State ex rel. Citizens v. Register

• Decision Date: 24 October 2007
• Docket Number: No. 2007-0238.,2007-0238.
• Parties: The STATE ex rel. CITIZENS FOR OPEN, RESPONSIVE & ACCOUNTABLE GOVERNMENT v. REGISTER.
• Court: Ohio Supreme Court

876 N.E.2d 913

116 Ohio St.3d 88

2007-Ohio-5542

The STATE ex rel. CITIZENS FOR OPEN, RESPONSIVE & ACCOUNTABLE GOVERNMENT v. REGISTER.

No. 2007-0238.

Supreme Court of Ohio.

Submitted August 14, 2007.

Decided October 24, 2007.

Curt C. Hartman, Amelia, for relator.

Donald W. White, Clermont County Prosecuting Attorney, and H. Elizabeth Mason, Assistant Prosecuting Attorney, for respondent.

PER CURIAM.

{¶ 1} This is an original action for a writ of mandamus to compel a township fiscal officer to prepare, file, and maintain full and accurate minutes and records relating to meetings of and resolutions adopted by the Pierce Township Board of Trustees and to include an annual township financial statement in the board minutes and post a copy of the statement at the township polling places for each general election. Because the fiscal officer has no duty to correct mistakes in resolutions that were expressly adopted by the board and also has no duty regarding annual financial statements absent an annual settlement of accounts by the board, we deny the writ in most respects. We grant the writ in those few instances in which the fiscal officer made mistakes in her certification of certain resolutions.

{¶ 2} Relator, Citizens for Open, Responsive & Accountable Government, is an association of individuals organized to monitor, ensure, and enforce compliance by all governments, public offices, bodies, and officials with all laws and court decisions to promote the openness, responsiveness, and accountability of these entities and individuals. Respondent, Karen Register is the Pierce Township fiscal officer — formerly known as the Pierce Township clerk — and has held that position since January 2000.

May 11, 2004 Meeting

{¶ 3} At its regular meeting on May 11, 2004, the Pierce Township Board of Trustees adopted Resolution Nos. 04-005, 04-006, and 04-007. The forms approved by the board incorrectly specified March 9, 2004 — instead of May 11, 2004 — as the date of the meeting at which the board adopted the resolutions. In addition, the forms for Resolution Nos. 04-006 and 04-007 contained no substantive provisions.

{¶ 4} Register, in her capacity as township clerk, certified that the addenda were true and correct copies of Resolution Nos. 04-005, 04-006, and 04-007, as passed by the board on May 11, 2004. Register did not draft or prepare the resolutions or the addenda.

August 2, 2004 Meeting

{¶ 5} At its special meeting on August 2, 2004, the board adopted Resolution Nos. 04-016 and 04-017. The resolutions incorrectly designated August 10, 2004, as the adoption date. Register certified that the resolutions were passed on August 10, 2004. Register did not draft or prepare the resolutions.

August 10, 2004 Meeting

{¶ 6} At its August 10, 2004 regular meeting, the board adopted Resolution Nos. 04-018 and 04-019. The board approved the forms for these resolutions, which were attached as addenda to the meeting minutes. The forms for Resolution Nos. 04-018 and 04-019 contained no substantive provisions. Register certified that the forms were true and correct copies of the resolutions. But she also certified copies of these resolutions that did contain substantive provisions. Register did not prepare or draft the forms of Resolution Nos. 04-018 and 04-019 that lacked substantive provisions.

December 7, 2004 Meeting

{¶ 7} At its December 7, 2004 special meeting, Steve Strosnider, then a trustee, seconded a motion to adopt Resolution No. 04-024, which was unanimously adopted. Register certified a copy of the resolution that incorrectly noted that another trustee had seconded the motion and that Strosnider did not vote on the resolution. Register did not draft or prepare the resolution.

Township Financial Statements

{¶ 8} In her capacity as township fiscal officer and clerk, Register has never made or entered into the board minutes an annual detailed statement of the township receipts and expenditures for the preceding year, including the amount of money received and expended for each district in the township, the receipts and expenditures of the board of education of the local school district, the source from which the monies were received, to whom they were paid, for what they were expended, and, in detail, all liabilities. Register has also never posted copies of this statement at each township polling place. The township officers have never provided Register with any document designated as an annual settlement of accounts.

Mandamus Case

{¶ 9} On February 7, 2007, Citizens filed this action for a writ of mandamus to compel Register (1) to prepare, file, and maintain full and accurate minutes and records relating to the meetings of, and resolutions adopted by, the township board, and (2) to record the annual financial statement in the board minutes and post a copy of the statement at each township polling place for each general election. Citizens also requests an award of attorney fees. Register filed a motion to dismiss, and Citizens filed a memorandum in opposition. We granted an alternative writ. Register failed to submit a brief.

{¶ 10} This cause is now before us for our consideration of the merits as well as certain motions relating to discovery issues.

Discovery Motions: Protective Order and Sanctions

{¶ 11} On May 2, 2007, we granted an alternative writ and ordered the parties to submit their evidence within 20 days. State ex rel. Citizens for Open, Responsive & Accountable Govt. v. Register, 113 Ohio St.3d 1485, 2007-Ohio-1986, 865 N.E.2d 911. On May 7, Citizens' counsel, Curt C. Hartman, delivered a copy of a proposed statement of agreed facts to the office of Register's attorney, Clermont County Assistant Prosecuting Attorney Elizabeth Mason. Mason informed Hartman that she would agree to only a few of the proposed facts. The next day, Hartman e-mailed a slightly revised proposed statement of agreed facts to Mason, and Mason responded, reiterating that she would agree to just a few of the proposed facts.

{¶ 12} In an e-mail response to Mason, Hartman requested that Mason "identify specifically why the other proposed statements are in bona fide dispute" and stated that if the parties were unable to agree to the facts, he would depose Register on either Friday, May 11, or Monday, May 14.

{¶ 13} Mason responded by requesting an electronic copy of Hartman's proposed statement of facts and stating that she would get her version of the proposed statement to Hartman by Friday, May 11. Early the same morning, Hartman e-mailed an electronic version of the proposed agreed statement of facts to Mason.

{¶ 14} Despite her prior representation, Mason did not provide her version of the proposed statement of facts to Hartman when promised. On Friday afternoon, Hartman visited Mason's office and told an administrative assistant that he wanted to speak with Mason. Upon being advised that Mason had left for the day, Hartman served a copy of a notice of deposition of Register for Tuesday, May 15, at 10:00 a.m. Hartman specifically told the administrative assistant that he was serving notice for the following Tuesday, and the assistant indicated that she would immediately place the notice on Mason's desk.

{¶ 15} Hartman was present with a court reporter for the scheduled deposition of Register, but neither Mason nor Register appeared. Hartman made several unsuccessful attempts to contact Mason.

{¶ 16} Two days afterwards, Register filed a motion for a protective order under Civ.R. 26(C). Register requested an order protecting her from (1) "any further unilateral notices of deposition and requiring Relator's counsel to confer with Respondent's counsel before issuing any notices of deposition and/or subpoenas to parties or witnesses" and (2) "any request for sanctions and/or penalties which Relator or its counsel may make resulting from the failure of the deposition to go forward on Tuesday, May 15." Register's counsel claimed in the memorandum that she had been out of the office for an all-day deposition in Dayton on Monday, May 14, and did not return to her office until Tuesday, May 15, at 11:00 a.m., when she first saw the notice of deposition. Although Register's counsel attached her affidavit to the motion, the affidavit did not specify that it was made on her personal knowledge. S.Ct.Prac.R. X(7); State ex rel. Cincinnati Bell Tel. Co. v. Pub. Util. Comm., 105 Ohio St.3d 177, 2005-Ohio-1150, 824 N.E.2d 68, ¶ 20. Citizens filed a memorandum in opposition to the motion.

{¶ 17} On May 18, Citizens filed a motion for the imposition of sanctions against Register or her attorney, Mason, for failure to attend the noticed deposition. Citizens also filed evidence in support of the motion. Neither Register nor Mason filed a timely response.

{¶ 18} In resolving these motions, we note that courts have broad discretion over discovery matters. State ex rel. Abner v. Elliott (1999), 85 Ohio St.3d 11, 16, 706 N.E.2d 765; Toney v. Berkemer (1983), 6 Ohio St.3d 455, 458, 6 OBR 496, 453 N.E.2d 700. This discretion, which is consistent with Civ.R. 26(C) and 37(D), applies to rulings on motions for protective orders and motions for sanctions. Ruwe v. Springfield Twp. Bd. of Trustees (1987), 29 Ohio St.3d 59, 61, 29 OBR 441, 505 N.E.2d 957; Covington v. MetroHealth Sys., 150 Ohio App.3d 558, 2002-Ohio-6629, 782 N.E.2d 624, ¶ 24 ("The decision whether to grant or deny the protective order is within the trial court's discretion, and will not be reversed absent an abuse of that discretion"); Vaught v. Cleveland Clinic Found., 98 Ohio St.3d 485, 2003-Ohio-2181, 787 N.E.2d 631, ¶ 13, quoting Nakoff v. Fairview Gen. Hosp. (1996), 75 Ohio St.3d 254, 662 N.E.2d 1, syllabus ("`A trial court has broad discretion when imposing discovery sanctions'").

{¶ 19} Register's motion for a protective order failed to comply with Civ.R. 26(C) because she did not include a statement reciting her effort to resolve the matter through discussion with...