l,.^.. ! .!i• '•/^i'.i'^ + {-, i ^ •' ^>,. ., ,. rieceoved 5-6....
TRANSCRIPT
IN THE SUPREME COURT OF OHIO
STATE OF OHIO ex relDean Boland
CASE NO. 2014-1296
Relator,
vs.
CUYAHOGA COUNTY CLERK OFCOURT, ET AL,
Respondents.
ORIGINAL ACTION IN MANDAMUS
RELATOR'S REPLY TO RESPONDENT CUYAHOGA COUNTY CLERK OFCOURT'S OPPOSITION TO INTERVENOR'S MOTION TO INTERVENE
Dean Boland 65693Boland Legal, LLC1475 Warren RoadUnit 770724Lakewood, OH 44107216.236.8080 [email protected]
Robin Wilson 66604Cuyahoga CountyDepartment of Law2079 East 9th StreetCleveland, OH 44115216.443.7042 ph216.698.2744 fax
Barbara Marburger 19152Assistant Prosecuting Attorney
Cuyahoga County Prosecutor's Office1200 Ontario StreetCleveland, OH 44113216.443. 7800 ph
John Q. Lewis (0067235)TUCKER ELLIS LLP950 Main Avenue, Suite 1100Cleveland, OH 44113Tel: (216) 592-5000Fax: (216) 592-5009peter.reed@tuckerellis com
...----^-----;;"S^;`^
R IECEOVEDDEC Q 8 2014
CLEpKOFCOURT
{-, i ^ •' ^>,. ., ,..l,.^.. ! K .!i• '•/^i'.i'^ +
r.,
^..,^.
#i ^,_. RaSS
:.sr r#- ^ : f
^•.s°> ;
Sf. .
%^,
s" ?.i:.,
%%.. ,9,,,,,
^ ; s^. , ; si s"^'t... . __
MEMORANDUM
This reply is necessary because Respondent Cuyahoga County Clerk of Court
submits within its opposition to Intervenor's motion to intervene an opposition to
Relator's opposition to Intervenor's motion as well as new arguments to dismiss this
matter entirely. "The Court does not need to, and should not, entertain... Relator
Boland's Memorandum in Opposition to [Intervenor's motion]." Respondent Clerk
of Court's Opposition to Intervenor's Motion at 3. "The Court should also not
entertain Relator Boland's October 15, 2014 Application for Dismissal of
Respondent Cuyahoga County Court of Common Pleas Administrator." Id.
RESPONDENT CLERK OF COURT AGREES WITH RELATOR THATINTERVENOR IS NOT A PROPER PARTY
Respondent Clerk of Court agrees with Relator that Intervenor is not a
proper party to this action. Id. at 4-5.
RESPONDENT AUTHORITATIVELY RELIES ON SUP.R. 44-47 AS THEGOVERNING AUTHORITY OVER PUBLIC RECORDS REQUESTS FOR PUBLIC
COURT RECORDS FROM CLERKS OF COURT
"Relator Boland seeks to have this Court compel the Clerk of Courts to
prepare a new compilation of a bulk distribution of information - an act over
which she expressly has discretion pursuant to Rule 46 of The Rules of
Superintendence for the Courts of Ohio ("Rules of Superintendence")." Id. at 3.
Emphasis added. The phrases "new compilation" and "bulk distribution" exi.st in
Sup.R. 44-47 and not in R.C. 149.43 or the Cuyahoga County Code.
Respondent Clerk of Court cites to various rules within Sup.R. 44-47 as valid
1
authority governing the Clerk of Court's responses to public records requests. Id. at
5-6. Respondent Clerk of Court inserts a footnote at page 5 of their opposition
including definitions from Sup.R. 44-47. It quotes large portions of Sup.R. 45(B)(1).
This reliance on Sup.R. 44-47 by Respondent Clerk of Court as governing
authority over its responses to public records requests for public court records is a
first for it in this case. Respondent Clerk of Court's currently pending motion to
dismiss omits this argument entirely. Instead, Respondent Clerk of Court solely
argues the jurisdictional priority rule merits dismissal - a seeming agreement that
Relator's argument that the Rules of Superintendence do not and can not govern the
Clerk of Court as valid legal authority. The content of Respondent's opposition to
Intervenor's motion, however, reveals this new theory to dismiss Relator's
complaint which initially appears consistent with Respondent Court
Administrator's argument, but upon review is internally contradictory.
RESPONDENT CLERK OF COURT'S ARGUMENT REJECTS CONTROL OVERITS PUBLIC RECORDS RESPONSES BY THE LOCAL JUDICIARY BUT
CONCEDES CONTROL BY THE SUPREME COURT
Respondent Clerk of Court's argument for dismissal of Relator's complaint
can now be summarized as follows: The Clerk of Court is the entity whose records
are at issue and those records cannot be controlled by Intervenor, i.e. ahe Cuyahoga
County Judiciary. However, the Clerk of Court's response to Relator's request is
solely governed by the Supreme Court Rules of Superintendence, i.e., the Ohio
Supreme Court Judiciary.
This is no mere oversight. Respondent Clerk of Court wants to assert
2
singular control over its public court records to defeat Intervenor's motion and
simultaneously assert the predominance of the Supreme Court Rules of
Superintendence to defeat Relator's entire complaint. A have your cake and eat it
too legal strategy.
While taking this opportunity to insert an entirely new argument against
Relator's complaint within its response to Intervenor's motion, it is notable what the
Clerk of Court does not do. The Respondent Clerk of Court does not challenge any
of the Constitutional, statutory or case law authority in Relator's response to the
inotions to dismiss. Respondent Clerk of Court does not dispute Relator's legal
analysis of the Constitutional authority for the Rules of Superintendence versus the
Rules of Practice and Procedure. It does not dispute the twelve district courts of
appeal that have all held that Rules of Superintendence to not preempt statutes.
Respondent Clerk of Court does not dispute the validity of R.C. 149.43 and its
applicability to Respondent Clerk of Court's responses to public records requests for
public court records. It does not dispute the decades of decisions by this court
within Relator's responses to the motions to dismiss which support Relator's
response to both pending motions to dismiss.
RESPONDENT CLERK OF COURT'S ARGUMENT FOR DISMISSAL IS NOWINTERNALLY CONTRADICTORY
The Rules of Superintendence are Court made rules. In fact, no other entity
but the judiciary controls the content of the Rules of Superintendence. Ohio
Constitution, Article IV § 5(A)(1). It is impossible to untangle Respondent Clerk of
3
Court's argument at this point. It emphatically asserts that the Intervenor has no
authority to control public records requests by it but the Supreme court Rules of
Superintendence do. It is arguing that the Intervenor, the representative of the
Cuyahoga County Common Pleas Court, has no authority over the Clerk of Court's
public records requests and policies, but the Supreme Court of Ohio has all
authority over those requests pursuant to the Rules of Superintendence. Murkier
still, Respondent Clerk of Court summarizes its argument in the last paragraph of
its opposition by claiming that "[blased on the Ohio Revised Code Ohio Public
Records law, and the Rules of Superintendence, Respondent Clerk of Courts is the
keeper of Court records in her office, and as such is responsible for and has the
authority to respond to public records requests or public access requests directed to
her office." Id. at 6. Emphasis added.
Is the Respondent Clerk of Court implying that the Public Records Act,
Revised Code and Sup.R. 44-47 contain identical directives regarding how to
respond to public records requests? Respondent Clerk of Court is apparently
convinced that simultaneous compliance with R.C. 149.43 and Sup.R. 44-47 is
possible but it does not provide its insight as to how. It fails to respond to the
indelible and irreconcilable differences in those sources of governing authority
outlined in Relator's response to the motions to dismiss.
The muddled response by Respondent Clerk of Court leaves Relator and
others seeking public records from Respondent more bewildered than before its
opposition to Intervenor. Respondent Clerk of Court's still currently published
4
public records policy makes no mention of Sup.R. 44-47 as any governing authority
over public records requests. Its public records policv cannot be published in good
faith when it omits an entire body of rules, Sup.R. 44-47, that it now claims govern
responses to public requests for public court records. (Respondent Clerk of Court
does not outline how those competing governing authorities actually work in
application to public records requests made to it for public court records).
Respondent Clerk of Court also references authoritatively the Cuyahoga
County Code in resisting Intervenor's motion to intervene. Id. at 5. It does so
without noting the hypocrisy of that citation with its refusal to recognize the
Cuyahoga Code as any authority over its public records request responses. The
Cuyahoga. County Code requires Respondent Clerk of Court to provide the
requested records and contains none of the "bulk distribution" or "new compilation"
constructs that it mentions in its opposition to intervenor's motion to intervene.
Respondent Clerk of Court cannot decide. Does it believe it has to follow R.C.
149.43 and the Cuyahoga County Code relating to public records requests or does it
not? Does it feel that it can decide which provisions are legally binding authority,
the ones implicated in its opposition to the intervention, and then cast aside others
in favor of Supreme Court Rules of Superintendence when that choice becomes
advantageous?
It cites to the Public Records Act itself, authoritatively, yet argues that
Sup.R. 44-47 apply to Relator's request and not R.C. 149.43. This self-serving
sleight of hand is astonishing in its flexibility. R.C. 149.43 and other Ohio Revised
5
Revised Code sections matter to Respondent Clerk of Court to support its assertion
of control over the records at issue to the exclusion of Intervenor's control. But, R.C.
149.43 and the Cuyahoga County Code can be swept aside in favor of the Rules of
Superintendence when it comes to what authority governs Respondent Clerk of
Court's response to Relator's public records request.
"When statutes impose a duty on a particular official to oversee records, that
official is the `person responsible' under [the Ohio Public Records law] Ohio Rev.
Code §149.43(B).°' See Respondent Clerk of Court's Opposition at 4.
Respondent also makes the curious claim that "[t]he Rules of
Superintendence recognize the Ohio Public Records Act" while simultaneously
ignoring that this court has held in cases starting in 2009 that the Public Records
Act is no authority at all overpublic records reauests for public court records. It is
of no importance to claim that Sup.R. 44-47 "recognize" the Public Records Act
when subsequent cases summarily delete the from Public Records Act the ability to
govern public records requests for public court records. That is the sort of
"recognizing" that means the opposite of the word. Respondent Clerk of Court has
authored a sentence which translates into "the Supreme Court Rules of
Superintendence recognize the Ohio Public Records Act in determining that the
Supreme Court does not recognize the Public Records Act as applicable to public
records requests for public court records."
The Clerk of Court's acceptance, for the first time in its opposition to
Intervenor's motion, that Sup.R. 44-47 govern its responses to public records
6
requests is problematic for an additional reason. The Supreme Court rules of
Superintendence mandate that Administrative Judges take all necessary actions to
insure the Supreme Court rules of Superintendence are observed as written.
"RULE 4.01. Powers and Duties of Administrative Judge.
An administrative judge of a court or a division of a court shall do allof the following:
(A) Be responsible for and exercise control over the administration,docket, and calendar of the court or division;(B) Be responsible to the Chief Justice of the Supreme Court in thedischarge of the administrative judge's duties, for the observance ofthe Rules of Superintendence for the Courts of Ohio, and for thetermination of all cases in the court or division without undue delayand in accordance with the time guidelines set forth in Sup.R. 39."Emphasis added.
Intervenor is responsible to the Chief Justice of the Supreme Court to insure
the Rules of Superintendence are observed. Since Respondent Clerk of Court
acknowledges that Sup.R. 44-47 are governing authority over its handling of public
records requests for court records, its opposition to Intervenor's motion is not well
taken. Reliant on Respondent Clerk of Court's new argument, Intervenor has every
right, in fact a duty under the Rules of Superintendence, to insure that Respondent
Clerk of Court handles public records requests in accordance with Sup.R. 44-47.
To put it plainly, the Administrative and Presiding Judge has the authority to
control Respondent Clerk of Court's responses to public records requests to insure
they are consistent with the Rules of Superintendence. Nothing in the Rules of
Superintendence prohibits Intervenor from issuing orders controlling Respondent
Clerk of Court's handling of those public records requests for court records to
comply with his duty under Sup.R. 4.01. In short, if Respondent Clerk of Court
^
persists in its position that Sup.R. 44-47 are governing authority over it for these
purposes, it must consent to control by Intervenor to whatever extent Intervenor
decides to exert that control. Under that posture, only this court can reign in
Intervenor if it believes his orders in this regard are improper. In the meantime,
Respondent Clerk of Court must follow them or face penalties accordingly.
(Meanwhile, the wishes of the voters of Cuyahoga County whom elected the County
Council that, in turn, enacted the Cuyahoga County Code and its public records
policies and appointed Respondent Clerk of Court, are to be ignored).
Therefore, the Respondent Clerk of Court must choose whether the Rules of
Superintendence are the governing authority over its public records requests or not.
If it maintains its current position that those rules do govern its responses to
Relator's request, then it must also acknowledge that the Intervenor is duty bound
under Rule 4.01 to insure that those rules are observed. Therefore, if Respondent
Clerk of Court maintains its new argument that Sup.R. 44-47 govern its responses
to Relator's request, its opposition to Intervenor's motion is meritless. Ultimately,
Intervenor can issue orders, both standing and on a case by case basis, that permits,
restricts or entirely prohibits Respondent Clerk of Court from releasing some or all
public court records consistent with its duties under Rule 4.01.
THE SEEMING IRRECONCILABLE LEGAL ENTANGLEMENTSIN THIS CASE HAVE AN EASY SOLUTION
The Supreme Court of Ohio now sits with intertwining and contradictory
legal arguments from the two Respondents in this matter and the Intervenor.
s
Respondent Court Administrator claims Sup.R. 44-47 are the sole governing
authority over Relator's request. It has failed entirely to respond to the
constitutional obstacles to that position as well as the lack of statutory or case laiv
authority supporting that position other than the cases from this court summarily
stating that position, without citation to any authority themselves, beginning in
2009.
Respondent Clerk of Court now claims that Sup.R. 44-47 are the sole
governing authority over Relator's request, but simultaneously claims R.C. 149.43 is
"recognized" by the court. It assets that Intervenor has no authority over
Respondent Clerk of Court with regard to public records requests. It is silent as to
the authority of the Cuyahoga County Code § 106 which regulates public records
requests by the Clerk of Court in Cuyahoga County
Intervenor, controls the records at issue.
It claims that it, not the
Intervenor claims that the records at issue are owned by the judiciary in
Cuyahoga County and it has exclusive control over Respondent Clerk of Court's
responses to public records requests. There is no legal support for Intervenor's
claim on this point. The Supreme Court Rules of Superintendence mandate that
Intervenor insure Sup.R. 44-47, if valid legal authority over Respondent Clerk of
Court, are observed.
Following the arguments which are supported by constitutional and statutory
authority leaves no room for doubt. This court can resolve this conflict easily. It
can recognize the limitations on the authority of Supreme Court Rules of
9
Superintendence that all twelve district courts of appeal have recognized. Then, it
can find that the Public Records Act and the Cuyahoga County Code are the
governing authority over Relator's request based upon the analysis and authority
that all other districts have held as valid and no Respondent nor Intervenor has
challenged.
That simple and legally supportable act merits denial of Respondent's
motions to dismiss and denial of Intervenor's attempt to intervene. It simplifies
this case to a consideration of the application of R.C. 149.43 and the Cuyahoga
County Code (and forty years of case law interpreting R.C. 149.43) to Relator's
request.
The difficult path travels in the opposite direction of the judicial economy
that Respondent Clerk of Court cites as motivating. It is a path that ignores the
constitution, all twelve district courts of appeal, R.C. 149.43 and the Cuyahoga
County Code and instead attempts to assert the predominance of Sup.R. 44-47. The
simple answer here, and also the only one supported by the Ohio Constitution, is
the one this court should choose.
For the reasons cited above, this court should ignore Respondent Clerk of
Court's opposition to Intervenor's motion to intervene based upon the legal
arguments made in that motion. It should deny Respondent Clerk of Court's new
arguments to dismiss Relator's complaint. It should grant Relator's application to
dismiss the unnecessary party, the Cuyahoga County Court Administrator and
deny intervention into this case by another unnecessary party, the Intervenor.
10
Finally, it should set a briefing schedule for discovery and move ahead considering
the applicability of R.C. 149.43 and the Cuyahoga County Code to Relator's public
records request.
Respectfully submitted,
Dean Boland 65693Boland Legal, LLC1475 Warren RoadUnit 770724Lakewood, OH 44107216.236.8080 [email protected]
11
SERVICE
A copy of the foregoing was served by regular mail and email this 8th day ofDecember, 2014.
Barbara Marburger 19152Assistant Prosecuting AttorneyCuyahoga County Prosecutor's Office1200 Ontario StreetCleveland, OH 44113216.443.7800 ph
Robin Wilson 66604Cuyahoga CountyDepartment of Law2079 East 9th StreetCleveland, OH 44115216.443.7042 ph216.698.2744 fax
John Q. Lewis (0067235)Benjamin C. Sasse (0072856)Megan R. Miller (0085522)Peter T. Reed (0089948)TUCKER ELLIS LLP950 Main Avenue, Suite 1100Cleveland, OH [email protected]@[email protected]@tuckerellis.com
Respectfully Submitted,
Dean Boland 65693
12