Rieger v. Rieger

{¶ 51} In City of Pepper Pike v. Doe (1981),66 Ohio St.2d 374, 20 O.O.3d 334, 421 N.E.2d 1303, a defendant who was acquitted of criminal charges subsequently moved to expunge his police record and to seal the judicial record of his prosecution. Citing the federal right to privacy expounded in Roe v. Wade (1973), 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, the Ohio Supreme Court in Pepper Pike v. Doe held that "[t]he criminal charge and dismissal with prejudice were such unusual or exceptional circumstances as to make appropriate the exercise of the trial court's jurisdiction to expunge and seal all records in the case." Id. at 377, 20 O.O.3d 334, 421 N.E.2d 1303.

{¶ 52} The right of privacy applied in Roe v. Wade has more recently been explained as one grounded in the right of liberty guaranteed from undue state burden by the Fourteenth Amendment. Planned Parenthood of Southeastern Pennsylvania v.Casey (1992), 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674. Putting aside (if possible) the contentious subject those cases involve, it seems clear that the Casey rationale comfortably fits the concern underlying the holding in Pepper Pike v. Doe: if an accused has been judicially acquitted of criminal charges, it is an undue burden on his liberty interest for the courts to continue to maintain the records of those charges as records available for publication on request. Expungement and sealing are then proper.

{¶ 53} The protection order against Rieger was issued pursuant to R.C. 3113.31(E)(1). Unlike in Pepper Pike v. Doe, the proceeding in Rieger's case was not criminal but civil. Even so, an allegation of domestic violence and a finding that domestic violence occurred are necessary predicates to the issuance of a protective order. R.C.3113.31(D)(1). And domestic violence is a criminal offense. R.C.2919.25. Therefore, under the extraordinary-circumstances standard of Pepper Pike v. Doe, expungement of the protection order and sealing of the record of the proceeding in which it was issued may be proper.

{¶ 54} I agree that the trial court erred when it held that it lacked authority to expunge Rieger's record. Nevertheless, the court was correct when it denied the requested expungement, because, on this record, Rieger has not demonstrated the extraordinary circumstances that would support expungement.

{¶ 55} Unlike the situation in Pepper Pike v. Doe, in which the accused was permanently relieved of legal liability by acquittal of the criminal charges against him, Rieger voluntarily entered into a consent agreement pursuant to R.C.3113.31(E)(3)(a) that permitted the court to issue the protective order. The fact that the section also limits the term of the order to five years, which has now expired, does not present a circumstance that is the equivalent of an acquittal. It merely relieves Rieger of the constraints that the order imposed. It does not amount to a judicial rejection of the causes on which it was sought, which was the effect of the acquittal in Pepper Pikev. Doe and the "extraordinary circumstance" that justified expungement.

{¶ 56} Rieger's real complaint is not that a record of his civil protection order and the proceeding that produced it is maintained, but that the clerk of courts publishes the record on the clerk's Internet web site, making it available to Rieger's prospective employers. That undertaking on the part of clerks is wholly voluntary, being required neither by statute nor rule of the Supreme Court. It implicates an issue of public policy, not a claim subject to judicial relief. Because of that fact, and because clerks are public officials whose positions are created by statute, Rieger's proper avenue of relief is not through an application to the courts for expungement but with the General Assembly, through legislation limiting the clerk's Internet publication of court records. A more appropriate alternative to the practice generally may be a Rule of Superintendence governing the practice promulgated by the Supreme Court, a form of enactment authorized by Section 5(A), Article IV of the Ohio Constitution, and more specifically by Section 5(B) of the same Article, which authorizes the Supreme Court to "make rules to require uniform record keeping for all courts of the state."

{¶ 57} However, and returning to the error assigned, I would affirm the trial court's judgment denying the requested expungement. The court did not reach the extraordinary-circumstances issue, but on this record Rieger has not demonstrated extraordinary circumstances. "While an appellate court may decide an issue on grounds different from those determined by the trial court, the evidentiary basis upon which the court of appeals decides a legal issue must have been adduced before the trial court and have been made a part of the record thereof." State v. Peagler (1996),76 Ohio St.3d 496, 668 N.E.2d 489, syllabus. That standard has not been satisfied with respect to the grounds for expungement on which Rieger relies.

{¶ 58} For the foregoing reasons, I would affirm the judgment from which this appeal is taken.