State of Ohio, Plaintiff-Appellee, v. L.F., Defendant-Appellee, [Christopher Hicks, Appellant].
Case No. CA2019-02-017
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY
March 16, 2020
2020-Ohio-968
KLATT, J.
(ACCELERATED CALENDAR)
Rendered on March 16, 2020
On brief: Brafford & Rivello, and Suellen M. Bradfford, for appellant Christopher Hicks.
On brief: Strauss Troy Co., LPA, and Christopher R. McDowell and Jeffrey A. Levine, for appellee L.F.
On brief: Dave Yost, Attorney General, and Brad L. Tammaro, for appellee State of Ohio.
APPEAL from the Clermont County Municipal Court
Case No. 1018-PC-00002
KLATT, J.
{¶ 1} Appellant, Christopher Hicks, appeals judgments of the Clermont County Municipal Court that denied him access to certаin court documents and denied his motion
{¶ 2} On March 20, 2018, Hicks filed with the Clerk of Courts for the Clermont County Municipal Court (“clerk“) an affidavit stating that there was reasonable cause to believe that appellee, L.F., a Clermont County public official, had committed a felony and a misdemeanor by employing her stepson in the office she oversaw. The affidavit requested the immediate arrest and prosecution of Fraley for those alleged violations of the law.
{¶ 3} The clerk forwarded the affidаvit to the trial court. However, all the judges of the Clermont County Municipal Court recused themselves from the matter, requiring the Supreme Court of Ohio to appoint a visiting judge to review the affidavit. The visiting judge scheduled a probable cause hearing regarding the allegations contained in the affidavit. Prior to the hearing, the Clermont County Prosecutor requested that the court recuse him from the case and appoint the Ohio Attorney General as special counsel. The trial court granted the Clermont County Prosecutor‘s request.
{¶ 4} At the probable cause hearing, the trial court heard from the special prosecutor, Hicks, and Fraley. Apparently, during the hearing, the special prosecutor entered into the record two documents: (1) an August 5, 2004 letter from the Clermont County Prosecutor to Fraley, and (2) a March 9, 2018 letter from the Ohio Ethics Commission to Hicks.1 At the cоnclusion of the hearing, the trial court issued an entry, dated April 5, 2018, that found no probable cause to support a criminal complaint against Fraley and dismissed Hicks’ affidavit.
{¶ 5} Hicks appealed the April 5, 2018 judgment to this cоurt. We concluded that the trial court erred in dismissing the affidavit, and we remanded the matter to the trial court so it could follow the mandate of
{¶ 6} Immediately upon entry of our judgment, Hicks moved in the trial court for an order requiring the special prosecutor to file the two documents he had entered into the record during the probable cause hearing. The trial court granted Hicks’ motion. On January 7, 2019, the trial court issued an entry ordering the special prosecutor “to produce for the Court‘s public record” the August 5, 2004 and March 9, 2018 letters and provide the documents “to each participating party.” (Jan. 7, 2019 Entry Ordering Produc. of Exs.)
{¶ 7} On January 25, 2019, the special рrosecutor submitted the August 5, 2004 and March 9, 2018 letters to the clerk for addition to the court record, but he purported to file the documents under seal. In a contemporaneous filing, the special prosecutor infоrmed the trial court that he sought to restrict access to the documents because the August 5, 2004 letter contained “advice received by an individual in the course of [her] duties from [her] legal counsel.” (Jan. 25, 2019 Submission of Docs.) The special prosecutor also advised the court that he had only furnished the documents to the court and Fraley. The special prosecutor explained that, “[a]s this action has progressed to an investigative phase, the State understands the ‘participating parties’ to include the State and the individual that is the subject of the investigation.” Id. Under the special prosecutor‘s interpretation of the trial cоurt‘s order, therefore, the special prosecutor believed he owed copies of the documents to Fraley, but not Hicks.
{¶ 8} Hicks responded by moving for unrestricted access to the documents and requesting that the trial court schedule a hearing to hold the special prosecutor in contempt of court. In these motions, Hicks maintained that he was a “participating party,” and thus the special prosecutor disobeyed the January 7, 2019 entry by not providing him with copies of the August 5, 2004 and March 9, 2018 letters. Hicks also argued that the special prosecutor had violated Loc.R. 10(b) of the Clermont County Municipal Court, which requires parties tо prepare “[a]ll evidence of a tangible nature” in “numbers sufficient to provide one copy each for the Court, the witness and each party.” Finally, in moving for unrestricted access to the documents, Hicks contended that he was entitled to the documents under
{¶ 9} The special prosecutor opposed both motions. The special prosecutor contested Hicks’ claim that he was a party, and he asserted that the attorney-client privilege protected the August 5, 2004 letter from public disclosure. In an entry filed February 7, 2019, the trial court denied both of Hicks’ motions.
{¶ 10} On February 12, 2019, the special prosecutor filed a motion seеking a court order sealing the documents. Hicks responded by filing a motion against sealing the documents. The trial court granted the special prosecutor‘s motion. In an entry dated February 14, 2019, the trial court sealed thе documents as attorney-client privileged materials. Also, on February 14, 2019, the trial court issued a second entry that referred the matter raised in Hicks’ affidavit to the special prosecutor for investigation.
{¶ 11} Hicks now аppeals the February 7, 2019 judgment and the February 14, 2019 judgment that sealed the documents, and he assigns the following errors:
- THE TRIAL COURT ERRED BY DENYING APPELLANT‘S MOTION TO SCHEDULE A HEARING TO HOLD THE SPECIAL PROSECUTOR IN CONTEMPT OF COURT.
- THE TRIAL COURT ERRED BY DENYING APPELLANT‘S MOTION FOR UNRESTRICTED ACCESS FOR ALL EXHIBITS AND CONVERSELY BY GRANTING APPELLEE OHIO ATTORNEY GENERAL‘S MOTION TO SEAL SAID EXHIBITS.
{¶ 12} Both of Hicks’ assignments of error fail for the same reason: he was not a party to the matter below and had no authority to make any filings in the trial court beyond his affidavit.
{¶ 13} This matter came before the trial court because Hicks submitted an affidavit to the clerk under the auspices of
{¶ 14} Notably,
{¶ 15} Hicks argues that he must be a party because he previously appealed in this case. Although generally only parties may appeal, in certain instances, a non-party may have the necessary interest in the underlying prоceeding to appeal. Thomas v. Wright State Univ. School of Med., 10th Dist. No. 12AP-839, 2013-Ohio-3338, ¶ 13-14. Ohio courts permit affiants to appeal errors in the
{¶ 16} In short,
{¶ 17} Moreover, to the extent Hicks challenges the denial of access to the documents as a violation of
{¶ 18} “A person who is denied access to court records has a specific remedy.” State ex rel. Cincinnati Enquirer v. Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354, ¶ 13. According to
{¶ 19} For the foregoing reasons, we overrule both of Hicks’ assignments of error, and we affirm the judgments of the Clermont County Municipal Court.
Judgments affirmed.
SADLER, P.J., and LUPER SCHUSTER, J., concur.
KLATT, J., SADLER, P.J., and LUPER SCHUSTER, J., of the Tenth Appellate District, sitting by assignment of the Chief Justice pursuant tо Section 5(A)(3), Article IV of the Ohio Constitution.