THE STATE EX REL. WARE v. PARIKH, CLERK.
No. 2022-0191
Supreme Court of Ohio
March 15, 2023
Slip Opinion No. 2023-Ohio-759
Submitted January 10, 2023
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Ware v. Parikh, Slip Opinion No. 2023-Ohio-759.]
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. 2023-OHIO-759
THE STATE EX REL. WARE v. PARIKH, CLERK.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Ware v. Parikh, Slip Opinion No. 2023-Ohio-759.]
Mandamus—Public records—A records custodian bears burden of establishing applicability
(No. 2022-0191—Submitted January 10, 2023—Decided March 15, 2023.)
IN MANDAMUS.
Per Curiam.
{¶ 1} This is an original action brought by relator, Kimani E. Ware, against respondent, Hamilton County Clerk of Courts Pavan Parikh.1 Ware seeks a writ of mandamus ordering Parikh to provide copies of three oaths of office and various court records from a 2001 case. Ware also seeks awards of statutory damages and
court costs. We previously denied Ware‘s motion for default judgment and Parikh‘s motion to dismiss
I. BACKGROUND
{¶ 2} Ware is an inmate at the Richland Correctional Institution. In February 2021, he sent a public-records request by certified mail to the Hamilton County clerk of courts, requesting two categories of records. First, Ware sought “the following judges[‘] oaths of office, (1) Charles J. Kubicki, (2) Lisa C. Allen, (3) Thomas O. Beridon.” Second, he sought “the following from case no. C-010153[:] Docket sheet, writ of mandamus complaint, Motion To Dismiss, Judgment Entry filed on July 27, 2001.” Neither party addresses the basic facts of the case from category No. 2, but it was an original action in mandamus that had been filed in the First District Court of Appeals by a newspaper company seeking access to exhibits from a criminal case. See State ex rel. Cincinnati Enquirer v. Dinkelacker, 144 Ohio App.3d 725, 761 N.E.2d 656 (1st Dist.2001).
{¶ 3} The clerk did not respond to Ware‘s public-records request.
{¶ 4} In February 2022, Ware filed this action in this court, seeking a writ of mandamus and awards of statutory damages and costs. Ware and the clerk have both filed merit briefs, but only Ware filed evidence.
II. ANALYSIS
A. Mandamus
{¶ 5} Mandamus is an appropriate remedy to compel compliance with
has a clear legal duty to provide it. See State ex rel. Ellis v. Maple Hts. Police Dept., 158 Ohio St.3d 25, 2019-Ohio-4137, 139 N.E.3d 873, ¶ 5.
1. Oaths of office
{¶ 6} Ware seeks copies of three oaths of office. The clerk argues, however, that Ware is not entitled to them in this action because he used the incorrect vehicle to request them. According to the clerk, Ware should have sought the records under the Rules of Superintendence for the Courts of Ohio, not
{¶ 7} Whether the Public Records Act or the Rules of Superintendence apply is a threshold issue in public-records cases. State ex rel. Ware v. Kurt, 169 Ohio St.3d 223, 2022-Ohio-1627, 203 N.E.3d 665, ¶ 10. “If the requester seeks public records through the incorrect vehicle, then he or she is not entitled to receive the records through a mandamus action.” Id. at ¶ 12. In Kurt, this court determined that a record memorializing a judge‘s oath of office was an “administrative document” governed by the Rules of Superintendence “because [it] recorded the operations of the court.” Id. at ¶ 16, citing
vehicle for requesting copies of the oaths of office, we deny the writ of mandamus as to those records.
2. Records related to Cincinnati Enquirer
{¶ 9} The second part of Ware‘s request seeks the docket sheet, writ of mandamus complaint, motion to dismiss, and July 27, 2001 judgment entry in Cincinnati Enquirer, 144 Ohio App.3d 725, 761 N.E.2d 656. The clerk argues that
{¶ 10} The significance of July 1, 2009, lies in the fact that “[r]equests for case documents in cases commenced on or after July 1, 2009, are governed by the Rules of Superintendence, not the Public Records Act.” Giavasis at ¶ 18. Because Cincinnati Enquirer was a 2001 case, we must apply the provisions of
{¶ 11} The clerk‘s argument appears to present a novel issue concerning the scope of
neither party in this case cites a decision considering whether the statute applies to an inmate‘s request for records from a mandamus action in which the underlying subject matter concerned a criminal prosecution.
{¶ 12} We conclude that the clerk has not met his burden to show that the exception applies. See State ex rel. Myers v. Meyers, 169 Ohio St.3d 53, 2022-Ohio-1915, 202 N.E.3d 596, ¶ 30 (a records custodian bears the burden of establishing the applicability of an exception to disclosure). First, although the clerk cites Kurt, 169 Ohio St.3d 223, 2022-Ohio-1627, 203 N.E.3d 665, as support for the argument that Ware “cannot demonstrate a clear legal right to compel [the clerk] to produce [the requested] documents,” that case is distinguishable. This court‘s analysis of
{¶ 13} Because the clerk has failed to meet his burden, we grant the writ and order him to produce the requested records from the Cincinnati Enquirer case.
B. Statutory damages
{¶ 14} A requester who transmits by certified mail a fairly described public-records request is entitled to an award of statutory damages if a court determines that the public office has failed to comply with an obligation of
¶ 60, citing
{¶ 15} Because we grant a writ of mandamus ordering Parikh to produce the requested records from Cincinnati Enquirer, 144 Ohio App.3d 725, 761 N.E.2d 656, we award Ware $1,000 in statutory damages for the clerk‘s delay in producing these records, which has persisted for more than ten business days from the filing of this action. But we deny Ware‘s request for an award of statutory damages as to the documents related to the oaths of office. These documents are governed by the Rules of Superintendence, which “do not authorize statutory damages under any circumstances,” State ex rel. Harris v. Pureval, 155 Ohio St.3d 343, 2018-Ohio-4718, 121 N.E.3d 337, ¶ 11.
C. Court costs
{¶ 16} Under
III. CONCLUSION
{¶ 17} For the foregoing reasons, we grant the writ in part and deny it in part and award Ware $1,000 in statutory damages as well as court costs.
Writ granted in part and denied in part.
FISCHER, DONNELLY, STEWART, and BRUNNER, JJ., concur.
KENNEDY, C.J., concurs in judgment only in part and dissents in part, with an opinion joined by DEWINE, J.
DETERS, J., not participating.
KENNEDY, C.J., concurring in judgment only in part and dissenting in part.
{¶ 18} I agree with the majority that relator, Kimani E. Ware, is entitled to a writ of mandamus compelling respondent, Hamilton County Clerk of Courts Pavan
{¶ 19} However, the majority errs in issuing a writ of mandamus without also compelling Parikh to comply with Ware‘s public-records request to the extent that it seeks access to three judges’ oaths of office. Contrary to the majority‘s conclusion, this request is not governed by the provisions of the Rules of Superintendence for the Courts of Ohio purporting to regulate access to court records. A clerk of courts’ records are not covered by the Rules of Superintendence; and even if they were, this court lacks the constitutional authority to issue rules that preempt substantive law such as the Public Records Act,
{¶ 20} We should adhere to the limits of our power and hold that the Rules of Superintendence do not and cannot govern public access to clerks’ records. Because the majority chooses to maintain its errant course, I concur in judgment only in part and dissent in part.
The Clerk‘s Records Are Not Subject to the Rules of Superintendence
{¶ 21}
those oaths. They are the clerk‘s records, not court records. See State ex rel. Ware v. Kurt, 169 Ohio St.3d 223, 2022-Ohio-1627, 203 N.E.3d 665, ¶ 63 (Kennedy, J., concurring in part and dissenting in part).
{¶ 22} The Rules of Superintendence by their express terms regulate a court‘s records, not a clerk‘s. See
{¶ 23} Nor could this court‘s Rules of Superintendence apply to a clerk‘s records.
{¶ 24} Rather, because the oaths are “records kept by [a] public office,”
The Rules of Superintendence Cannot Restrict Access to Government Records
{¶ 25} More fundamentally, this court lacks constitutional authority to promulgate substantive rules regulating access to public records. See Ware, 169 Ohio St.3d 223, 2022-Ohio-1627, 203 N.E.3d 665, at ¶ 44, 52 (Kennedy, J., concurring in part and dissenting in part). This court‘s cases concluding that we have the power to preempt the Public Records Act by issuing a court rule were wrongly decided.
{¶ 26} The Ohio Constitution gives this court the power to promulgate two distinct sets of rules: (1) the Rules of Superintendence,
{¶ 27} The Constitution also empowers this court to adopt rules of practice and procedure that can preempt conflicting statutes, but ”
promulgated rules of practice or procedure that, if accepted, will eclipse all laws in conflict with such rules.” Id., citing
{¶ 28} Neither
{¶ 29} Therefore, while “[t]he Rules of Superintendence may provide guidance to courts in complying with the public-records law, * * * those rules cannot limit access to public records that is protected by the law, grant access to public records that is denied by the law, or eliminate any remedy that is provided by the law to enforce it.” Ware, 169 Ohio St.3d 223, 2022-Ohio-1627, 203 N.E.3d 665, at ¶ 52 (Kennedy, J., concurring in part and dissenting
The Public Records Act Governs Ware‘s Request
{¶ 30} The majority today holds that a judge‘s oath of office is a court record maintained by a clerk and that its release as a public record is governed by the Rules of Superintendence, not the Public Records Act. See also Ware at ¶ 16. And because Ware relied solely on the Public Records Act in support of his claim
that he is entitled to the production of the records, this court rejects his request for the judges’ oaths of office on a technicality, concluding that “Ware has used the wrong vehicle for requesting copies of the oaths of office,” majority opinion at ¶ 8.
{¶ 31} However, Ware properly invoked the Public Records Act. He sought the clerk‘s records, not court records. Moreover, this court‘s Rules of Superintendence may not abridge Ware‘s statutory right to have the clerk produce those records. And because the clerk failed to comply with Ware‘s public-records request, Ware is entitled to a writ of mandamus compelling Parikh to produce any public records that are responsive to Ware‘s request.
Conclusion
{¶ 32} Our cases discussing access to court records have disregarded the bounds of our authority for too long. “The measure of power is its limits. Respecting the limits of power is essential to our American form of government. Anything less is an affront to it.” League of Women Voters of Ohio v. Ohio Redistricting Comm., 168 Ohio St.3d 374, 2022-Ohio-1235, 199 N.E.3d 485, ¶ 88 (Kennedy, J., dissenting).
{¶ 33} The majority‘s holding today runs counter to the language of the Rules of Superintendence and transcends the limits on the rulemaking power granted by
{¶ 34} Applying the correct law here, I would issue a writ of mandamus compelling Parikh to fully comply with Ware‘s public-records request and award Ware statutory damages in the amount of $1,000 as well as court costs. I therefore concur in judgment only in part and dissent in part from the majority‘s decision today.
DEWINE, J., concurs in the foregoing opinion.
Kimani Ware, pro se.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for respondent.