State ex rel. Beacon Journal Pub. Co. v. Radel

• Decision Date: 30 January 1991
• Docket Number: No. 90-1018,90-1018
• Citation: 566 N.E.2d 661,57 Ohio St.3d 102
• Parties: , 18 Media L. Rep. 1947 The STATE, ex rel. BEACON JOURNAL PUBLISHING COMPANY, Appellee, v. RADEL, Clerk of Massillon Municipal Court, et al., Appellants.
• Court: Ohio Supreme Court

Page 102

57 Ohio St.3d 102

566 N.E.2d 661, 18 Media L. Rep. 1947

The STATE, ex rel. BEACON JOURNAL PUBLISHING COMPANY, Appellee, v. RADEL, Clerk of Massillon Municipal Court, et al., Appellants.

No. 90-1018.

Supreme Court of Ohio.

Submitted Oct. 23, 1990.

Decided Jan. 30, 1991.

Appellee, Beacon Journal Publishing Company ("Beacon Journal"), sought a writ of mandamus under R.C. 149.43 from the Court of Appeals for Stark County against appellants, Edward Radel, Jr. and Judge Richard T. Kettler, respectively the Clerk and Presiding Judge of the Massillon Municipal Court. The complaint alleged that between 1983 and 1989, Judge Virgil Musser of the Massillon Municipal Court sealed "numerous" records of criminal cases without following the mandatory procedures of R.C. 2953.52, which statute governs the sealing of records in cases where a criminal defendant has been acquitted, criminal charges have been dismissed, or a grand jury has declined to return an indictment.

The complaint further alleged that a Beacon Journal reporter asked Radel, pursuant to R.C. 149.43, to make available for inspection and copying all records that Judge Musser had illegally sealed. Radel refused to do so because the records were sealed. Subsequently, counsel for Beacon Journal made "numerous" requests that Judge Kettler release the records or conduct a hearing on whether they should be released. Judge Kettler took no action on these requests.

On May 8, 1990, Beacon Journal filed its complaint in the court of appeals. On May 14, without waiting for appellants to respond, the court of appeals issued a peremptory writ of mandamus ordering Judge Kettler to "conduct an immediate in camera review of all court records necessary to determine whether Judge Virgil Musser sealed records in conformity with * * * Ohio Revised Code Chapter 2953 at all times * * *."

The peremptory writ further ordered Judge Kettler and Radel to prepare "an index of any documents which were sealed by Judge Musser otherwise than in conformity with Ohio Revised Code Chapter 2953 * * *" and to make such documents available for inspection and copying. Judge Kettler and Radel appeal as of right from the issuance of the peremptory writ.

Roetzel & Andress, Ronald S. Kopp and Amie L. Bruggeman, Akron, for appellee.

Timothy G. Andrews, Canton, for appellant Edward Radel, Jr.

Amerman, Burt & Jones Co., L.P.A., and V. Lee Sinclair, Jr., Canton, for appellant Judge Richard T. Kettler.

PER CURIAM.

This case presents serious factual and legal issues, but the court of appeals did not address them; instead, it summarily granted a peremptory writ of mandamus, giving appellants no chance to challenge Beacon Journal's assertions. We conclude that the court of appeals improperly issued the writ.

A court may grant a peremptory writ only in limited circumstances. R.C. 2731.06 provides: "When the right to require the performance of an act is clear and it is apparent that no valid excuse can be given for not doing it, a court, in the first instance, may allow a peremptory mandamus. * * *"

We have held "that a peremptory writ of mandamus should issue in the first instance only when material facts are admitted disclosing that relator is entitled to relief as a matter both of law and fact. * * * An alleged right to performance is unclear when the facts underpinning the claimed right are not admitted and it has not been established that no valid excuse can be given for nonperformance of the alleged duty." State, ex rel. Temke, v. Outcalt (1977), 49 Ohio St.2d 189, 191, 3 O.O.3d 248, 249, 360 N.E.2d 701, 702. Thus, a court generally may not grant the writ "before an answer admitting or denying the material facts ha[s] been filed." State, ex rel. Mazzaro, v. Ferguson (1990), 49 Ohio St.3d 37, 40, 550 N.E.2d 464, 468. No answer has been filed here, and no facts have been admitted.

Beacon Journal argues that we have not always strictly adhered to Temke. See State, ex rel. Hughes, v. Brown (1972), 31 Ohio St.2d 41, 60 O.O.2d 23, 285 N.E.2d 376; State, ex rel. Cleveland Hts., v. Cuyahoga Metro. Hous. Auth. (1990), 50 Ohio St.3d 47, 553 N.E.2d 249; State, ex rel. Beck, v. Casey (1990), 51 Ohio St.3d 79, 83, 554 N.E.2d 1284, 1287-1288; State, ex rel. Natl. Broadcasting Co., v. Lake Cty. Court of Common Pleas (1990), 52 Ohio St.3d 104, 115, 556 N.E.2d 1120, 1131 ("Lake Cty." ). However, the circumstances justifying peremptory relief in those cases do not exist here.

In Cleveland Hts., for instance, "no factual issue" existed, because the relator's right to performance turned on a factual issue that "ha[d] already been finally litigated by all parties * * *." Id. at 49, 553 N.E.2d at 251. Unlike Cleveland Hts., this case presents unlitigated factual issues. Beacon Journal claims that court records, even though sealed, remain public if the judge who seals them fails to follow the statutory procedures; if that is correct, the court of appeals can determine which records are public only by determining which records, if any, Judge Musser improperly sealed.

The court of appeals tried to avoid making this determination by peremptorily ordering Judge Kettler to inspect the records in camera and determine which records were improperly sealed. However, that task is clearly for the court of appeals, not Judge Kettler. "When a governmental body asserts that public records are excepted from disclosure and such assertion is challenged, the court must make an individualized scrutiny of the records in question. * * * " State, ex rel. Natl. Broadcasting Co., v. Cleveland (1988), 38 Ohio St.3d 79, 526 N.E.2d 786, paragraph four of the syllabus. The Massillon Municipal Court cannot conduct this scrutiny, for that court is also the "governmental body assert[ing] that public records are excepted from disclosure * * *." In this context, "the court" obviously means the court in which "such assertion is challenged * * *." In this case, it means the court of appeals.

Thus, it was for the court of appeals, not Judge Kettler, to decide whether Beacon Journal had a right to examine the sealed records. The resolution of this issue turns initially on a question of fact: whether Judge Musser obeyed the statutory procedures for sealing court records. This question, unlike the crucial fact question in Cleveland Hts., has yet to be litigated.

Moreover, this case presents at least one serious legal issue: whether due process requires that any defendants whose previously sealed records may be made public as a result of this litigation have a right to notice and an opportunity to participate in the proceedings. The court of appeals did not consider that issue, because that court gave appellants no chance to raise it or any other issue of law. Until the court of appeals resolves the contested legal issues, it cannot say that Beacon Journal's "right to require the performance of an act is clear * * *." (Emphasis added.) R.C. 2731.06.

This case is also distinguishable from Hughes, Beck, and Lake Cty., supra. Beck was an election case, in which "time is of the essence." Beck, supra, at 82, 554 N.E.2d at 1287. Despite this, the respondents in Beck chose to file a motion to dismiss instead of an answer. We observed that "applying Temke strictly to election matters would permit respondents, by filing a motion to dismiss, to extend the time for an answer and shorten the time available for the court to give the case full consideration." Beck, supra, at 83, 554 N.E.2d at 1288. We therefore held that the respondent in an election case files a motion to dismiss instead of an answer "at the risk of having the court accept the facts as stated in the complaint, particularly when no reason emerges from the argument to doubt the facts." Id.

Similarly, when we granted peremptory relief in Lake Cty., supra, we had already issued an alternative writ of prohibition. The alternative writ shortened the respondent's answer date and thereby placed him on notice that " 'time is of the essence * * *.' " Id. at 115, 556 N.E.2d at 1131, quoting State, ex rel. Chillicothe Gazette, Inc., v. Court of Common Pleas (1982), 2 Ohio St.3d 24, 25, 2 OBR 570, 571, 442 N.E.2d 747, 748. See, also, Hughes, supra, at 43, 60 O.O.2d at 24, 285 N.E.2d at 377. As in Beck, the respondents in Lake Cty. moved to dismiss instead of answering. Citing Hughes and Beck, we held that where the respondent files only a motion to dismiss in response to an alternative writ, peremptory relief is proper.

This is not an election case, nor did the court of appeals grant an alternative writ. Moreover, appellants filed no motion to dismiss; indeed, they had no chance to file anything, since the court of appeals granted the peremptory writ six days after the complaint was filed. Cf. Civ.R. 12(A)(1) (defendant in civil action has twenty-eight days after service of complaint to file answer). Thus, it cannot be said that appellants indulged in dilatory behavior and thus assumed the risk that the court of appeals would accept the facts as stated in the complaint.

The court of appeals granted relief here on no more than Beacon Journal's naked assertions. The court gave respondents no chance to deny the truth of those assertions, nor even so much as a chance to contest the legal theories on which the cause of action rests. No evidence lay before the court that the assertions were true. Indeed, the court did not purport to...