THE STATE EX REL. CINCINNATI ENQUIRER v. LYONS, JUDGE.
Nos. 2012-1924 and 2013-0300
Supreme Court of Ohio
Submitted November 5, 2013—Decided June 5, 2014.
140 Ohio St.3d 7, 2014-Ohio-2354
LANZINGER, J.
{26} Accordingly, we accept the recommendation of the Board of Commissioners on Grievances and Discipline and in this case suspend Jacobs from the practice of law in Ohio for two years with credit for the time served under the interim suspension that began on April 3, 2012. Costs are taxed to Jacobs.
Judgment accordingly.
O‘CONNOR, C.J., and PFEIFER, O‘DONNELL, LANZINGER, KENNEDY, FRENCH, and O‘NEILL, JJ., concur.
Scott J. Drexel, Disciplinary Counsel, and Donald M. Scheetz, Assistant Disciplinary Counsel, for relator.
Schwartz, Downey & Co., L.P.A., Niki Z. Schwartz, and Brian P. Downey, for respondent.
THE STATE EX REL. CINCINNATI ENQUIRER v. LYONS, JUDGE.
[Cite as State ex rel. Cincinnati Enquirer v. Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354.]
{11} Two original actions filed by the Cincinnati Enquirer have been combined for resolution as related cases. In case No. 2012-1924, the Enquirer seeks a writ of mandamus to compel Judge Robert H. Lyons of the Butler County Area I Court to vacate his order sealing records related to the prosecution of a John Doe defendant for a disorderly-conduct misdemeanor charge that arose from his posting of a flier that advocated the rape of women at Miami University in Oxford, Ohio. In case No. 2013-0300, the Enquirer seeks two writs: a writ of mandamus to compel Lyons to produce criminal records for the past five years that have been incorrectly sealed with a journal entry referencing
{12} We deny the writs in case No. 2013-0300 but grant the writ of mandamus in case No. 2012–1924 and remand to the trial court for further proceedings.
Factual and Procedural History
Case No. 2012-1924
{13} In the fall of 2012, a misdemeanor prosecution was instituted against John Doe in connection with a flier distributed on the campus of Miami University promoting the “Top Ten Ways to Get Away with Rape.” The Cincinnati Enquirer had printed a series of articles covering the incident and the university‘s response.
{14} Doe pled guilty to disorderly conduct, a minor misdemeanor, and an entry was filed on November 7, 2012, with the understanding that the court record would be sealed. He immediately applied to seal the case records using a preprinted form provided by the court that referenced
{15} On November 14, 2012, the Enquirer filed case No. 2012-1924, seeking a writ of mandamus to compel Judge Lyons to vacate the order sealing the record.
{16} Lyons filed an answer on December 13, 2012, admitting that he had erroneously relied on
{17} The Enquirer contends that Lyons‘s initial order sealing Doe‘s record of conviction is unlawful, because
{18} Lyons maintains that the Enquirer lacks standing to challenge the order allowing Doe to withdraw his guilty plea, because it is not a party to that case, and its request intrudes into judicial and prosecutorial discretion. He contends that a manifest injustice supported withdrawal of the plea because unsealing Doe‘s record would breach the terms of the plea agreement and that the rights of the accused outweigh the rights of the press to access a cоurt record. Lyons also asserts that he had no duty to notify the Enquirer of the hearing on Doe‘s motion to seal the record, because he complied with
Case No. 2013-0300
{19} In the course of discovery in case No. 2012-1924, the Enquirer learned that Judge Lyons had sealed numerous other minor-misdemeanor conviction records by using a form that cites
{110} In its complaint in 2013-0300, the Enquirer requested a writ of mandamus requiring Lyons to produce all records of criminal proceedings sealed pursuant to
Law and Analysis
{111} Mandamus is the appropriate remedy to compel compliance with the Public Records Act,
{12} To be entitled to a writ of prohibition preventing enfоrcement of the sealing orders, the Enquirer must establish that Lyons is about to or has exercised judicial power, that the exercise of that power is unauthorized by law, and that denying the writ would result in an injury for which no other adequate remedy exists in the ordinary course of law. State ex rel. Bell v. Pfeiffer, 131 Ohio St.3d 114, 2012-Ohio-54, 961 N.E.2d 181, ¶ 18; State ex rel. Miller v. Warren Cty. Bd. of Elections, 130 Ohio St.3d 24, 2011-Ohio-4623, 955 N.E.2d 379, ¶ 12.
Superintendence Rules—Right to Access
{13} Effective July 1, 2009, we adopted Rules of Superintendence for the Courts of Ohio regarding public access to court records.
{14} Like Ohio‘s public-records law, the Rules of Superintendence regarding public access to court records should enjoy a broad judicial construction in favor of access to records, which promotes openness, transparency of process, and accountability.
{15} Once sealed, a criminal record, i.e., a case document, is exempt from public access.
The Statutes Governing Sealing of Records
{16} Two different statutes relate to sealing of court documents—
R.C. 2953.32—Sealing of Records (Conviction)
{117}
(A)(1) * * * [A]n eligible offender may apply to the sentencing court * * * for the sealing of the conviction record. Application may be made at the expiration of three years after the offender‘s final discharge if convicted of a felony, or at the expiration of one year after the offender‘s final discharge if convicted of a misdemeanor.
* * *
(B) Upon the filing of an application under this section, the cоurt shall set a date for a hearing and shall notify the prosecutor for the case of the hearing on the application. The prosecutor may object to the granting of the application by filing an objection with the court prior to the date set for
the hearing. The prosecutor shall specify in the objection the reasons for believing a denial of the application is justified. The court shall direct its regular probation officer, a state probation officer, or the department of probation of the county in which the applicant resides to make inquiries and written reports as the court requires concerning the applicant. * * * (C)(1) The court shall do each of the following:
(a) Determine whether the applicant is an eligible offender * * *;
(b) Determinе whether criminal proceedings are pending against the applicant;
(c) If the applicant is an eligible offender * * *, determine whether the applicant has been rehabilitated to the satisfaction of the court;
(d) If the prosecutor has filed an objection * * *, consider the reasons against granting the application specified by the prosecutor in the objection;
(e) Weigh the interests of the applicant in having the records pertaining to the applicant‘s conviction sealed against the legitimate needs, if any, of the government to maintain those records.
(2) If the court determines, after complying with division (C)(1) of this section, that the applicant is an eligible offender * * *, that no criminal proceeding is pending аgainst the applicant, and that the interests of the applicant in having the records pertaining to the applicant‘s conviction * * * sealed are not outweighed by any legitimate governmental needs to maintain those records, and that the rehabilitation of an applicant who is an eligible offender applying pursuant to division (A)(1) of this section has been attained to the satisfaction of the court, the court * * * shall order all official records pertaining to the case sealed * * *.
(Emphasis added.)
{118} The term “eligible offender” is defined in
anyone who has been convicted of an offense in this state or any other jurisdiction and who has not more than one felony conviction, not more than two misdemeanor convictions if the convictions are not of the same offense, or not more than one felony conviction and one misdemeanor conviction in this state or any other jurisdiction.
* * *
For purposes of, and except as otherwise provided in, this division, a conviction for a minor misdemeanor * * * is not a conviction.
{19} Previously, the sealing statute applied only to first-time offenders. See former
{120} Felonies are classified from first to fifth degree and misdemeanors from first degree to minor. The dissent quotes State v. Collins, 67 Ohio St.3d 115, 116, 616 N.E.2d 224 (1993), and relies on language distinguishing minor misdemeanors from other misdemeanors. But in Collins, we simply applied the rule of lenity and held that “[a] minor misdemeanor may not serve as the underlying predicate offense for purposes of the involuntary manslaughter statute,
{121} Even though there may be some distinctions between the different degrees of misdemeanor, this does not mean that they are not still all misdemeanors, just as a Labrador retriever, although different from other dogs, is still a dog.
{22} Lyons stated in his deposition that pursuant to his interpretation,
{123} In summary,
R.C. 2953.52—Sealing of Records (Nonconviction)
{124} In comparison,
(A)(1) Any person, who is found not guilty of an offense by a jury or a court or who is the defendant named in a dismissed complaint, indictment, or information, may apply to the court for an order to seal the person‘s official records in the case. Except as provided in section 2953.61 of the Revised Code [relating to multiple cases], the application may be filed at any time after the finding of not guilty or the dismissal of the complaint, indictment, or information is entered upon the minutes of the court or the journal, whichever entry occurs first.
* * *
(B)(1) Upon the filing of an application * * *, the court shall set a date for a hearing and shall notify the prosecutor in the case of the hearing on the application. The prosecutor may object to the granting of the application by filing an objection with the court prior to the date set for the hearing. The prosecutor shall specify in the objection the reasons the prosecutor believes justify a denial of the application.
(2) The court shall do each of the following, except as provided in division (B)(3) of this section:
(a) (i) Determine whether the person was found not guilty in the case, or the complaint, indictment, or information in the case was dismissed * * *;
(ii) If the complaint, indictment, or information in the case was dismissed, determine whether it was dismissed with prejudice or without prejudice and, if it was dismissed withоut prejudice, determine whether the relevant statute of limitations has expired;
(b) Determine whether criminal proceedings are pending against the person;
(c) If the prosecutor has filed an objection in accordance with division (B)(1) of this section, consider the reasons against granting the application specified by the prosecutor in the objection;
(d) Weigh the interests of the person in having the official records pertaining to the case sealed against the legitimate needs, if any, of the government to maintain those records.
(Emphasis added.)
{125} In contrast to
Judge Lyons‘s Procedure for Sealing
{126} By his own admission, Judge Lyons did not use the proper statute or follow the proper procedure in sealing records of minor misdemeanors. He acknowledges that unsealed criminal convictions are “court records” and are subject to public access. And he also acknowledges that for an indeterminate period of time he sealed minor-misdemeanor convictions using a form that incorrectly referenced
The Sealing of a Case Document is Not Immediate
{27} When an applicant has a conviction, the hearing on an application to seal that conviction will not occur until one or three years “after the offender‘s final discharge.”
{128} We have repeatedly recognized that use of the term “shall” in a statute or rule connotes a mandatory obligation unless other language evidences a clear and unequivocal intent to the contrary. See, e.g., Dorrian v. Scioto Conservancy Dist., 27 Ohio St.2d 102, 271 N.E.2d 834 (1971), paragraph one of the syllabus; State v. Pless, 74 Ohio St.3d 333, 658 N.E.2d 766 (1996); Crawford v. State, Div. of Parole & Community Servs., 57 Ohio St.3d 184, 189, 566 N.E.2d 1233 (1991)
{129} A contrary interpretation might be correct if either statute simply required the court to “hold a hearing” or permitted the court to seal a case record immediately upon application. But thаt is not what either statute says. Under
Case No. 2012-1924
{130} The Enquirer has provided sufficient evidence that John Doe‘s criminal case record was improperly sealed. When Lyons initially purported to seal the record, he incorrectly utilized
{31} The dissenting opinion characterizes Judge Lyons‘s use of the improper entry as merely a “clerical mistake” that did not affect the order‘s validity. But the impropriety was more than just “an errant reference to the wrong statutory code section.” The entry purports to make findings in support of the decision to seal the record of a conviction. Nowhere is it found that the applicant is an “eligible offender” or that the applicant has attained rehabilitation to the satisfaction of the court.
{32} After the Enquirer filed case No. 2012-1924 and even after being aware that the press was seeking access to a case record, Lyons allowed withdrawal of the plea of guilty. He “unsealed” the previously improperly sealed record, accepted the prosecutor‘s nolle prosequi of the charge, and immediately held a hearing on the motion to seal the record again under
{133} We note that a court record like John Doe‘s is subject to the presumption of public access under
{134} We have already upheld
Case No. 2013-0300
{135} But in case No. 2013-0300, the Enquirer has not established а clear legal right to a writ of mandamus. The case records that have been requested have not been sufficiently identified as being improperly sealed. We must presume their regularity as sealed records. State v. Phillips, 74 Ohio St.3d 72, 92, 656 N.E.2d 643 (1995) (“a trial court‘s proceedings are presumed regular unless the record demonstrates otherwise“). For a dismissed minor-misdemeanor charge, a sealing pursuant to
Conclusion
{36} Although Judge Lyons believed that immediate sealing of a minor misdemeanor was possible upon disposition, he was incorrect. Under
{138} We therefore grant the writ in case No. 2012-1924, but we deny the writs of mandamus and prohibition in case No. 2013-0300, because the Enquirer failed to establish a clear legal right to the records it requested.
Judgment accordingly.
O‘CONNOR, C.J., and FRENCH and O‘NEILL, JJ., concur.
SADLER, J., concurs in judgment only.
PFEIFER and O‘DONNELL, JJ., concur in part and dissent in part.
LISA L. SADLER, J., of the Tenth Appellate District, sitting for KENNEDY, J.
SADLER, J., concurring in judgment only.
{139} I agree that the language providing that the court “shall set a date for a hearing” as used in
O‘DONNELL, J., concurring in part and dissenting in part.
{40} This case concerns whether an order sealing the criminal record of a minor misdemeanant is invalid based on the trial court‘s citation to the wrong statutory code section in its preprinted form journal entry for sealing the record of conviction and its failure to set the motion to seal the record for a hearing.
{41} In case No. 2012-1924, the Cincinnati Enquirer seeks a writ of mandamus to compel Judge Robert H. Lyons of the Butler County Area I Court to vacate the order sealing court records related to the prosecution of a John Doe defendant for a disorderly-conduct misdemeanor charge that arose from the posting of a flier promoting rape of females at Miami University in Oxford, Ohio.
{43} I would deny the writs in both cases. Judge Lyons had authority to seal the records of minor misdemeanants upon disposition of the charges, and the errant reference to the wrong code section in the entries and the failure to schedule a future hearing on them do not invalidate the court‘s orders in those cases. Moreover, the court has exercised its discretion to grant Doe‘s motion to withdraw his guilty plea and asserted its authority to reseal that record after the state had dismissed the disorderly-conduct complaint against Doe.
{144} Accordingly, in case No. 2012-1924, I respectfully dissent from the majority‘s decision to grant a writ of mandamus. And in case No. 2013-0300, I concur in judgment only denying the writs of mandamus and prohibitiоn.
Public Access to Court Records
{145} As we explained in State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878, 950 N.E.2d 952, ¶ 21, “Court records are generally public records subject to disclosure under the Public Records Act.” See also State ex rel. Cincinnati Enquirer v. Winkler, 101 Ohio St.3d 382, 2004-Ohio-1581, 805 N.E.2d 1094, ¶ 5 (“court records fall within the broad definition of a public record in
{146} Similarly, the Superintendence Rules provide, “Court records are presumed open to public access.”
{1147}
R.C. 2953.32
{1 48}
{1149} And the statute does not require a minor misdemeanant to wait one year before applying to seal a record of conviction.
{151} The majority reasons that a one-year waiting period applies to the sealing of a conviction for a minor misdemeanor, because “[i]f sealing could occur immediately upon conviction, rehabilitation would be irrelevant.” Majority opinion at ¶ 22. While it is true that the applicant has the burden to demonstrate rehabilitation to the satisfaction of the court, the convictions at issue here are for minor misdemeanors, the lowest offense classification designated by the legislature. In fact, the General Assembly distinguished them from felonies and other misdemeanors, which it subjected to a waiting period, because of the diminished culpability and harm caused by committing a minor misdemeanor. It is therefore reasonable that no waiting period is needed to evaluate the rehabilitation of a minor misdemeanant. Thus, contrary to the majority‘s assertion, the lack of a waiting period for minor misdemeanants does not make the trial court‘s duty to find that the offender has attained satisfactory rehabilitation irrelevant. Rather, an offender who is unable to demonstrate satisfactory rehabilitation may not have the record sealed, regardless of whether a waiting period applies.
R.C. 2953.52
{1 52}
{1 53}
Analysis
{1154} In this case,
{155} The court‘s decision to conduct the hearing required by
{1156} Properly sealed records are exempt from release as public records. See
PFEIFER, J., concurs in the foregoing opinion.
Graydon, Head & Ritchey, L.L.P, and John C. Greiner, for relator.
Michael T. Gmoser, Butler County Prosecuting Attorney, and Dan L. Ferguson, Assistant Prosecuting Attorney, for respondent in case No. 2012-1924.
Montgomery, Rennie & Jonson and George D. Jonson, for respondent in case No. 2013-0300.