State ex rel. Rodenberg v. Garvas

• Decision Date: 13 November 2007
• Docket Number: No. 2007 CVH 0485.,2007 CVH 0485.
• Citation: 152 Ohio Misc.2d 1,910 N.E.2d 65,2007 Ohio 7272
• Parties: STATE of Ohio ex rel. RODENBERG, Sheriff, v. GARVAS et al.
• Court: Ohio Court of Common Pleas

910 N.E.2d 65

152 Ohio Misc.2d 1

2007-Ohio-7272

STATE of Ohio ex rel. RODENBERG, Sheriff, v. GARVAS et al.

No. 2007 CVH 0485.

Court of Common Pleas of Ohio, Clermont County.

Decided November 13, 2007.

Don White, Clermont County Prosecuting Attorney, and Mary Lynne Birck, Assistant Prosecuting Attorney.

William Gustavson, for respondent Jeff Garvas.

Graydon, Head & Ritchey, L.L.P., John C. Greiner, and Jeffrey B. Allison, Cincinnati, for respondent Gregory Korte.

HADDAD, Judge.

{¶ 1} This matter came before the court on October 9, 2007, pursuant to a motion to dismiss, filed by the respondent, Gregory Korte. The relator, Sheriff A.J. Rodenberg, was represented by Assistant Prosecutor Mary Lynne Birck. The respondent, Jeff Garvas, was represented by attorney William Gustavson. The respondent, Gregory Korte, was represented by attorneys John Greiner and Jeffrey Allison. The attorney general, Marc Dann, and the governor, Ted Strickland, were dismissed from the relator's complaint pursuant to a voluntary dismissal filed by the relator on September 11, 2007.¹ Upon hearing oral arguments on the motion, the court took the matter under advisement, and now renders the following decision.

FINDINGS OF FACT

{¶ 2} The relator filed his complaint seeking declaratory relief pursuant to R.C. Chapter 2721 and Civ.R. 57 on March 15, 2007.² In his complaint, the relator asserts that Jeff Garvas and Gregory Korte made a written request to provide the name, county of residence, and date of birth of each person to whom the sheriff has issued a license or replacement license to carry a concealed handgun, renewed a license to carry a concealed handgun, or issued a temporary emergency license or replacement temporary emergency license to carry a concealed handgun.³ Specifically, Korte requested that the information be given in the form of a list.⁴ Both Korte and Garvas represented that they are journalists as defined in R.C. 2923.129(B)(2) and are entitled to the information under that provision.⁵ Garvas represented that his employer is Ohioans for Concealed Carry, Inc., which publishes freelance news on a news-based website and in a quarterly publication known as OFCC News.⁶ He further asserted that this request would be in the public interest.⁷ Korte represented that he is employed by the Cincinnati Enquirer.⁸ He asserted that this request would be in the public interest.⁹

{¶ 3} However, the sheriff contends that he cannot fulfill this duty without possibly subjecting himself to prosecution. He argues that the statute requires him to disclose this information to journalists, while providing that he can be subject to criminal penalties if he discloses the information to nonjournalists. He further argues that the statute violates the Equal Protection Clause because it permits journalists to be treated differently from nonjournalists with respect to the requesting and receiving of records relative to Ohio's concealed-handgun law. He argues that since he is not a journalist, he could be charged with a felony for disclosing the same information to the public that a journalist can disclose with no criminal penalty. The sheriff further asserts that this statute denies the sheriffs right to free speech under the First Amendment. Finally, the sheriff contends that the statute violates the Fifth and Fourteenth Amendments to the Constitution and is void for vagueness. For the foregoing reasons, the sheriff contends that this court should declare that the respondents are journalists or, in the alternative, declare the statute unconstitutional.

{¶ 4} On April 16, 2007, the respondent, Gregory Korte, filed a motion to dismiss for lack of standing and for failure to state a claim upon which relief can be granted.¹⁰ A hearing was held on the motion on October 9, 2007.¹¹

THE LEGAL STANDARD

{¶ 5} The court cannot grant a Civ. R.12(B)(6) motion for failure to state a claim upon which relief can be granted unless it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Avery v. Rossford Transp. Improvement Dist. (2001), 145 Ohio App.3d 155, 164, 762 N.E.2d 388. See also Guess v. Wilkinson (1997), 123 Ohio App.3d 430, 434, 704 N.E.2d 328, 330, citing York v. Ohio State Hwy. Patrol (1991), 60 Ohio St.3d 143, 144, 573 N.E.2d 1063. All factual allegations of the complaint must be taken as true, and all reasonable inferences must be drawn in favor of the nonmoving party. Avery at 164, 762 N.E.2d 388, citing Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753. However, the court does not have to presume the truth of conclusions unsupported by factual allegations. Guess at 434, 704 N.E.2d 328. Further, the court can consider only materials and evidence found within the complaint when determining a Civ.R. 12(B)(6) dismissal.

LEGAL ANALYSIS

{¶ 6} The threshold question in all legal claims is the issue of standing. The standing requirement "embodies general concerns about how courts should function in a democratic system of government." State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451, 469, 715 N.E.2d 1062. "The judicial `power to declare legislative enactments unconstitutional is not a superior power, neither one of veto nor of greater wisdom. It is rather a power burdened with a duty — a duty to determine in particular cases whether the Legislature has reached and passed the extreme boundary of its legislative power.'" Id., quoting Ostrander v. Preece (1935), 129 Ohio St. 625, 629, 3 O.O. 24, 196 N.E. 670. "Thus, the judicial function does not begin until after the legislative process is completed and `the void law is about to be enforced against a citizen to his prejudice.'" Id., quoting Pfeifer v. Graves (1913), 88 Ohio St. 473, 488, 104 N.E. 529, 533. Otherwise, if "no private rights of person or property are in jeopardy, * * * [w]e are simply asked to regulate the affairs of another branch of government in a matter quite outside and independent of our authority." Pfeifer v. Graves, supra, at 488, 104 N.E. 529. "`It has been long and well established that it is the duty of every judicial tribunal to decide actual controversies between parties legitimately affected by specific facts and to render judgments which can be carried into effect. It has become settled judicial responsibility for courts to refrain from giving opinions on abstract propositions and to avoid the imposition by judgment of premature declarations or advice upon potential controversies. The extension of this principle includes enactments of the General Assembly.'" Sheward at 469, 715 N.E.2d 1062, quoting Fortner v. Thomas (1970), 22 Ohio St.2d 13, 14, 51 O.O.2d 35, 257 N.E.2d 371.

{¶ 7} "A party lacks standing to invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the subject matter of the action." State ex rel. Dallman v. Franklin Cty. Court of Common Pleas, (1973), 35 Ohio St.2d 176, 64 O.O.2d 103, 298 N.E.2d 515, syllabus. "`The question of standing is whether a litigant is entitled to have a court determine the merits of the issues presented.'" Cuyahoga Cty. Bd. of Commrs. v. State (2006), 112 Ohio St.3d 59, 2006-Ohio-6499, 858 N.E.2d 330, ¶ 22, quoting Ohio Contrs. Assn. v. Bicking (1994), 71 Ohio St.3d 318, 320, 643 N.E.2d 1088. In Ohio, a litigant has standing to attack the constitutionality of a legislative enactment only if the litigant "`has suffered or is threatened with direct and concrete injury in a manner or degree different from that suffered by the public in general, that the law in question has caused the injury, and that the relief requested will redress the injury.'" Id., quoting State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d at 469-470, 715 N.E.2d 1062. "`Whether established facts confer standing to assert a claim is a matter of law.'" Id., quoting Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478, at ¶ 90. Further, "[s]tanding requires demonstration of a concrete injury in fact, rather than an abstract or suspected injury." State ex rel. Consumers League of Ohio v. Ratchford (1982), 8 Ohio App.3d 420, 8 OBR 544, 457 N.E.2d 878, paragraph three of the syllabus. However, it is not necessary that the person violate the statute in order for the court to find that standing exists. Peltz v. S. Euclid (1967), 11 Ohio St.2d 128, 40 O.O.2d 129, 228 N.E.2d 320, paragraph one of the syllabus.

{¶ 8} The statute in question provides:

(2)(a) A journalist, on or after April 8, 2004, may submit to a sheriff a signed, written request to view the name, county of residence, and date of birth of each person to whom the sheriff has issued a license or replacement license to carry a concealed handgun, renewed a license to carry a concealed handgun, or issued a temporary emergency license or replacement temporary emergency license to carry a concealed handgun under section 2923.125 or 2923.1213 of the Revised Code, or a signed, written request to view the name, county of residence, and date of birth of each person for whom the sheriff has suspended or revoked a license to carry a concealed handgun or a temporary emergency license to carry a concealed handgun under section 2923.128 of the Revised Code. The request shall include the journalist's name and title, shall include the name and address of the journalist's employer, and shall state that disclosure of the information sought would be in the public interest. If a journalist submits a signed, written request to the sheriff to view the information described in this division, the sheriff shall grant the journalist's request. The journalist shall not copy the name, county of residence, or date of birth of each person to or for whom the sheriff has issued, suspended, or revoked a license described in this division.

(b) As used in division (B)(2) of this section, `journ...