The Supreme Court of Ohio today granted writs of mandamus and prohibition ordering a visiting judge to unseal documents that the judge allowed to be filed under seal in a 2010 Mahoning County public corruption case. The case, which has since been dismissed by prosecutors but is subject to refiling, alleged among other charges that multiple county officials accepted bribes from members of the Cafaro family, owners of the Ohio Valley Mall Company, in return for the county’s continued rental of property owned by Ohio Valley Mall to house the Mahoning County Department of Job and Family Services. 

In a 7-0 per curiam decision announced today, the court held that retired Ohio Court of Appeals Judge William H. Wolff, sitting by assignment on the Mahoning County Court of Common Pleas, acted contrary to the Supreme Court’s Rules of Superintendence when he established a protocol under which multiple filings in the cluster of cases identified as State v. Cafaro were presumptively allowed to be made under seal without giving the public prior notice and an opportunity to be heard on the necessity of sealing each filing. The court also found that the judge erred in denying requests by the Youngstown Vindicator newspaper to obtain copies of the bills of particulars returned by a grand jury against the defendants, and part of another  document filed under seal, based on the court’s finding that media reporting of the content of those documents could make it difficult or impossible to impanel an impartial jury to hear the case.

The underlying criminal case was dismissed by the state without prejudice (without forfeiting the right to refile charges against the defendants based on the same conduct) in July 2011. However, the Vindicator continued to seek access to all documents that had been filed under seal. Judge Wolff unsealed most of the sealed filings in August 2011, but granted a motion by the Cafaro defendants to deny public access to the bills of particulars returned by the grand jury in the case or to a six-page portion of a document that had been filed by the state in opposition to a motion to dismiss in which prosecutors enumerated “relevant non-vindictive facts” that it claimed supported the charges against the defendants. The Vindicator filed an original action in mandamus and prohibition asking the Supreme Court to order Judge Wolff to disclose the disputed documents, and to prohibit him from any future application of the protocol under which filings in the case were presumptively sealed.

In today’s decision, the court found that it was not necessary to rule on claims asserted by the Vindicator under the Ohio Public Records Act, the U.S. and Ohio Constitutions and prior court decisions, because the newspaper had established its claim to the disputed records under the Ohio Rules of Superintendence, rendering its other legal arguments moot.

The court wrote: “Under Sup.R. 45(A), ‘[c]ourt records are presumed open to public access.’ ... Relators assert that the requested records that remain sealed here − bills of particulars and a statement of facts in the state’s memorandum in opposition to the Cafaro defendants’ motion to dismiss the indictment − are entitled to the presumption of public access in Sup.R. 45(A) because they constitute case documents.”  
“In his December 21, 2010 decision sealing the bills of particulars and his August 24, 2011 decision sealing the factual portion of the state’s memorandum in response to the Cafaro defendants’ motion to dismiss, the judge determined that these filed documents were not entitled to presumptive public access, because they were not used by him to render a decision in the cases. ... There is no requirement under the Superintendence Rules that a record or document must be used by the court in a decision to be entitled to the presumption of public access specified in Sup.R. 45(A).  Instead, to qualify as a case document that is afforded the presumption of openness for court records, the document or information contained in a document must merely be ‘submitted to a court or filed with a clerk of court in a judicial action or proceeding’ and not be subject to the specified exclusions. ... The bills of particulars and the factual portion of the state’s memorandum in response to the Cafaro defendants’ motion to dismiss were manifestly submitted to the common pleas court and filed with the clerk of court in the criminal cases, and there is no exception in Sup.R. 44(C) for records not used by a court to render a decision. Therefore, we cannot read this exception into the plain language of the Superintendence Rules.”

“Respondents also claim that these sealed records are not entitled to the Sup.R. 45(A) presumption of public access because they are exempt from disclosure as discovery materials or work product, citing our decision in State ex rel. WHIO-TV-7 v. Lowe (1997), to support their claim.  Our holding in Lowe, however, was limited: ‘Information that a criminal prosecutor has disclosed to the defendant for discovery purposes pursuant to Crim.R. 16 is not thereby subject to release as a “public record” pursuant to R.C. 149.43.’ ... Neither the bills of particulars nor the facts recited in the state’s memorandum in response to the Cafaro defendants’ motion to dismiss were ‘disclosed to the defendant[s] for discovery purposes pursuant to Crim.R. 16.’ ... Notwithstanding respondents’ assertions, in Ohio, a ‘bill of particulars has a limited purpose − to elucidate or particularize the conduct of the accused alleged to constitute the offense.’  Its express purpose is not ‘to serve as a substitute for discovery.’ ... Therefore, the sealed bills of particulars are not exempt from disclosure under state law as either discovery materials or work product. Nor is a recitation of facts in a response to a dispositive motion in a criminal case the equivalent of discovery or work product.  Therefore, the sealed records are entitled to the presumption of access accorded case documents under Sup.R. 45(A).”

“Respondents claim that any presumptive right of access to the sealed bills of particulars and the statement of facts in the state’s response to the motion to dismiss the indictment was outweighed under Sup.R. 45(E)(2)(c) by clear and convincing evidence that the ‘fairness of the adjudicatory process’ would be compromised by public access to these records, i.e., unsealing these records would substantially prejudice the defendants’ right to a fair trial. Respondent’s claim lacks merit.  There was not clear and convincing evidence to establish that the prejudicial effect of pretrial publicity generated by public access to the bills of particulars and the recitation of facts in the state’s memorandum in response to the Cafaro defendants’ motion to dismiss the indictment would prevent them from receiving a fair trial.  The Cafaro defendants’ lone witness at the December 6, 2010 hearing, Ohio University journalism professor Martin, admitted that he had ‘no idea’ whether relators’ coverage of the criminal cases would prevent the impaneling of an impartial jury.”

“In effect, in the absence of clear and convincing evidence establishing that the defendants’ right to a fair trial would be violated, the judge erroneously relied on conclusory, speculative assertions. ... Moreover, the constitutional right of the defendants to a fair trial can be protected by the traditional methods of voir dire, continuances, changes of venue, jury instructions, or sequestration of the jury.  Consequently, the sealing orders were improper. ... (R)elators have established that the presumption of public access has not been overcome by the requisite clear and convincing evidence of a higher interest, and that the public is entitled to access to the sealed records under the Superintendence Rules.”

“Based on the previous discussion concerning relators’ mandamus claim, they have also established their entitlement to the requested writ of prohibition.  The Cafaro defendants did not submit clear and convincing evidence to support the court’s sealing orders and sealing protocol presumptively sealing records, including motions to seal and memoranda in opposition, based on a claimed infringement on the defendants’ constitutional right to a fair trial. Therefore, relators’ prohibition claim has merit.”

“Relators request an award of attorney fees.  But Sup.R. 44 through 47 do not authorize an award of attorney fees to a successful litigant contesting a court’s denial of access to court records. ... Thus, we deny relators’ request for attorney fees.”

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2011-0132. State ex rel. Vindicator Printing Co. v. Wolff, Slip Opinion No. 2012-Ohio-3328.
In Mandamus and Prohibition. Writs granted.
O’Connor, C.J., and Pfeifer, Lundberg Stratton, O’Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-3328.pdf

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