State ex rel. Ware v. Parikh , 2023 Ohio 759 ( 2023 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Ware v. Parikh, Slip Opinion No. 2023-Ohio-759.]
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. 2023-OHIO-759THE STATE EX REL. WARE v. PARIKH, CLERK.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Ware v. Parikh, Slip Opinion No. 2023-Ohio-759.]
Mandamus—Public records—A records custodian bears burden of establishing
applicability of an exception to disclosure—Writ granted in part and denied
in part.
(No. 2022-0191—Submitted January 10, 2023—Decided March 15, 2023.)
IN MANDAMUS.
_________________
Per Curiam.
{¶ 1} This is an original action brought by relator, Kimani E. Ware, against
respondent, Hamilton County Clerk of Courts Pavan Parikh.1 Ware seeks a writ of
mandamus ordering Parikh to provide copies of three oaths of office and various
court records from a 2001 case. Ware also seeks awards of statutory damages and
1. Ware asserted his claim against Aftab Pureval, who was the Hamilton County clerk of courts
when the petition was filed. The current clerk, Pavan Parikh, is automatically substituted as a party
to this action under S.Ct.Prac.R. 4.06(B).
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court costs. We previously denied Ware’s motion for default judgment and
Parikh’s motion to dismiss and granted an alternative writ. 166 Ohio St.3d 1528,
2022-Ohio-1837, 188 N.E.3d 196. We now grant the writ of mandamus in part and
deny it in part, and we award Ware statutory damages in the amount of $1,000 as
well as court costs.
I. BACKGROUND
{¶ 2} Ware is an inmate at the Richland Correctional Institution. In
February 2021, he sent a public-records request by certified mail to the Hamilton
County clerk of courts, requesting two categories of records. First, Ware sought
“the following judges[’] oaths of office, (1) Charles J. Kubicki, (2) Lisa C. Allen,
(3) Thomas O. Beridon.” Second, he sought “the following from case no. C-
010153[:] Docket sheet, writ of mandamus complaint, Motion To Dismiss,
Judgment Entry filed on July 27, 2001.” Neither party addresses the basic facts of
the case from category No. 2, but it was an original action in mandamus that had
been filed in the First District Court of Appeals by a newspaper company seeking
access to exhibits from a criminal case. See State ex rel. Cincinnati Enquirer v.
Dinkelacker, 144 Ohio App.3d 725, 761 N.E.2d 656 (1st Dist.2001).
{¶ 3} The clerk did not respond to Ware’s public-records request.
{¶ 4} In February 2022, Ware filed this action in this court, seeking a writ
of mandamus and awards of statutory damages and costs. Ware and the clerk have
both filed merit briefs, but only Ware filed evidence.
II. ANALYSIS
A.Mandamus
{¶ 5} Mandamus is an appropriate remedy to compel compliance with R.C.
149.43, Ohio’s Public Records Act. State ex rel. Physicians Commt. for
Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288,
2006-Ohio-903, 843 N.E.2d 174, ¶ 6; R.C. 149.43(C)(1)(b). To obtain the writ,
Ware must show that he has a clear legal right to the requested relief and that Parikh
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has a clear legal duty to provide it. See State ex rel. Ellis v. Maple Hts. Police
Dept., 158 Ohio St.3d 25, 2019-Ohio-4137, 139 N.E.3d 873, ¶ 5.
1. Oaths of office
{¶ 6} Ware seeks copies of three oaths of office. The clerk argues, however,
that Ware is not entitled to them in this action because he used the incorrect vehicle
to request them. According to the clerk, Ware should have sought the records under
the Rules of Superintendence for the Courts of Ohio, not R.C. 149.43, Ohio’s Public
Records Act.
{¶ 7} Whether the Public Records Act or the Rules of Superintendence
apply is a threshold issue in public-records cases. State ex rel. Ware v. Kurt, __
Ohio St.3d __, 2022-Ohio-1627, __ N.E.3d __, ¶ 10. “If the requester seeks public
records through the incorrect vehicle, then he or she is not entitled to receive the
records through a mandamus action.” Id. at ¶ 12. In Kurt, this court determined
that a record memorializing a judge’s oath of office was an “administrative
document” governed by the Rules of Superintendence “because [it] recorded the
operations of the court.” Id. at ¶ 16, citing Sup.R. 44(G)(1) (defining
“[a]dministrative document” as a “document and information in a document
created, received, or maintained by a court that serves to record the administrative,
fiscal, personnel, or management functions, policies, decisions, procedures,
operations, organization, or other activities of the court” subject to exclusions not
relevant here).
{¶ 8} Here, Ware’s letter to the clerk requesting the oaths of office did not
invoke either the Public Records Act or the Rules of Superintendence; rather, the
letter simply stated that it was a “Public Records Request.” That phrasing by itself
“is not fatal” because a requester generally need not cite legal authority as the basis
for a request. State ex rel. Ware v. Giavasis, 163 Ohio St.3d 359, 2020-Ohio-5453,
170 N.E.3d 788, ¶ 19. What is fatal, however, is that Ware “invoked only the Public
Records Act in this action” (emphasis sic.), id. Because Ware has used the wrong
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vehicle for requesting copies of the oaths of office, we deny the writ of mandamus
as to those records.
2. Records related to Cincinnati Enquirer
{¶ 9} The second part of Ware’s request seeks the docket sheet, writ of
mandamus complaint, motion to dismiss, and July 27, 2001 judgment entry in
Cincinnati Enquirer, 144 Ohio App.3d 725, 761 N.E.2d 656. The clerk argues that
R.C. 149.43(B)(8) forecloses Ware’s right to receive these records because the case
“dealt with criminal case records for a case initiated prior to July 1, 2009.”
{¶ 10} The significance of July 1, 2009, lies in the fact that “[r]equests for
case documents in cases commenced on or after July 1, 2009, are governed by the
Rules of Superintendence, not the Public Records Act.” Giavasis at ¶ 18. Because
Cincinnati Enquirer was a 2001 case, we must apply the provisions of R.C. 149.43,
Ohio’s Public Records Act. R.C. 149.43(B)(8) provides that a public office has no
duty to provide an inmate with “any public record concerning a criminal
investigation or prosecution” unless the “judge who imposed the sentence * * *
finds that the information sought in the public record is necessary to support what
appears to be a justiciable claim of the person.” Thus, when an inmate seeks a
public record from a criminal case that was commenced before July 1, 2009, the
public office has no duty to provide the record in the absence of a finding by the
sentencing judge that the inmate’s claim appears to be valid. See Giavasis at ¶ 15.
But Cincinnati Enquirer was not a criminal case; it was an original action in
mandamus, which is a civil action. See State ex rel. Ohio Dept. of Health v. Sowald,
65 Ohio St.3d 338, 343, 603 N.E.2d 1017 (1992).
{¶ 11} The clerk’s argument appears to present a novel issue concerning the
scope of R.C. 149.43(B)(8). Although we have construed R.C. 149.43(B)(8)’s
predecessor (former R.C. 149.43(B)(4)) as “broad and encompassing,” State ex rel.
Russell v. Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858, 856 N.E.2d 966, ¶ 14,
neither party in this case cites a decision considering whether the statute applies to
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an inmate’s request for records from a mandamus action in which the underlying
subject matter concerned a criminal prosecution.
{¶ 12} We conclude that the clerk has not met his burden to show that the
exception applies. See State ex rel. Myers v. Meyers, __ Ohio St.3d __, 2022-Ohio-
1915, __ N.E.3d __, ¶ 30 (a records custodian bears the burden of establishing the
applicability of an exception to disclosure). First, although the clerk cites Kurt, __
Ohio St.3d __, 2022-Ohio-1627, __ N.E.3d __, as support for the argument that
Ware “cannot demonstrate a clear legal right to compel [the clerk] to produce [the
requested] documents,” that case is distinguishable. This court’s analysis of R.C.
149.43(B)(8) in Kurt pertains to an application of that statute to a requester’s
attempt to obtain the transcript of a 9-1-1 call from his own criminal case. Second,
the clerk merely quotes R.C. 149.43(B)(8) without meaningfully analyzing whether
the records sought by Ware would fall within the scope of those “concerning a
criminal investigation or prosecution.” Last, the clerk completely ignores the First
District’s decision in Cincinnati Enquirer, 144 Ohio App.3d 725, 761 N.E.2d 686,
which contains a summary of the underlying facts of that case.
{¶ 13} Because the clerk has failed to meet his burden, we grant the writ
and order him to produce the requested records from the Cincinnati Enquirer case.
B. Statutory damages
{¶ 14} A requester who transmits by certified mail a fairly described public-
records request is entitled to an award of statutory damages if a court determines
that the public office has failed to comply with an obligation of R.C. 149.43(B).2
R.C. 149.43(C)(2). One of the obligations stated in R.C. 149.43(B) is that the
public office “promptly” make the records available to the requester. See Myers at
2. In a one-sentence footnote, the clerk asserts that he “could not locate any record of the certified
mail delivery.” But the clerk did not file any evidence to validate this assertion and other evidence
in the record, which includes an image of the delivered certified-mail card, establishes that Ware
transmitted his request by certified mail.
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¶ 60, citing R.C. 149.43(B)(1). “Statutory damages accrue at the rate of $100 for
each business day the office failed to meet one of R.C. 149.43(B)’s obligations,
beginning on the day the requester files a mandamus action, up to $1,000.” State
ex rel. Horton v. Kilbane, 167 Ohio St.3d 413, 2022-Ohio-205, 194 N.E.3d 288,
¶ 15, citing R.C. 149.43(C)(2).
{¶ 15} Because we grant a writ of mandamus ordering Parikh to produce
the requested records from Cincinnati Enquirer, 144 Ohio App.3d 725, 761 N.E.2d
686, we award Ware $1,000 in statutory damages for the clerk’s delay in producing
these records, which has persisted for more than ten business days from the filing
of this action. But we deny Ware’s request for an award of statutory damages as to
the documents related to the oaths of office. These documents are governed by the
Rules of Superintendence, which “do not authorize statutory damages under any
circumstances,” State ex rel. Harris v. Pureval, 155 Ohio St.3d 343, 2018-Ohio-
4718, 121 N.E.3d 337, ¶ 11.
C. Court costs
{¶ 16} Under R.C. 149.43(C)(3)(a)(i), a court shall determine and award
court costs if it orders a public office to comply with R.C. 149.43(B). Because we
are granting a writ of mandamus ordering Parikh to produce records relating to
Cincinnati Enquirer, we award Ware court costs.
III. CONCLUSION
{¶ 17} For the foregoing reasons, we grant the writ in part and deny it in
part and award Ware $1,000 in statutory damages as well as court costs.
Writ granted in part
and denied in part.
FISCHER, DONNELLY, STEWART, and BRUNNER, JJ., concur.
KENNEDY, C.J., concurs in judgment only in part and dissents in part, with
an opinion joined by DEWINE, J.
DETERS, J., not participating.
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January Term, 2023
_________________
KENNEDY, C.J., concurring in judgment only in part and dissenting in
part.
{¶ 18} I agree with the majority that relator, Kimani E. Ware, is entitled to
a writ of mandamus compelling respondent, Hamilton County Clerk of Courts
Pavan Parikh, to comply with Ware’s public-records request to the extent that it
seeks access to documents related to a mandamus action Ware brought in the First
District Court of Appeals. I also agree that Ware is entitled to an award of statutory
damages in the amount of $1,000 as well as court costs.
{¶ 19} However, the majority errs in issuing a writ of mandamus without
also compelling Parikh to comply with Ware’s public-records request to the extent
that it seeks access to three judges’ oaths of office. Contrary to the majority’s
conclusion, this request is not governed by the provisions of the Rules of
Superintendence for the Courts of Ohio purporting to regulate access to court
records. A clerk of courts’ records are not covered by the Rules of
Superintendence; and even if they were, this court lacks the constitutional authority
to issue rules that preempt substantive law such as the Public Records Act, R.C.
149.43.
{¶ 20} We should adhere to the limits of our power and hold that the Rules
of Superintendence do not and cannot govern public access to clerks’ records.
Because the majority chooses to maintain its errant course, I concur in judgment
only in part and dissent in part.
The Clerk’s Records Are Not Subject to the Rules of Superintendence
{¶ 21} R.C. 3.23 requires every “judge of a court of record” to take an oath
of office and requires the person administering the oath to sign the certificate of the
oath, which must be transmitted “to the clerk of the respective court.” A copy of
the certificate of oath must then be transmitted to this court. R.C. 3.23. Maintaining
a record of the judges’ oaths of office documents the clerk’s activities of receiving
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those oaths. They are the clerk’s records, not court records. See State ex rel. Ware
v. Kurt, __ Ohio St.3d __, 2022-Ohio-1627, __ N.E.3d __, ¶ 63 (Kennedy, J.,
concurring in part and dissenting in part).
{¶ 22} The Rules of Superintendence by their express terms regulate a
court’s records, not a clerk’s. See Sup.R. 44(B), (C)(1), and (G)(1); Sup.R. 45.
Importantly, Sup.R. 1(A) states that the rules “are applicable to all courts of appeal,
courts of common pleas, municipal courts, and county courts in this state.” The
rules purport to govern case documents “submitted to a court or filed with a clerk
of court in a judicial action or proceeding,” Sup.R. 44(C)(1), and administrative
documents “created, received, or maintained by a court,” Sup.R. 44(G)(1)—and the
rules define “court” to mean “a court of appeals, court of common pleas, municipal
court, or county court,” Sup.R. 2(C). Because the Rules of Superintendence do not
control access to a clerk’s records, they do not apply to Ware’s public-records
request.
{¶ 23} Nor could this court’s Rules of Superintendence apply to a clerk’s
records. Article IV, Section 5(A)(1) of the Ohio Constitution empowers this court
to adopt rules of superintendence to aid this court in overseeing inferior courts. The
Constitution, however, says nothing about superintending clerks of court, and
“[t]he clerk is not a ‘court’ subject to our Superintendence Rules,” State ex rel.
Parker Bey v. Byrd, 160 Ohio St.3d 141, 2020-Ohio-2766, 154 N.E.3d 57, ¶ 44
(Kennedy, J., concurring in judgment only in part and dissenting in part). This
court has long recognized that a clerk is not a judicial officer and may not exercise
judicial power. See State ex rel. Glass v. Chapman, 67 Ohio St. 1, 65 N.E. 154(1902), syllabus; see also Mellinger v. Mellinger, 73 Ohio St. 221, 227, 76 N.E.
615 (1906); Hocking Valley Ry. Co. v. Cluster Coal & Feed Co., 97 Ohio St. 140,
141-142, 119 N.E. 207 (1918).
{¶ 24} Rather, because the oaths are “records kept by [a] public office,”
R.C. 149.43(A)(1), they are subject to release under the Public Records Act.
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The Rules of Superintendence Cannot Restrict Access to Government
Records
{¶ 25} More fundamentally, this court lacks constitutional authority to
promulgate substantive rules regulating access to public records. See Ware, __
Ohio St.3d __, 2022-Ohio-1627, __ N.E.3d __, at ¶ 44, 52 (Kennedy, J., concurring
in part and dissenting in part). This court’s cases concluding that we have the power
to preempt the Public Records Act by issuing a court rule were wrongly decided.
{¶ 26} The Ohio Constitution gives this court the power to promulgate two
distinct sets of rules: (1) the Rules of Superintendence, Article IV, Section 5(A)(1),
and (2) the Rules of Practice and Procedure, Article IV, Section 5(B). This court
may “adopt Rules of Superintendence that are consistent with this court’s general
superintending power over all courts in this state. That power, however, is limited
to addressing the case-management problems that cause delays in processing cases
* * *.” (Emphasis sic.) Ware at ¶ 41 (Kennedy, J., concurring in part and
dissenting in part). There is no language in the Ohio Constitution allowing this
court to promulgate a rule of superintendence that overrides an enactment of the
General Assembly or that otherwise affects a substantial right. Rather, as this court
has explained, “[t]he Rules of Superintendence are not designed to alter basic
substantive rights.” State v. Singer, 50 Ohio St.2d 103, 110, 362 N.E.2d 1216(1977).
{¶ 27} The Constitution also empowers this court to adopt rules of practice
and procedure that can preempt conflicting statutes, but “Article IV, Section 5(B)
constrains this court’s ability to promulgate rules superseding enactments of the
General Assembly in two ways. First, the Ohio Constitution expressly prohibits
the adoption of any rules of practice or procedure that affect substantive rights.”
Ware at ¶ 43 (Kennedy, J., concurring in part and dissenting in part). “Second, the
Ohio Constitution gives the General Assembly express authority to accept or reject
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promulgated rules of practice or procedure that, if accepted, will eclipse all laws in
conflict with such rules.” Id., citing Ohio Constitution, Article IV, Section 5(B).
{¶ 28} Neither Section 5(A)(1) nor Section 5(B) of Article IV grants this
court the power to adopt a rule that affects a substantive right or that supplants the
substantive law of this state as enacted by the General Assembly. This includes the
Public Records Act, which “codifie[s] the public’s right to access of government
records.” State ex rel. Natl. Broadcasting Co., Inc. v. Cleveland, 38 Ohio St.3d 79,
81, 526 N.E.2d 786 (1988). As this court has explained, in enacting the Public
Records Act, “the Ohio General Assembly sought to codify the right of the people
of Ohio to observe their own government and scrutinize its decisions.” (Emphasis
added.) Rhodes v. New Philadelphia, 129 Ohio St.3d 304, 2011-Ohio-3279, 951
N.E.2d 782, ¶ 19. “The Ohio Public Records Act grants [the people of Ohio] the
‘substantive right to inspect and copy public records.’ ” Id., quoting State ex rel.
Beacon Journal Publishing Co. v. Waters, 67 Ohio St.3d 321, 324, 617 N.E.2d
1110 (1993).
{¶ 29} Therefore, while “[t]he Rules of Superintendence may provide
guidance to courts in complying with the public-records law, * * * those rules
cannot limit access to public records that is protected by the law, grant access to
public records that is denied by the law, or eliminate any remedy that is provided
by the law to enforce it.” Ware, __ Ohio St.3d __, 2022-Ohio-1627, __ N.E.3d __,
at ¶ 52 (Kennedy, J., concurring in part and dissenting in part). Simply put, this
court lacks the power to preempt the Public Record Act through the exercise of its
rulemaking powers.
The Public Records Act Governs Ware’s Request
{¶ 30} The majority today holds that a judge’s oath of office is a court
record maintained by a clerk and that its release as a public record is governed by
the Rules of Superintendence, not the Public Records Act. See also Ware at ¶ 16.
And because Ware relied solely on the Public Records Act in support of his claim
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that he is entitled to the production of the records, this court rejects his request for
the judges’ oaths of office on a technicality, concluding that “Ware has used the
wrong vehicle for requesting copies of the oaths of office,” majority opinion at ¶ 8.
{¶ 31} However, Ware properly invoked the Public Records Act. He
sought the clerk’s records, not court records. Moreover, this court’s Rules of
Superintendence may not abridge Ware’s statutory right to have the clerk produce
those records. And because the clerk failed to comply with Ware’s public-records
request, Ware is entitled to a writ of mandamus compelling Parikh to produce any
public records that are responsive to Ware’s request.
Conclusion
{¶ 32} Our cases discussing access to court records have disregarded the
bounds of our authority for too long. “The measure of power is its limits.
Respecting the limits of power is essential to our American form of government.
Anything less is an affront to it.” League of Women Voters of Ohio v. Ohio
Redistricting Comm., 168 Ohio St.3d 374, 2022-Ohio-1235, 199 N.E.3d 485, ¶ 88
(Kennedy, J., dissenting).
{¶ 33} The majority’s holding today runs counter to the language of the
Rules of Superintendence and transcends the limits on the rulemaking power
granted by Article IV, Section 5 of the Ohio Constitution. However, it is not too
late for this court to rectify its mistake and hold that the right to access public
records in general—and court records in particular—is a substantive right that this
court lacks the authority to abridge through its rulemaking power.
{¶ 34} Applying the correct law here, I would issue a writ of mandamus
compelling Parikh to fully comply with Ware’s public-records request and award
Ware statutory damages in the amount of $1,000 as well as court costs. I therefore
concur in judgment only in part and dissent in part from the majority’s decision
today.
DEWINE, J., concurs in the foregoing opinion.
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_________________
Kimani Ware, pro se.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R.
Cummings, Assistant Prosecuting Attorney, for respondent.
_________________
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