State ex rel. Parisi v. Dayton Bar Assn. Certified Grievance Commt. (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Parisi v. Dayton Bar Assn. Certified Grievance Commt., Slip Opinion No. 2019-Ohio-
5157.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2019-OHIO-5157
THE STATE EX REL. PARISI, APPELLANT, v. DAYTON BAR ASSOCIATION
CERTIFIED GRIEVANCE COMMITTEE ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Parisi v. Dayton Bar Assn. Certified Grievance
Commt., Slip Opinion No. 2019-Ohio-5157.]
Mandamus—Public-records requests—Documents prepared in attorney-discipline
cases may be sought only through a request made under Sup.R. 44 through
47—Court of appeals’ judgment denying writ sought under Public Records
Act affirmed.
(No. 2018-0140—Submitted January 29, 2019—Decided December 17, 2019.)
APPEAL from the Court of Appeals for Montgomery County, No. 27123,
2017-Ohio-9394.
________________
FISCHER, J.
{¶ 1} Appellant, Georgianna Parisi, appeals the judgment of the Second
District Court of Appeals denying her petition for a writ of mandamus against
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appellees, the Dayton Bar Association and the Dayton Bar Association Certified
Grievance Committee. Because Parisi did not utilize the correct vehicle, Sup.R. 44
through 47, to seek to obtain the requested records, we affirm the judgment of the
court of appeals.
I. BACKGROUND
{¶ 2} In 2016, Parisi sent a letter to the executive director of the Dayton Bar
Association requesting “any and all records” concerning her in the bar association’s
possession, pursuant to R.C. 149.43, Ohio’s Public Records Act. She specifically
requested:
1. [a]ny and all communications related to and/or
concerning me, including communications by letter, phone, email,
text, voice mail, and the like; and
2. [a]ny and all documents related to and/or concerning me.
The records sought related to her two attorney-discipline cases, Dayton Bar Assn.
v. Parisi, case No. 2009-0064 (“Parisi I”), and Dayton Bar Assn. v. Parisi, case
No. 2012-0060 (“Parisi II”), both of which had long been resolved. See Dayton
Bar Assn. v. Parisi, 131 Ohio St. 3d 345, 2012-Ohio-879, 965 N.E.2d 268, ¶ 2;
Parisi v. Heck, S.D.Ohio No. 3:14-cv-346, 2015 WL 3999300, *4 (July 1, 2015).
{¶ 3} In a letter dated April 8, 2016, the grievance committee provided an
initial response to Parisi’s request. The grievance committee’s letter expressed that
it did not believe that the documents Parisi sought were subject to disclosure.
{¶ 4} Parisi then amended her request to include
any and all emails, text messages, and any and all electronic
messages, whether made on [the bar association’s] or an individual’s
electronic equipment. I am requesting all records concerning me,
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and have expanded it to all records which the [bar association] has
concerning me, including records associated with Parisi I and Parisi
II.
In a letter dated April 22, 2016, the grievance committee formally denied Parisi’s
request.
{¶ 5} Parisi filed a petition seeking a writ of mandamus against the bar
association and the grievance committee in the Second District Court of Appeals.
The bar association and the grievance committee filed a motion to dismiss for
failure to state a claim, which the court of appeals converted into a motion for
summary judgment. Parisi then filed a cross-motion for summary judgment.
{¶ 6} The court of appeals recognized that, as an initial matter, it was
required to determine whether Parisi had utilized the correct vehicle to seek to
obtain the requested attorney-discipline records. However, because the parties had
not briefed that issue, the court proceeded to decide the merits of Parisi’s petition
under R.C. 149.43. The court of appeals granted summary judgment in favor of the
bar association and the grievance committee, denied Parisi’s cross-motion, and
denied the writ of mandamus.
II. ANALYSIS
{¶ 7} Parisi appealed to this court. She also filed a “motion to elect
representation.” We find her motion to be without merit. Furthermore, we
conclude that because Parisi failed to seek to obtain the attorney-discipline records
pursuant to Sup.R. 44 through 47, the court of appeals correctly granted summary
judgment in favor of the bar association and the grievance committee and correctly
denied the requested writ of mandamus.
A. Motion to elect representation
{¶ 8} Parisi has filed a motion captioned “Motion to Elect Representation”
requesting that this court order opposing counsel, Lisa Ann Hesse, Stephen Freeze,
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and the law firm of Freund, Freeze & Arnold (collectively, “Freund Freeze”), “to
make a determination as to whether they will represent” the bar association and the
grievance committee or the bar association’s counsel John Ruffolo, former
president Brian Wildermuth, and former Board of Trustees member Jonathon Beck,
individuals who are not and have never been parties to this action.
{¶ 9} Parisi is essentially seeking to disqualify opposing counsel. She
alleges that Freund Freeze’s representation of the bar association and the grievance
committee is directly adverse to its prior clients, Ruffalo, Wildermuth, and Beck.
Parisi posits the existence of an unwaivable conflict, in violation of Prof.Cond.R.
1.7 (prohibiting a lawyer from accepting or continuing a client’s representation if
that representation will be directly adverse to another client), because those
individuals “may oppose [Parisi’s] public records request, not on legal grounds, but
because they personally wish to shield themselves from additional unethical
behavior being revealed.” We find Parisi’s motion to be without merit.
{¶ 10} Freund Freeze represents only the bar association and the grievance
committee, the only other parties to this action besides Parisi. Because the other
individuals that Parisi mentions are not parties to this action, there is no basis for
Freund Freeze to “elect representation” in this case.
{¶ 11} Further, Parisi is not a client of Freund Freeze, and she has not
identified any obligations or responsibilities that could serve as a basis for opposing
counsel’s disqualification. Therefore, Parisi lacks standing to assert that Freund
Freeze has a conflict of interest. See Morgan v. N. Coast Cable Co., 63 Ohio St. 3d
156, 586 N.E.2d 88 (1992), syllabus (“a stranger to an attorney-client relationship
lacks standing to complain of a conflict of interest in that relationship”).
{¶ 12} Therefore, we deny Parisi’s “motion to elect representation.”
B. Writ of mandamus to obtain records relating to attorney-discipline cases
{¶ 13} Parisi petitioned for a writ of mandamus to compel the bar
association and the grievance committee to provide her with documents relating to
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her two attorney-discipline cases under only the Public Records Act, R.C. 149.43.
The court of appeals addressed the merits of Parisi’s petition under R.C. 149.43.
{¶ 14} However, as this court has stated in numerous cases since the
promulgation of Sup.R. 44 through 47, a court must first address the threshold issue
whether the petitioner has sought the requested documents through the correct
vehicle, either R.C. 149.43 or Sup.R. 44 through 47. The vehicle used dictates not
only the documents that are available to the relator and the manner in which they
are available but also the remedies available to the relator should the relator be
successful.
{¶ 15} Thus, before we may address the merits of the appeal, we must
answer this threshold question of which is the proper vehicle to use in seeking to
obtain documents related to attorney-discipline cases.
1. Threshold issue
a. Promulgation of Sup.R. 44 through 47
{¶ 16} Prior to the promulgation of Sup.R. 44 through 47 in 2009, this court
followed the Public Records Act in resolving public-records requests for court
records. See, e.g., State ex rel. Cincinnati Enquirer v. Winkler, 101 Ohio St. 3d 382,
2004-Ohio-1581, 805 N.E.2d 1094. This court, however, recognized the need to
promulgate its own rules to govern the release of public records held by the
judiciary. Former Chief Justice Moyer acknowledged in a letter to Ohio attorneys
that “[w]hile the courts in Ohio [had] always acted in accordance with the Public
Records Act, the act does not govern the courts.” Moyer, A message from the Chief
Justice: Openness is foundation of Ohio Government, 81 Ohio State Bar Assn.
Report 170, 171 (2008). Chief Justice Moyer believed—and rightfully so—that the
“important constitutional principle of separation of powers” required this court to
regulate judicial records through its Rules of Superintendence. Id.; see State v.
Steffen, 70 Ohio St. 3d 399, 409, 639 N.E.2d 67 (1994), quoting In re Furnishings
for Courtroom Two, 66 Ohio St. 2d 427, 430, 423 N.E.2d 86 (1981) (“ ‘courts
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possess all powers necessary to secure and safeguard the free and untrammeled
exercise of their judicial functions’ ”).
{¶ 17} So, in 2009, after the proposed rules had been published for over two
years, with more than 70 individuals and organizations participating in the
extensive public-comment periods, this court adopted Sup.R. 44 through 47
through our constitutional superintendence authority under Article IV, Section
5(A)(1) of the Ohio Constitution. See Public access rules in effect: Court offers
training, Web page for local authorities, 82 Ohio State Bar Assn. Report 636, 638
(2009). Those rules set forth the process that the public must utilize to seek to
obtain records held by the judicial branch. See O’Connor, The Ohio Modern Courts
Amendment: 45 Years of Progress, 76 Alb.L.Rev. 1963, 1971 (2013).
b. The effect of Sup.R. 44 through 47
{¶ 18} In promulgating Sup.R. 44 through 47, we announced to the other
branches of government that this court would determine how records held by the
judicial branch would be made accessible to the public. Id.; see Article IV, Section
5(A)(1), Ohio Constitution. Indeed, this court emphasized that point in State ex rel.
Vindicator Printing Co. v. Wolff, 132 Ohio St. 3d 481, 2012-Ohio-3328, 974 N.E.2d
89, ¶ 23, in which we determined that the relators were entitled to relief under the
Rules of Superintendence, not the Public Records Act.
{¶ 19} This court has adhered to that view and has consistently held that the
threshold issue in public-records cases is whether R.C. 149.43 or Sup.R. 44 through
47 governs the request. See State ex rel. Richfield v. Laria, 138 Ohio St. 3d 168,
2014-Ohio-243, 4 N.E.3d 1040, ¶ 8; State ex rel. Harris v. Pureval, 155 Ohio St. 3d
343, 2018-Ohio-4718, 121 N.E.3d 337, ¶ 10; State ex rel. Husband v. Shanahan,
157 Ohio St. 3d 148, 2019-Ohio-1853, 133 N.E.3d 467, ¶ 5.
{¶ 20} This is so even if the issue of the appropriate vehicle is not raised by
the parties or by the lower courts. See Shanahan at ¶ 5. Determining whether the
Public Records Act or the Rules of Superintendence govern a relator’s request does
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not constitute a lack of judicial restraint, as suggested by the concurring opinion;
instead, the determination is made based on our constitutional superintendence
authority and is necessitated by the principle of separation of powers. If a party
seeks to obtain judicial records through means other than Sup.R. 44 through 47, the
party is not entitled to a writ of mandamus, as the Rules of Superintendence are the
sole vehicle by which a party may seek to obtain such records. See Laria at ¶ 8;
Husband at ¶ 6.
c. Determining the appropriate vehicle
{¶ 21} To determine the appropriate vehicle, we consider the nature of the
records requested. Generally, if the records requested are held by or were created
for the judicial branch, then the party seeking to obtain the records must submit a
request pursuant to Sup.R. 44 through 47. See Sup.R. 44(B) (defining “court
record” as including case documents and administrative documents); Sup.R.
44(C)(1) (defining “case document” generally as a document “submitted to a court
or filed with a clerk of court in a judicial action or proceeding”); Sup.R. 44(G)(1)
(defining “administrative document” generally as a document “created, received,
or maintained by the court to record the administrative, fiscal, personnel, or
management functions, polices, decisions, procedures, operations, organization, or
other activities of the court”); Husband at ¶ 6. If the party is not seeking to obtain
the records through the correct vehicle, the party is not entitled to the requested
records in that action. See Laria at ¶ 8; Husband at ¶ 6.
{¶ 22} Our recent decision in Husband best illustrates this process.
Husband had requested public records relating to his criminal convictions. The
records were held by the court and were accessible through the clerk of courts. The
trial court had denied his request. Husband petitioned the First District Court of
Appeals to issue a writ of mandamus to order the production of the requested
documents pursuant to R.C. 149.43. The appellate court dismissed Husband’s
petition under R.C. 149.43 because “an incarcerated person is not entitled to records
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relating to a criminal investigation or prosecution unless the sentencing court has
found that the material is necessary to support a justiciable claim of the inmate”
and the sentencing court had denied Husband’s motion for release of the records.
{¶ 23} This court determined that the parties and the court of appeals had
“erroneously applied the Ohio Public Records Act, R.C. 149.43, to Husband’s
records request.” Husband, 157 Ohio St. 3d 148, 2019-Ohio-1853, 133 N.E.3d 467,
at ¶ 5. We affirmed the First District’s dismissal of the petition but on the grounds
that Husband was not seeking to obtain the documents pursuant to the Rules of
Superintendence. Id. at ¶ 6. We made no judgment as to whether the requested
records would have been subject to disclosure under Sup.R. 44 through 47. We
simply recognized that when a requester seeks public records from a court, the
Rules of Superintendence apply. Id. at ¶ 5.
2. Records in attorney-discipline cases
{¶ 24} Parisi seeks to obtain records relating to her attorney-discipline
cases. Thus, we must determine whether such a records request is subject to Sup.R.
44 through 47.
{¶ 25} Attorney-discipline matters are decided exclusively by this court, as
we have original jurisdiction over the discipline of persons admitted to the bar and
all other matters relating to the practice of law. See Article IV, Section 2(B)(1)(g),
Ohio Constitution. And through the Supreme Court Rules for the Government of
the Bar of Ohio, this court created the Office of Disciplinary Counsel and the Board
of Professional Conduct and authorized the board to certify grievance committees
to aid us in managing attorney discipline throughout the state. See Gov.Bar R.
V(1)(A) and (D) (“[t]here shall be a Board of Professional Conduct of the Supreme
Court” consisting of 28 commissioners appointed by this court); Gov.Bar R.
V(4)(A) (the board, with the approval of the Supreme Court, shall appoint
disciplinary counsel); Gov.Bar R. V(5)(B) (the board may certify a grievance
committee to investigate allegations of attorney misconduct).
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{¶ 26} While these entities, especially the certified grievance committees,
function somewhat independently from this court, the documents prepared and
created in attorney-discipline cases by or for these entities must be considered
records of this court for purposes of disclosure. That is because this court is the
ultimate arbiter of attorney discipline, Cincinnati Bar Assn. v. Powers, 119 Ohio
St.3d 473, 2008-Ohio-4785, 895 N.E.2d 172, ¶ 21, and we have the unique and
complete responsibility, as designated by Article IV, Sections 2(B)(1)(g) and 5(B)
of the Ohio Constitution, to regulate all matters related to the practice of law.
Therefore, any documents prepared in attorney-discipline cases, like those
requested by Parisi, may be sought only through a request made pursuant to Sup.R.
44 through 47. See Husband, 157 Ohio St. 3d 148, 2019-Ohio-1853, 133 N.E.3d
467, at ¶ 5; Harris, 155 Ohio St. 3d 343, 2018-Ohio-4718, 121 N.E.3d 337, at ¶ 10;
Laria, 138 Ohio St. 3d 168, 2014-Ohio-243, 4 N.E.3d 1040, at ¶ 8; see also
Cleveland Metro. Bar Assn. Certified Grievance Commt. v. Sliwinski, 142 Ohio
St.3d 1224, 2015-Ohio-1276, 29 N.E.3d 987, ¶ 19; Disciplinary Counsel v.
Williams, 147 Ohio St. 3d 1242, 2016-Ohio-5717, 65 N.E.3d 761, ¶ 20; Gov.Bar R.
V(8)(F).
{¶ 27} The concurring opinion expresses concern that this holding will
“create confusion” as to whether there is a judicial remedy to compel access to such
records. Opinion concurring in part and concurring in judgment only in part at
¶ 64. This concern is misplaced. The process to obtain these records remains
unchanged—we are merely clarifying that such records may be sought only through
Sup.R. 44 through 47, not also through R.C. 149.43. Because Parisi seeks to use
the procedures set forth in R.C. 149.43 to obtain records related to her attorney-
discipline cases and has disclaimed any entitlement to relief under the Rules of
Superintendence, this court need not reach the issue whether the requested
documents are subject to disclosure. Parisi failed to request the documents pursuant
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to Sup.R. 44 through 47; therefore, she is not entitled to a writ of mandamus. See
Husband at ¶ 6; Laria at ¶ 8.
III. CONCLUSION
{¶ 28} We deny Parisi’s “motion to elect representation.” And because
Parisi did not utilize the correct vehicle, Sup.R. 44 through 47, to seek to obtain the
requested records, we affirm the judgment of the Second District Court of Appeals
granting summary judgment to appellees and denying the requested writ of
mandamus.
Judgment affirmed.
O’CONNOR, C.J., and FRENCH and DONNELLY, JJ., concur.
KENNEDY, J., concurs in part and concurs in judgment only in part, with an
opinion joined by DEWINE and STEWART, JJ.
_________________
KENNEDY, J., concurring in part and concurring in judgment only in
part.
{¶ 29} I agree that appellant Georgianna Parisi’s motion seeking to
disqualify counsel for appellees, the Dayton Bar Association Certified Grievance
Committee and the Dayton Bar Association, should be denied. I therefore join Part
II, Section A of the majority opinion.
{¶ 30} However, I write separately because I would not consider whether—
and cannot subscribe to the majority’s view that—the public-access provisions of
the Rules of Superintendence for the Courts of Ohio, Sup.R. 44 through 47, apply
to the investigatory materials of a bar association’s certified grievance committee.
The court of appeals did not consider this issue in the first instance, Parisi expressly
disclaimed reliance on the Superintendence Rules as supporting her claim, and the
majority gives no persuasive explanation of how a certified grievance committee
of a private, voluntary bar association is “the Supreme Court” within the meaning
of Sup.R. 44 through 47. See Sup.R. 44 (“Sup.R. 44 through 47 apply to the
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Supreme Court”). And contrary to the majority’s assumption that the
Superintendence Rules preempt the Public Records Act, R.C. 149.43, the
constitutional grant of authority to this court to adopt rules of superintendence for
the courts of Ohio does not provide that those rules supersede the enactments of the
General Assembly; therefore, Parisi’s failure to assert a right to court records under
the Superintendence Rules in addition to the Public Records Act does not foreclose
relief. Lastly, by treating the Dayton Bar Association’s certified grievance
committee as an arm of this court, the majority sows confusion regarding whether
there is any judicial means to compel a certified grievance committee to release
public records—a court of appeals lacks authority to issue a writ of mandamus
against this court or its adjuncts, and this court may not direct a writ against itself.
{¶ 31} Nonetheless, I concur in the court’s judgment affirming the
judgment of the court of appeals, because the records that Parisi seeks do not fit
within the meaning of “public record” as defined by R.C. 149.43(A)(1)(v).
Judicial Restraint
{¶ 32} Parisi’s petition sought records only under the Public Records Act,
and as the majority acknowledges, the court of appeals did not consider whether
R.C. 149.43 or the public-access provisions of the Rules of Superintendence are the
appropriate vehicle for obtaining records from a bar association’s certified
grievance committee. In her brief to this court, Parisi disclaims entitlement to relief
pursuant to the Superintendence Rules. But although the bar association and its
grievance committee make the conclusory assertion that the statute is not the proper
mechanism to seek to obtain the records of a certified grievance committee, they
fail to explain how such records are “court records” for purposes of the statute.
{¶ 33} Whether the public-access provisions of the Superintendence Rules
apply to a certified grievance committee’s investigatory materials is a question of
first impression, and this court lacks the benefit of lower-court consideration and
full briefing and argument on it. The answer to that question is not an obvious one,
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and we would benefit from the consideration of arguments tested in the crucible of
the adversarial process by parties with a direct interest in the outcome.
{¶ 34} Our longstanding policy is not to address an unbriefed issue. E.g.,
Willoughby Hills Dev. & Distrib., Inc. v. Testa, 155 Ohio St. 3d 276, 2018-Ohio-
4488, 120 N.E.3d 836, ¶ 14, fn. 1; State v. Roberts, 150 Ohio St. 3d 47, 2017-Ohio-
2998, 78 N.E.3d 851, ¶ 85; Risner v. Ohio Dept. of Natural Resources, Ohio Div.
of Wildlife, 144 Ohio St. 3d 278, 2015-Ohio-3731, 42 N.E.3d 718, ¶ 28, citing
Sizemore v. Smith, 6 Ohio St. 3d 330, 332, 453 N.E.2d 632 (1983), fn. 2. The
rationale for this policy, as well as the premise of the adversarial process itself, is
that “ ‘ “appellate courts do not sit as self-directed boards of legal inquiry and
research, but [preside] essentially as arbiters of legal questions presented and
argued by the parties before them.” ’ ” (Brackets sic.) State v. Quarterman, 140
Ohio St. 3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 19, quoting State v. Bodyke,
126 Ohio St. 3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 78 (O’Donnell, J.,
concurring in part and dissenting in part), quoting Carducci v. Regan, 714 F.2d 171,
177 (D.C.Cir.1983).
{¶ 35} The process of judicial review depends on the parties to identify,
preserve, and present issues for appeal. Courts “ ‘do not, or should not, sally forth
each day looking for wrongs to right. We wait for cases to come to us, and when
they do we normally decide only questions presented by the parties.’ ” Greenlaw
v. United States, 554 U.S. 237, 244, 128 S. Ct. 2559, 171 L. Ed. 2d 399 (2008),
quoting United States v. Samuels, 808 F.2d 1298, 1301 (8th Cir.1987) (Arnold, J.,
concurring in the denial of rehearing en banc). As former Justice Cook once wrote,
“even the most measured sense of judicial restraint confines this court to passing
upon only those issues developed below.” Fulmer v. Insura Prop. & Cas. Co., 94
Ohio St. 3d 85, 100, 760 N.E.2d 392 (2002) (Cook, J., dissenting).
{¶ 36} Our review should therefore be confined to the issue actually
litigated by the parties and decided by the court of appeals in the first instance—
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i.e., whether the Public Records Act requires a bar association’s certified grievance
committee to produce its investigatory materials as public records.
The Public Records Act
{¶ 37} The Public Records Act reflects the state’s policy that “open
government serves the public interest and our democratic system,” State ex rel.
Dann v. Taft, 109 Ohio St. 3d 364, 2006-Ohio-1825, 848 N.E.2d 472, ¶ 20, and
“reinforce[s] the understanding that open access to government papers is an integral
entitlement of the people, to be preserved with vigilance and vigor,” Kish v. Akron,
109 Ohio St. 3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 17.
{¶ 38} R.C. 149.43(B)(1) requires a public office to make copies of public
records available to any person upon request, within a reasonable period of time.
However, “[r]ecords the release of which is prohibited by state or federal law” are
not public records subject to release. R.C. 149.43(A)(1)(v). Gov.Bar R. V(5)(H)
states that “[n]o employee, appointee, or member of a certified grievance committee
shall disclose to any person any proceedings, documents, or deliberations of the
committee.” Further, Gov.Bar R. V(8) establishes when documents relating to the
investigation of grievances are confidential and when they are discoverable.
{¶ 39} This leads to two questions: Are Gov.Bar R. V(5) and (8) state law
for purposes of R.C. 149.43(A)(1)(v)? And if so, may a bar association’s certified
grievance committee withhold documents sought in a public-records request that
would be discoverable by litigants in a disciplinary proceeding?
{¶ 40} We addressed a variant of the first question in State ex rel. Beacon
Journal Publishing Co. v. Waters, 67 Ohio St. 3d 321, 617 N.E.2d 1110 (1993). At
issue in that case was whether Crim.R. 6(E), which provides for grand-jury secrecy,
is a state law prohibiting the release of records. The plurality opinion explained
that procedural rules “adopted pursuant to constitutional authority” are state law for
purposes of the Public Records Act. Id. at 323-324. The plurality opinion therefore
determined that Crim.R. 6(E) is state law because it had been adopted pursuant to
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the constitutional authority to promulgate rules of practice and procedure granted
to this court by Article IV, Section 5(B) of the Ohio Constitution. Id. at 324. A
majority of the court subsequently adopted the plurality opinion’s determination in
State ex rel. Gannett Satellite Information Network, Inc. v. Petro, 80 Ohio St. 3d
261, 266, 685 N.E.2d 1223 (1997), and State ex rel. WLWT-TV5 v. Leis, 77 Ohio
St.3d 357, 361, 673 N.E.2d 1365 (1997), overruled on other grounds, State ex rel.
Caster v. Columbus, 151 Ohio St. 3d 425, 2016-Ohio-8394, 89 N.E.3d 598.
{¶ 41} Similarly, Gov.Bar R. V(5)(H) and (8) were adopted according to
our constitutional duty to “make rules governing the admission to the practice of
law and discipline of persons so admitted,” Ohio Constitution, Article IV, Section
5(B). In accordance with Beacon Journal Publishing, these rules have the force of
law in this state, and if they preclude the release of a document, then the document
is not a public record that must be released pursuant to the Public Records Act, R.C.
149.43(A)(1)(v).
{¶ 42} That leaves the second question—whether a record that may be
discoverable during litigation is subject to release as a public record.
{¶ 43} Gov.Bar R. V(8)(A)(1) provides that subject to certain enumerated
exceptions, “[p]rior to a determination of probable cause by the Board [of
Professional Conduct], all proceedings, documents, and deliberations relating to
review, investigation, and consideration of grievances shall be confidential.”
Gov.Bar R. V(8)(A)(3) specifies that subject to exceptions not relevant here, “all
investigatory materials prepared in connection with an investigation conducted
pursuant to Section 9 of this rule or submitted with a complaint filed pursuant to
Section 10 of this rule shall be confidential prior to certification of a formal
complaint pursuant to Section 11 of this rule.”
{¶ 44} Gov.Bar R. V(8)(B), however, provides that after the finding of
probable cause,
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the complaint and all subsequent proceedings conducted and
documents filed in connection with the complaint shall be public
except as follows:
***
(3) The summary of investigation prepared by the relator
shall be confidential as work-product of the relator. All other
investigatory materials and any attachments prepared in connection
with an investigation conducted pursuant to Section 9 of this rule or
submitted with a complaint filed pursuant to Section 10 of this rule
shall be discoverable as provided in the Ohio Rules of Civil
Procedure.
(Emphasis added.)
{¶ 45} Gov.Bar R. V(8)(B)(3) therefore provides an exception to the
general rule that after a probable-cause finding, documents filed in a disciplinary
proceeding are subject to release to the public. Investigatory materials and any
attachments prepared in connection with an investigation are not public, but they
are discoverable.
{¶ 46} That information is discoverable does not make it publicly available.
“The rules governing discovery do not envision a third party’s access to the
information exchanged”; rather, discovery “ ‘is essentially a private process
because the litigants and the courts assume that the sole purpose of discovery is to
assist trial preparation.’ ” State ex rel. WHIO-TV-7 v. Lowe, 77 Ohio St. 3d 350,
354, 673 N.E.2d 1360 (1997), quoting United States v. Anderson, 799 F.2d 1438,
1441 (11th Cir.1986). We have therefore recognized that when a government office
provides documents in discovery to opposing parties in litigation, it does not make
those documents public records. See id. at 355.
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{¶ 47} Although investigatory records may be discoverable during a
disciplinary proceeding, in this case, Parisi sought these types of records through a
public-records request, so she stands on the same footing as any other member of
the public who is a stranger to the litigation. Gov.Bar R. V(5)(H) bars the release
of these documents, and nothing in Gov.Bar R. V(8)(B) makes them public records.
Therefore, pursuant to R.C. 149.43(A)(1)(v), the documents that Parisi requested
are not public records.
{¶ 48} That conclusion should end the analysis. Reaching beyond the
narrow questions presented in this case even though it is unnecessary to do so would
contravene “ ‘the cardinal principle of judicial restraint—if it is not necessary to
decide more, it is necessary not to decide more,’ ” State ex rel. LetOhioVote.org v.
Brunner, 123 Ohio St. 3d 322, 2009-Ohio-4900, 916 N.E.2d 462, ¶ 51, quoting PDK
Laboratories, Inc. v. United States Drug Enforcement Administration, 362 F.3d
786, 799 (D.C.Cir.2004) (Roberts, J., concurring in part and concurring in
judgment).
The Rules of Superintendence
{¶ 49} The majority today proceeds to answer an unasked question of first
impression, and that answer places the public-access provisions of the
Superintendence Rules in direct conflict with the Public Records Act.
{¶ 50} This court had long held that Ohio’s Public Records Act, R.C.
149.43, applies to court records. State ex rel. Cincinnati Enquirer v. Winkler, 101
Ohio St. 3d 382, 2004-Ohio-1581, 805 N.E.2d 1094, ¶ 5; State ex rel. Beacon
Journal Publishing Co. v. Bond, 98 Ohio St. 3d 146, 2002-Ohio-7117, 781 N.E.2d
180, ¶ 9-13; State ex rel. Mothers Against Drunk Drivers v. Gosser, 20 Ohio St. 3d
30, 33, 485 N.E.2d 706 (1985). After all, the Public Records Act provides that
“public records” are records kept by a “public office,” R.C. 149.43(A)(1), and a
court or judicial agency is a public office, R.C. 149.011(A) and (B). No one in this
case questions the General Assembly’s authority to make the public-records law
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January Term, 2019
applicable to the judiciary. Yet the majority nonetheless implicitly overturns
decades of caselaw holding that the Public Records Act applies to the courts based
on the sudden epiphany—unmoored from legal authority or analysis—that R.C.
149.43 violates the separation-of-powers doctrine.
{¶ 51} We have previously stated in per curiam opinions that Sup.R. 44
through 47 are the “sole vehicle” for obtaining court records in actions commenced
after July 1, 2009. (Emphasis omitted.) State ex rel. Husband v. Shanahan, 157
Ohio St. 3d 148, 2019-Ohio-1853, 121 N.E.3d 337, ¶ 5; State ex rel. Harris v.
Pureval, 155 Ohio St. 3d 343, 2018-Ohio-4718, 121 N.E.3d 337, ¶ 10; State ex rel.
Richfield v. Laria, 138 Ohio St. 3d 168, 2014-Ohio-243, 4 N.E.3d 1040, ¶ 8. But
see State ex rel. Vindicator Printing Co. v. Wolff, 132 Ohio St. 3d 481, 2012-Ohio-
3328, 974 N.E.2d 89, ¶ 1 (explaining that relief rendered pursuant to the
Superintendence Rules made any claim under the Public Records Act moot). None
of these cases suggested that the Public Records Act is unconstitutional as applied
to the courts. And none of these decisions considered the question whether the
Ohio Constitution empowers this court to adopt rules of superintendence for Ohio
courts that preempt the lawful enactments of the legislative branch.
{¶ 52} Article IV, Section 5 of the Ohio Constitution vests this court with
authority to promulgate court rules. Section 5(A)(1) states: “In addition to all other
powers vested by this article in the supreme court, the supreme court shall have
general superintendence over all courts in the state. Such general superintending
power shall be exercised by the chief justice in accordance with rules promulgated
by the supreme court.” Pursuant to this authority, this court adopted the Rules of
Superintendence, which “are designed ‘(1) to expedite the disposition of both
criminal and civil cases in the trial courts of this state, while at the same time
safeguarding the inalienable rights of litigants to the just processing of their causes;
and (2) to serve that public interest which mandates the prompt disposition of all
cases before the courts.’ ” State v. Steffen, 70 Ohio St. 3d 399, 409, 639 N.E.2d 67
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(1994), quoting State v. Singer, 50 Ohio St. 2d 103, 109-110, 362 N.E.2d 1216
(1977).
{¶ 53} Another type of court rules is authorized by Section 5(B), which
provides: “The supreme court shall prescribe rules governing practice and
procedure in all courts of the state, which rules shall not abridge, enlarge, or modify
any substantive right. * * * All laws in conflict with such rules shall be of no further
force or effect after such rules have taken effect.” Article IV, Section 5(B), Ohio
Constitution. Section 5(B) thus expressly empowers this court to adopt procedural
rules that supersede the enactments of the General Assembly. Morris v. Morris,
148 Ohio St. 3d 138, 2016-Ohio-5002, 69 N.E.3d 664, ¶ 30. But the framers of the
Modern Courts Amendment of 1968, which added Section 5(B) to Article IV,
placed two important limitations on our authority to supplant the enactments of the
General Assembly: first, our procedural rules may not abridge, enlarge, or modify
any substantive right; and second, the General Assembly by joint resolution may
disapprove any proposed procedural rule prior to its taking effect. Article IV,
Section 5(B), Ohio Constitution.
{¶ 54} In contrast, nothing in Article IV, Section 5(A)(1) grants this court
power to preempt the lawful enactments of the legislative branch of government by
adopting a rule under our authority to supervise lower courts. Unlike Section 5(B),
Section 5(A)(1) does not provide that the Superintendence Rules supersede all laws
that are in conflict with them nor does it contain any requirement to submit
proposed superintendence rules to the General Assembly for review. In fact, we
have described our superintendence authority as “ensur[ing] that state courts act in
compliance and consistency with the will of the General Assembly.” State v. Smith,
136 Ohio St. 3d 1, 2013-Ohio-1698, 989 N.E.2d 972, ¶ 4, fn. 2.
{¶ 55} Ohio courts—including every appellate district—have consistently
recognized that the rules adopted pursuant to our supervisory power over lower
courts do not supersede statutes with which they are in conflict and do not create
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January Term, 2019
either substantive rights or procedural law. State v. Ventura, 2016-Ohio-5151, 69
N.E.3d 189, ¶ 24 (1st Dist.); State v. Keeble, 2d Dist. Greene No. 03CA84, 2004-
Ohio-3785, ¶ 17; Larson v. Larson, 3d Dist. Seneca No. 13-11-25, 2011-Ohio-
6013, ¶ 13; In re K.W., 2018-Ohio-1933, 111 N.E.3d 368, ¶ 99 (4th Dist.); Sepich
v. Bell, 5th Dist. Stark No. CA-7350, 1988 WL 17155, *3 (Feb. 8, 1988); In re T.C.,
6th Dist. Lucas No. L-15-1106, 2015-Ohio-3665, ¶ 21; In re Guardianship of
Myers, 7th Dist. Mahoning Nos. 02-CA-6 and 02-CA-42, 2003-Ohio-5308, ¶ 21;
In re A.P.D., 8th Dist. Cuyahoga No. 100504, 2014-Ohio-1632, ¶ 13; In re Z.H.,
2013-Ohio-3904, 995 N.E.2d 295, ¶ 16 (9th Dist.); Myers v. Wade, 10th Dist.
Franklin No. 16AP-667, 2017-Ohio-8833, ¶ 22; In re A.R., 11th Dist. Ashtabula
No. 2018-A-0078, 2019-Ohio-2166, ¶ 29; In re Guardianship of Bernie, 12th Dist.
Butler No. CA2018-01-005, 2019-Ohio-334, ¶ 27-28, appeal not accepted, 155
Ohio St. 3d 1469, 2019-Ohio-2100, 122 N.E.3d 1294; see also State v. Singer, 50
Ohio St. 2d 103, 110, 362 N.E.2d 1216 (1977) (“The Rules of Superintendence are
not designed to alter basic substantive rights of criminal defendants”).
{¶ 56} As the Third District Court of Appeals has explained,
“whereas rules of procedure adopted by the Supreme Court require
submission to the legislature, rules of superintendence are not so
submitted and, hence, are of a different category. They are not the
equivalent of rules of procedure and have no force equivalent to a
statute. They are purely internal housekeeping rules which are of
concern to the judges of the several courts but create no rights in
individual defendants.”
(Emphasis omitted.) Larson at ¶ 13, quoting State v. Gettys, 49 Ohio App. 2d 241,
243, 360 N.E.2d 735 (3d Dist.1976).
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SUPREME COURT OF OHIO
{¶ 57} Article IV, Section 5(A)(1) of the Ohio Constitution does not
provide for the public-access provisions of the Superintendence Rules to preempt
the Public Records Act, and when there is a conflict between them, the statute
prevails. For this reason, Parisi’s failure to assert a right to access court records
under Sup.R. 44 through 47 cannot be fatal to her mandamus action.
Certified Grievance Committees
{¶ 58} The majority reasons that because this court has the constitutional
authority to discipline attorneys, the documents prepared and created in attorney-
discipline cases by or for certified grievance committees “must be considered
records of this court for purposes of disclosure” under Sup.R. 44 through 47.
Majority opinion at ¶ 26.
{¶ 59} That conclusion is a non sequitur. The fact that we have
constitutional authority to discipline attorneys says nothing about whether a
certified grievance committee maintains court records, either on our behalf or on
its own.
{¶ 60} The Rules for the Government of the Bar do not make a certified
grievance committee an adjunct of this court. Instead, certified grievance
committees are created by the Ohio State Bar Association or by local bar
associations in Ohio, which may apply to the Board of Professional Conduct for
certification, Gov.Bar R. V(5)(A) and (B). Certification may be obtained from the
board and retained by a grievance committee by satisfying the standards set forth
in Gov.Bar R. V(5)(D), which include requirements for membership and term
limits, meetings and office staff, designating bar counsel and training volunteers,
maintaining files and records, funding, establishing procedures for processing
grievances, and reporting to the board. (None of the standards specifically address
public records.) If a certified grievance committee fails to comply with its
obligations under the rules, it may lose the privilege of certification. Gov.Bar R.
V(5)(F). But neither the standards nor any other provision of the rule authorizes
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January Term, 2019
this court to exercise the degree of authority and control over these private entities
for them to be considered an arm of the court for purposes of the Superintendence
Rules. We do not appoint the members of certified grievance committees, certify
committees to conduct investigations, or control day-to-day committee operations,
and we do not review committees’ decisions or decertify committees for failing to
satisfy the standards set forth in Gov.Bar R. V(5)(D)(1).
{¶ 61} In support of its conclusion that “any documents prepared in
attorney-discipline cases, like those requested by Parisi, may be sought only
through a request made pursuant to Sup.R. 44 through 47,” majority opinion at
¶ 26, the majority provides a string citation, but none of the authorities cited
supports that conclusion. Our decisions in Husband, 157 Ohio St. 3d 343, 2019-
Ohio-1853, 121 N.E.3d 337, Harris, 155 Ohio St. 3d 343, 2018-Ohio-4718, 121
N.E.3d 337, and Laria, 138 Ohio St. 3d 168, 2014-Ohio-243, 4 N.E.3d 1040,
involved records sought from a common pleas court, a county clerk of courts, and
a municipal court and its clerk, respectively.
{¶ 62} The majority’s reliance on Cleveland Metro. Bar Assn. Certified
Grievance Commt. v. Sliwinski, 142 Ohio St. 3d 1224, 2015-Ohio-1276, 29 N.E.3d
987, ¶ 19, and Disciplinary Counsel v. Williams, 147 Ohio St. 3d 1242, 2016-Ohio-
5717, 65 N.E.3d 761, ¶ 20, is also misplaced, because those decisions are simply
boilerplate entries imposing an interim remedial suspension and reciprocal
discipline, respectively, and each states that each “case document” filed in the
case—i.e., “a document and information in a document submitted to a court or filed
with a clerk of court in a judicial action or proceeding,” Sup.R. 44(C)(1)—is subject
to Sup.R. 44 through 47. Neither entry holds or even suggests that a certified
grievance committee maintains this court’s records.
{¶ 63} And Gov.Bar R. V(8)(F), the last authority cited in the majority’s
string citation, does not support its conclusion either. That provision states that
“[e]xcept as otherwise provided in this section or in rules adopted by the Supreme
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SUPREME COURT OF OHIO
Court, documents and records pertaining to the administration and finances of the
Board and the Office of Disciplinary Counsel, including budgets, reports, and
records of income and expenditures, shall be made available, upon request, as
provided in Sup.R. 45.” Although this rule makes some records of the board and
disciplinary counsel subject to the public-access requirements of the
Superintendence Rules, it does not allude to the records of a certified grievance
committee or make them subject to Sup.R. 44 through 47—even though certified
grievance committees are mentioned throughout Gov.Bar R. V(8). Rather than
supporting the majority’s position, the language in Gov.Bar R. V(8)(F) cuts against
it.
{¶ 64} Gov.Bar R. V(5) invites the Ohio State Bar Association and local
bar associations to participate in the investigation and prosecution of professional
misconduct, but that participation does not turn a volunteer association of attorneys
into “the Supreme Court” for purposes of the Public Records Act. The majority’s
contrary holding not only is unsupported by reason or authority but also will create
confusion in Ohio public-records law regarding whether there is any judicial
remedy to compel access to the public records of any entity affiliated with this court
in some way.
{¶ 65} Sup.R. 47(B) provides that “[a] person aggrieved by the failure of a
court or clerk of court to comply with the requirements of Sup.R. 44 through 47
may pursue an action in mandamus pursuant to Chapter 2731. of the Revised
Code.” R.C. 2731.01 provides that “[m]andamus is a writ, issued in the name of
the state to an inferior tribunal, a corporation, board, or person, commanding the
performance of an act which the law specially enjoins as a duty resulting from an
office, trust, or station.” As we explained in State ex rel. Wanamaker v. Miller,
“[b]y its very definition, the writ of mandamus is a writ which shall be issued only
to an inferior tribunal.” (Emphasis added.) 164 Ohio St. 174, 175, 128 N.E.2d 108
(1955).
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January Term, 2019
{¶ 66} Wanamaker involved two original actions filed in the court of
appeals: a mandamus action seeking to compel the clerk of this court to file an
affidavit of disqualification and a prohibition action seeking to prohibit this court’s
justices from hearing that affidavit of disqualification. Id. at 174. Although we
recognized that the Clerk of the Supreme Court is a ministerial officer of this court
who is obliged to follow our instructions, we held that “[i]t does not follow from
that * * * that any court inferior to the Supreme Court has the authority to issue
similar instructions to such clerk.” Id. at 175. We also noted that a writ of
prohibition is “ ‘an extraordinary judicial writ, issuing out of a court of superior
jurisdiction and directed to an inferior tribunal properly and technically
denominated such’ ” and that “[i]nasmuch as the Supreme Court is not a tribunal
inferior to the Court of Appeals, it is axiomatic that there was no basis for the
issuance of the writs by the Court of Appeals.” (Emphasis sic.) Id. at 175-176,
quoting State ex rel. Nolan v. ClenDening, 93 Ohio St. 264, 270, 112 N.E. 1029
(1915).
{¶ 67} Similarly, if a bar association’s certified grievance committee is “the
Supreme Court” for purposes of Sup.R. 44 through 47, then a court of appeals has
no authority to issue a writ of mandamus compelling release of its records.
Following the majority’s analysis would mean that Parisi’s complaint should be
dismissed rather than denied on its merits.
{¶ 68} Further, a writ of mandamus may be issued only against an “inferior”
tribunal. R.C. 2731.01. Therefore, this court may not issue a writ against itself to
compel release of its own records. As the Supreme Court of Georgia has explained,
“[n]othing in our Constitution suggests that this Court can mandamus itself or its
Justices, nor does such an odd practice find support in our precedent or the history
of the writ of mandamus.” Clark v. Hunstein, 291 Ga. 646, 650, 733 S.E.2d 259
(2012); see also People ex rel. Filkin v. Flessner, 48 Ill. 2d 54, 56, 268 N.E.2d 376
(1971) (a judge may not issue a writ of mandamus against another member of the
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SUPREME COURT OF OHIO
same court); State ex rel. Williams v. Hennepin Cty., 252 Minn. 330, 331, 89
N.W.2d 907 (1958) (“A judge of the district court cannot order himself to do
something by a writ of mandamus”); Italian Homestead Assn. v. Lewis, 174 La. 94,
96, 139 So. 769 (1932) (a judge may not issue a writ against himself or herself).
Conclusion
{¶ 69} Parisi’s petition sought records only under the Public Records Act,
which does not require release of those records. Because Parisi is not entitled to
relief based on the arguments she makes in this court, it is not necessary to go
beyond those arguments to resolve this case. As the majority’s decision today
demonstrates, reaching to answer questions that have not been the subject of
adversarial briefing and lower-court consideration risks an ill-informed decision
that may have unintended consequences. And here, the majority assumes that our
Superintendence Rules preempt the enactments of the legislative branch, and it
relies on a leap of logic to conclude that a bar association’s certified grievance
committee is the custodian of this court’s records. The result will be confusion over
where a person is to turn to compel the production of public records held by an
entity that is in some way affiliated, however tangentially, with this court.
{¶ 70} The preferable course would be to leave these issues for a day when
parties preserve and present them for our review. Accordingly, although I would
affirm the judgment of the court of appeals, I would do so for reasons different from
those expressed in the majority opinion.
DEWINE and STEWART, JJ., concur in the foregoing opinion.
_________________
Georgianna Parisi, pro se.
Freund, Freeze & Arnold, L.P.A., Stephen V. Freeze, and Lisa A. Hesse,
for appellees.
_________________
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