State ex rel. Lanham v. DeWine

• Decision Date: 29 January 2013
• Docket Number: No. 2012–0203.,2012–0203.
• Citation: 985 N.E.2d 467,135 Ohio St.3d 191
• Parties: The STATE ex rel. LANHAM v. DeWINE, Atty. Gen., et al.
• Court: Ohio Supreme Court

135 Ohio St.3d 191

985 N.E.2d 467

The STATE ex rel. LANHAM

v.DeWINE, Atty. Gen., et al.

No. 2012–0203.

Supreme Court of Ohio.

Submitted Jan. 9, 2013.

Decided Jan. 29, 2013.

The Law Firm of Curt C. Huffman and Curt C. Hartman, Amelia, for relator.

Michael DeWine, Attorney General, and Damian W. Sikora and Sarah Pierce, Assistant Attorneys General, for respondents.

PER CURIAM.

[Ohio St.3d 191]{¶ 1} This is an action for a writ of mandamus to compel respondents, Attorney General Michael DeWine and his office (collectively, “the attorney general's office”), to provide unredacted copies of records relating to the claim that State Representative Danny R. Bubp simultaneously held the public offices of state representative and mayor's court magistrate. Because relator, Kent Lanham, has not establishedhis entitlement to the requested extraordinary relief, we deny the writ.

[Ohio St.3d 192]Facts

{¶ 2} Danny R. Bubp was a state representative for the 88th house district in the General Assembly. In 2009 and 2010, Bubp served as state representative and also served as mayor's court magistrate for the villages of Ripley and Winchester, Ohio. Thereafter, Bubp continued to serve as state representative and mayor's court magistrate for Ripley.

{¶ 3} In October 2009, a Cincinnati television station reported that the Democratic Party chairmen of the three counties composing the 88th Ohio house district had filed complaints with then Ohio Attorney General Richard Cordray and the county prosecuting attorneys claiming that by holding the public offices of state representative and mayor's court magistrate simultaneously, Bubp violated the Ohio Constitution, Article II, Section 4, and R.C. 101.26.

{¶ 4} Lanham, is a taxpayer and resident of Clermont County, Ohio, which is within the 88th Ohio house district. On November 17, 2011, Lanham, through his counsel, Curt C. Hartman, hand-delivered to the attorney general's office a written request for copies of the following records concerning any report, complaint, claim, or other communication to that office relating to Bubp's simultaneously holding and exercising the public offices of state representative and mayor's court magistrate:

all records that document any report, complaint, claim, request for investigation or request for legal action relating to the fact that State Representative Danny R. Bubp was simultaneously holding and/or continues to simultaneously hold the public offices of state representative and magistrate in a mayor's court;

all records documenting all actions taken by the office or employees of the Ohio Attorney General in response to any report, complaint, claim, request for investigation or request for legal action relating to the fact that State Representative Danny R. Bubp was simultaneously holding and/or continues to simultaneously hold the public offices of state representative and magistrate in a mayor's court;

all records documenting any communication to or from the office or employees of the Ohio Attorney General in response to any report, complaint, claim, request for investigation or request for legal action relating to the fact that State Representative Danny R. Bubp was simultaneously holding and/or continues to simultaneously hold the public offices of state representative and magistrate in a mayor's court;

any records documenting any investigation undertaken by the Office of the Attorney General, or its designee, concerning any report, complaint, [Ohio St.3d 193]claim, request for investigation or request for legal action relating to the fact that State Representative Danny R. Bubp was simultaneously holding and/or continues to simultaneously hold the public offices of state representative and magistrate in a mayor's court;

all records documenting any discussions, assessments, evaluation or decision by the Office of the Attorney General to pursue vel non any report, complaint, claim, request for investigation or request for legal action relating to the fact that State Representative Danny R. Bubp was simultaneously holding and/or continuesto simultaneously hold the public offices of state representative and magistrate in a mayor's court;

all records documenting any discussions, assessments, evaluation or decision by the Office of the Attorney General to pursue vel non a quo warranto action against Danny R. Bubp for the forfeiture of the office of state representative in light due to the fact that Danny R. Bubp was simultaneously holding and/or continues to simultaneously hold the public offices of state representative and magistrate in a mayor's court;

any evaluation or analysis by the Office of the Attorney General concerning the provision of Article II, Section 4 of the Ohio Constitution that provides that “[n]o member of the general assembly shall, during the term for which he was elected * * * hold any public office under * * * or this state, or a political subdivision thereof”;

any evaluation or analysis by the Office of the Attorney General concerning the provision of Section 101.26 of the Ohio Revised Code that provides that “[n]o member of either house of the general assembly * * * shall knowingly do any of the following: * * * (C) Accept any * * * office * * * that is authorized or created by the general assembly and that provides other compensation than actual and necessary expenses * * *. Any member of the general assembly who accepts any appointment, office, or employment described in division (A), (B), or (C) of this section immediately shall resign from the general assembly, and, if he fails or refuses to do so, his seat in the general assembly shall be deemed vacant.”

{¶ 5} In his request, Lanham stated that the time period for responsive documents may be limited to July 1, 2009, through the date of the request. By letter dated November 22, 2011, the attorney general's office acknowledged its receipt of the request. On December 1, 2011, the attorney general's office mailed a CD containing 172 pages of responsive documents. Several documents were withheld and parts of other documents were redacted based on the claim that they were covered by the attorney-client privilege.

[Ohio St.3d 194]{¶ 6} On December 7, 2011, Lanham's attorney e-mailed a request to the attorney general's office seeking clarification and confirmation of the attorney-client-privilege claim. Specifically, Lanham requested that the attorney general's office clarify, for each redaction, the identities of the attorney and client for purposes of invoking the privilege and how communications between Holly Hollingsworth, the director of media relations for the former attorney general, and Kevin McIver, an assistant attorney general and chief of the opinions section for the office, were covered by the privilege. In its response, the attorney general's office noted that Lanham's questions concerning its reliance on the attorney-client privilege went beyond the scope of the public-records inquiry.

{¶ 7} On February 2, 2012, Lanham filed this action for a writ of mandamus to compel the attorney general's office to provide access to those portions of the requested public records that were withheld, including the records for which it claimed attorney-client privilege. Lanham also requested an award of statutory damages, attorney fees, and costs. The case was referred to mediation, 131 Ohio St.3d 1448, 2012-Ohio-520, 961 N.E.2d 685, but it was subsequently returned to the regular docket, 131 Ohio St.3d 1506, 2012-Ohio-1666, 965 N.E.2d 308. The attorney general's office then filed a motion to dismiss, and Lanham filed a motion to strike the exhibits attached to the motion to dismiss. Lanham also requested recusal of the court in this and a public-records mandamus case filed by him against Bubp, and two of the seven justices then sitting recused themselves.

{¶ 8} In June 2012, the court granted Lanham's motion to strike the exhibits attached to the motion to dismiss, denied the motion to dismiss, granted an alternative writ, and issued a schedule for the presentation of evidence and briefs. 132 Ohio St.3d 1420, 2012-Ohio-2729, 969 N.E.2d 268. The court dismissed Lanham's public-records mandamus case against Bubp. State ex rel. Lanham v. Bubp, 132 Ohio St.3d 1420, 2012-Ohio-2729, 969 N.E.2d 268.

{¶ 9} Of the 172 pages of documents produced by the attorney general's office, Lanham now identifies six redacted documents that remain at issue. The attorney general's office redacted these documents on the basis of attorney-client privilege; Lanham challenges the validity of these redactions.

{¶ 10} In addition to the six redacted documents, Lanham wants two additional documents. In the discovery responses provided to Lanham in the Bubp case, a log of the items withheld on the ground of attorney-client privilege noted two letters from Michael Lenzo, the majority caucus counsel for the Ohio House of Representatives, to Assistant Attorney General McIver. These records were also not provided by the attorney general's office in response to Lanham's request, nor were they mentioned in the summary of the records it was not producing on the basis of attorney-client privilege.

[Ohio St.3d 195]{¶ 11} The parties submitted evidence and briefs. Lanham also filed a motion to strike portions of the affidavits submitted by the attorney general's office.

{¶ 12} This cause is now before the court for its consideration of the motion to strike and the merits.

Analysis

Motion to Strike

{¶ 13} In his motion, Lanham seeks to strike parts of the affidavit of Assistant Attorney General Erin Butcher–Lyden, who works with the public-records unit of the attorney general's office. Lanham argues that Butcher–Lyden's statements could not have been made based on her personal knowledge. Lanham also requests that paragraph 7 of the affidavits of Assistant Attorneys General Damian W. Sikora and Sarah Pierce be stricken. Along with paragraph 13 of Assistant Attorney General Butcher–Lyden's affidavit, these...