IN THE SUPREME COURT OF OHIO

STATE OF OHIO, ex rel. : WBNS 10-TV, INC. : 770 Twin Rivers Drive : Case No. _______________ Columbus, Ohio 43215, :

: Relator, :

: vs. :

: HONORABLE MONICA HAWKINS : Franklin County Common Pleas Court : 373 S. High Street : Columbus, Ohio 43215, :

: Respondent. :

COMPLAINT FOR PEREMTORY WRIT OF PROHIBITION AND WRIT OF MANDAMUS

Marion H. Little, Jr. (0042679) ZEIGER, TIGGES & LITTLE LLP 3500 Huntington Center 41 South High Street Columbus, Ohio 43215 (614) 365-9900 (614) 365-7900 fax little@litohio.com

Attorneys for Relator WBNS 10-TV, Inc.

Supreme Court of Ohio Clerk of Court - Filed February 06, 2019 - Case No. 2019-0189

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IN THE SUPREME COURT OF OHIO

STATE OF OHIO, ex rel. : WBNS 10-TV, INC. : 770 Twin Rivers Drive : Case No. _______________ Columbus, Ohio 43215, :

: Relator, :

: vs. :

: HONORABLE MONICA HAWKINS : Franklin County Common Pleas Court : 373 S. High Street : Columbus, Ohio 43215 :

: Respondent. :

COMPLAINT FOR PEREMPTORY WRIT OF PROHIBITION AND WRIT OF MANDAMUS

INTRODUCTION

1. This is an action seeking a peremptory writ of prohibition and/or a writ of

mandamus to remedy the unlawful infringement by Respondent of the electronic

media’s right of access to judicial proceedings in the Common Pleas Court of Franklin

County in violation of Superintendence Rule 12 and clear precedents from this Court.

As set forth below, Respondent’s denial of electronic media access stems from her

improper efforts to shield herself from being photographed after having been arrested

for driving while under the influence of alcohol and/or drugs pursuant to R.C.

4511.19(A)(1)(a) on January 31, 2019.

2. This action also seeks a peremptory writ of mandamus under the Ohio

Public Records Act, R.C. 149.43, for failure to produce a copy of Respondent’s docket –

a document that is clearly a public record – in response to a reasonable request for

production of the same.

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A. Jurisdiction And The Parties.

3. Jurisdiction is proper in this Court pursuant to Article IV, § 2(B)(1) of the

Ohio Constitution and R.C. 149.43(C)(1)(b).

4. Relator WBNS 10-TV, Inc. (“WBNS” or “Relator”), is a CBS Affiliate that

reports news and information to the general public of central Ohio and elsewhere,

including matters that affect the lives of Ohio residents.

5. Respondent is a Judge of the Franklin County Court of Common Pleas,

Division of Domestic Relations and Juvenile Branch. She is a public official within the

meaning of Chapter 149 of the Ohio Revised Code.

B. Respondent’s Arrest.

6. On Thursday, January 31, 2019, a Pickerington, Ohio, police officer

arrested Respondent for driving while under the influence of alcohol and/or drugs (the

“DUI Arrest”).

7. Exhibit A is a true and accurate copy of the City of Pickerington Division of

Police’s report on the DUI Arrest obtained from the Division of Police. The officer wrote

that, at approximately 8:40 p.m. on January 31, she was dispatched in response to a

call received from a driver who phoned 911 to report “the vehicle in front of him was all

over the roadway.” The report states that the caller followed the vehicle and provided a

police dispatcher with the make and model of the vehicle and “play-by-play information

in regards to the vehicle’s erratic driving and direction of travel.”

8. According to the report, the officer caught up with the vehicle, an Infiniti

sedan registered to Respondent, at Hill Road (State Route 256) and Refugee Road in

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Pickerington, where the officer saw the Infiniti almost strike a curb, then commit a

“marked lanes violation,” and make “abrupt stops while driving.”

9. The officer wrote that she activated her overhead cruiser lights, pulled

Respondent over into a parking lot, and “immediately smell[ed] a strong odor of alcohol”

as she approached the driver’s side window, which was rolled down.

10. The officer wrote that she “noticed a large knot on [Respondent’s]

forehead on the right side that had appeared to be bleeding. When I asked her about

the knot, she advised it was old and happened earlier. The right side of her face was

beginning to bruise.” The officer called a medic unit to render aid, but when medics

arrived, Respondent “refused medical attention. She was asked several times on scene

if the head injury had any effect on her driving ability and she advised no.”

11. The officer wrote that she asked Respondent “where she was coming

from,” Respondent answered downtown Columbus. “[W]hen asked where in downtown

Columbus she advised a restaurant. When asked which restaurant she advised she did

not know the name.”

12. The officer wrote: “I also noticed what appeared to be vomit on the left

collar area of her brown pea coat. I made a note that when she stepped out of the

vehicle, I noticed a large amount of vomit on the driver’s side door floorboard panel

area.”

13. The officer further wrote: “When I first approached the vehicle,

[Respondent] already had her driver’s license out for me. I asked her for her proof of

insurance. While speaking with [Respondent] at the window, I noticed she had a hard

time fumbling with her wallet. She began telling me that she is a judge for Franklin

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County. As time passed, I asked [Respondent] if she remembered what I asked her to

give me. She advised her drivers license and continued to advise she was having a

hard time finding it. I advised her she already handed me her driver’s license and

reminded her that I asked her for her proof of insurance for the vehicle. [Respondent]

handed me her health insurance.”

14. At that point, the report states, the officer asked Respondent to exit her

vehicle and walk to the front of the police cruiser, and Respondent “stumbled slightly

while walking.” At this point, the officer began to administer a standard field sobriety

test there in the parking lot, which was recorded by cruiser video. According to the

police report, for example:

a. When asked what the date was, Respondent said “the 17th.” (It was

January 31.)

b. When asked to recite the alphabet from N to Z, Respondent was unable to

recite it as requested.

c. When asked to count backward from 47 to 27, Respondent “didn’t stop

where she was instructed to do so, and at the end of her counting, she

began to recite numbers out of order. I asked if she remembered where I

advised her to stop and she advised no and continued to advise she was

just naming all the numbers in no particular order.”

d. In a part of the test in which Respondent was asked to take nine heel-to-

toe steps, turn as instructed, and take nine heel-to-toe steps back,

Respondent “counted up into the twenties during her steps and she didn’t

remember how many steps she was instructed to take. I stopped her due

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to the fact she was running out of walking room (see cruiser video). I also

had to stand close to her for safety concerns of her falling over.”

e. When asked to raise a foot about six inches off the ground and count out

loud to three, Respondent “was unable to perform the test and [the test

was] stopped due to concerns of her falling over.”

15. The report related that the officer placed Respondent under arrest,

concluding she was under the influence, based on observations of Respondent’s

driving, her manner (“relaxed inhibitions” and “slurred speech”), and signs of impairment

as she performed the sobriety test.

16. According to the report, after being taken to the police department for

processing, Respondent refused to take a breathalyzer test. A Fairfield County judge

issued a warrant to have a blood sample taken, and Respondent was taken to an

OhioHealth facility to have blood drawn. The report states that Respondent resisted to

the point that OhioHealth security held her down to obtain the sample.

C. The Electronic Media’s Right Of Access.

17. Rule 12(A) of the Rules of Superintendence for the Courts of Ohio

provides that “[t]he judge assigned to the trial or hearing shall permit the broadcasting or

recording by electronic means … in court proceedings that are open to the public as

provided by Ohio law.” Rule 12 sets forth the law of Ohio with respect to electronic

access, and its provisions are mandatory, not discretionary. See, e.g., State ex rel.

Miami Valley Broadcasting Corp. v. Kessler, 64 Ohio St.2d 165, 413 N.E.2d 1203

(1980) (construing predecessor to Superintendence Rule 12); State ex rel. Grinnell

Communications Corp. v. Love, 62 Ohio St.2d 399, 406 N.E.2d 809 (1980) (same);

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State ex rel. Cosmos Broadcasting Corp. v. Brown, 14 Ohio App.3d 376, 471 N.E.2d

874 (6th Dist. 1984) (same).

18. There are two exceptions to this rule: First, Rule 12 states that in the

event a victim who wishes not to be filmed objects, the media may not videotape or

photograph the victim. Second, a testifying witness has a similar right to object to any

filming and/or videotaping of his or her person, and upon such objection being made,

the media may not videotape or record the testifying witness.

19. Accordingly, subject to the provisions of Rule 12(B), which pertains to the

number of video cameras, and Rule 12(C), which pertains to the rights of victims and

witnesses not to be videotaped, Respondent was obligated, as a matter of law, to permit

Relator to videotape all public access aspects of the subject court proceedings.

20. Of course, certain proceedings may be closed to the public, but closure

may be considered only after an evidentiary hearing is scheduled, notice is provided to

the media, the movant provides evidence to support the requested closure, and the

media is afforded an opportunity to cross-examine and offer evidence opposing closure.

Once this procedural process is afforded, access may be denied only if specific findings

are made that closure is essential to preserve higher values and the closure is narrowly

tailored to serve that interest.

D. Respondent’s February 4, 2019, Refusal To Grant Electronic Media Access To A Public Courtroom.

21. Following her arrest, Respondent appeared on the bench and oversaw

regular docket items and served as duty judge.

22. On February 4, 2019, WBNS Reporter Glenn McEntyre submitted written

media requests for access to proceedings pending before Respondent on that day.

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True and accurate copies of the media requests submitted by WBNS are attached

hereto as Exhibit B.

23. Thereafter, Respondent, through her Bailiff, Kelli Johnson, advised Mr.

McEntyre that Respondent had denied the requests. Respondent did so without any

form of closure hearing.

24. Ms. Johnson also provided a copy of Rule 9 of the Franklin County

Juvenile Court Rules to Mr. McEntyre, with Rule 9(1) and (2) highlighted. Those

provisions state in full:

(1) Requests for permission to broadcast, televise, record or photograph in the courtroom shall be in writing to the Trial Judge or Duty Judge as far in advance as reasonably practical. Request forms may be obtained from the Trial Judge’s Bailiff.

(2) The Court shall immediately attempt to inform the attorneys for all the parties in the case of the media request. If time does not permit notification by mail then telephonic means or notification in person must be attempted. The intent of this Rule is to allow attorneys for all parties an opportunity to be heard prior to the Trial Judge deciding the media request.

[(Emphasis added).]

25. Ms. Johnson falsely stated that the requests were denied because they

were made for that same day, court personnel would not have time to contact the

parties and counsel involved in advance, and that if the parties and counsel were

consulted when they arrived in court, that would “disrupt” the proceedings. Respondent

had no regard for the public, of course. Her closure was prompted by her personal

desire to avoid being photographed.

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26. Indeed, Respondent’s docket is posted to the public only in the morning

for each day’s scheduled proceedings. Thus, “reasonably practical” notice, per Local

Rule 9(1), typically can be provided only on the day of each proceeding.

27. Ms. Johnson, the Bailiff, also advised Mr. McEntyre that Respondent

would not permit video recordings to be made from the hallway outside the courtroom

looking through the windows in the doors leading to the courtroom. Mr. McEntyre then

contacted Administrative Judge Kim Browne regarding the issue of shooting video from

outside the courtroom without having to apply for media access. Judge Browne advised

him that it was up to the particular judge but she noted that a judge could simply take

steps to block the windows.

E. Refusal To Release A Public Record.

28. In the afternoon of February 4, WBNS made a public records request, via

email, to Respondent’s Bailiff for a copy of the Court’s docket for the next day, February

5, in order to place a request for media access on February 5. A true and accurate

copy of this email request is attached hereto as Exhibit C.

29. Later in the afternoon, having received no response to the email, WBNS

followed up with a phone call to Respondent’s Bailiff to request a copy of the Court’s

docket. Ms. Johnson answered the phone and stated that the request was denied.

When WBNS asked for the reason it was denied, Ms. Johnson simply hung up the

phone.

30. The docket is clearly a public record.

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31. Under R.C. 149.43(B)(1), “all public records responsive to the request

shall be promptly prepared and made available for inspection to any person at all

reasonable times during regular business hours.”

32. Respondent failed to timely produce the aforementioned public record for

inspection in violation of R.C. 149.43.

F. WBNS’ Counsel’s Renewed Request For Access – And Specific Notice That A Closure Hearing Is Required If Closure Is Contemplated.

33. At approximately 6:22 p.m. on February 4, WBNS submitted a written

request, via a letter from the undersigned counsel that was emailed to Respondent’s

court-provided email address, seeking media access for all proceedings for the

following day, February 5, and, to alternatively request that the Court conduct a closure

hearing. A true and accurate copy of the letter is attached as Exhibit D. It reads:

Our firm is counsel to WBNS 10-TV, Inc. (“WBNS”). We understand that on February 4, 2019, WBNS submitted a media request(s) with respect to proceedings pending before the Court on that day. We further understand that request was denied without a closure hearing and we believe so improperly.

Quite frankly, we are trying to avoid the necessity for filing an original action before the Supreme Court. Superintendence Rule 12 provides that the “judge assigned to [a] trial ... shall permit the broadcasting or recording by electronic means ... in court proceedings that are open to the public as provided by Ohio law. Superintendence Rule 12 sets forth the law of Ohio with respect to electronic access, and its provisions are mandatory, not discretionary. See State ex rel. Miami Valley Broadcasting Corp., et al. v. Kessler, 64 Ohio St. 2d 165 (1980) (construing predecessor to Superintendence Rule 12); State ex rel. Grinnell Communications Corp. v. Love, 62 Ohio St. 2d 399 (1980) (same); State ex rel. Cosmos Broadcasting Corporation v. Brown, 14 Ohio App. 3d 376 (6th Dist. 1984) (same).

Local Rule 14 requires that the request be in writing and be submitted as far in advance “as reasonably practical.” Reasonably

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practical, we respectfully submit, includes the day that the Court’s docket is posted.

WBNS is seeking media access for all proceedings on February 5, 2019. WBNS has previously made an email request for a copy of the Court’s docket, but no response has been received. Separately, a phone call was placed to the Court’s bailiff, Ms. Johnson, for a copy of the docket, but Ms. Johnson, we are told, terminated the communication by hanging up. We submit the fact that the Court’s bailiff is refusing to provide the docket information is not a basis for denying a media request as untimely because it was submitted as of the date the docket is posted.

Likewise, it is not a basis for denial of a request because there is insufficient time to contact the attorneys. Local Rule 14(2) spells out that “the intent of the rule is to allow attorneys for all parties an opportunity to be heard prior to the trial judge deciding the media request.” If there is insufficient time to provide electronic notice to the attorneys at issue, oral notice is provided to the attorneys, and if there are any objections, then a closure hearing is scheduled.

With respect to all media requests submitted by WBNS, including the request for access on February 5, the undersigned specifically requests an opportunity to appear on behalf of WBNS if there is any objection to a media request or the Court has any inclination of declining such request. Ohio case law prescribes the process that must be followed for a closure hearing and we hereby invoke such rights on behalf of WBNS.

Thus, once notice is provided to the affected counsel, if there is any objection to that request or an inclination by the Court to deny it, we request notice of the hearing so that such matter may be heard.

Please contact the undersigned should you have any questions.

G. Respondent’s February 5, 2019, Refusal To Grant Electronic Media Access To A Public Courtroom.

34. Respondent never responded directly to WBNS’ counsel.

35. On the morning of February 5, Reporter McEntyre followed up with

Respondent’s Bailiff, Ms. Johnson to complete any necessary paperwork in order to

gain access to the court proceedings on February 5. Ms. Johnson referred him to Court

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Director Orvell Johns. Mr. Johns told Mr. McEntyre that no media access would be

provided. Thus, no forms needed to be completed.

36. When asked for a response to WBNS’ counsel’s February 4 letter, Mr.

Johns stated he would consult Administrative Judge Kim Browne and Court Legal

Director Bill Sieloff. About an hour later, Messrs. Johns and Sieloff advised Mr.

McEntyre that they were standing firm in their denial.

37. Also on February 5, Mr. McEntyre noticed that the windows looking into

Respondent’s courtroom now had paper taped over them.

H. Public Records Request Submitted On February 6, 2019.

38. On February 6, 2019, the undersigned served an additional public records

request for a copy of Respondent’s docket. A true and accurate copy of the public

records request is attached hereto as Exhibit E. The public records request reads:

Pursuant to Section 149.43 of the Ohio Revised Code, we request a copy of the docket for Judge Monica Hawkins for Thursday, February 7, 2019. We request that this document be immediately made available to us. Please forward to the email address noted above or contact my assistant, Terri Thompson, 614-324-5065 or email Thompson@litohio.com, and she will make arrangements for a runner to pick-up a copy.

Thank you for your attention to this matter.

39. As of the time of the submission of this complaint, Respondent failed to

timely produce the requested public record.

40. Relator lacks an adequate remedy at law.

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COUNT I (Writ of Prohibition and/or Writ of Mandamus for Denial of Access to Court Proceedings)

41. Relator realleges and incorporates the foregoing paragraphs as if fully

rewritten herein.

42. Relator is entitled to (a) a peremptory writ prohibiting Respondent and

those acting in concert with her from closing or denying electronic media access to

judicial proceedings unless and until all notice, evidentiary hearings, and findings and

requirements prescribed by the United States Supreme Court and First Amendment

jurisprudence are first satisfied; or (b) in the alternative, a peremptory writ of mandamus

requiring Respondent and those acting in concert with to grant the electronic media

access to judicial proceedings unless and until all notice, evidentiary hearings, and

findings and requirements prescribed by the United States Supreme Court and First

Amendment jurisprudence are first satisfied.

COUNT II (Violation of Public Records Act)

43. Relator realleges and incorporates the foregoing paragraphs as if fully

rewritten herein.

44. Respondent failed to produce and/or release public records in a timely

fashion as required under Section 149.43 of the Ohio Rules of Civil Procedure to

Relator. As such, Relator is entitled to a writ of mandamus compelling Respondent to

produce the requested public records immediately.

WHEREFORE, Relator requests the following relief:

A. A peremptory writ prohibiting Respondent and those acting in concert with

her from closing or denying electronic media access to judicial proceedings unless and

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until all notice, evidentiary hearings, and findings and requirements prescribed by the

United States Supreme Court and First Amendment jurisprudence are first satisfied.

B. In the alternative, a peremptory writ of mandamus requiring Respondent

and those acting in concert with to grant the electronic media access to judicial

proceedings unless and until all notice, evidentiary hearings, and findings and

requirements prescribed by the United States Supreme Court and First Amendment

jurisprudence are first satisfied;

C. A writ of mandamus compelling Respondent to produce the requested

public records immediately.

D. An award of attorneys’ fees and costs incurred in pursuing this matter; and

E. Such further and additional relief as it is necessary and appropriate.

Respectfully submitted,

/s/ Marion H. Little, Jr. Marion H. Little, Jr. (0042679) ZEIGER, TIGGES & LITTLE LLP 3500 Huntington Center 41 South High Street Columbus, Ohio 43215 (614) 365-9900 (614) 365-7900 fax little@litohio.com

Attorneys for Relator WBNS 10-TV, Inc.

157-504:799221

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From: Franklin Freytag Sent: Monday, February 04, 2019 3:47 PM To: Kelli_Johnson@fccourts.org Cc: Jennifer Nickels <jennifer.nickels@10tv.com>; Steven Koles <steven.koles@10tv.com> Subject: WBNS-TV request: Docket for Judge Hawkins Hello, I am following up on a voicemail I just left on your office phone (614-525-3121). WBNS-TV is requesting the docket for Judge Hawkins on February 5, 2019 so we can request to be in the courtroom. You can reach me at 614-460-3950. Please send the information to wbnsdesk@10tv.com. Our fax number is 614-460-2891 if you need that as well. Thank you, Franklin Freytag Assignment and Digital Editor WBNS-10TV | Columbus, OH 614-460-3950 www.10tv.com wbnsdesk@10tv.com Twitter: @Franklin10TV

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