[Cite as S.C. v. T.H., 2020-Ohio-2698.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

S. C.                                                 C.A. No.       29594

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
T. H.                                                 AKRON MUNICIPAL COURT
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   19 CVG 07174

                                  DECISION AND JOURNAL ENTRY

Dated: April 29, 2020



        HENSAL, Judge.

        {¶1}     Appellant, T.H., appeals from the judgment of the Akron Municipal Court, denying

her motion to restrict public access to the records of an eviction proceeding. This Court reverses

and remands the matter for further proceedings consistent with this decision.

                                                 I.

        {¶2}     T.H.’s landlord filed an eviction action against her in the Akron Municipal Court.

Less than one month later, the trial court dismissed the case based upon the unauthorized practice

of law because the complaint had been signed by a non-attorney other than the landlord, who was

not represented by counsel. After the trial court dismissed the case, T.H. filed a motion under Rule

45(E) of the Rules of Superintendence for the Courts of Ohio, requesting an order restricting public

access to the court record or, in the alternative, redacting all identifying information. T.H.

indicated that the motion and accompanying affidavit should be sufficient for the trial court to

resolve the matter without a hearing. Nevertheless, she requested a hearing in the event that the
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trial court was inclined to deny her motion, or if the trial court wanted additional argument or

evidence in support of her motion. The landlord did not respond in opposition. The trial court

summarily denied T.H.’s motion without a hearing, and without explaining the basis for its

decision. T.H. now appeals, raising two assignments of error for this Court’s review.

                                                 II.

                                   ASSIGNMENT OF ERROR I

       THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION WHEN IT
       FAILED TO GRANT APPELLANT’S OHIO SUPERINTENDENCE RULE
       45(E) MOTION TO SEAL OR REDACT THE CIVIL COURT EVICTION
       FILING RECORD THAT HAD BEEN CREATED AGAINST HER IN
       VIOLATION OF PUBLIC POLICY.

       {¶3}    In her first assignment of error, T.H. argues that the trial court erred by denying her

motion to restrict public access to or redact the record of the eviction case. For the reasons that

follow, we reverse and remand this case for further proceedings.

       {¶4}    As an initial matter, we note that T.H. argued below – and argues again on appeal

– that public access to the contents of the eviction case should be restricted under Sup.R. 45(E).

She did not argue that the case record should be sealed or expunged on any other basis. See

generally Schussheim v. Schussheim, 137 Ohio St.3d 133, 2013-Ohio-4529, ¶ 14 (addressing a

court’s inherent authority to expunge or seal records under certain circumstances). Our discussion

is limited accordingly.

       {¶5}    “Through decisional law, the Supreme Court has indicated that the Rules of

Superintendence are not designed to alter basic substantive rights.” In re K.G., 9th Dist. Wayne

No. 10CA0016, 2010-Ohio-4399, ¶ 11, citing State v. Singer, 50 Ohio St.2d 103, 110 (1977).

“Further, the Rules of Superintendence ‘do not have the same legal standing’ as the rules of

practice and procedure, which must be presented to the legislature and have the effect of law.” In
                                                 3


re Z.H., 9th Dist. Summit No. 26844, 2013-Ohio-3904, ¶ 16, quoting State v. Smith, 47 Ohio

App.2d 317, 328, (8th Dist.1976) (Krenzler, C.J., concurring). Instead, they “are purely internal

housekeeping rules which are of concern to the judges of the several courts but create no rights in

individual defendants.” State v. Tamburin, 145 Ohio App.3d 774, 779 (9th Dist.2001), quoting

State v. Gettys, 49 Ohio App.2d 241, 243 (3d Dist.1976). “Alleged violations of the Rules of

Superintendence are not a basis for reversal.” Myers v. Wade, 10th Dist. Franklin No. 16AP-667,

2017-Ohio-8833, ¶ 22; Allen v. Allen, 11th Dist. Trumbull No. 2009-T-0070, 2010-Ohio-475, ¶ 31

(stating same). With that background in mind, we now turn to the Rules at issue in this appeal.

       {¶6}    Sup.R. 45 governs public access to court records. As the Ohio Supreme Court has

explained, “the Rules of Superintendence regarding public access to court records should enjoy a

broad judicial construction in favor of access to records, which promotes openness, transparency

of process, and accountability. Sup.R. 45, like R.C. 149.43, embraces the principle that the people

have a right to know what their government is doing.” State ex rel. Cincinnati Enquirer v. Lyons,

140 Ohio St.3d 7, 2014-Ohio-2354, ¶ 14. Accordingly, “[c]ourt records are presumed open to

public access.” Sup.R. 45(A).

       {¶7}    Sup.R. 45(E), under which T.H. filed her motion, governs restricting public access

to a case document. It provides, in part, that “[a]ny party to a judicial action or proceeding * * *

may, by written motion to the court, request that the court restrict public access to the information

or, if necessary, the entire document.” Sup.R. 45(E)(1). If a court finds “by clear and convincing

evidence that the presumption of allowing public access is outweighed by a higher interest[,]” then

it “shall restrict public access to information in a case document or, if necessary, the entire

document[.]” Sup.R. 45(E)(2). In reaching that decision, a court must consider:

       (a) Whether public policy is served by restricting public access;
                                                  4


       (b) Whether any state, federal, or common law exempts the document or
       information from public access; [and]

       (c) Whether factors that support restriction of public access exist, including risk of
       injury to persons, individual privacy rights and interests, proprietary business
       information, public safety, and fairness of the adjudicatory process.

Id.

       {¶8}    The initial question this Court must address is whether a direct appeal is the

appropriate procedural remedy when a trial court denies a person’s motion under Sup.R. 45(E).

Sup.R. 47(B) governs the “Denial of Public Access—Remedy[,]” providing that “[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[.]” Courts have consistently applied this Rule to

situations wherein a person has sought and been denied access to court records. See, e.g., State v.

L.F., 12th Dist. Clermont No. CA2019-02-017, 2020-Ohio-968, ¶ 18 (“[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. Licking No.

18-CA-45, 2019-Ohio-1785, ¶ 106, citing Sup.R. 47(B) (“[W]hile [the appellant] may wish to

challenge the trial court’s decision to restrict access to court records, he cannot do so on direct

appeal to this court. Instead, [the appellant] must file an original action in mandamus challenging

the trial court’s restriction of access to court records.”). T.H. did not seek, nor was denied, access

to court records as contemplated under Sup.R. 47(B). Instead, she sought and was denied an order

restricting access to or redacting the eviction case records. This Court is aware of no case law

requiring a person like T.H., who has sought and been denied an order restricting access to or

redacting court records under Sup.R. 45(E), to pursue an action in mandamus under Sup.R. 47(B).

Nor is this Court aware of any case law addressing the situation presented in this appeal, that is, a

direct appeal of a trial court’s denial of a person’s motion under Sup.R. 45(E) to have court records
                                                  5


redacted or access to them restricted.1 Nonetheless, this Court concludes that a direct appeal, not

an action in mandamus, was the proper procedural remedy in this case. This conclusion is

supported by the fact that a denial of a request to restrict public access, as opposed to a denial of a

request for public access, contains a discretionary component, rendering an action in mandamus

an inappropriate remedy. State ex rel. Rashada v. Pianka, 112 Ohio St.3d 44, 2006-Ohio-6366, ¶

3 (stating that “mandamus will not lie to control judicial discretion”); see Sup.R. 45(E); Sup.R.

47(B). It is further supported by the fact that “a writ of mandamus cannot be granted unless a clear

legal right thereto has been shown,” and case law indicating that the Rules do not create substantive

rights, nor can they serve as a basis reversal. State ex rel. Aluminum Co. of America v. Stebbins,

40 Ohio St.2d 52, 54 (1974); Tamburin, 145 Ohio App.3d at 779, quoting Gettys, 49 Ohio App.2d

at 243 (stating that the Rules “create no rights in individual defendants.”); Wade, 2017-Ohio-8833,

at ¶ 22 (“Alleged violations of the Rules of Superintendence are not a basis for reversal.”); compare

Sup.R. 47(B) (specifically providing that an action in mandamus is the appropriate remedy for a

“[d]enial of public access[.]”).

       {¶9}    In her motion to the trial court, T.H. argued that the presumption of public access

was outweighed by a higher interest. She asserted that, since the eviction complaint was dismissed

based upon the unauthorized practice of law, the complaint was a nullity. As a result, she argued,

public policy would be best served by removing the eviction action from her record since the mere

filing of an eviction action could cause a prospective landlord to refuse to rent to her, or could


1
  While the Tenth District accepted an appeal of a court’s denial of a motion to restrict public
access to case documents from a 1996 case pursuant to Sup.R. 45(E), it resolved that appeal on the
basis that Sup.R. 45 was inapplicable because it only applies to cases commenced after its July 1,
2009 effective date. Dlesk v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 14AP-16,
2014-Ohio-2794, ¶ 6.
                                                   6


subject her to higher and/or additional housing-related costs. She also argued that redacting or

restricting access to the record would preserve her privacy rights and interests. T.H. makes the

same arguments on appeal.

        {¶10} As previously noted, the trial court summarily denied T.H.’s motion without

explaining its reasoning. While the Rules of Superintendence do not require a trial court to explain

its reasoning, the lack of any explanation as to the trial court’s reasoning in this case puts this Court

in the position of having to determine the merits of T.H.’s arguments in the first instance, which

this Court will not do. Catalanotto v. Byrd, 9th Dist. Summit No. 27824, 2016-Ohio-2815, ¶ 12

(“Due to our role as a reviewing court, we cannot make a determination regarding the merits of an

argument in the first instance.”); see Mourton v. Finn, 9th Dist. Summit No. 26100, 2012-Ohio-

3341, ¶ 9 (addressing a summary-judgment order and stating that a bare-bones judgment entry

turns the reviewing court into the trial court on appeal). Although the trial court’s denial of her

motion clearly indicates that it rejected her arguments, it is unclear on what basis it did so. As a

result, T.H. essentially made the same arguments on appeal. Assuming a remedy exists for the

trial court’s denial of her motion, this Court finds it necessary to remand the matter for the trial

court to explain its reasoning for denying her motion. T.H.’s first assignment of error is sustained

on that basis.

                                   ASSIGNMENT OF ERROR II

        THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION WHEN IT
        FAILED TO GRANT APPELLANT’S REQUEST FOR A HEARING ON HER
        OHIO SUPERINTENDENCE RULE 45(E) MOTION TO SEAL OR REDACT
        THE CIVIL COURT EVICTION FILING RECORD THAT HAD BEEN
        CREATED AGAINST HER IN VIOLATION OF PUBLIC POLICY.

        {¶11} In her second assignment of error, T.H. argues that the trial court erred by denying

her motion to restrict public access to the eviction records without first holding a hearing. In light
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of this Court’s resolution of T.H.’s first assignment of error, this assignment of error is now

premature, and we decline to address it on that basis.

                                                III.

       {¶12} T.H.’s first assignment of error is sustained. Her second assignment of error is

premature, and we decline to address it on that basis. The judgment of the Akron Municipal Court

is reversed, and the matter is remanded for further proceedings consistent with this decision.

                                                                               Judgment reversed,
                                                                              and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Akron Municipal

Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT
                                                 8



CARR, J.
CONCURS.

CALLAHAN, P. J.
DISSENTING.

       {¶13} Because a direct appeal is not the appropriate remedy under Sup.R. 47(B) and

Sup.R. 45, I would not reach the merits of this appeal, and I respectfully dissent.

       {¶14} As the lead opinion acknowledges, there are no cases that address the procedural

issue raised in this appeal. The plain language of Sup.R. 47(B), however, provides the appropriate

framework. Under Sup.R. 47(B), mandamus is “the appropriate remedy” to enforce Sup.R. 45.

See State ex rel. Lyons v. Cincinnati Enquirer, 140 Ohio St.3d 7, 2014-Ohio-2354, ¶ 11. See also

N.L. v. A.M., 6th Dist. Lucas No. L-10-1307, 2010-Ohio-5834, ¶ 8; State v. Helfrich, 5th Dist.

Licking No. 18-CA-45, 2019-Ohio-1785, ¶ 105-106. But see Woyt v. Woyt, 8th Dist. Cuyahoga

Nos. 107312, 107321, 107322, 2019-Ohio-3758, ¶ 58-69 (considering a decision to restrict public

access to divorce proceedings in the context of a direct appeal from the decree without addressing

the requirements of Sup.R. 47(B)). Each of these cases addresses a scenario in which the trial

court granted a motion to restrict public access to the contents of a case record. Regardless of

whether the order at issue grants or denies a motion under Sup.R. 45(E), however, the remedy

should be the same.

       {¶15} Sup.R. 47(B) provides that “[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.” The plain language of this rule

encompasses all of Sup.R. 45, including the procedure for limiting public access described by

Sup.R. 45(E). The procedures described by the Ohio Public Records Act are not comparable

because R.C. 149.43 specifies records that are exempt from disclosure without providing a means
                                                 9


of restricting public access to other records. See R.C. 149.43(A) (defining “public records” and

providing a comprehensive list of records that do not fall within that definition). Because R.C.

149.43 does not include a procedure for restricting public access to records that fall outside of the

exceptions listed in R.C. 149.43(A)(1)(a)-(mm), the remedies provided by R.C. 149.43(C) are

limited to denials of access. See R.C. 149.43(C)(1)(a)-(b) (providing that a person aggrieved by a

failure to provide access to a public record may either file a complaint in the court of common

pleas or the court of claims or commence a mandamus action). The plain terms of Sup.R. 47(B)

provide no such limitation.

       {¶16} As the majority notes, a writ of mandamus will not generally issue to compel a

discretionary act. There are exceptions, however. See, e.g., State ex rel. Tritt v. State Emp.

Relations Bd., 97 Ohio St.3d 280, 2002-Ohio-6437, ¶ 6; State ex rel. Martin v. City of Columbus,

Dept. of Health, 58 Ohio St.2d 261 (1979), paragraphs one and two of the syllabus. In this respect,

it is notable that a court’s public-records function under Sup.R. 45 is distinguishable from its

exercise of discretion over the merits of cases before it. Compare State ex rel. Rashada v. Pianka,

112 Ohio St.3d 44, 2006-Ohio-6366 (concluding that mandamus would not issue to compel a

specific judgment on the merits of a counterclaim).

       {¶17} The appropriate recourse for T.H. to pursue in light of the trial court’s action is not

a direct appeal, but an action in mandamus pursuant to Sup.R. 47(B). Consequently, I respectfully

dissent from the majority’s decision.


APPEARANCES:

GREGORY R. SAIN, Attorney at Law, for Appellant.

S. C. pro se, Appellee.
