State ex rel. Law Office of the Montgomery County Public Defender v. Rosencrans

Decision Date22 November 2006
Docket NumberNo. 2006-0072.,2006-0072.
PartiesThe STATE ex rel. LAW OFFICE OF THE MONTGOMERY COUNTY PUBLIC DEFENDER et al., Appellants, v. ROSENCRANS, Mayor, et al., Appellees.
CourtOhio Supreme Court

Glen H. Dewar, Montgomery County Public Defender, and Janet R. Sorrell, Assistant Public Defender, for appellants.

Bieser, Greer & Landis, L.L.P., David C. Greer, and Jennifer L. Stueve; and Surdyk, Dowd & Turner Co., L.P.A., and Robert J. Surdyk, Dayton, for appellees.

PER CURIAM.

{¶ 1} This is an appeal from a judgment denying a writ of mandamus that sought to compel a mayor and a city to bring all the criminal defendants appearing in mayor's court into an open, public forum, to turn on the available sound-amplification system so that the public can hear the mayor's court proceedings, and to record the mayor's court proceedings. We affirm the judgment.

{¶ 2} The mayor's court for the city of Moraine, Ohio, is held in the council chambers in the city's municipal building. Mayor's court proceedings are governed by the United States and Ohio Constitutions, R.C. Chapter 1905, and the Mayor's Court Education and Procedure Rules. In 2004, over 800 people were incarcerated in the Montgomery County jail as a result of cases originating in the Moraine Mayor's Court, and as of August 2005, that number was 532. The vast majority of these inmates had not been represented by counsel.

{¶ 3} During proceedings in the Moraine Mayor's Court, Mayor Robert Rosencrans and the city prosecutor sit next to each other on an elevated bench and the defendants and defense counsel stand facing the bench. According to Mayor Rosencrans and the city, public seating starts about 22.5 feet from the participants.

{¶ 4} The mayor's court is equipped with a sound system that also records. During city council meetings, the sound system is always on and the meetings are recorded. Conversely, when Mayor Rosencrans conducts court proceedings, he does not turn the sound system on and does not record the proceedings.

{¶ 5} Because Mayor Rosencrans does not activate the sound system, members of the public in the audience cannot hear everything that is said during the proceedings. Mayor Rosencrans justifies his decision not to activate the sound-amplification system upon "the sensitivity of the defendant * * * as to what they are being charged with and not wanting everyone in the courtroom to know what they are being charged with" as well as his conclusion that he is "not required" to turn the system on.

{¶ 6} Mayor Rosencrans also prevented prisoners who appeared in mayor's court from being arraigned in open court. He did so because of public-safety concerns expressed by himself, the city prosecutor, and the police department.

{¶ 7} On December 24, 2003, an attorney with the Law Office of the Public Defender, Montgomery County, Ohio, requested that Mayor Rosencrans provide sound amplification for and record the mayor's court proceedings. The public defender cited only May.R. 11 in support of the request. On January 13, 2004, Montgomery County Public Defender Glen H. Dewar requested that Mayor Rosencrans conduct proceedings involving all incarcerated persons in open court.

{¶ 8} On March 16, 2004, after Mayor Rosencrans either refused or did not respond to the public defender's requests, appellants, the Law Office of the Montgomery County Public Defender and Public Defender Dewar (collectively, "public defender") filed a petition in the Court of Appeals for Montgomery County for a writ of mandamus to compel appellees, Mayor Rosencrans and the city of Moraine, to (1) "bring all persons appearing in Moraine Mayor's Court into an open, public forum," (2) turn on the sound amplification for the mayor's court proceedings, and (3) record the proceedings of the mayor's court. The latter two requests were premised upon May.R. 11.

{¶ 9} Shortly thereafter, on March 18, 2004, Mayor Rosencrans ended his previous policy, and agreed to hear all mayor's court proceedings, including cases involving incarcerated persons, in open court. Since Mayor Rosencrans permitted bringing incarcerated defendants back into open court, no public-safety problems have occurred.

{¶ 10} Appellees answered the public defender's mandamus petition, and the parties submitted evidence and briefs.

{¶ 11} On December 14, 2005, the court of appeals denied the writ. The court of appeals concluded that the request to compel appellees to bring all persons into open court was moot and that May.R. 11(B)(2) did not require Mayor Rosencrans to turn on the sound-amplification and recording systems during mayor's court proceedings. State ex rel. Montgomery Cty. Pub. Defender v. Rosencrans, 2d Dist. No CA20416, 2005-Ohio-6681, 2005 WL 3454738.

{¶ 12} This cause is now before the court upon the public defender's appeal as of right.

Mandamus

{¶ 13} The public defender argues that the court of appeals erred in denying the writ. In order to be entitled to a writ of mandamus, the public defender has to establish a clear legal right to have all persons brought before the Moraine Mayor's Court appear in an open, public forum and to have the sound-amplification and recording systems turned on during the proceedings, a clear legal duty on the part of the mayor and the city to do so, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Union Cty. Veterans Serv. Comm. v. Parrott, 108 Ohio St.3d 302, 2006-Ohio-92, 843 N.E.2d 750, ¶ 8. Because the public defender requests that the mayor and the city perform three distinct actions, these actions are discussed separately.

Bringing All Persons into an Open, Public Forum

{¶ 14} In their answer to the public defender's petition, Mayor Rosencrans and Moraine conceded that they had a duty to conduct all mayor's court proceedings in an open, public forum. Although Mayor Rosencrans had previously prevented prisoners appearing in mayor's court from being arraigned in open court due to public-safety concerns, he stopped this practice shortly after the public defender filed his petition for a writ of mandamus contesting the mayor's practice.

{¶ 15} Because Mayor Rosencrans and Moraine performed the act that the public defender had requested in his claim, the court of appeals held that the claim was moot. "Mandamus will not issue to compel an act that has already been performed." State ex rel. Madsen v. Foley Jones, 106 Ohio St.3d 178, 2005-Ohio-4381, 833 N.E.2d 291, ¶ 11. Subsequent performance of the act requested in the mandamus action generally renders the action moot. See, e.g., State ex rel. Scruggs v. Sadler, 102 Ohio St.3d 160, 2004-Ohio-2054, 807 N.E.2d 357, ¶ 5; State ex rel. Frailey v. Wolfe (2001), 92 Ohio St.3d 320, 321, 750 N.E.2d 164.

{¶ 16} The public defender asserts that his claim is not moot because it is capable of repetition, yet evading review. "This exception [to the general rule of mootness] applies only in exceptional circumstances in which the following two factors are both present: (1) the challenged action is too short in its duration to be fully litigated before its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again." State ex rel. Calvary v. Upper Arlington (2000), 89 Ohio St.3d 229, 231, 729 N.E.2d 1182, citing Spencer v. Kemna (1998), 523 U.S. 1, 17-18, 118 S.Ct. 978, 140 L.Ed.2d 43.

{¶ 17} The public defender has not established that this exception applies to his request that all prisoners before the Moraine Mayor's Court be arraigned in open court. First, the challenged action is not too short in its duration to be fully litigated before its cessation or expiration. The public defender challenged the mayor's general policy of arraigning incarcerated criminal defendants in a nonpublic place. That general practice was not so short in duration as to necessarily preclude its litigation before it was changed. Second, there is no reasonable expectation that the public defender will be subject to having his incarcerated clients again arraigned in a nonpublic place. The mayor and the city now acknowledge that they have a duty to conduct all mayor's court proceedings in an open, public forum, and the mayor has stopped his practice of preventing prisoners who are being arraigned from appearing in open court.

{¶ 18} The cases the public defender cites in support of his contention that the exception applies are distinguishable. In State ex rel. Beacon Journal Publishing Co. v. Donaldson (1992), 63 Ohio St.3d 173, 175, 586 N.E.2d 101, the court emphasized that "[c]ourtroom closure cases often evade review, since a closure order usually expires before an appellate court can consider it." See, also, State ex rel. The Repository v. Unger (1986), 28 Ohio St.3d 418, 28 OBR 472, 504 N.E.2d 37. The public defender in this case is not challenging a solitary closure order in a criminal case that has since expired but is instead contesting Mayor Rosencrans's previous practice of arraigning incarcerated criminal defendants in a nonpublic forum.

{¶ 19} Similarly, in State ex rel. Dispatch Printing Co. v. Louden (2001), 91 Ohio St.3d 61, 741 N.E.2d 517, which was cited by the public defender to support his claim that his request was not moot, a judge who had closed a juvenile detention hearing had a 20-year history of closing such proceedings. There was a reasonable expectation that without the requested writ, the judge would again close the detention proceedings because the judge continued to assert that the proceedings should be presumed closed. Id. at 64, 741 N.E.2d 517. Mayor Rosencrans, however, does not have a comparable lengthy history of closing arraignments and now concedes that he has a duty to keep these proceedings open.

{¶ 20} Therefore, the court of appeals did not commit error by denying the public defender's first claim based on mootness.

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