State v. L.F. , 2020 Ohio 968 ( 2020 )

[Cite as State v. L.F., 2020-Ohio-968.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
State of Ohio, :
Plaintiff-Appellee, :
Case No. CA2019-02-017
v. :
L.F., : (ACCELERATED CALENDAR)
Defendant-Appellee, :
[Christopher Hicks, :
Appellant]. :
D E C I S I O N
Rendered on March 16, 2020
On brief: Brafford & Rivello, and Suellen M. Bradfford, for
appellant Christopher Hicks.
On brief: Strauss Troy Co., LPA, and Christopher R.
McDowell and Jeffrey A. Levine, for appellee L.F.
On brief: Dave Yost, Attorney General, and Brad L.
Tammaro, for appellee State of Ohio.
APPEAL from the Clermont County Municipal Court
Case No. 1018-PC-00002
KLATT, J.
{¶ 1} Appellant, Christopher Hicks, appeals judgments of the Clermont County
Municipal Court that denied him access to certain court documents and denied his motion
Clermont No. CA2019-02-017 2
to schedule a hearing to hold the special prosecutor in contempt of court. For the following
reasons, we affirm the judgments of the trial court.
{¶ 2} On March 20, 2018, Hicks filed with the Clerk of Courts for the Clermont
County Municipal Court ("clerk") an affidavit stating that there was reasonable cause to
believe that appellee, L.F., a Clermont County public official, had committed a felony and a
misdemeanor by employing her stepson in the office she oversaw. The affidavit requested
the immediate arrest and prosecution of Fraley for those alleged violations of the law.
{¶ 3} The clerk forwarded the affidavit to the trial court. However, all the judges of
the Clermont County Municipal Court recused themselves from the matter, requiring the
Supreme Court of Ohio to appoint a visiting judge to review the affidavit. The visiting judge
scheduled a probable cause hearing regarding the allegations contained in the affidavit.
Prior to the hearing, the Clermont County Prosecutor requested that the court recuse him
from the case and appoint the Ohio Attorney General as special counsel. The trial court
granted the Clermont County Prosecutor's request.
{¶ 4} At the probable cause hearing, the trial court heard from the special
prosecutor, Hicks, and Fraley. Apparently, during the hearing, the special prosecutor
entered into the record two documents: (1) an August 5, 2004 letter from the Clermont
County Prosecutor to Fraley, and (2) a March 9, 2018 letter from the Ohio Ethics
Commission to Hicks.1 At the conclusion of the hearing, the trial court issued an entry,
dated April 5, 2018, that found no probable cause to support a criminal complaint against
Fraley and dismissed Hicks' affidavit.
{¶ 5} Hicks appealed the April 5, 2018 judgment to this court. We concluded that
the trial court erred in dismissing the affidavit, and we remanded the matter to the trial
court so it could follow the mandate of R.C. 2935.10(A) and refer the matter to the special
1 We preference this sentence with the word "apparently" because Fraley disputes that the special
prosecutor introduced the August 5, 2004 letter into evidence at the probable cause hearing. We are unable
to resolve this dispute given Hicks' failure to file a transcript of the hearing in the trial court. Hicks attached
a transcript to his brief, and Hicks, Fraley, and the special prosecutor cite to that transcript in their appellate
briefing. Appellate courts, however, "cannot add matter to the record before it, which was not part of the
trial court's proceedings, and then decide the appeal on the basis of the new matter." State v. Ishmail, 54
Ohio St.2d 402 (1978), paragraph one of the syllabus. Because the trial court did not have the benefit of the
transcript, we cannot consider it in this appeal. Instead, we rely on the events as recorded in the case
documents to recount the proceedings that occurred before the trial court.
Clermont No. CA2019-02-017 3
prosecutor for investigation. Hicks v. State, 12th Dist. No. CA2018-04-022, 2018-Ohio-
5298, ¶ 11-12.
{¶ 6} Immediately upon entry of our judgment, Hicks moved in the trial court for
an order requiring the special prosecutor to file the two documents he had entered into the
record during the probable cause hearing. The trial court granted Hicks' motion. On
January 7, 2019, the trial court issued an entry ordering the special prosecutor "to produce
for the Court's public record" the August 5, 2004 and March 9, 2018 letters and provide the
documents "to each participating party." (Jan. 7, 2019 Entry Ordering Produc. of Exs.)
{¶ 7} On January 25, 2019, the special prosecutor submitted the August 5, 2004
and March 9, 2018 letters to the clerk for addition to the court record, but he purported to
file the documents under seal. In a contemporaneous filing, the special prosecutor
informed the trial court that he sought to restrict access to the documents because the
August 5, 2004 letter contained "advice received by an individual in the course of [her]
duties from [her] legal counsel." (Jan. 25, 2019 Submission of Docs.) The special
prosecutor also advised the court that he had only furnished the documents to the court
and Fraley. The special prosecutor explained that, "[a]s this action has progressed to an
investigative phase, the State understands the 'participating parties' to include the State
and the individual that is the subject of the investigation." Id. Under the special
prosecutor's interpretation of the trial court's order, therefore, the special prosecutor
believed he owed copies of the documents to Fraley, but not Hicks.
{¶ 8} Hicks responded by moving for unrestricted access to the documents and
requesting that the trial court schedule a hearing to hold the special prosecutor in contempt
of court. In these motions, Hicks maintained that he was a "participating party," and thus
the special prosecutor disobeyed the January 7, 2019 entry by not providing him with copies
of the August 5, 2004 and March 9, 2018 letters. Hicks also argued that the special
prosecutor had violated Loc.R. 10(b) of the Clermont County Municipal Court, which
requires parties to prepare "[a]ll evidence of a tangible nature" in "numbers sufficient to
provide one copy each for the Court, the witness and each party." Finally, in moving for
unrestricted access to the documents, Hicks contended that he was entitled to the
documents under Sup.R. 45, which provides for public access to court records.
Clermont No. CA2019-02-017 4
{¶ 9} The special prosecutor opposed both motions. The special prosecutor
contested Hicks' claim that he was a party, and he asserted that the attorney-client privilege
protected the August 5, 2004 letter from public disclosure. In an entry filed February 7,
2019, the trial court denied both of Hicks' motions.
{¶ 10} On February 12, 2019, the special prosecutor filed a motion seeking a court
order sealing the documents. Hicks responded by filing a motion against sealing the
documents. The trial court granted the special prosecutor's motion. In an entry dated
February 14, 2019, the trial court sealed the documents as attorney-client privileged
materials. Also, on February 14, 2019, the trial court issued a second entry that referred the
matter raised in Hicks' affidavit to the special prosecutor for investigation.
{¶ 11} Hicks now appeals the February 7, 2019 judgment and the February 14, 2019
judgment that sealed the documents, and he assigns the following errors:
[1.] THE TRIAL COURT ERRED BY DENYING
APPELLANT'S MOTION TO SCHEDULE A HEARING TO
HOLD THE SPECIAL PROSECUTOR IN CONTEMPT OF
COURT.
[2.] THE TRIAL COURT ERRED BY DENYING
APPELLANT'S MOTION FOR UNRESTRICTED ACCESS FOR
ALL EXHIBITS AND CONVERSELY BY GRANTING
APPELLEE OHIO ATTORNEY GENERAL'S MOTION TO
SEAL SAID EXHIBITS.
{¶ 12} Both of Hicks' assignments of error fail for the same reason: he was not a
party to the matter below and had no authority to make any filings in the trial court beyond
his affidavit.
{¶ 13} This matter came before the trial court because Hicks submitted an affidavit
to the clerk under the auspices of R.C. 2935.09(D). That statutory provision authorizes a
private citizen "who seeks to cause an arrest or prosecution" to "file an affidavit charging
[an] offense committed with a reviewing official for the purpose of review to determine if a
complaint should be filed by the prosecuting attorney or attorney charged by law with the
prosecution of offenses in the court or before the magistrate." R.C. 2935.09(D). Courts
read R.C. 2935.09(D) in pari materia with R.C. 2935.10, which prescribes the procedure to
be followed once a citizen files an affidavit charging an offense. State ex rel. Brown v.
Nusbaum, 152 Ohio St.3d 284, 2017-Ohio-9141, ¶ 12. Pursuant to R.C. 2935.10(A), if the
Clermont No. CA2019-02-017 5
affidavit under R.C. 2935.09(D) charges a felony, a judge reviewing the affidavit may take
one of two actions: (1) "issue a warrant for the arrest of the person charged in the affidavit"
or (2) "refer the matter to the prosecuting attorney or other attorney charged by law with
prosecution for investigation" if the judge "has reason to believe that [the affidavit] was not
filed in good faith, or the claim is not meritorious." R.C. 2935.10(A); Brown at ¶ 12. In this
case, the judge chose the latter option and referred the matter to the special prosecutor for
investigation.
{¶ 14} Notably, R.C. 2935.09 and 2935.10 only permit a private citizen to file an
affidavit charging an offense. Nothing in R.C. 2935.09 or 2935.10 contemplates the
affiant's further participation in the proceedings. Nothing in R.C. 2935.09 or 2935.10
endows the affiant with party status. Indeed, giving the affiant party status would
contravene Ohio criminal law. The only parties to a criminal case are the state and the
defendant. State v. Roach, 6th Dist. No. L-16-1303, 2017-Ohio-8511, ¶ 13; Grubb v.
Buehrer, 10th Dist. No. 15AP-576, 2016-Ohio-4645, ¶ 20; State v. Stechschulte, 11th Dist.
No. 2013-L-027, 2014-Ohio-4291, ¶ 17; State v. Godfrey, 3d Dist. No. 16-12-06, 2013-Ohio-
3396, ¶ 16. And without party status, a person generally lacks standing to make filings
before the trial court. See Roach at ¶ 13 (holding that a non-party did not possess the
requisite standing to make a motion in a criminal case regarding restitution); Stechschulte
at ¶ 16, 18 (holding that a non-party did not have standing to move the court in a criminal
case with respect to restitution); Godfrey at ¶ 16-17 (holding that a non-party did not "have
standing to participate in the actual prosecution of the case," and finding the trial court
erred in allowing the non-party's attorney to file a memorandum in opposition to the
defendant's motion for a new trial and argue the brief before the court).
{¶ 15} Hicks argues that he must be a party because he previously appealed in this
case. Although generally only parties may appeal, in certain instances, a non-party may
have the necessary interest in the underlying proceeding to appeal. Thomas v. Wright State
Univ. School of Med., 10th Dist. No. 12AP-839, 2013-Ohio-3338, ¶ 13-14. Ohio courts
permit affiants to appeal errors in the R.C. 2935.10 process because they, as the impetus
behind the process, have an interest in ensuring reviewing officials properly apply the
statute. Condoning appeals, however, does not convert the affiants into parties in the
underlying proceedings.
Clermont No. CA2019-02-017 6
{¶ 16} In short, R.C. 2935.09 gave Hicks a mechanism by which he could bring his
belief that Fraley violated the law before a reviewing official and, at the very least, obtain
investigation into his allegations. The statutory language, however, granted Hicks no
further latitude beyond that. Because Hicks did not become a party to any proceeding
before the court, he lacked any ability to file motions or respond to the state's motions.
Therefore, the trial court did not err in denying any motion Hicks filed.
{¶ 17} Moreover, to the extent Hicks challenges the denial of access to the
documents as a violation of Sup.R. 45, he must seek his remedy through a writ of
mandamus, not an appeal. Hicks maintains that the August 5, 2004 and March 9, 2018
letters are court records. Under Sup.R. 45(A), "[c]ourt records are presumed open to public
access." Here, Hicks requested access to the documents under Sup.R. 45 but was denied
access.
{¶ 18} "A person who is denied access to court records has a specific remedy." State
ex rel. Cincinnati Enquirer v. Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354, ¶ 13. According
to Sup.R. 47(B), "[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." Therefore, a person aggrieved by a decision
of a court to restrict access to court records must challenge that decision by pursuing an
original action in mandamus, not by filing an appeal. State v. Helfrich, 5th Dist. No. 18-
CA-45, 2019-Ohio-1785, ¶ 105-06; N.L. v. A.M., 6th Dist. No. L-10-1307, 2010-Ohio-5834,
¶ 8-9. Hicks' appeal also fails for that reason.
{¶ 19} For the foregoing reasons, we overrule both of Hicks' assignments of error,
and we affirm the judgments of the Clermont County Municipal Court.
Judgments affirmed.
SADLER, P.J., and LUPER SCHUSTER, J., concur.
KLATT, J., SADLER, P.J., and LUPER SCHUSTER, J., of the
Tenth Appellate District, sitting by assignment of the Chief
Justice pursuant to Section 5(A)(3), Article IV of the Ohio
Constitution.