Burfitt v. Greene , 2020 Ohio 843 ( 2020 )

[Cite as Burfitt v. Greene, 2020-Ohio-843.]
LAWRENCE R. BURFITT Case No. 2019-00766PQ
Requester Judge Patrick M. McGrath
v. DECISION AND ENTRY
LARRY GREENE, WARDEN'S
ADMINISTRATIVE ASSISTANT
Respondent
{¶1} Because an error of law or other defect is evident on the face of the report
and recommendation (R&R) issued by a special master on January 29, 2020, the court
rejects in part and adopts in part the R&R.
I. Background
{¶2} On July 1, 2029, pursuant to R.C. 2743.75(D), requester Lawrence R.
Burfitt, an inmate, sued respondent Larry Greene, Warden’s Administrative Assistant.
In the complaint Burfitt alleged a denial of access to public records because, according
to Burfitt, respondent denied Burfitt’s request of January 25, 2019 for copies of the
records-retention schedule of the Ohio Department of Rehabilitation and Correction
(ODRC) and the J-1 Post Orders of the Southern Ohio Correctional Facility. The court
appointed a special master in the cause. The court, through the special master,
referred the case to mediation. After mediation failed to successfully resolve all
disputed issues between the parties, on respondent’s motion, the court stayed the case
pending a decision in State ex rel. McDougald v. Larry Greene, Ohio Supreme Court
No. 2019-0277.
{¶3} On September 25, 2019, the Ohio Supreme Court dismissed the McDougald
case without issuing an opinion on the merits. 09/25/2019 Case Announcements #2,
2019-Ohio-3798—State ex rel. McDougald v. Greene No. 2019-Ohio-0277 (Kennedy,
J., dissenting with an opinion joined by Stewart, J.). Two days later, on respondent’s
motion, the court vacated its stay of this case. Respondent moved to dismiss
Case No. 2019-00766PQ -2- DECISION AND ENTRY
requester’s complaint, contending that the complaint was moot because respondent had
complied with requester’s public-records request.
{¶4} On January 29, 2020, the special master issued a R&R wherein he
recommended (1) dismissing Burfitt’s claims for production of the ODRC records-
retention schedule and for a less-redacted copy of the J-1 Post Orders, (2) finding that
respondent violated an obligation under R.C. 149.43(B)(1) to provide the J-1 Post
Orders within a reasonable period of time, (3) issuing an order that entitles Burfitt to
recover the amount of the filing fee of twenty-five dollars and any other costs associated
with the action that he incurred, and (4) assessing costs against respondent. (R&R, 9.)
{¶5} Neither Burfitt nor respondent has filed a timely objection to the special
master’s R&R.
II. Law and Analysis
{¶6} R.C. 2743.75(F)(2) sets forth the standard for reviewing a R&R issued under
R.C. 2743.75. Pursuant to R.C. 2743.75(F)(2), if neither party timely objects, this court
“shall 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.” See Dorrian v. Scioto Conservancy Dist., 27 Ohio St.2d 102,
271 N.E.2d 834 (1971), paragraph one of the syllabus (in statutory construction, the
word “‘shall’ shall be construed as mandatory unless there appears a clear and
unequivocal legislative intent that they receive a construction other than their ordinary
usage”).
Because an error of law or other defect is evident on the face of the report
and recommendation, the court rejects in part and adopts in part the report and
recommendation.
{¶7} In the R&R the special master acknowledged that in McDougald the Ohio
Supreme Court dismissed McDougald’s complaint without issuing an opinion with its
merit decision. (R&R, 6.) The special master nonetheless found that “both stare decisis
Case No. 2019-00766PQ -3- DECISION AND ENTRY
and defensive claim preclusion apply, and that the merit decision in McDougald must be
followed by this court.” (R&R, 7.) Because in McDougald the Ohio Supreme Court did
not issue an opinion with its merit decision—only a dissenting opinion by one justice
(Kennedy, J.) that another justice joined (Stewart, J.)—there is no binding precedent for
the court to follow and the issues raised in the McDougald case have not been settled
by an authoritative opinion of Ohio’s court of last resort. Because the special master
recommends that “the merit decision in McDougald must be followed,” an error of law or
other defect is evident on the face of the R&R.1 The court concludes that the special
master’s R&R should be rejected in part.
{¶8} Nonetheless, based on the court’s independent review, the special master
correctly concluded that respondent’s delayed production to Burfitt of a redacted version
of the J-1 Post Orders violated R.C. 149.43(B)(1). See R.C. 149.43(B)(1); State ex rel.
Cordell v. Paden, 156 Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 12 (whether
a public office or person responsible for public records complies with a statutory duty to
respond within a reasonable period of time depends upon all of the pertinent facts and
circumstances). In the R&R the special master noted that respondent provided a
redacted copy of the J-1 Post Orders more than six months after it was created and
three months after this action was filed. (R&R, 8.) The court concludes that the special
master’s recommendation that respondent violated an obligation under R.C.
149.43(B)(1) should be adopted.
III. Conclusion
1 Since in McDougald the Ohio Supreme Court did not issue an opinion on the merits, the concepts of
stare decisis and claim preclusion, as applied to McDougald, are inapposite because (1) as a general
matter, stare decisis is the “doctrine of precedent, under which a court must follow earlier judicial
decisions when the same points arise again in litigation,” Black’s Law Dictionary 1626 (10th Ed.2014),
and (2) as a general matter, claim preclusion, also termed res judicata, concerns an “issue that has been
definitively settled by judicial decision.” Black’s Law Dictionary at 1504. See 1 Restatement of the Law,
2d, Sections 17, 24 (1982).
Case No. 2019-00766PQ -4- DECISION AND ENTRY
{¶9} The court rejects in part and adopts in part the special master’s R&R of
January 29, 2020. The court holds that Burfitt is entitled to the filing of fee of twenty-five
dollars and any other costs associated with the action that are incurred by him, except
attorney fees. Judgment is rendered in favor of Burfitt. Court costs are assessed
against respondent. The clerk shall serve upon all parties notice of this judgment and
its date of entry upon the journal.
PATRICK M. MCGRATH
Judge
Filed February 18, 2020
Sent to S.C. Reporter 3/6/20