        [Cite as State ex rel. Cincinnati Enquirer v. Hunter, 2013-Ohio-4459.]
                IN THE COURT OF APPEALS
            FIRST APPELLATE DISTRICT OF OHIO
                 HAMILTON COUNTY, OHIO



STATE OF OHIO, EX REL. THE                        :          APPEAL NO. C-130072
CINCINNATI ENQUIRER,
                                                  :
                    Relator,                                       O P I N I O N.
                                                  :
  vs.
                                                  :
HON. TRACIE M. HUNTER, JUDGE,
HAMILTON COUNTY JUVENILE                          :
COURT,

                    Respondent.                   :




Original Action in Mandamus

Judgment of the Court: Writ Granted

Date of Judgment Entry: October 9, 2013




Graydon Head & Ritchey, LLP, and John C. Greiner, for Relator,

McKinney & Namei Co., LPA, Farooz T. Namei and James F. Bogen, for
Respondent.
                     OHIO FIRST DISTRICT COURT OF APPEALS




D INKELACKER , Judge.

       {¶1}    In this original action, relator State ex rel. The Cincinnati Enquirer

has petitioned for a writ of mandamus to compel respondent Hon. Tracie M. Hunter,

in her capacity as a judge of Hamilton County Juvenile Court, to provide certain

court records under Sup.R. 44 through 47. We agree that Judge Hunter should have

turned over the records, and we, therefore, grant the writ.

       {¶2}    On December 13, 2012, Kimball Perry, an Enquirer reporter, sent a letter

to John Callum, Chief Deputy Clerk of Hamilton County Juvenile Court, requesting

records under R.C. 149.43, Ohio’s Public Records Act. It stated, “We seek to inspect and

review the court docket or other documents that show the cases Hamilton County

Juvenile Court Judge Tracie Hunter has presided over for Dec. 1-31 of this year.”

       {¶3}    On January 8, 2013, Curtis Kissinger, the juvenile court administrator,

sent an email to the Enquirer, to which he had attached Judge Hunter’s docket for

December 2012. But the documents he provided did not contain the names of the

juveniles appearing before Judge Hunter. They were redacted to provide only their

initials. Kissinger stated in his email that the redactions were made “[i]n accordance

with an opinion from the Prosecuting Attorney.” Kissinger copied this email to Judge

Hunter.

       {¶4}    In response, Perry asked for references explaining why the court had

failed to provide the juveniles’ names. In his response, in which he also copied Judge

Hunter, Kissinger reiterated that the substitution of the initials for the names of

juveniles was done “in accordance with the advice provided by the Prosecuting

Attorney.” He cited as support for his position Sup.R. 44 through 47, Juv.R. 37(B) and

some decisions of the Ohio and the United States Supreme Courts.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶5}     Subsequently, the Enquirer’s counsel sent an email to Kissinger

requesting that the court provide “unredacted dockets for delinquency proceedings

promptly.” Kissinger replied that “[b]ased on counsel’s advice, we remain of the opinion

that the docket, with redactions, produced to Mr. Perry on January 8, 2013, properly

complied with his request and thereby satisfies the Court’s production obligation under

R.C. 149.43.”

       {¶6}     The Enquirer filed a complaint asking this court to issue a writ of

mandamus to compel production of Judge Hunter’s court docket for the month of

December 2012 showing the full names of the juveniles involved in delinquency

proceedings. Judge Hunter filed a motion to dismiss the complaint, which this court

overruled. Subsequently, she filed a motion for summary judgment, in which she

argued that neither the Rules of Superintendence nor the Juvenile Rules compelled her

to produce the names. To the contrary, she claimed, those rules limit public access to

juvenile records to protect the juveniles’ confidentiality.

       {¶7}     To be entitled to a writ of mandamus, the relator must show (1) that it

possesses a clear legal right to the relief sought, (2) that the respondents are under a

clear legal duty to perform the requested act, and (3) that the relator has no plain and

adequate remedy at law. State ex rel. Natl. Broadcasting Co., Inc. v. Cleveland, 38 Ohio

St.3d 79, 80, 526 N.E.2d 786 (1988); Davis v. Cincinnati Enquirer, 164 Ohio App.3d 36,

2005-Ohio-5719, 840 N.E.2d 1150, ¶ 18 (1st Dist.). The civil rules apply to mandamus

actions originating in the court of appeals.       State ex rel. Jones v. Vivo, 7th Dist.

Mahoning No. 00 CA 273, 2001 Ohio App. LEXIS 3645, *3 (June 27, 2001); State ex rel.

Millington v. Weir, 60 Ohio App.2d 348, 349, 397 N.E.2d 770 (10th Dist.1978).

Summary judgment is appropriate if (1) no genuine issue of material fact exists for

trial, (2) the moving party is entitled to judgment as a matter of law, and (3)




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reasonable minds can come to but one conclusion and that conclusion is adverse to

the nonmoving party, who is entitled to have the evidence construed most strongly in

his or her favor. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d

267 (1977); Greene v. Whiteside, 181 Ohio App.3d 253, 2009-Ohio-741, 908 N.E.2d

975, ¶ 23 (1st Dist.).

       {¶8}     The Rules of Superintendence provide for public access to court

records. State ex rel. Vindicator Printing Co. v. Wolff, 132 Ohio St.3d 481, 2012-

Ohio-3328, 974 N.E.2d 89, ¶ 23. A person aggrieved by a court’s failure to comply

with the requirements of Sup.R. 44 through 47 may pursue an action in mandamus

under R.C. Chapter 2731. Sup.R. 47(B); State ex rel. Culgan v. Collier, 135 Ohio

St.3d 436, 2013-Ohio-1762, 988 N.E.2d 564, ¶ 9.

       {¶9}      Specifically, Sup.R. 45(A) states that “[c]ourt records are presumed

open to public access.” A “[c]ourt record” 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). “Case document” means “a document

and information in a document admitted to a court or filed with a clerk of court in a

judicial action or proceeding, * * * and any documentation prepared by the court or

clerk in the judicial action or proceeding, such as journals, dockets, and indices[.]”

       {¶10}    A “case document” does not include “a document or information in a

document to which public access has been restricted pursuant to division (E) of

Sup.R. 45[.]” Sup.R. 44(C)(2)(c). Under Sup.R. 45(E)(2), a court shall restrict public

access to a case document, including using initials for the parties’ proper names, “if it

finds by clear and convincing evidence that the presumption of allowing public

access is outweighed by a higher interest[.]” In making this finding, the court should

consider (1) whether public policy is served by restricting public access; (2) whether



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any state, federal, or common law exempts the document or information from public

access; and (3) 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. Sup.R. 45(E)(2)(a)-(c).

       {¶11}   Judge Hunter has failed to present clear and convincing evidence that

the presumption of allowing public access is outweighed by a higher interest. Judge

Hunter relies on Juv.R. 37, but the provisions of Juv.R. 37 do not conflict with Sup.R.

44 through 47. The Enquirer sought only records related to delinquency cases. It

specifically did not seek any records of dependency, neglect or abuse cases. In those

types of cases, the names of the juveniles are not “case documents” within the

meaning of Sup.R. 44 and 45; they are completely confidential. Sup.R. 44(C)(2) and

(H). See State ex rel. Plain Dealer v. Geauga Cty. Court of Common Pleas, 90 Ohio

St.3d 79, 83, 734 N.E.2d 1214 (2000).

       {¶12}   The Rules of Superintendence do not state that a court may substitute

initials for the names of juveniles in delinquency cases. If the Supreme Court had

wanted to provide for the same type of confidentiality in delinquency cases, it could

have done so, but it did not. “[T]he express inclusion of one thing implies the

exclusion of the other.” Myers v. Toledo, 110 Ohio St.3d 218, 2006-Ohio-4353, 852

N.E.2d 1176, ¶ 24.

       {¶13}   Interpreting Juv.R. 37, the Ohio Supreme Court has stated that the

need for confidentiality is less compelling in delinquency cases than in cases

involving abused, dependent or neglected children.         Consequently, delinquency

proceedings are neither presumed open nor closed. Id. at 84-85. Judge Hunter sets

forth only a blanket claim of the need for confidentiality in juvenile cases rather than



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                      OHIO FIRST DISTRICT COURT OF APPEALS



any specific need for confidentiality in the case documents sought by the Enquirer.

That blanket claim is not sufficient to overcome the presumption in favor of open

access to court records in Sup.R. 44(A).

       {¶14}    Judge Hunter also relies upon newly-enacted Juv.R. 5 as support for

the proposition that a juvenile court may substitute initials for names on court

dockets. Juv.R. 5(A) provides that “[i]n a juvenile court decision submitted for

publication, the names of all juveniles shall be replaced with the initials in the

caption and body of the published decision. In any press release or other public

presentation of information from a juvenile court, the names of any juvenile shall be

replaced with initials.”

       {¶15}    Judge Hunter’s argument ignores the provisions of Juv.R. 5(B). It

states that “[J]uvenile courts may enact local rules for the use of juveniles’ initials in

juvenile court documents.       In the absence of a local rule, all juvenile court

proceedings and other documents filed in any juvenile court shall use the full names

of juveniles rather than their initials.” No local rule allowing for the substitution of

initials for names in delinquency proceedings has been enacted. Therefore, under

the express language of Juv.R. 5(B), the juvenile’s full name must be used.

       {¶16}    Finally, Judge Hunter contends that the Rules of Superintendence are

purely housekeeping rules that create no substantive rights in the individual

litigants. See Seymour v. Hampton, 4th Dist. Pike No. 11CA821, 2012-Ohio-5053, ¶

29; State v. Sanders, 1st Dist. Hamilton No. C-980154, 1999 Ohio App. LEXIS 1182,

*9 (March 26, 1999); State v. Gettys, 49 Ohio App.2d 241, 243, 360 N.E.2d 735 (3d

Dist.1976). “They are not the equivalent of rules of procedure and have no force

equivalent to a statute.” Seymour at ¶ 29, quoting Gettys at 243.




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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶17}   As a general rule, we agree. Nevertheless, the superintendence rules

were adopted by the Supreme Court of Ohio under the general superintendence

power conferred upon the court by Article IV, Section 5(A)(1) of the Ohio

Constitution. Sup.R. 1(B); State v. McAdory, 9th Dist. Summit No. 21454, 2004-

Ohio-1234, ¶ 36. They apply to all courts in Ohio, and they are binding on those

courts as long as they do not conflict with a statute or procedural rule. Sup.R. 1(A);

McAdory at ¶ 36; Justice v. Columbus, 10th Dist. Franklin No. 91AP-675, 1991 Ohio

App. LEXIS 5488, *5-6 (Nov. 14, 1991). Thus, the superintendence rules are binding

on Judge Hunter as a juvenile court judge.

       {¶18}   Further, Sup.R. 44 through 47 became effective on July 1, 2009.

Vindicator, 132 Ohio St.3d 481, 2012-Ohio-3328, 974 N.E.2d 89, at ¶ 23. Very

recently, the Ohio Supreme Court stated that “while the Rules of Superintendence

provide important guidelines for ensuring expeditious resolution of cases in the trial

courts, they give litigants an enforceable right in mandamus only in specified

circumstances, and those circumstances do not exist here.” Culgan, 135 Ohio St.3d

436, 2013-Ohio-1762, 988 N.E.2d 564, at ¶ 8. The court then cited Sup.R. 47, noting

that it gave an aggrieved party a right to a writ of mandamus for violations of Sup.R.

44 through 47, not Sup.R. 40, which the relator had relied upon in that case. Id. at ¶

9.

       {¶19}   In Vindicator, the relators, a printing company and a television

station, filed a complaint for a writ of mandamus compelling a common pleas court

judge to release court records in a criminal case and for a writ of prohibition

preventing the judge from enforcing orders sealing the record in that case. The

Supreme Court held that “[b]ecause relators have established their entitlement to the

requested extraordinary relief based on the Superintendence Rules, we grant the



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                     OHIO FIRST DISTRICT COURT OF APPEALS



writs. This renders moot relators’ remaining claims based on the United States

Constitutions, the common law, and R.C. 149.43, the Ohio Public Records Act.”

Vindicator, 132 Ohio St.3d 481, 2012-Ohio-3328, 974 N.E.2d 89, at ¶ 1. It stated,

“This result is consistent with our well-settled precedent that we will not indulge in

advisory opinions.” Id. at ¶ 42.

       {¶20}   Thus, Sup.R. 44 through 47 justify the granting of a writ of a

mandamus for a violation of those rules and we need not address any other basis

justifying the release of the records. We hold that the Enquirer has shown (1) that it

possesses a clear legal right to the information it sought, including the full names of

the juveniles, not just the initials, (2) that Judge Hunter had a clear legal duty to

provide the information, and (3) that it has no adequate remedy at law. Thus, it has

shown that it is entitled to a writ of mandamus. We, therefore, grant the writ to

compel Judge Hunter to turn over to the Enquirer the docket records it had

requested, including the full names of the juveniles.

                                                                         Writ granted.


H ILDEBRANDT , P.J., and C UNNINGHAM , J., concur.


Please note:
       The court has recorded its own entry this date.




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