State ex rel. Vindicator Printing Co. v. Wolff

• Decision Date: 25 July 2012
• Docket Number: No. 2011–0132.,2011–0132.
• Citation: 132 Ohio St.3d 481,2012 -Ohio- 3328,974 N.E.2d 89
• Parties: The STATE ex rel. VINDICATOR PRINTING CO. et al. v. WOLFF, Judge, et al.
• Court: Ohio Supreme Court

132 Ohio St.3d 481

974 N.E.2d 89

2012 -Ohio- 3328

The STATE ex rel. VINDICATOR PRINTING CO. et al.

v.WOLFF, Judge, et al.

No. 2011–0132.

Supreme Court of Ohio.

Submitted May 22, 2012.

Decided July 25, 2012.

Zeiger, Tigges & Little, L.L.P., Marion H. Little Jr., and Christopher J. Hogan, Columbus, for relators.

Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Carley J. Ingram, Assistant Prosecuting Attorney, for respondent, Judge William H. Wolff.

Law Office of Martin G. Weinberg, P.C., and Martin G. Weinberg, for intervening respondent Anthony M. Cafaro Sr.

Walter & Haverfield, L.L.P., Ralph E. Cascarilla, Darrell A. Clay, and Leslie G. Wolfe, Cleveland, for intervening respondent the Cafaro Company.

McLaughlin & McCaffrey, L.L.P., John F. McCaffrey, and Anthony R. Petruzzi, Cleveland, for intervening respondents Ohio Valley Mall Company and Marion Plaza, Inc.

Johnson, Bruzzese & Temple and J. Alan Johnson, for intervening respondent Flora Cafaro.

Lucy A. Dalglish, urging granting of the writs for amicus curiae, the Reporters Committee for Freedom of the Press.

PER CURIAM.

[Ohio St.3d 481]{¶ 1} This is an original action by relators, the Vindicator Printing Company and WFMJ Television, Inc., for a writ of mandamus to compel respondent, Judge William H. Wolff, sitting by assignment in the Mahoning County Court of Common Pleas, to release all records that were sealed in State v. Cafaro, Mahoning Cty. C.P. Nos. 2010 CR 800 and 800A, B, C, D, E, F, G, H, and I, and [Ohio St.3d 482]a writ of prohibition to compel the judge to vacate his December 21, 2010 and August 24, 2011 decisions in those cases and to prohibit him from issuing further orders presumptively sealing any documents or records in the cases. Because relators have established their entitlement to the requested extraordinary relief based on the Superintendence Rules, we grant the writs. This renders moot relators' remaining claims based on the United States and Ohio Constitutions, the common law, and R.C. 149.43, the Ohio Public Records Act. Relators are not entitled to an award of attorney fees, because the Superintendence Rules do not specifically authorize such an award.

Facts

{¶ 2} In late July 2010, a Mahoning County grand jury returned a 73–count indictment charging seven persons, including current and former public officials, and three organizations with felony and misdemeanor charges, including engaging in a pattern of corrupt activity, conspiracy, perjury, bribery, money laundering, tampering with records, disclosure of confidential information, conflict of interest, filing a false financial-disclosure statement, and soliciting or accepting improper compensation. The cases are designated as State v. Cafaro, Mahoning C.P. Nos. 2010 CR 800 and 800(A) through (I), with the defendants as follows: 2010 CR 800, Anthony M. Cafaro Sr.; A, the Cafaro Company; B, Ohio Valley Mall Company; C, the Marion Plaza, Inc.; D, John A. McNally IV; E, John Reardon; F, Michael V. Sciortino; G, John Zachariah; H, Martin Yavorcik; and I, Flora Cafaro. Anthony Cafaro is the retired president of the Cafaro Company, Flora Cafaro is Anthony Cafaro's sister and a part owner of the Cafaro Company, Ohio Valley Mall Company and the Marion Plaza, Inc. are affiliates of the Cafaro Company, McNally is a Mahoning County commissioner, Sciortino is the Mahoning County auditor, Reardon is the former Mahoning County treasurer, Zachariah is the former director of the Mahoning County Department of Job and Family Services, and Yavorcik is an attorney who ran an unsuccessful 2008 campaign for Mahoning County prosecuting attorney. The charges stemmed from the unsuccessful attempts of Anthony Cafaro and the Cafaro-related entities to keep the Mahoning County Department of Job and Family Services located at a site owned by the Ohio Valley Mall Company, operating through Marion Plaza, Inc., which received rental income from the county while located there.

{¶ 3} The Cafaro defendants—Anthony M. Cafaro Sr., Flora Cafaro, the Cafaro Company, Ohio Valley Mall Company, and the Marion Plaza, Inc.—filed a joint motion for a bill of particulars, and the state filed a notice of intent to voluntarily comply. After the state provided bills of particulars for defendants Flora Cafaro and Yavorcik that resulted in local newspaper articles, including one from the Vindicator, the attorneys for the Cafaro defendants submitted a letter to respondent, Judge William H. Wolff Jr., who is sitting by assignment in the [Ohio St.3d 483]underlying criminal cases. In their unfiled letter, the Cafaro defendants requested that the state be ordered either to produce its bills of particulars 14 days in advance of filing to afford them the opportunity to apply for relief or to file its bills of particulars under seal to permit them to move to redact the portions they challenge. The Cafaro defendants claimed that the presumptive sealing of the bills of particulars was appropriate because the state's responses endangered their ability to receive a fair trial. The state submitted a letter to the judge objecting to the request. This response was also not filed as a matter of public record.

{¶ 4} The judge held a private, pretrial proceeding with the parties' counsel that resulted in a September 9, 2010 decision in which he granted the defendants' pending discovery motions. The judge ordered that all filings in the case “shall be under seal with the exception of filings that are clearly procedural and cannot possibly implicate Defendants' concern about receiving a fair trial.” He also specified that the defendants had 14 days from filing to object to the state's filing and that the state had 14 days to respond, with counsel permitted to request a hearing. Following an editorial that appeared in the Vindicator, the judge issued a supplemental order on September 14, 2010, in which he further explained that his “filing under seal protocol” was based on the “significant media coverage” that the criminal cases had attracted and his obligation “to balance the right of the defendants to a fair trial and the right of the public to be informed of these proceedings through the media or through personal examination of the record.” The judge was concerned with whether “fair and impartial potential jurors can be found in Mahoning County, i.e., potential jurors without preconceived notions of how this case should be decided that they cannot set aside due to pretrial publicity.”

{¶ 5} Based on the September 9 and 14, 2010 orders, various filings, including the Cafaro defendants' joint motion to dismiss the indictment and memorandum in support, were filed under seal. The Cafaro defendants also filed under seal a motion to seal, until after trial, all bills of particulars and notices of intent to introduce Evid.R. 404(B) “other acts” evidence.

{¶ 6} In November 2010, relators, the Vindicator Printing Company, which publishesthe Vindicator, a daily newspaper distributed principally in Mahoning County, and WFMJ Television, Inc., which broadcasts news in Mahoning County, submitted to the judge and the Mahoning County clerk of courts requests to inspect and copy filings and documents submitted to the court in the criminal cases, including those that had been filed under seal. When relators were not provided with access to some of the requested records, they filed a motion for an order vacating the September 9 and 14, 2010 sealing orders.

[Ohio St.3d 484]{¶ 7} On December 6, 2010, the court held a hearing on the Cafaro defendants' motion to seal the bills of particulars and notices of intent to introduce evidence under Evid.R. 404(B) and relators' motion to vacate the prior sealing orders. At the hearing, the Cafaro defendants submitted the testimony of their sole witness, Ohio University journalism professor Hugh J. Martin. Martin testified that the Vindicator was distributed to about 40 percent of Mahoning County households for Mondays through Saturdays and to almost 50 percent of county households on Sundays and that WFMJ claimed to have the most-watched newscasts in Mahoning County. Martin referred to the Vindicator's coverage of the criminal cases as “very tough” on the defendants and “sharply drawn” to emphasize the allegations against them, but he conceded that he could not say whether the newspaper statements were true or false. The defendants had themselves issued press releases proclaiming their innocence of the charges and a cable-TV infomercial. Ultimately, Martin testified that he had “no idea” whether relators' coverage of the cases prevented the impaneling of an impartial jury or tainted the jury pool, because that was not his “area of expertise.” He also conceded that he could not render an opinion on whether opening the proceedings (i.e., unsealing the records) would impede the impaneling of a jury. One of the Cafaro defendants' attorneys admitted that he was not saying that they would be unable to pick a fair jury if the judge unsealed part of the bill of particulars, but merely that the jury-selection process would be burdened in the absence of a sealing order.

{¶ 8} On December 21, 2010, the judge issued a decision in which he granted the Cafaro defendants' motion to seal the bills of particulars that had not yet been filed as a public record—the bills of particulars for the Cafaro defendants and Zachariah—as well as any Evid.R. 404(B) notices. He determined that the bills of particulars and Evid.R. 404(B) notices of other-acts evidence were in the nature of discovery and were not entitled to any presumption of public access and that even if they were entitled to a presumption of public access, that presumption was outweighed by the substantial probability that the defendants' right to a fair trial in Mahoning County would be prejudiced. With these exceptions, the judge also “sustained prospectively” relators' motion to vacate his September 9 and 14, 2010 sealing orders. But he continued a protocol...