Sandusky Register v. Cedar Point Police Dept. , 2022 Ohio 1615 ( 2022 )

[Cite as Sandusky Register v. Cedar Point Police Dept., 2022-Ohio-1615.]
THE SANDUSKY REGISTER Case No. 2021-00528PQ
Requester Judge Patrick E. Sheeran
v. JUDGMENT ENTRY
CEDAR POINT POLICE DEPARTMENT
Respondent
{¶1} On March 22, 2022, in a Recommendation To Dismiss, a Special Master
recommended dismissing Requester’s Complaint without prejudice in this public-records
case. Neither party has objected to the Special Master’s recommendation.1
{¶2} In the recommendation, after the Special Master generally summarizes the
procedural history of the case, the Special Master states,
[Requester The Sandusky Register] has failed to comply with the Civil Rules
regarding proof of service. It has further failed to comply with court orders
to obtain counsel. The special master recommends the court dismiss the
complaint pursuant to Civ.R. 41(B)(1) and (3), without prejudice. * * *.
Further, the special master is authorized to consider sua sponte
whether a complaint should be dismissed for any reason: “Upon the
recommendation of the special master, the court of claims on its own motion
may dismiss the complaint at any time.” R.C. 2743.75(D)(2). Based on the
1 Pursuant to R.C. 2743.75(F)(2), if neither party timely objects to a special master’s report and
recommendation, then this Court is required to “promptly issue a final order adopting the report and
recommendation, unless it determines that there is an error of law or other defect evident on the face of the
report and recommendation.” Here, the Special Master issued a Recommendation To Dismiss—not a
Report and Recommendation. Thus, in this instance, the standard of review set forth in R.C. 2743.75(F)(2)
with respect to a report and recommendation does not necessarily apply.
Case No. 2021-00528PQ -2- JUDGMENT ENTRY
same facts and circumstances discussed above, the special master
separately recommends the complaint be dismissed without prejudice
pursuant to R.C. 2743.75(C)(2).
***
The above grounds for dismissal dispose of this case in its entirety,
and there is thus no need to address any other defense raised in [Cedar
Point Police Department]’s response.
***
The special master recommends the court dismiss this action without
prejudice. It is recommended that costs be assessed to the requester.
***
(Footnote omitted.) (Recommendation To Dismiss, 3.)
{¶3} The Court finds that, under the circumstances of this case, the Special
Master’s recommendation for dismissal of Requester’s Complaint without prejudice is well
supported.2 However, the Special Master’s reliance on R.C. 2743.75(C)(2), as
2 Notably, in an affidavit, Ron Wilson, Director of Security for Cedar Point, averred that Cedar Point
“is owned and operated by Cedar Fair, L.P., a private, for profit limited partnership,” and Wilson further
averred that Cedar Point’s private security department is “commonly referred to as Cedar Point Police
Department.” (Affidavit of Ron Wilson, dated December 3, 2019, at paragraphs 3 and 5; Exhibit A attached
to Motion To Dismiss filed on January 19, 2022.)
An issue arises whether, in this instance, Respondent Cedar Point Police Department is the
functional equivalent of a public office for purposes of R.C. 149.43. See R.C. 149.011(A) (as used in R.C.
Chapter 149, “public office” “includes any state agency, public institution, political subdivision, or other
organized body, office, agency, institution, or entity established by the laws of this state for the exercise of
any function of government”). In State ex rel. Oriana House, Inc. v. Montgomery, 110 Ohio St.3d 456,
2006-Ohio-4854, 854 N.E.2d 193, ¶ 25, the Ohio Supreme Court identified a functional-equivalency test
concerning whether a private entity is a public institution under R.C. 149.011(A). The Ohio Supreme Court
held that
in determining whether a private entity is a public institution under R.C. 149.011(A) and
thus a public office for purposes of the Public Records Act, R.C. 149.43, a court shall apply
the functional-equivalency test. Under this test, the court must analyze all pertinent factors,
including (1) whether the entity performs a governmental function, (2) the level of
government funding, (3) the extent of government involvement or regulation, and (4)
whether the entity was created by the government or to avoid the requirements of the
Public Records Act.
Case No. 2021-00528PQ -3- JUDGMENT ENTRY
justification for the recommendation to dismiss without prejudice, is not well taken. R.C.
2743.75(C)(2) provides:
If the allegedly aggrieved person files a complaint under this section
and the court of claims determines that the complaint constitutes a case of
first impression that involves an issue of substantial public interest, the court
shall dismiss the complaint without prejudice and direct the allegedly
aggrieved person to commence a mandamus action in the court of appeals
with appropriate jurisdiction as provided in [R.C. 149.43(C)(1)].
A review of the Special Master’s Recommendation To Dismiss discloses that the Special
Master has not concluded that Requester’s Complaint constitutes a case of first
impression that involves an issue of substantial public interest—a prerequisite for
dismissal of a public-records complaint without prejudice under R.C. 2743.75(C).
Moreover, the Special Master does not recommend, as R.C. 2743.75(C) directs, that
Requester commence a mandamus action in the court of appeals with appropriate
jurisdiction as provided in R.C. 149.43(C)(1).
{¶4} Nonetheless, to the extent that the Ohio Rules of Civil Procedure are
consistent with R.C. 2743.75, see R.C. 2743.03(D) (providing that the Ohio Rules of Civil
Procedure “shall govern practice and procedure in all actions in the court of claims, except
insofar as inconsistent with this chapter”), the Court determines that the Special Master’s
State ex rel. Oriana House, Inc. at ¶ 25. In State ex rel. Oriana House, Inc. at ¶ 26, the Ohio Supreme
Court further held that “the functional-equivalency analysis begins with the presumption that private entities
are not subject to the Public Records Act absent a showing by clear and convincing evidence that the
private entity is the functional equivalent of a public office.”
Judicial restraint counsels against determining whether, in this instance, Respondent Cedar Point
Police Department is the functional equivalent of a public office for purposes of the Public Records Act,
because such a determination is not necessary to dispose of the matter before the Court. See PDK
Laboratories, Inc. v. United States Drug Enforcement Administration (D.C.Cir.2004), 362 F.3d 786, 799,
360 U.S. App. D.C. 344 (Roberts, J., concurring in part and concurring in judgment) (expressing “the
cardinal principle of judicial restraint,” i.e., “if it is not necessary to decide more, it is necessary not to decide
more”). See also State ex rel. Luken v. Corp. for Findlay Mkt. of Cincinnati, 135 Ohio St.3d 416, 2013-
Ohio-1532, 988 N.E.2d 546, ¶ 25; Meyer v. UPS, 122 Ohio St.3d 104, 2009-Ohio-2463, 909 N.E.2d 106, ¶
53.
Case No. 2021-00528PQ -4- JUDGMENT ENTRY
reliance on Civ.R. 41(B)(1) and (3), as justification for the recommendation of a dismissal
without prejudice, is appropriate. The Court further determines that the Special Master’s
reliance on R.C. 2743.75(D)(2) is appropriate. See R.C. 2743.75(D)(2)
(“[n]otwithstanding any provision to the contrary in this section, upon the recommendation
of the special master, the court of claims on its own motion may dismiss the complaint at
any time”). In accordance with the Special Master’s recommendation, the Court sua
sponte dismisses Requester’s Complaint without prejudice pursuant to R.C.
2743.75(D)(2). Court costs are assessed to Requester. The Clerk shall serve upon all
parties notice of this judgment and its date of entry upon the journal.
PATRICK E. SHEERAN
Judge
Filed April 6, 2022
Sent to S.C. Reporter 5/13/22