State ex rel. Scanlon v. Deters, 88-1471

CourtUnited States State Supreme Court of Ohio
Citation45 Ohio St.3d 376,544 N.E.2d 680
Docket NumberNo. 88-1471,88-1471
PartiesThe STATE, ex rel. SCANLON, Appellant, v. DETERS, Clerk of Courts, Appellee.
Decision Date04 October 1989

Syllabus by the Court

1. A relator in a mandamus action seeking production of documents pursuant to R.C. 149.43 is required, as are relators in other mandamus actions, to show the absence of an adequate alternative to issuing the writ.

2. Where Crim.R. 16 provides a relator an adequate alternative remedy to R.C. 149.43, he cannot be granted a writ of mandamus ordering the production of public records available under such rule.

On June 10, 1988, the relator-appellant, John C. Scanlon, made a formal inspection request pursuant to R.C. 149.43 of the respondent-appellee, Robert D. Jennings, the Clerk of Courts of Hamilton County, who has resigned and is succeeded by Joseph T. Deters. The relator requested that the respondent compile for relator's inspection records of all dispositions of criminal cases concerning Robert A. Scanlon, by utilizing a computer system. This system is commonly referred to as "Criminal History Records Information" and is available to the clerk of courts by an agreement in accordance with Section 20.21(b), Title 28, C.F.R. The clerk denied the request on the premise that he was not legally required under R.C. 149.43 to prepare such a compilation, but only to allow access to public records. Respondent argued that if he should grant relator access to the computer and its data, he would violate federal law and his agreement with the Cincinnati-Hamilton County Regional Computer Center which limited release of what was essentially a "Criminal History Inquiry" under Ohio Adm.Code 109:5-1-01.

On June 21, 1988, relator filed a complaint in the court of appeals seeking a writ of mandamus against the clerk of courts. After answering, the clerk filed a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Civ.R. 12(B)(6). Since both parties had submitted matters outside the pleadings, appellant urged the court of appeals to treat the clerk's motion as one for summary judgment.

On August 8, 1988, the court of appeals overruled the clerk's motion to dismiss. However, it then dismissed relator's complaint sua sponte on the ground that he had an adequate remedy at law pursuant to Crim.R. 16.

The matter is now before this court on an appeal as of right.

John C. Scanlon, Cincinnati, for appellant.

Arthur M. Ney, Jr., Pros. Atty., and David L. Sellers, for appellee.

HOLMES, Justice.

The preliminary issue before us today is whether the court of appeals dismissed relator's complaint pursuant to Civ.R. 12(B)(6) for failure to state a claim for which relief may be granted, or whether it actually granted a Civ.R. 56 motion for summary judgment for the clerk.

The court of appeals' August 8 entry reflects that it "dismisse[d]" relator's complaint. However, other considerations suggest that the court actually granted summary judgment. In addition to expressly overruling the clerk's motion to dismiss on the basis of Civ.R. 12(B)(6) and then ruling sua sponte, the court had before it matters outside the pleadings to decide the clerk's motion.

Civ.R. 12(B) provides in pertinent part:

" * * * When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. * * * "

A court's considering matters outside the pleadings to decide a motion to dismiss is permissible only if the court treats the motion as one for summary judgment. Thus, notwithstanding the entry of the complaint's dismissal, it is proper that the court of appeals' decision be reviewed as one of summary judgment.

This leads us to the principal issue of whether the court below properly granted summary judgment on the ground that relator had a plain and adequate remedy at law in the criminal discovery rule, Crim.R. 16(B)(1)(b).

Crim.R. 16(B)(1)(b) provides:

"Upon motion of the defendant the court shall order the prosecuting attorney to furnish defendant a copy of defendant's prior criminal record, which is available to or within the possession, custody or control of the state."

Clearly, the prosecution must give a defense attorney a copy of the criminal defendant's prior criminal history. Crim.R. 16 is intended to provide the information sought, at no cost, expeditiously, and with the added protection to the defense of the sanctions available if the demand is not complied with.

Although relator agrees that he could obtain a copy of the desired records through a discovery request, he contends that pursuant to State, ex rel. Natl. Broadcasting Co., v. Cleveland (1988), 38 Ohio St.3d 79, 526 N.E.2d 786, and State, ex rel. Cincinnati Post, v. Schweikert (1988), 38 Ohio St.3d 170, 527 N.E.2d 1230, he is not obligated to pursue this alternative. Thus, he contends that, as a relator in a mandamus action seeking production of documents pursuant to R.C. 149.43, he is not required, as are relators in other mandamus actions, to show the absence of an adequate alternative to issuing the writ. He further argues that even if he were obligated, criminal discovery is not an adequate remedy at law.

Appellant is correct in stating that in two recent cases this court has held that the respondents had a clear legal duty to release pertinent records and that the relators were entitled to them: State, ex rel. Natl. Broadcasting Co., supra; State, ex rel. Cincinnati Post, supra. See, also, State, ex rel. Outlet Communications, Inc., v. Lancaster Police Dept. (1988), 38 Ohio St.3d 324, 528 N.E.2d 175. However, the relator has misinterpreted the rationale in those two cases. In them, we made clear that in order for a writ of mandamus to issue a relator must show (1) that he has a clear legal right to the relief prayed for, (2) that respondent is under a clear legal duty to perform the requested act, and (3) that relator has no plain and adequate remedy in the ordinary course of law. State, ex rel. Natl. Broadcasting Co., supra, 39 Ohio St.3d at 80, 526 N.E.2d at 787; State, ex rel. Cincinnati Post, supra, 38 Ohio St.3d at 172, 527 N.E.2d at 1231. We expounded on the first two requirements but did not discuss the third. The reason for this omission was simply that a writ of mandamus was the only way for the relators in those cases to secure the records sought. Thus, the relators lacked an adequate alternative remedy at law.

R.C. 149.43(C), as amended, provides:

"If a person allegedly is aggrieved by the failure of a governmental unit to promptly prepare a public record and to make it available to him for inspection in accordance with division (B) of this section, or if a person who has requested a copy of a public record allegedly is aggrieved by the failure of a person responsible for it to make a copy available to him in accordance with division (B) of this section, the person allegedly aggrieved may commence a mandamus action to obtain a judgment that orders the governmental unit or the person responsible for the public record to comply with division (B) of this section and that awards reasonable attorney's fees to the person that instituted the mandamus action. The mandamus action may be commenced in the court of common pleas of the county in which division (B) of this section allegedly was not complied with, in the supreme court pursuant to its original jurisdiction under Section 2 of Article IV, Ohio Constitution, or in the court of appeals for the appellate district in which division (B) of this section allegedly was not complied with pursuant to its original jurisdiction under Section 3 of Article IV, Ohio Constitution."

We applied this statute in State, ex rel. Fostoria Daily Review Co., v. Fostoria Hosp. Assn. (1988), 40 Ohio St.3d 10, 531 N.E.2d 313 ("Fostoria II ") and granted a writ of mandamus ordering the production of certain hospital documents. We noted with particularity that R.C. 149.43(C) had been amended with the specific intent to supersede the holding of an earlier related case, namely, State, ex rel. Fostoria Daily Review Co., v. Fostoria Hosp. Assn. (1987), 32 Ohio St.3d 327, 512 N.E.2d 1176 ("Fostoria I ").

The adequate alternative remedy that prevented a writ of mandamus in Fostoria I was a civil action under R.C. 149.99. However, this statute was repealed, effective October 15, 1987, when R.C. 149.43(C) was amended. Thus, Fostoria II and R.C. 149.43(C) prevent only the action formerly available under R.C. 149.99 from being an adequate alternative remedy. Fostoria II, like Natl. Broadcasting Co., supra, and Cincinnati Post, supra, referred to the standard ordinarily applicable in mandamus actions. See, e.g., Fostoria II, 40 Ohio St.3d at 11, 531 N.E.2d at 314. Therefore, along with showing a duty to produce public records and his rights thereto, a relator bringing an R.C. 149.43 mandamus claim must also show that he has no other adequate remedy available.

Relator contends that a Crim.R. 16 discovery demand is not an adequate alternative because preparing it would be costly and would require his client's identity to be revealed. However, while R.C. 149.43 is a general statute giving access to records within the possession of a specific public official, Crim.R. 16 would give a criminal defendant access to full criminal felony histories, not just those cases within the jurisdiction where the official serves. This rule of discovery imposes a duty on the state to supplement the discovery with after-acquired information, while R.C. 149.43 does not. In reality, Crim.R. 16 provides a more cost-efficient means of obtaining the information than does R.C. 149.43. Relator's arguments are not well-taken.

To require the clerk of courts to compile this data through a search of the files in his...

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