State ex rel. WBNS TV, Inc. v. Dues, 101 Ohio St.3d 406 (Ohio 4/14/2004)

Decision Date14 April 2004
Docket NumberCase No. 2003-1476.
CourtOhio Supreme Court
PartiesThe State ex rel. WBNS TV, Inc. v. Dues, Judge, et al.

Faruki, Ireland & Cox, P.L.L., Charles J. Faruki, Bradley D. Anderson and Karl E. Neudorfer, for relator.

Rebecca Ferguson, Preble County Prosecuting Attorney; Isaac, Brant, Ledman & Teetor, L.L.P., Mark R. Weaver, Mark Landes and Jeffrey A. Stankunas, for respondents.

Walter & Haverfield, L.L.P, and Kenneth A. Zirm, urging granting of the writ for amicus curiae Ohio Newspaper Association.

Coolidge, Wall, Womsley & Lombard Co., L.P.A., Robert P. Bartlett Jr. and Janice M. Paulus, urging granting of the writ for amicus curiae Dayton Newspapers, Inc.

Chappars Law Office and Timothy S. Chappars, urging denial of the writ for amicus curiae estate of Brittanie N. Cecil, deceased.

Porter, Wright, Morris & Arthur, L.L.P., Terrance M. Miller and David S. Bloomfield Jr., urging denial of the writ for amici curiae National Hockey League and all member clubs, Columbus Blue Jackets, COLHOC Limited Partnership, d.b.a. Columbus Blue Jackets, Columbus Blue Jackets Foundation, JMAC Hockey, Inc., JMAC, Inc., SMG, Nationwide Arena, L.L.C., and Nationwide Realty Investors, Ltd.

IN MANDAMUS.

Per Curiam.

{¶1} On March 16, 2002, 13-year-old Brittanie Nicole Cecil was struck in her head by a hockey puck while she attended a Columbus Blue Jackets hockey game at Nationwide Arena in Columbus, Ohio. She died two days later.

{¶2} On March 27, 2002, Brittanie's mother, Jody L. Sergent, applied for authority to administer Brittanie's estate in the Preble County Court of Common Pleas, Probate Division. In April 2002, respondent Judge Wilfrid G. Dues of the probate court appointed Sergent administrator of the estate.

{¶3} On February 4, 2003, Sergent filed an application to approve the settlement and distribution of wrongful death and survival claims in the probate court. The filed application did not contain amounts of the settlement, reasonable attorney fees, reimbursement to the attorney for case expenses, and the allocations for the wrongful death and survival actions. Instead, the blanks for these amounts were marked confidential.

{¶4} Sergent simultaneously filed a motion to seal the application, any entry approving the settlement, and any report of distribution. In her memorandum in support of the motion to seal, Sergent stated that confidentiality of the settlement terms was part of the agreement and that Sergent wanted to avoid the same widespread publicity that had occurred after her daughter's death. On that same day, Judge Dues granted Sergent's motion and sealed the application to approve settlement and distribution, the entry approving the settlement and distribution, and the report of distribution. A sealed application that contained all of the amounts redacted from the filed version was submitted to the probate court.

{¶5} On February 14, 2003, Judge Dues conducted an in-chambers hearing on Sergent's application to approve settlement and distribution of wrongful death and survival claims. At that hearing, Judge Dues was advised that a settlement had been reached between the estate and the National Hockey League, its member clubs, the Columbus Blue Jackets, COLHOC Limited Partnership, d.b.a. Columbus Blue Jackets, Columbus Blue Jackets Foundation, JMAC Hockey, Inc., SMG, Nationwide Arena L.L.C., and Nationwide Realty Investors, Ltd. ("hockey entities"). Sergent and the hockey entities informed Judge Dues that no litigation between them had been filed and attorney fees would be 30 percent of any sum offered in settlement before expert witness depositions. The estate beneficiaries (Sergent and David Cecil, Brittanie's father) had agreed to split the remaining proceeds 60 percent for the mother and 40 percent for the father.

{¶6} Sergent and the hockey entities further advised Judge Dues that their settlement agreement included a confidentiality provision that required them to request the probate court to seal the amount of the settlement. Pursuant to the confidentiality provision, Sergent moved to seal the application to approve the settlement.

{¶7} On February 26, 2003, relator, WBNS TV, Inc. ("WBNS"), requested that respondents, Judge Dues and Preble County Probate Court Administrator Penny S. McGuire, provide it with unredacted copies of the following records in Brittanie's estate probate case: (1) application to approve settlement and distribution of wrongful death and survival claims, (2) entry approving settlement and distribution of wrongful death and survival claims, (3) report of distribution, and (4) all documents used by the probate court to determine whether to approve Sergent's application. On February 27, 2003, McGuire rejected WBNS's request, stating that the motion and entry had been sealed and that the report of distribution had not been filed.

{¶8} On the same day that McGuire rejected WBNS's records request, WBNS moved to vacate Judge Dues's February 4, 2003 order sealing Sergent's application for approval of the settlement, the entry approving the settlement, and the report of distribution. WBNS and Sergent filed depositions, and Judge Dues held an evidentiary hearing on WBNS's motion on April 28, 2003.

{¶9} On June 17, 2003, Judge Dues denied WBNS's motion to vacate the sealing order. Judge Dues concluded that neither the Ohio Public Records Act, R.C. 149.43, nor the Ohio Constitution required the probate court to provide access to the requested records. In so holding, Judge Dues reiterated that the settlement amount would remain sealed, but that he would disclose other information included in Sergent's application, including the percentage of attorney fees (30 percent), the source of the funds available for settlement (insurance company), the percentage of distribution to the estate beneficiaries (60 percent to the mother and 40 percent to the father), and that no settlement funds came from the Columbus Blue Jackets. On June 24, 2003, Judge Dues denied Sergent's application for attorney fees expended by the estate to defend against WBNS's motion to vacate the sealing order.

{¶10} On August 19, 2003, WBNS filed this action for a writ of mandamus to compel Judge Dues and McGuire to immediately produce copies of or permit access to the requested records and for an award of attorney fees, costs, and expenses. After WBNS filed an amended complaint and respondent answered, we granted an alternative writ. State ex rel. WBNS TV, Inc. v. Dues, 100 Ohio St.3d 1429, 2003-Ohio-5396, 797 N.E.2d 510.

{¶11} The parties filed evidence and briefs. In addition, the Ohio Newspaper Association and Dayton Newspapers, Inc. filed amicus curiae briefs in support of WBNS, and the estate and the hockey entities filed amicus curiae briefs in support of Judge Dues and McGuire.

{¶12} WBNS failed to file a timely reply brief, but on December 16, 2003, it filed a revised motion for oral argument in which it responded to some of the arguments raised by Judge Dues and McGuire in their merit brief. On December 19, respondents designated new counsel to represent them, and on December 23, respondents filed a motion for oral argument.

{¶13} This case is now before us for a consideration of the parties' motions for oral argument as well as a consideration of the merits.

Oral Argument

{¶14} The parties move for oral argument. WBNS claims that oral argument is warranted because this case involves matters of great public importance, complex legal issues, a substantial constitutional issue, and a conflict between courts of appeals. Respondents assert that although no conflict exists, the other factors favor oral argument.

{¶15} We deny oral argument for the following reasons:

{¶16} First, S.Ct.Prac.R. IX does not require oral argument in original actions. See S.Ct.Prac.R. IX(2)(A) ("In an original action * * * the Supreme Court may order oral argument on the merits either sua sponte or in response to a request by any party"); State ex rel. Potts v. Comm. on Continuing Legal Edn. (2001), 93 Ohio St.3d 452, 454, 755 N.E.2d 886.

{¶17} Second, this case does not raise issues of either great public importance or legal complexity. Although the underlying events surrounding Brittanie's death generated widespread media coverage and public interest, this case has a significantly narrower focus: Does WBNS have a right of access under either R.C. 149.43 or the United States and Ohio Constitutions to settlement figures submitted to and considered by a probate court in determining whether to approve the settlement? This more limited question is of less public importance and legal complexity than the broader questions that the parties attempt to portray this case as involving.

{¶18} Third, although constitutional issues are raised, they are either insubstantial or need not be addressed in order to resolve this case. In fact, we have resolved comparable assertions of a constitutional right of privacy in public records cases without the necessity of oral argument. See, e.g., State ex rel. Keller v. Cox (1999), 85 Ohio St.3d 279, 707 N.E.2d 931; State ex rel. Plain Dealer Publishing Co. v. Cleveland (1996), 75 Ohio St.3d 31, 661 N.E.2d 187.

{¶19} Fourth, there does not appear to be a direct conflict between the cited appellate cases. Cf. Adams v. Metallica, Inc. (2001), 143 Ohio App.3d 482, 758 N.E.2d 286, with State ex rel. Sweeney v. Parma Hts. (1994), 93 Ohio App.3d 349, 638 N.E.2d 614. A conflict does not exist when "the point upon which conflict exists had no arguable effect upon the judgment of the certifying court." Pincelli v. Ohio Bridge Corp. (1966), 5 Ohio St.2d 41, 44, 34 O.O.2d 55, 213 N.E.2d 356.

{¶20} Most important, the parties' and amici briefs are sufficient to resolve the issues raised. State ex rel. Woods v. Oak Hill Community Med. Ctr. (2001), 91 Ohio St.3d 459, 460, 746 N.E.2d 1108.

{¶21} Finally, it appears that ...

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