State ex rel. v. Osu Bd. of Trustees

• Decision Date: 15 March 2006
• Docket Number: No. 2005-0612.,2005-0612.
• Citation: 2006 Ohio 903,843 N.E.2d 174,108 Ohio St.3d 288
• Parties: The STATE ex rel. PHYSICIANS COMMITTEE FOR RESPONSIBLE MEDICINE v. BOARD OF TRUSTEES OF OHIO STATE UNIVERSITY.
• Court: Ohio Supreme Court

843 N.E.2d 174

108 Ohio St.3d 288

2006-Ohio-903

The STATE ex rel. PHYSICIANS COMMITTEE FOR RESPONSIBLE MEDICINE v. BOARD OF TRUSTEES OF OHIO STATE UNIVERSITY.

No. 2005-0612.

Supreme Court of Ohio.

Submitted November 8, 2005.

Decided March 15, 2006.

COPYRIGHT MATERIAL OMITTED

Gittes & Schulte, Frederick M. Gittes, and Kathaleen B. Schulte, Columbus; Daniel Kinburn, Washington, DC and Karen Boyd Williams, for relator.

Jim Petro, Attorney General; Porter, Wright, Morris & Arthur, L.L.P., Kathleen M. Trafford, David E. Northrop, and Julie L. Atchison, Columbus, for respondent.

PER CURIAM.

{¶ 1} This is an original action for a writ of mandamus to compel the board of trustees of the Ohio State University ("OSU") to release certain photographic and videotaped records generated by OSU in connection with its research on spinal-cord injuries. Because we conclude that the intellectual-property exception to the Public Records Act supports OSU's refusal to release the records, we deny the writ.

Facts

{¶ 2} Relator, Physicians Committee for Responsible Medicine ("PCRM"), is a nonprofit, health-advocacy organization that works to promote what it views as ethical and effective medical research.

{¶ 3} The College of Medicine at OSU conducts scientific research on spinal-cord injuries and the treatment of those injuries. Laboratory animals, including mice and rats, are used in that research.

{¶ 4} In April 2005, PCRM filed a complaint seeking a writ of mandamus to compel OSU to allow PCRM to see and copy photographs and other video and audio records related to the use and treatment of laboratory animals in the spinal-cord research programs conducted at OSU's College of Medicine. PCRM also requested an award of attorney fees.

Oral Argument

{¶ 5} PCRM asks the court to schedule an oral argument in the case. Yet the parties' briefs are sufficient to resolve the issues raised, and the case does not involve a substantial constitutional issue, a conflict among courts of appeals, or complex issues of law or fact. State ex rel. Woods v. Oak Hill Community Med. Ctr., Inc. (2001), 91 Ohio St.3d 459, 460, 746 N.E.2d 1108. No oral argument is necessary.

The Standard for Mandamus Relief in Public-Records Cases

{¶ 6} Mandamus is the appropriate remedy to compel compliance with R.C. 149.43, Ohio's Public Records Act. State ex rel. Beacon Journal Publishing Co. v. Akron, 104 Ohio St.3d 399, 2004-Ohio-6557, 819 N.E.2d 1087, ¶ 23. In a public-records mandamus claim, "`R.C. 149.43 [the Public Records Act] is construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records.'" (Brackets sic.) Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, 821 N.E.2d 564, ¶ 7, quoting State ex rel. Cincinnati Enquirer v. Hamilton Cty. (1996), 75 Ohio St.3d 374, 376, 662 N.E.2d 334.

{¶ 7} Before we reach the public-records issue, however, two preliminary issues must first be addressed.

The Motion to Strike: Problems with PCRM's Brief

{¶ 8} OSU urges us to strike the merit brief filed by PCRM, arguing that it violates Rules VI and VIII of this court's Rules of Practice. OSU's motion rightly explains that PCRM's merit brief (1) does not list the names of all attorneys involved in the case on the cover of the brief, as S.Ct.Prac.R. VIII(2)(F) requires, (2) does not contain a table of contents or a table of authorities, as S.Ct.Prac.R. VI(2)(B)(1) and (2) require, (3) does not contain an appendix with a copy of the relevant statutes, as S.Ct.Prac.R. VI(2)(B)(5)(f) requires, (4) does not include page references to the factual record in the statement of facts, as S.Ct.Prac.R. VI(2)(B)(3) requires, and (5) does not include one or more argument headings that could be used by the court as a syllabus in an opinion, as S.Ct.Prac.R. VI(2)(B)(4) requires.

{¶ 9} PCRM has replied to the motion and cites "coordination difficulties between local and out-of-state counsel" as the reason for the brief's deficiencies. PCRM contends that the errors were inadvertent and expresses its willingness to file a corrected brief. The motion to strike the brief should be denied, according to PCRM, because its missteps have not prejudiced OSU's ability to file a responsive brief or hindered the court's ability to decide the case.

{¶ 10} We conclude that OSU's motion to strike the brief should be denied. Despite the admitted and serious deficiencies in PCRM's brief, that brief does provide the court with a statement of facts and the relevant legal arguments on the public-records issue in question. The problems in the brief do not appear to have prevented OSU from understanding PCRM's legal position or hindered OSU's efforts to respond to PCRM's arguments.

{¶ 11} To be sure, we have in some cases insisted on strict compliance with the Rules of Practice. See, e.g., Ohio Consumers' Counsel v. Pub. Util. Comm., 105 Ohio St.3d 1211, 2005-Ohio-1023, 823 N.E.2d 872 (dismissing appeal because the notice of appeal did not include the certificate of filing required by S.Ct.Prac.R. XIV(2)(C)(2)); Ohio Heritage Dev. Co. v. Portage Cty. Bd. of Elections (2000), 90 Ohio St.3d 1436, 736 N.E.2d 476 (striking a party's brief for failure to comply with the service requirement in S.Ct.Prac.R. XIV(2)(A)); Drake v. Bucher (1966), 5 Ohio St.2d 37, 34 O.O.2d 53, 213 N.E.2d 182 (dismissing appeal because appellant's brief did not contain a proper cover page, a table of authorities, the relevant statute in an appendix, page references to the factual record, proper argument headings, or a statement of the questions presented).

{¶ 12} Even so, a second round of briefs in this case would delay a ruling on the merits and would unnecessarily increase the cost of resolving the parties' dispute. The PCRM brief, while certainly not a model for others to follow, provides a co-herent legal argument on the public-records issue and explains why PCRM believes that Ohio law supports its request for a writ of mandamus.

{¶ 13} The omission of page references to the relevant portions of the record that support the brief's factual assertions is most troubling. Appellate attorneys should not expect the court "to peruse the record without the help of pinpoint citations" to the record. Day v. N. Indiana Pub. Serv. Corp. (C.A.7, 1999), 164 F.3d 382, 384 (imposing a public reprimand and a $500 fine on an attorney for repeated noncompliance with court rules). In the absence of the page references that S.Ct.Prac.R. VI(2)(B)(3) requires, the court is forced to spend much more time hunting through the record to confirm even the most minor factual details to decide the case and prepare an opinion. That burden ought to fall on the parties rather than the court, for the parties are presumably familiar with the record and should be able to readily identify in their briefs where each relevant fact can be verified.

{¶ 14} In the end, PCRM and its lawyers are admonished for their carelessness in preparing their brief for this court, but the brief need not be stricken. Because we can complete our work in this case using the briefs before us, and because OSU was able to respond to the defective brief despite its shortcomings, PCRM need not refile, and its noncompliant brief will not be stricken. PCRM and its counsel are advised that similar violations in future cases could lead to sanctions.

The Motion for Summary Judgment: PCRM's Status as a Foreign Corporation

{¶ 15} OSU also urges the court to grant summary judgment in its favor, citing PCRM's failure to register with the Ohio Secretary of State as a foreign (non-Ohio) nonprofit corporation. The argument turns on R.C. 1703.27, which bars any foreign nonprofit corporation from exercising its "corporate privileges in this state in a continual course of transactions" without first securing a certificate to do so from the Ohio Secretary of State. R.C. 1703.29(A) adds that "no foreign corporation which should have obtained such license shall maintain any action in any court" in the state.

{¶ 16} PCRM is a nonprofit corporation licensed in the state of Delaware, and an affidavit from the Ohio Secretary of State's office confirms that PCRM has not registered as a foreign corporation in Ohio. PCRM is a tax-exempt corporation with offices in Washington, D.C. and California. It does not maintain an office in Ohio, neither owns nor leases real estate here, and has no employees in the state.

{¶ 17} Consistent with our court rules, OSU's motion for summary judgment is denied. The Rules of Practice that govern original actions filed in this court do not permit parties to file motions for summary judgment. State ex rel. Watkins v. Eighth Dist. Court of Appeals (1998), 82 Ohio St.3d 532, 534, 696 N.E.2d 1079, fn. 1. See, also, State ex rel. Findlay Publishing Co. v. Schroeder (1996), 76 Ohio St.3d 580, 581, 669 N.E.2d 835 (denying a request for summary judgment in an original action "because Civ.R. 56 motions are clearly inapplicable under S.Ct.Prac.R. X(5)").

{¶ 18} Although a summary judgment motion is an inappropriate vehicle for raising concerns about PCRM's corporate status, OSU certainly can — and has — raised that same argument in its merit brief. Even so, we find the argument that PCRM must register as a foreign corporation to be unconvincing and therefore reject OSU's contention that PCRM lacks the authority to pursue this mandamus action in Ohio.

{¶ 19} R.C. 1703.27 calls for foreign nonprofit corporations to register in Ohio before exercising "corporate privileges in this state in a continual course of transactions." We see no evidence that PCRM has tried to exercise corporate privileges in Ohio in a continuous and substantial way.

{¶ 20} To be sure, the record before us shows that PCRM has members in and seeks charitable contributions from residents of all 50 states and several foreign countries, and up to three percent of PCRM's members are Ohio residents. Yet PCRM has no office or employees in Ohio, and any financial...