considering each of the following:
(a) Whether public policy is served by restricting public access;
(b) Whether any state, federal, or common law exempts the document or information from public access; [and]
(c) Whether 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.
{¶ 13} Any person may, by motion, request access to restricted case documents.
C. State ex rel. Cincinnati Enquirer v. Forsthoefel
{¶ 14} In State ex rel. Cincinnati Enquirer v. Forsthoefel, 2022-Ohio-3580, we decided issues similar to those raised by Shubert. Because our analysis in this case relies on our opinion in Forsthoefel, we summarize it here.
{¶ 15} Forsthoefel involved an underlying marriage-dissolution case between former Treasurer of State Josh Mandel and his ex-wife. Id. at ¶ 2. The Mandels filed a motion in the trial court to seal 22 case documents. Id. Judge Forsthoefel granted the motion the day it was filed, “summarily concluding that the motion was ‘well-taken,‘” and sealed 21 of the 22 documents. Id. at ¶ 3. The Enquirer filed an action in this court for writs of mandamus and prohibition, requesting that Judge Forsthoefel be ordered to vacate and barred from enforcing his sealing order. Id. at ¶ 1.
{¶ 16} In Forsthoefel, we reiterated our conclusion from State ex rel. Cincinnati Enquirer v. Shanahan, 2022-Ohio-448, that because
{¶ 17} We also held that Judge Forsthoefel‘s sealing order was at odds with
D. Mandamus
{¶ 18} Shubert seeks a writ of mandamus ordering Judge Breaux to vacate the orders in Stoehr‘s case and, “pursuant to
1. Adequate remedy in the ordinary course of the law and related arguments
{¶ 19} Judge Breaux argues that Shubert has an adequate remedy in the ordinary course of the law by way of filing a motion under
{¶ 20} Judge Breaux also argues that our holding in State ex rel. Parisi v. Dayton Bar Assn. Certified Grievance Commt., 2019-Ohio-5157, supports her position that Shubert has an adequate remedy in the ordinary course of the law under
{¶ 21} Similarly, Judge Breaux argues that Shubert is not “aggrieved,” because he did not attempt to obtain “direct access” to the documents. See
2. Compliance with Sup.R. 45
{¶ 22} Shubert argues that Judge Breaux did not comply with
{¶ 23} We review the correctness of Judge Breaux‘s order de novo. Forsthoefel, 2022-Ohio-3580, at ¶ 11. “A court shall restrict public access . . . if it finds by clear and convincing evidence that the presumption of allowing public access is outweighed by a higher interest . . . .”
{¶ 24} Stoehr filed with the trial court a motion to seal the docket, stating that after his criminal case received media attention, he had been assaulted and threatened and his parents had been followed by unknown vehicles. But the motion was not supported by an affidavit or any other evidence. See Forsthoefel at ¶ 15 (holding that arguments made in a motion to seal filed without an affidavit explaining why sealing was necessary are not evidence). In addition, the amended order states that “it was brought to the attention of the Court” at an in-chambers meeting with counsel that Stoehr, his family, and his counsel had been threatened and intimidated. But the information provided by counsel at this meeting was not supported by evidence. As “[w]e have long held . . . ‘statements of counsel are not evidence.‘” RNG Properties, Ltd. v. Summit Cty. Bd. of Revision, 2014-Ohio-4036, ¶ 28, fn. 1, quoting Corporate Exchange Bldgs. IV & V, L.P. v. Franklin Cty. Bd. of Revision, 1998-Ohio-382, ¶ 14; see also State v. Wood, 141 Ohio App.3d 634, 638 (2d Dist. 2001) (stating that “a representation by counsel does not constitute evidence“). Finally, as evidence in this action, Judge Breaux has submitted affidavits from Stoehr‘s parents that detail threats Stoehr received online and in person, and state that they reported to the police that a suspicious vehicle had been followed Stoehr‘s mother. But these affidavits postdate the amended order and thus Judge Breaux could not have relied on them when she issued the amended order. In sum, the amended order‘s statement that restricting access to the court documents was necessary to protect Stoehr and his counsel was not supported by any evidence.
{¶ 25} Judge Breaux‘s brief largely fails to address Shubert‘s argument that the assertions regarding Stoehr‘s safety made in Stoehr‘s motion to seal and during the in-chambers meeting were not supported by evidence. Rather, the gravamen of her argument is that if Shubert believes that he is entitled to information in the case documents, he can file a
{¶ 26} Shubert also argues that Judge Breaux did not adequately consider
{¶ 27} Judge Breaux stresses that the amended order also states that restricting access is necessary to protect the identity of the minor victim and other information protected by Marsy‘s Law, see
{¶ 28} In sum, Shubert has shown that the sealing orders do not meet the requirements of
3. Remaining arguments
{¶ 29} Judge Breaux argues, citing State ex rel. Richfield v. Laria, 2014-Ohio-243, ¶ 2, that mandamus cannot be used to challenge her discretion in issuing a sealing order. But in Forsthoefel, we addressed this same argument based on Laria and rejected it. Forsthoefel, 2022-Ohio-3580, at ¶ 20.
{¶ 30} Judge Breaux also briefly argues that this case differs from Forsthoefel because criminal cases implicate constitutional rights that are not present in civil matters. She generally cites
iv. Mandamus relief
{¶ 31} Shubert has established that the sealing orders were not supported by clear and convincing evidence and did not address whether less restrictive means would adequately protect the information. We conclude that Judge Breaux erred in issuing the orders and that Shubert is entitled to relief. However, Judge Breaux asserts that some information in the documents is protected from disclosure under state, federal, or common law, including victim-identifying information, which would not qualify as court records. See
E. Prohibition
{¶ 32} Shubert also seeks a writ of prohibition barring Judge Breaux from enforcing the sealing orders. To be entitled to a writ of prohibition, Shubert must prove by clear and convincing evidence that (1) Judge Breaux exercised judicial power, (2) the exercise of that power was unlawful, and (3) he lacks an adequate remedy in the ordinary course of the law. State ex rel. Federle v. Warren Cty. Bd. of Elections, 2019-Ohio-849, ¶ 10. In Forsthoefel, we summarily granted a writ of prohibition barring the trial judge from restricting access to the records at issue, reasoning that because the relator had shown entitlement to a writ of mandamus, it was necessarily entitled to a writ of prohibition. Forsthoefel, 2022-Ohio-3580, at ¶ 24; see also Shanahan, 2022-Ohio-448, at ¶ 29. Similarly here, because Shubert has shown entitlement to a writ of mandamus, we conclude that Shubert is also entitled to the requested writ of prohibition.
F. Shubert‘s constitutional argument
{¶ 33} Shubert also argues that in addition to the Rules of Superintendence, his relief in mandamus and prohibition is warranted by the First Amendment to the United States Constitution. Because we conclude that Shubert is entitled to relief on other grounds, we do not need to address his constitutional argument. See State ex rel. Vindicator Printing Co. v. Wolff, 2012-Ohio-3328, ¶ 42 (finding that this court need not address the relator‘s constitutional claims, because the relator established entitlement to relief under the Rules of Superintendence).1
III. CONCLUSION
{¶ 34} The sealing orders state that restricting access to the case documents is necessary because of danger to the criminal defendant, his family, and his counsel. However, no evidence regarding such danger was before the court when Judge Breaux issued the sealing orders, so this danger could not have been established by clear and convincing evidence. In addition, the sealing orders do not discuss whether Judge Breaux considered a less restrictive means to limit public access to the case documents.
{¶ 35} We therefore grant a writ of prohibition barring Judge Breaux from enforcing her orders sealing the documents filed in the underlying criminal case. We also grant a writ of mandamus ordering Judge Breaux to vacate her sealing orders and to conduct a proper review of the documents sought to be restricted under
{¶ 36} We also grant Shubert‘s motion to strike Judge Breaux‘s motion to dismiss the proposed verified supplemental and
Writs granted.
The Law Firm of Curt C. Hartman and Curt C. Hartman, for relator.
Elliot J. Kolkovich, Summit County Prosecuting Attorney, and Jennifer M. Piatt, Assistant Prosecuting Attorney, for respondent.