State ex rel. Fernbach v. Brush , 133 Ohio St. 3d 151 ( 2012 )

[Cite as State ex rel. Fernbach v. Brush, 133 Ohio St. 3d 151, 2012-Ohio-4214.]
THE STATE EX REL. FERNBACH, APPELLANT, v. BRUSH, CLERK, APPELLEE.
[Cite as State ex rel. Fernbach v. Brush, 133 Ohio St. 3d 151, 2012-Ohio-4214.]
Appeal of denial of writ of mandamus—Judgment affirmed.
(No. 2012-0105—Submitted September 12, 2012—Decided September 20, 2012.)
APPEAL from the Court of Appeals for Montgomery County, No. 24713.
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Per Curiam.
{¶ 1} We affirm the judgment of the court of appeals denying the request
of appellant, Richard Fernbach, for a writ of mandamus to compel appellee,
Montgomery County Clerk of Courts Gregory A. Brush, to turn over certain
records to him under R.C. 149.43, the Public Records Act.
{¶ 2} R.C. 149.43(B)(8) requires an incarcerated criminal offender who
seeks records relating to an inmate’s criminal prosecution to obtain a finding by
the sentencing judge or the judge’s successor that the requested information is
necessary to support what appears to be a justiciable claim. State ex rel. Chatfield
v. Flautt, 131 Ohio St. 3d 383, 2012-Ohio-1294, 965 N.E.2d 304. Fernbach did
not obtain such a finding.
{¶ 3} Insofar as Fernbach claims on appeal that R.C. 149.43(B)(8) is
unconstitutional, he waived this claim by failing to raise it below. State ex rel.
Boyd v. Ward, 132 Ohio St. 3d 90, 2012-Ohio-2359, 969 N.E.2d 263, ¶ 3.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
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Richard Fernbach, pro se.
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