[Cite as State ex rel. Vindicator Printing Co. v. Wolff, 132 Ohio St.3d 481, 2012-Ohio-3328.]




THE STATE EX REL. VINDICATOR PRINTING CO. ET AL. v. WOLFF, JUDGE, ET AL.
                [Cite as State ex rel. Vindicator Printing Co. v. Wolff,
                        132 Ohio St.3d 481, 2012-Ohio-3328.]
Public records—Court documents—Sup.R. 44 and 45—Discovery documents and
          bills of particulars—Attorney fees.
         (No. 2011-0132—Submitted May 22, 2012—Decided July 25, 2012.)
                            IN MANDAMUS and PROHIBITION.
                                  __________________
          Per Curiam.
          {¶ 1} This is an original action by relators, the Vindicator Printing
Company and WFMJ Television, Inc., for a writ of mandamus to compel
respondent, Judge William H. Wolff, sitting by assignment in the Mahoning
County Court of Common Pleas, to release all records that were sealed in State v.
Cafaro, Mahoning Cty. C.P. Nos. 2010 CR 800 and 800A, B, C, D, E, F, G, H,
and I, and a writ of prohibition to compel the judge to vacate his December 21,
2010 and August 24, 2011 decisions in those cases and to prohibit him from
issuing further orders presumptively sealing any documents or records in the
cases.     Because relators have established their entitlement to the requested
extraordinary relief based on the Superintendence Rules, we grant the writs. This
renders moot relators’ remaining claims based on the United States and Ohio
Constitutions, the common law, and R.C. 149.43, the Ohio Public Records Act.
Relators are not entitled to an award of attorney fees, because the
Superintendence Rules do not specifically authorize such an award.
                                            Facts
          {¶ 2} In late July 2010, a Mahoning County grand jury returned a 73-
count indictment charging seven persons, including current and former public
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officials, and three organizations with felony and misdemeanor charges, including
engaging in a pattern of corrupt activity, conspiracy, perjury, bribery, money
laundering, tampering with records, disclosure of confidential information,
conflict of interest, filing a false financial-disclosure statement, and soliciting or
accepting improper compensation. The cases are designated as State v. Cafaro,
Mahoning C.P. Nos. 2010 CR 800 and 800(A) through (I), with the defendants as
follows: 2010 CR 800, Anthony M. Cafaro Sr.; A, the Cafaro Company; B, Ohio
Valley Mall Company; C, the Marion Plaza, Inc.; D, John A. McNally IV; E, John
Reardon; F, Michael V. Sciortino; G, John Zachariah; H, Martin Yavorcik; and I,
Flora Cafaro. Anthony Cafaro is the retired president of the Cafaro Company,
Flora Cafaro is Anthony Cafaro’s sister and a part owner of the Cafaro Company,
Ohio Valley Mall Company and the Marion Plaza, Inc. are affiliates of the Cafaro
Company, McNally is a Mahoning County commissioner, Sciortino is the
Mahoning County auditor, Reardon is the former Mahoning County treasurer,
Zachariah is the former director of the Mahoning County Department of Job and
Family Services, and Yavorcik is an attorney who ran an unsuccessful 2008
campaign for Mahoning County prosecuting attorney. The charges stemmed from
the unsuccessful attempts of Anthony Cafaro and the Cafaro-related entities to
keep the Mahoning County Department of Job and Family Services located at a
site owned by the Ohio Valley Mall Company, operating through Marion Plaza,
Inc., which received rental income from the county while located there.
       {¶ 3} The Cafaro defendants—Anthony M. Cafaro Sr., Flora Cafaro, the
Cafaro Company, Ohio Valley Mall Company, and the Marion Plaza, Inc.—filed
a joint motion for a bill of particulars, and the state filed a notice of intent to
voluntarily comply. After the state provided bills of particulars for defendants
Flora Cafaro and Yavorcik that resulted in local newspaper articles, including one
from the Vindicator, the attorneys for the Cafaro defendants submitted a letter to
respondent, Judge William H. Wolff Jr., who is sitting by assignment in the



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                                    January Term, 2012




underlying criminal cases. In their unfiled letter, the Cafaro defendants requested
that the state be ordered either to produce its bills of particulars 14 days in
advance of filing to afford them the opportunity to apply for relief or to file its
bills of particulars under seal to permit them to move to redact the portions they
challenge. The Cafaro defendants claimed that the presumptive sealing of the
bills of particulars was appropriate because the state’s responses endangered their
ability to receive a fair trial. The state submitted a letter to the judge objecting to
the request. This response was also not filed as a matter of public record.
       {¶ 4} The judge held a private, pretrial proceeding with the parties’
counsel that resulted in a September 9, 2010 decision in which he granted the
defendants’ pending discovery motions. The judge ordered that all filings in the
case “shall be under seal with the exception of filings that are clearly procedural
and cannot possibly implicate Defendants’ concern about receiving a fair trial.”
He also specified that the defendants had 14 days from filing to object to the
state’s filing and that the state had 14 days to respond, with counsel permitted to
request a hearing. Following an editorial that appeared in the Vindicator, the
judge issued a supplemental order on September 14, 2010, in which he further
explained that his “filing under seal protocol” was based on the “significant media
coverage” that the criminal cases had attracted and his obligation “to balance the
right of the defendants to a fair trial and the right of the public to be informed of
these proceedings through the media or through personal examination of the
record.” The judge was concerned with whether “fair and impartial potential
jurors can be found in Mahoning County, i.e., potential jurors without
preconceived notions of how this case should be decided that they cannot set
aside due to pretrial publicity.”
       {¶ 5} Based on the September 9 and 14, 2010 orders, various filings,
including the Cafaro defendants’ joint motion to dismiss the indictment and
memorandum in support, were filed under seal. The Cafaro defendants also filed



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under seal a motion to seal, until after trial, all bills of particulars and notices of
intent to introduce Evid.R. 404(B) “other acts” evidence.
       {¶ 6} In November 2010, relators, the Vindicator Printing Company,
which publishes the Vindicator, a daily newspaper distributed principally in
Mahoning County, and WFMJ Television, Inc., which broadcasts news in
Mahoning County, submitted to the judge and the Mahoning County clerk of
courts requests to inspect and copy filings and documents submitted to the court
in the criminal cases, including those that had been filed under seal. When
relators were not provided with access to some of the requested records, they filed
a motion for an order vacating the September 9 and 14, 2010 sealing orders.
       {¶ 7} On December 6, 2010, the court held a hearing on the Cafaro
defendants’ motion to seal the bills of particulars and notices of intent to
introduce evidence under Evid.R. 404(B) and relators’ motion to vacate the prior
sealing orders. At the hearing, the Cafaro defendants submitted the testimony of
their sole witness, Ohio University journalism professor Hugh J. Martin. Martin
testified that the Vindicator was distributed to about 40 percent of Mahoning
County households for Mondays through Saturdays and to almost 50 percent of
county households on Sundays and that WFMJ claimed to have the most-watched
newscasts in Mahoning County. Martin referred to the Vindicator’s coverage of
the criminal cases as “very tough” on the defendants and “sharply drawn” to
emphasize the allegations against them, but he conceded that he could not say
whether the newspaper statements were true or false.            The defendants had
themselves issued press releases proclaiming their innocence of the charges and a
cable-TV infomercial. Ultimately, Martin testified that he had “no idea” whether
relators’ coverage of the cases prevented the impaneling of an impartial jury or
tainted the jury pool, because that was not his “area of expertise.” He also
conceded that he could not render an opinion on whether opening the proceedings
(i.e., unsealing the records) would impede the impaneling of a jury. One of the



                                          4
                                January Term, 2012




Cafaro defendants’ attorneys admitted that he was not saying that they would be
unable to pick a fair jury if the judge unsealed part of the bill of particulars, but
merely that the jury-selection process would be burdened in the absence of a
sealing order.
       {¶ 8} On December 21, 2010, the judge issued a decision in which he
granted the Cafaro defendants’ motion to seal the bills of particulars that had not
yet been filed as a public record—the bills of particulars for the Cafaro defendants
and Zachariah—as well as any Evid.R. 404(B) notices. He determined that the
bills of particulars and Evid.R. 404(B) notices of other-acts evidence were in the
nature of discovery and were not entitled to any presumption of public access and
that even if they were entitled to a presumption of public access, that presumption
was outweighed by the substantial probability that the defendants’ right to a fair
trial in Mahoning County would be prejudiced. With these exceptions, the judge
also “sustained prospectively” relators’ motion to vacate his September 9 and 14,
2010 sealing orders. But he continued a protocol in which the state would submit
to defense counsel, prior to filing, any document that “can be reasonably expected
to trigger a concern on the part of defense counsel that publication of the
document will prejudice the impaneling of an impartial jury in Mahoning
County,” thus giving the opportunity for the defendants to file a motion to seal,
which would be served on relators’ counsel, but would not be permitted to be
shared with relators. A subsequent e-mail exchange confirmed that the judge’s
intent was that motions to seal and responses to them be filed under seal, with the
court to determine the motions in camera.
       {¶ 9} In January 2011, relators filed this action for a writ of mandamus
to compel the judge to release all records filed with the clerk of courts in the
underlying criminal cases and a writ of prohibition to vacate the December 21,
2010 order, prohibit him from presumptively closing any proceedings or sealing
any documents filed with or otherwise provided to the court, and requiring him to



                                         5
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comply with all requirements of notice, evidentiary hearing, and findings before
sealing any filed documents or records or closing any proceedings in the criminal
cases. The judge submitted an answer, and the Cafaro defendants filed a motion
to intervene as respondents and an answer. We granted the motion to intervene
and an alternative writ and issued a schedule for the submission of evidence and
briefs. 128 Ohio St.3d 1443, 2011-Ohio-1618, 944 N.E.2d 693.
       {¶ 10} After evidence and briefs were submitted, respondents notified this
court that on July 11, 2011, the judge, on motion of the state, dismissed the
indictment in the underlying criminal cases without prejudice, thereby terminating
the prosecution of the cases. According to a later opinion of the judge, the
dismissal was prompted by the refusal of agents of the federal government to
furnish the special prosecutors with materials essential to the special prosecutor’s
duty to provide discovery to the defendants. The respondents filed motions for
leave to file supplemental briefs on postdismissal issues of access to the sealed
records. We granted the motions, and the parties submitted supplemental briefs
on the issue of the effect of the dismissal of the underlying criminal cases on
relators’ mandamus and prohibition claims. 129 Ohio St.3d 1446, 2011-Ohio-
4217, 951 N.E.2d 1044.
       {¶ 11} Relators subsequently filed a motion for leave to file an amended
complaint instanter, which indicated that the following additional events had
occurred in the underlying criminal cases after the parties had submitted evidence
and their initial briefs.   In June 2011, before the judge dismissed without
prejudice the indictment against the defendants, the Cafaro defendants filed—as a
matter of public record—a motion “to dismiss the indictment to enforce non-
prosecution agreement, and due to prosecutorial misconduct and vindictiveness,
with request for an order releasing grand jury transcripts,” with a 106-page
memorandum in support. The memorandum included 45 pages under the heading
“Relevant factual background,” which purported to detail multiple instances of



                                         6
                                 January Term, 2012




prosecutorial misconduct. In response to the motion and consistent with the
court’s protocol, the state filed under seal a memorandum in opposition, which
included a six-page discussion under the heading “Relevant, non-vindictive
facts.”
          {¶ 12} The Cafaro defendants filed under seal a motion to seal the
“relevant, non-vindictive facts” from the state’s memorandum in response to their
motion to dismiss the indictment.        Relators’ and the state’s memoranda in
opposition to the motion to seal and the Cafaro defendants’ motion for leave to
file a reply were also submitted under seal. The parties also filed other unrelated
motions, including a motion for return of property and a motion for an extension
of time to respond under seal. And following the court’s dismissal without
prejudice of the indictment, various defendants, including the Cafaro defendants,
filed under seal motions to seal the record of their cases under R.C. 2953.52.
Responses to the motions were also submitted under seal.
          {¶ 13} On August 24, 2011, without holding any hearing, the judge
unsealed most of the sealed filings but granted the Cafaro defendants’ motion to
seal the six-page factual discussion in the state’s memorandum in opposition to
the Cafaro defendants’ joint motion to dismiss. He based his sealing order on the
following factors: (1) the sealed portion of the state’s memorandum was not used
by the court to decide the Cafaro defendants’ motion, because the motion was
rendered moot by the court’s dismissal upon the state’s motion of the cases on
July 11, 2011, (2) even if the court had been required to rule on the Cafaro
defendants’ motion, the portion of the memorandum at issue would not have
played a part in the court’s decisional process, and (3) like the bills of particulars
that remain sealed by court order, the “relevant, non-vindictive facts” in the
state’s memorandum “would trigger the same fair trial concerns that prompted the
sealing orders in the first place.”




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         {¶ 14} On October 24, 2011, the judge denied the motions of the Cafaro
defendants and defendant Zachariah to seal the records of the dismissed criminal
cases pursuant to R.C. 2953.52. In his decision, he concluded that the legitimate
governmental need to keep the records unsealed due to the ongoing criminal
investigation of the defendants outweighed the defendants’ privacy interests.
         {¶ 15} This cause is now before this court for a consideration of the merits
and of relators’ motions for leave to file an amended complaint, for leave to file a
reply brief in support of their supplemental merit brief, and for a court order
instructing the judge to file an unredacted copy of the state’s memorandum in
response to the Cafaro defendants’ motion to dismiss in the underlying criminal
cases.
                                   Legal Analysis
                       Motion for Leave to Amend Complaint
         {¶ 16} Relators request leave to amend their complaint instanter pursuant
to Civ.R. 15 to address the August 24, 2011 order sealing the factual portion of
the state’s memorandum in opposition to the Cafaro defendants’ motion to
dismiss the indictment and the judge’s continued application of an allegedly
improper protocol resulting in the improper sealing of records.
         {¶ 17} Under S.Ct.Prac.R. 10.2, the “Ohio Rules of Civil Procedure shall
supplement these rules unless clearly inapplicable.” Civ.R. 15(A) and (E), which
govern amendments of and supplements to pleadings, are not clearly inapplicable
to original actions filed in this court.      See generally State ex rel. Essig v.
Blackwell, 103 Ohio St.3d 481, 2004-Ohio-5586, 817 N.E.2d 5, ¶ 16. “Leave of
court shall be freely given when justice so requires.” Civ.R. 15(A). “[T]he
language of Civ.R. 15(A) favors a liberal amendment policy and a motion for
leave to amend should be granted absent a finding of bad faith, undue delay or
undue prejudice to the opposing party.” Hoover v. Sumlin, 12 Ohio St.3d 1, 6,
465 N.E.2d 377 (1984).



                                          8
                               January Term, 2012




        {¶ 18} Moreover, Civ.R. 15(E) permits parties, upon motion and upon
reasonable notice and upon such terms as are just, to “serve a supplemental
pleading setting forth transactions or occurrences or events which have happened
since the date of the pleading sought to be supplemented.” And “in determining
actions involving extraordinary writs, a court is not limited to considering the
facts and circumstances at the time that the writ was requested but can consider
the facts and conditions at the time that entitlement to the writ is considered.”
State ex rel. Howard v. Skow, 102 Ohio St.3d 423, 2004-Ohio-3652, 811 N.E.2d
1128, ¶ 9.
        {¶ 19} Therefore, because relators seek to amend their complaint to plead
events that occurred after their original complaint and the submission of evidence
and the initial merit briefs and because respondents did not file a timely
memorandum in opposition, we grant the motion for leave to amend and consider
the merits of the case based on relators’ amended claims.
                          Relators’ Remaining Motions
        {¶ 20} We need not address the merits of relators’ remaining motions—to
order the judge to file under seal the state’s complete memorandum in response to
the Cafaro defendants’ motion to dismiss and for leave to submit a reply
supplemental brief—because they are rendered moot by our disposition of the
case.
                                   Mandamus
        {¶ 21} Relators request a writ of mandamus to compel the judge to
provide them with access to the records from the underlying criminal cases that
remain sealed pursuant to his challenged sealing orders, i.e., the bills of
particulars for the Cafaro defendants and defendant Zachariah and the portion of




                                        9
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the state’s memorandum in opposition to the Cafaro defendants’ motion to
dismiss the indictment under the heading “Relevant, non-vindictive facts.”1
        {¶ 22} To be entitled to the requested extraordinary relief in mandamus,
relators must establish a clear legal right to access to the sealed records, a
corresponding clear legal duty on the part of the judge to unseal them, and the
lack of an adequate remedy in the ordinary course of law. See State ex rel.
Dreamer v. Mason, 115 Ohio St.3d 190, 2007-Ohio-4789, 874 N.E.2d 510, ¶ 11.
“We have determined the propriety of access restrictions in the context of
extraordinary-writ actions.” State ex rel. Dispatch Printing Co. v. Geer, 114 Ohio
St.3d 511, 2007-Ohio-4643, 873 N.E.2d 314, ¶ 14. Relators claim entitlement to
the sealed records based on the Rules of Superintendence, the Public Records Act,
the United States and Ohio Constitutions, and the common law.
        {¶ 23} We decide this case based on the Rules of Superintendence, which
provide for public access to court records. For the claimed violation of these
rules, 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.” Sup.R. 47(B); see
also Sup.R. 47(A). Sup.R. 44 through 47 became effective on July 1, 2009.
Sup.R. 99(KK).
        {¶ 24} Under Sup.R. 45(A), “[c]ourt records are presumed open to public
access.” “Court record” for purposes of the public-access superintendence rules
“means both a case document and an administrative document, regardless of
physical form or characteristic, manner of creation, or method of storage.” Sup.R.
44(B). Relators assert that the requested records that remain sealed here—bills of
particulars and a statement of facts in the state’s memorandum in opposition to


1. Although the December 21, 2010 order granting the Cafaro defendants’ motion to seal also
sealed Evid.R. 404(B) notices, no such notices were filed under seal, and we consequently need
not determine whether this portion of the judge’s order was appropriate.




                                             10
                                January Term, 2012




the Cafaro defendants’ motion to dismiss the indictment—are entitled to the
presumption of public access in Sup.R. 45(A) because they constitute case
documents, which are defined in Sup.R. 44(C):


               (C)(1)   “Case    document”    means    a     document   and
       information in a document submitted to a court or filed with a clerk
       of court in a judicial action or proceeding, including exhibits,
       pleadings, motions, orders, and judgments, and any documentation
       prepared by the court or clerk in the judicial action or proceeding,
       such as journals, dockets, and indices, subject to the exclusions in
       division (C)(2) of this rule.
               (2) The term “case document” does not include the
       following:
               (a) A document or information in a document exempt from
       disclosure under state, federal, or the common law;
               (b) personal identifiers, as defined in division (H) of this
       rule;
               (c) A document or information in a document to which
       public access has been restricted pursuant to division (E) of Sup.R.
       45[.]


       {¶ 25} In his December 21, 2010 decision sealing the bills of particulars
and his August 24, 2011 decision sealing the factual portion of the state’s
memorandum in response to the Cafaro defendants’ motion to dismiss, the judge
determined that these filed documents were not entitled to presumptive public
access, because they were not used by him to render a decision in the cases.
       {¶ 26} But “[t]o interpret court rules, this court applies general principles
of statutory construction. * * * Therefore, we must read undefined words or



                                        11
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phrases in context and then construe them according to rules of grammar and
common usage.” State ex rel. Law Office of Montgomery Cty. Pub. Defender v.
Rosencrans, 111 Ohio St.3d 338, 2006-Ohio-5793, 856 N.E.2d 250, ¶ 23. “If a
court rule is unambiguous, we apply it as written.” Erwin v. Bryan, 125 Ohio
St.3d 519, 2010-Ohio-2202, 929 N.E.2d 1019, ¶ 22.
       {¶ 27} There is no requirement under the Superintendence Rules that a
record or document must be used by the court in a decision to be entitled to the
presumption of public access specified in Sup.R. 45(A). Instead, to qualify as a
case document that is afforded the presumption of openness for court records, the
document or information contained in a document must merely be “submitted to a
court or filed with a clerk of court in a judicial action or proceeding” and not be
subject to the specified exclusions. Sup.R. 44(C)(1). The bills of particulars and
the factual portion of the state’s memorandum in response to the Cafaro
defendants’ motion to dismiss were manifestly submitted to the common pleas
court and filed with the clerk of court in the criminal cases, and there is no
exception in Sup.R. 44(C) for records not used by a court to render a decision.
Therefore, we cannot read this exception into the plain language of the
Superintendence Rules. See State ex rel. Sapp v. Franklin Cty. Court of Appeals,
118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 26.
       {¶ 28} Respondents also claim that these sealed records are not entitled to
the Sup.R. 45(A) presumption of public access because they are exempt from
disclosure as discovery materials or work product, citing our decision in State ex
rel. WHIO-TV-7 v. Lowe, 77 Ohio St.3d 350, 673 N.E.2d 1360 (1997), to support
their claim. Our holding in Lowe, however, was limited: “Information that a
criminal prosecutor has disclosed to the defendant for discovery purposes
pursuant to Crim.R. 16 is not thereby subject to release as a ‘public record’
pursuant to R.C. 149.43.” Id. at syllabus.




                                        12
                                 January Term, 2012




         {¶ 29} Neither the bills of particulars nor the facts recited in the state’s
memorandum in response to the Cafaro defendants’ motion to dismiss were
“disclosed to the defendant[s] for discovery purposes pursuant to Crim.R. 16.”
And unlike the discovery materials at issue in Lowe, these records were submitted
to and filed with the court.
         {¶ 30} Notwithstanding respondents’ assertions, in Ohio, a “bill of
particulars has a limited purpose—to elucidate or particularize the conduct of the
accused alleged to constitute the offense.” State v. Sellards, 17 Ohio St.3d 169,
171, 478 N.E.2d 781 (1985). Its express purpose is not “to serve as a substitute
for discovery.” Id. See also United States v. Smith, 776 F.2d 1104, 1111-1112
(3d Cir.1985), holding that the First Amendment and common-law rights of
access “extend to bills of particulars because we think them more properly
regarded as supplements to the indictment than as the equivalent of civil
discovery.”
         {¶ 31} Therefore, the sealed bills of particulars are not exempt from
disclosure under state law as either discovery materials or work product. Nor is a
recitation of facts in a response to a dispositive motion in a criminal case the
equivalent of discovery or work product.         Therefore, the sealed records are
entitled to the presumption of access accorded case documents under Sup.R.
45(A).
         {¶ 32} Respondents next claim that any presumptive access under Sup.R.
45(A) has been properly overcome under Sup.R. 45(E), which provides the
procedure for restricting public access to a case document:


                (E) Restricting public access to a case document
                (1) Any party to a judicial action or proceeding or other
         person who is the subject of information in a case document may,
         by written motion to the court, request that the court restrict public



                                          13
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       access to the information or, if necessary, the entire document.
       Additionally, the court may restrict public access to the
       information in the case document or, if necessary, the entire
       document upon its own order. The court shall give notice of the
       motion or order to all parties in the case. The court may schedule a
       hearing on the motion.
                 (2) A court shall restrict public access to information in a
       case document or, if necessary, the entire document, if it finds by
       clear and convincing evidence that the presumption of allowing
       public access is outweighed by a higher interest after considering
       each of the following:
                 (a) Whether public policy is served by restricting public
       access;
                 (b) Whether any state, federal, or common law exempts the
       document or information from public access;
                 (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.


       {¶ 33} Respondents claim that any presumptive right of access to the
sealed bills of particulars and the statement of facts in the state’s response to the
motion to dismiss the indictment was outweighed under Sup.R. 45(E)(2)(c) by
clear and convincing evidence that the “fairness of the adjudicatory process”
would be compromised by public access to these records, i.e., unsealing these
records would substantially prejudice the defendants’ right to a fair trial.
       {¶ 34} Respondent’s claim lacks merit.           There was not clear and
convincing evidence to establish that the prejudicial effect of pretrial publicity



                                          14
                                January Term, 2012




generated by public access to the bills of particulars and the recitation of facts in
the state’s memorandum in response to the Cafaro defendants’ motion to dismiss
the indictment would prevent them from receiving a fair trial.          The Cafaro
defendants’ lone witness at the December 6, 2010 hearing, Ohio University
journalism professor Martin, admitted that he had “no idea” whether relators’
coverage of the criminal cases would prevent the impaneling of an impartial jury,
and although he referred to the coverage as “tough” on the defendants, he could
not say whether the reporting was true or false. The judge thus overstated the
prejudicial impact of the pretrial publicity.        “ ‘[P]retrial publicity—even
pervasive, adverse publicity—does not inevitably lead to an unfair trial.’ ” State
v. Coley, 93 Ohio St.3d 253, 258, 754 N.E.2d 1129 (2001), quoting Nebraska
Press Assn. v. Stuart, 427 U.S. 539, 554, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976).
In effect, in the absence of clear and convincing evidence establishing that the
defendants’ right to a fair trial would be violated, the judge erroneously relied on
conclusory, speculative assertions. See State ex rel. Toledo Blade Co. v. Henry
Cty. Court of Common Pleas, 125 Ohio St.3d 149, 2010-Ohio-1533, 926 N.E.2d
634, ¶ 39. In the order sealing the factual portion of the state’s memorandum in
response, he did not cite any additional evidence to support the sealing of the
record. Rather, he merely stated that this portion of the memorandum was the
“functional equivalent” of a bill of particulars, which, as discussed, should be
presumptively open to the public.
       {¶ 35} Moreover, the constitutional right of the defendants to a fair trial
can be protected by the traditional methods of voir dire, continuances, changes of
venue, jury instructions, or sequestration of the jury. Consequently, the sealing
orders were improper. Id. at ¶ 40-42.
       {¶ 36} Finally, the Cafaro defendants claim that after the judge dismissed
the criminal cases upon the state’s motion, their postdismissal privacy interests
outweighed the presumption of public access to the sealed records. Not so. As



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the judge concluded in denying the Cafaro defendants’ postdismissal motion to
seal the entire record in the criminal cases:


               Again, the question for the court is whether this legitimate
       governmental need [of not restricting the ongoing criminal
       investigation] outweighs these defendants' privacy interests. The
       court concludes that it does.
               As a practical matter, the defendants would gain little, if
       anything, from a sealing order. Except for the documents the court
       has kept under seal, the entire court record in this case is in the
       public domain. Counsel for the Vindicator and WFMJ-TV has
       represented that the Vindicator has created its own record of
       everything not under seal, and there would be no restriction upon
       its use of what it has mined, even if the court were to enter a
       sealing order. Further, information about this case is available on
       the internet. In short, a sealing order would do little, if anything, to
       protect the privacy of the defendants.
               Accordingly, in “balancing the public and private
       interests,” the privacy interests of the defendants are outweighed
       by a legitimate governmental need to keep the records unsealed.


(Citations omitted.)
       {¶ 37} Thus, relators have established that the presumption of public
access has not been overcome by the requisite clear and convincing evidence of a
higher interest and that the public is entitled to access to the sealed records under
the Superintendence Rules. Therefore, relators are entitled to a writ of mandamus
to compel the judge to unseal and provide access to the bills of particulars and the




                                          16
                                January Term, 2012




facts in the state’s memorandum in response to the Cafaro defendants’ motion to
dismiss the indictment.
                                     Prohibition
       {¶ 38} Relators also seek a writ of prohibition to vacate the December 21,
2010 and August 24, 2011 decisions and to prohibit the judge from presumptively
sealing any records in the cases. Because the sealing orders were never lifted, this
claim is not moot. Compare State ex rel. Cincinnati Enquirer v. Heath, 121 Ohio
St.3d 165, 2009-Ohio-590, 902 N.E.2d 976, ¶ 11-14 (court held that sealing order
that had been lifted did not moot mandamus claim because it was capable of
repetition, yet evading review).
       {¶ 39} Based on the previous discussion concerning relators’ mandamus
claim, they have also established their entitlement to the requested writ of
prohibition. The Cafaro defendants did not submit clear and convincing evidence
to support the court’s sealing orders and sealing protocol presumptively sealing
records, including motions to seal and memoranda in opposition, based on a
claimed infringement on the defendants’ constitutional right to a fair trial.
       {¶ 40} Therefore, relators’ prohibition claim has merit.
              Constitutional, Common-Law, and R.C. 149.43 Claims
       {¶ 41} Relators also claim entitlement to the requested extraordinary relief
based on the United States and Ohio Constitutions, the common law, and R.C.
149.43. We have recognized constitutional and common-law rights to certain
judicial records. See State ex rel. Cincinnati Enquirer v. Winkler, 101 Ohio St.3d
382, 2004-Ohio-1581, 805 N.E.2d 1094, ¶ 8; State ex rel. Scripps Howard
Broadcasting Co. v. Cuyahoga Cty. Court of Common Pleas, Juvenile Div., 73
Ohio St.3d 19, 22, 652 N.E.2d 179 (1995). We have also recognized the propriety
of claims for court records under R.C. 149.43. See State ex rel. Striker v. Smith,
129 Ohio St.3d 168, 2011-Ohio-2878, 950 N.E.2d 952, ¶ 21.




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                              SUPREME COURT OF OHIO




       {¶ 42} Nevertheless, because relators have established their entitlement to
the requested extraordinary relief on the Superintendence Rules, we need not
address other bases for relators’ claims for records, which are rendered moot. See
State ex rel. Am. Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty. Bd. of
Commrs., 128 Ohio St.3d 256, 2011-Ohio-625, 943 N.E.2d 553, ¶ 55. “This
result is consistent with our well-settled precedent that we will not indulge in
advisory opinions.” State ex rel. Keyes v. Ohio Pub. Emps. Retirement Sys., 123
Ohio St.3d 29, 2009-Ohio-4052, 913 N.E.2d 972, ¶ 29.
                                       Attorney Fees
       {¶ 43} Relators request an award of attorney fees. But Sup.R. 44 through
47 do not authorize an award of attorney fees to a successful litigant contesting a
court’s denial of access to court records. See Sup.R. 47, which does not include
an award of attorney fees as a remedy for a person aggrieved by the failure of a
court or clerk of court to comply with Sup.R. 44 through 47. Thus, we deny
relators’ request for attorney fees.
                                       Conclusion
       {¶ 44} In sum, relators have established their entitlement to the requested
extraordinary relief. We grant a writ of mandamus to compel the judge to unseal
and provide access to the bills of particulars and the factual portion of the state’s
memorandum in opposition to the Cafaro defendants’ motion to dismiss the
indictment. We also grant a writ of prohibition to compel the judge to vacate his
prior sealing orders and to prevent him from issuing further orders presumptively
sealing records in the criminal cases. Relators’ request for attorney fees is denied.
                                                                      Writs granted.
       O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
                               __________________




                                            18
                              January Term, 2012




       Zeiger, Tigges & Little, L.L.P., Marion H. Little Jr., and Christopher J.
Hogan, for relators.
       Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and
Carley J. Ingram, Assistant Prosecuting Attorney, for respondent, Judge William
H. Wolff.
       Law Office of Martin G. Weinberg, P.C., and Martin G. Weinberg, for
intervening respondent Anthony M. Cafaro Sr.
       Walter & Haverfield, L.L.P., Ralph E. Cascarilla, Darrell A. Clay, and
Leslie G. Wolfe, for intervening respondent the Cafaro Company.
       McLaughlin & McCaffrey, L.L.P., John F. McCaffrey, and Anthony R.
Petruzzi, for intervening respondents Ohio Valley Mall Company and Marion
Plaza, Inc.
       Johnson, Bruzzese & Temple and J. Alan Johnson, for intervening
respondent Flora Cafaro.
       Lucy A. Dalglish, urging granting of the writs for amicus curiae, the
Reporters Committee for Freedom of the Press.
                           ______________________




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