State ex rel. Parisi v. Dayton Bar Ass'n Certified Grievance Comm.

• Decision Date: 17 December 2019
• Docket Number: No. 2018-0140,2018-0140
• Citation: 159 Ohio St.3d 211,2019 Ohio 5157,150 N.E.3d 43
• Parties: The STATE EX REL. PARISI, Appellant, v. DAYTON BAR ASSOCIATION CERTIFIED GRIEVANCE COMMITTEE et al., Appellees.
• Court: Ohio Supreme Court

159 Ohio St.3d 211

150 N.E.3d 43

2019 Ohio 5157

The STATE EX REL. PARISI, Appellant,

v.DAYTON BAR ASSOCIATION CERTIFIED GRIEVANCE COMMITTEE et al., Appellees.

No. 2018-0140

Supreme Court of Ohio.

Submitted January 29, 2019

Decided December 17, 2019

Georgianna Parisi, pro se.

Freund, Freeze & Arnold, L.P.A., Stephen V. Freeze, and Lisa A. Hesse, for appellees.

Fischer, J. {¶ 1} Appellant, Georgianna Parisi, appeals the judgment of the Second District Court of Appeals denying her petition for a writ of mandamus against appellees, the Dayton Bar Association and the Dayton Bar Association Certified Grievance Committee. Because Parisi did not use the correct vehicle, Sup.R. 44 through 47, to seek to obtain the requested records, we affirm the judgment of the court of appeals.

I. BACKGROUND

{¶ 2} In 2016, Parisi sent a letter to the executive director of the Dayton Bar Association requesting "any and all records" concerning her in the bar association's possession, pursuant to R.C. 149.43, Ohio's Public Records Act. She specifically requested:

1. [a]ny and all communications related to and/or concerning me, including communications by letter, phone, email, text, voice mail, and the like; and

2. [a]ny and all documents related to and/or concerning me.

The records sought related to her two attorney-discipline cases, Dayton Bar Assn. v. Parisi , Supreme Court case No. 2009-0064 ("Parisi I "), and Dayton Bar Assn. v. Parisi , Supreme Court case No. 2012-0060 ("Parisi II "), both of which had long been resolved. See Dayton Bar Assn. v. Parisi , 131 Ohio St.3d 345, 2012-Ohio-879, 965 N.E.2d 268, ¶ 2 ; Parisi v. Heck , S.D.Ohio No. 3:14-cv-346, 2015 WL 3999300, *4 (July 1, 2015).

{¶ 3} In a letter dated April 8, 2016, the grievance committee provided an initial response to Parisi's request. The grievance committee's letter expressed that it did not believe that the documents Parisi sought were subject to disclosure.

{¶ 4} Parisi then amended her request to include

any and all emails, text messages, and any and all electronic messages, whether made on [the bar association's] or an individual's electronic equipment. I am requesting all records concerning me, and have expanded it to all records which the [bar association] has concerning me, including records associated with Parisi I and Parisi II .

In a letter dated April 22, 2016, the grievance committee formally denied Parisi's request.

{¶ 5} Parisi filed a petition seeking a writ of mandamus against the bar association and the grievance committee in the Second District Court of Appeals. The bar association and the grievance committee filed a motion to dismiss for failure to state a claim, which the court of appeals converted into a motion for summary judgment. Parisi then filed a cross-motion for summary judgment.

{¶ 6} The court of appeals recognized that, as an initial matter, it was required to determine whether Parisi had used the correct vehicle to seek to obtain the requested attorney-discipline records. However, because the parties had not briefed that issue, the court proceeded to decide the merits of Parisi's petition under R.C. 149.43. The court of appeals granted summary judgment in favor of the bar association and the grievance committee, denied Parisi's cross-motion, and denied the writ of mandamus.

II. ANALYSIS

{¶ 7} Parisi appealed to this court. She also filed a "motion to elect representation." We find her motion to be without merit. Furthermore, we conclude that because Parisi failed to seek to obtain the attorney-discipline records pursuant to Sup.R. 44 through 47, the court of appeals correctly granted summary judgment in favor of the bar association and the grievance committee and correctly denied the requested writ of mandamus.

A. Motion to elect representation

{¶ 8} Parisi has filed a motion captioned "Motion to Elect Representation" requesting that this court order opposing counsel, Lisa Ann Hesse, Stephen Freeze, and the law firm of Freund, Freeze & Arnold (collectively, "Freund Freeze"), "to make a determination as to whether they will represent" the bar association and the grievance committee or the bar association's counsel John Ruffolo, former president Brian Wildermuth, and former Board of Trustees member Jonathon Beck, individuals who are not and have never been parties to this action.

{¶ 9} Parisi is essentially seeking to disqualify opposing counsel. She alleges that Freund Freeze's representation of the bar association and the grievance committee is directly adverse to its prior clients, Ruffolo, Wildermuth, and Beck. Parisi posits the existence of an unwaivable conflict, in violation of Prof.Cond.R. 1.7 (prohibiting a lawyer from accepting or continuing a client's representation if that representation will be directly adverse to another client), because those individuals "may oppose [Parisi's] public records request, not on legal grounds, but because they personally wish to shield themselves from additional unethical behavior being revealed." We find Parisi's motion to be without merit.

{¶ 10} Freund Freeze represents only the bar association and the grievance committee, the only other parties to this action besides Parisi. Because the other individuals that Parisi mentions are not parties to this action, there is no basis for Freund Freeze to "elect representation" in this case.

{¶ 11} Further, Parisi is not a client of Freund Freeze, and she has not identified any obligations or responsibilities that could serve as a basis for opposing counsel's disqualification. Therefore, Parisi lacks standing to assert that Freund Freeze has a conflict of interest. See Morgan v. N. Coast Cable Co. , 63 Ohio St.3d 156, 586 N.E.2d 88 (1992), syllabus ("a stranger to an attorney-client relationship lacks standing to complain of a conflict of interest in that relationship").

{¶ 12} Therefore, we deny Parisi's "motion to elect representation."

B. Writ of mandamus to obtain records relating to attorney-discipline cases

{¶ 13} Parisi petitioned for a writ of mandamus to compel the bar association and the grievance committee to provide her with documents relating to her two attorney-discipline cases under only the Public Records Act, R.C. 149.43. The court of appeals addressed the merits of Parisi's petition under R.C. 149.43.

{¶ 14} However, as this court has stated in numerous cases since the promulgation of Sup.R. 44 through 47, a court must first address the threshold issue whether the petitioner has sought the requested documents through the correct vehicle, either R.C. 149.43 or Sup.R. 44 through 47. The vehicle used dictates not only the documents that are available to the relator and the manner in which they are available but also the remedies available to the relator should the relator be successful.

{¶ 15} Thus, before we may address the merits of the appeal, we must answer this threshold question of which is the proper vehicle to use in seeking to obtain documents related to attorney-discipline cases.

1. Threshold issue

a. Promulgation of Sup.R. 44 through 47

{¶ 16} Prior to the promulgation of Sup.R. 44 through 47 in 2009, this court followed the Public Records Act in resolving public-records requests for court records. See, e.g. , State ex rel. Cincinnati Enquirer v. Winkler , 101 Ohio St.3d 382, 2004-Ohio-1581, 805 N.E.2d 1094. This court, however, recognized the need to promulgate its own rules to govern the release of public records held by the judiciary. Former Chief Justice Moyer acknowledged in a letter to Ohio attorneys that "[w]hile the courts in Ohio [had] always acted in accordance with the Public Records Act, the act does not govern the courts." Moyer, A message from the Chief Justice: Openness is foundation of Ohio Government , 81 Ohio St. Bar Assn. Report 170, 171 (2008). Chief Justice Moyer believed—and rightfully so—that the "important constitutional principle of separation of powers" required this court to regulate judicial records through its Rules of Superintendence. Id. ; see State v. Steffen , 70 Ohio St.3d 399, 409, 639 N.E.2d 67 (1994), quoting In re Furnishings for Courtroom Two , 66 Ohio St.2d 427, 430, 423 N.E.2d 86 (1981) (" ‘courts possess all powers necessary to secure and safeguard the free and untrammeled exercise of their judicial functions’ ").

{¶ 17} So, in 2009, after the proposed rules had been published for over two years, with more than 70 individuals and organizations participating in the extensive public-comment periods, this court adopted Sup.R. 44 through 47 through our constitutional superintendence authority under Article IV, Section 5(A)(1) of the Ohio Constitution. See Public access rules in effect: Court offers training, Web page for local authorities , 82 Ohio St. Bar Assn. Report 636, 638 (2009). Those rules set forth the process that the public must use to seek to obtain records held by the judicial branch. See O'Connor, The Ohio Modern Courts Amendment: 45 Years of Progress , 76 Alb.L.Rev. 1963, 1971 (2013).

b. The effect of Sup.R. 44 through 47

{¶ 18} In promulgating Sup.R. 44 through 47, we announced to the other branches of government that this court would determine how records held by the judicial branch would be made accessible to the public. Id. ; see Article IV, Section 5(A)(1), Ohio Constitution. Indeed, this court emphasized that point in State ex rel. Vindicator Printing Co. v. Wolff , 132 Ohio St.3d 481, 2012-Ohio-3328, 974 N.E.2d 89, ¶ 23, in which we determined that the relators were entitled to relief under the Rules of Superintendence, not the Public Records Act.

{¶ 19} This court has adhered to that view and has consistently held that the threshold issue in public-records cases is whether R.C. 149.43 or Sup.R. 44 through 47 governs the request. See State ex rel. Richfield v. Laria , 138 Ohio St.3d 168, 2014-Ohio-243, 4 N.E.3d 1040, ¶ 8 ; State ex rel. Harris v. Pureval , 155 Ohio St.3d 343, 2018-Ohio-4718, 121 N.E.3d 337, ¶ 10 ; State ex rel. Husband v. Shanahan , 157 Ohio St.3d 148, 2019-Ohio-1853, 133...