Strothers v. Norton
| Decision Date | 15 March 2012 |
| Docket Number | No. 2011–1483.,2011–1483. |
| Citation | 965 N.E.2d 282 |
| Parties | STROTHERS, Appellant and Cross–Appellee, v. NORTON, Mayor, Appellee and Cross–Appellant. |
| Court | Ohio Supreme Court |
Gerald O. Strothers Jr., pro se.
Ronald K. Riley, East Cleveland Director of Law, for appellee and cross-appellant.
{¶ 1} This is an appeal from a judgment denying the request of appellant and cross-appellee, Gerald O. Strothers Jr., for a writ of mandamus to compel appellee and cross-appellant, East Cleveland Mayor Gary Norton Jr., to provide access to review, inspect, and copy at cost various records. Norton cross-appeals from that portion of the judgment awarding Strothers $1,000 in statutory damages on his public-records mandamus claim.
{¶ 2} We affirm the portion of the judgment denying the writ of mandamus and reverse the portion awarding statutory damages.
{¶ 3} By certified letter dated December 1, 2010, Strothers requested that Norton allow him "to review, inspect and or copy [certain] public records pertaining to East Cleveland Ohio from (2009 to present)" relating to the East Cleveland jail. These records included (1) copies of the contracts to provide food/catering and laundry service for jail prisoners, (2) all financial records that contain data about the jail—including "all payments made and received, amounts paid to outside contractors, bid requests, proposals and resumes of any winning and non-winning bidder(s)," (3) documents related to all purchases of jail bedding, pads, and sheets, (4) requests for "bids of jail plumbing problems including the many non-working sinks and toilets in the facility, this may include repairs made by in-house custodians; all plumbing invoices," (5) "Certification to provide medical care, dispense medications by jail personnel or written authorization allowing non-medical personnel, correctional officers to dispense prescription medications," (6) "Extermination Contracts or requests for extermination services made by jail personnel and prisoners, including the plan to address rat, mice, and insect infestation at the jail facility; all service calls from outside professional and nonprofessional exterminators," (7) "Jail policy pertaining to prisoners' use of telephones, showers, and being able to step out of their cells for exercise and recreation, or letter directing jail personnel to keep prisoners caged up without release," (8) inspection reports from the state and Cuyahoga County offices tasked with monitoring jail facilities, and (9) "Written jail policies pertaining to prisoner treatment, phone calls, medical attention, and discipline including incidents where prisoners were stunned with electronic non-lethal weapons and physically restrained using chains or handcuffs."
{¶ 4} In his request, Strothers acknowledged the breadth of his request:
I realize that this is a large request for documents but it is my intention to review the requested records within a reasonable amount of time and perhaps help our fair city avoid any future mistreatment of prisoners in the city jail facility.
{¶ 5} The certified-mail receipt indicates that the request was received on behalf of the mayor on December 2, 2010. Strothers reiterated his request at the December 7, 2010 regular meeting of the East Cleveland City Council.
{¶ 6} On December 9, 2010, only a week after Strothers's public-records request was received by Norton, Strothers filed a petition in the Eighth District Court of Appeals for a writ of mandamus to compel Norton to provide access to the requested records.
{¶ 7} On December 21, Norton, through Brenda L. Blanks, the executive assistant to the East Cleveland law director, provided copies of some of the requested records to Strothers. On that same day, Strothers submitted a written request for records pertaining to the city's traffic cameras, including the revenue generated by each of them.
{¶ 8} On January 13, 18, and 25, Norton provided Strothers with access to the remaining records listed in his initial request. Some of these records were sent to Strothers by certified mail, but they were returned because Strothers did not sign for them. In a subsequent telephone conversation, Strothers advised Blanks that he never requested that she send him copies of the records and that he wanted instead to come to the office to review the records and scan the ones he wanted into his personal computer. Blanks told Strothers that he could make an appointment during regular business hours to review the records, but Strothers did not make an appointment to do so.
{¶ 9} After Norton filed a response to Strothers's mandamus petition and Strothers filed a motion for summary judgment, the court of appeals ordered the parties to file an inventory listing the records that had been requested and those that had been made available. Attached to Norton's inventory was the uncontroverted affidavit of Blanks specifying that all of the requested records had been made available to Strothers.
{¶ 10} The court of appeals denied the writ of mandamus, but awarded Strothers $1,000 in statutory damages.
{¶ 11} This cause is now before the court upon Strothers's appeal and Norton's cross-appeal.
{¶ 12} In his appeal, Strothers asserts that the court of appeals erred in denying the requested writ of mandamus. Strothers claims that the court of appeals committed error by ruling that 45 days was a reasonable amount of time for the mayor to take to make records available and that a request for public records must be made by affidavit. But the court of appeals did not so hold.
{¶ 13} Instead, the court of appeals correctly held that Norton's evidence, which included the uncontroverted affidavit of Blanks and attached exhibits, established that Strothers had been given access to all of the requested records, which rendered his mandamus claim moot. See State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878, 950 N.E.2d 952, ¶ 22, quoting State ex rel. Toledo Blade Co. v. Toledo–Lucas Cty. Port Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221, ¶ 14 (). Strothers did not submit the requisite clear and convincing proof to the contrary. See State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, paragraph three of the syllabus ("Relators in mandamus cases must prove their entitlement to the writ by clear and convincing evidence").
{¶ 14} Nor did the court of appeals abuse its discretion in refusing to consider Strothers's claim for records concerning the city's traffic camera. Strothers claims that the court refused to consider that claim because his request was not made in an affidavit. Actually, the court held that it would not consider that claim because Strothers had not included it in his mandamus petition. " R.C. 149.43(C) requires a prior request as a prerequisite to a mandamus action." State ex rel. Taxpayers Coalition v. Lakewood, 86 Ohio St.3d 385, 390, 715 N.E.2d 179 (1999). Strothers did not submit his request for the traffic-camera records before he filed his mandamus petition, and he did not thereafter seek leave to amend his petition to include the claim. In fact, even in this appeal, Strothers attempts to include a claim related to yet another request for public records. Yet this request, which did not precede the filing of his mandamus petition, was likewise not included in his petition or in a motion to amend it. This claim was not even raised in the court of appeals. State ex rel. DeGroot v. Tilsley, 128 Ohio St.3d 311, 2011-Ohio-231, 943 N.E.2d 1018, ¶ 9 ().
{¶ 15} Therefore, we affirm the judgment of the court of appeals denying the writ of mandamus.
{¶ 16} In his cross-appeal, Norton asserts that the court of appeals erred in awarding Strothers $1,000 in statutory damages. Norton first claims that Strothers lacked standing to institute his mandamus action and receive an award of statutory damages because he is not an aggrieved party for purposes of R.C. 149.43(C) since his request for public records was "merely a pretext to obtain statutory damages."
{¶ 17} R.C. 149.43(C)(1) provides:
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