[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Conley v. Park, Slip Opinion No. 2015-Ohio-5226.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.




                          SLIP OPINION NO. 2015-OHIO-5226
     THE STATE EX REL. CONLEY, APPELLEE, v. PARK, JUDGE, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
             may be cited as State ex rel. Conley v. Park, Slip Opinion
                                   No. 2015-Ohio-5226.]
Mandamus—Public officials—Grant of peremptory writ ordering judge to respond
        to public-records request reversed—Cause remanded to allow judge to
        respond to request.
  (No. 2014-1923—Submitted August 11, 2015—Decided December 17, 2015.)
    APPEAL from the Court of Appeals for Stark County, No. 2014-CA-00169.
                                 _____________________
        Per Curiam.
        {¶ 1} We reverse the judgment of the Fifth District Court of Appeals, which
granted a peremptory writ ordering respondent-appellant, Judge Dixie Park, to
respond to a request by relator-appellee, Craig T. Conley, for public records.
Because the judgment was entered without providing Judge Park with notice or the
                             SUPREME COURT OF OHIO




opportunity to respond to the complaint, we remand this matter to allow Judge Park
to file an answer or otherwise respond to the complaint.
                           Facts and Procedural History
       {¶ 2} On September 4, 2014, Conley faxed a letter to Judge Park indicating
that he had printed two documents from the court’s electronic docket earlier that
day and that both documents were incomplete. Styling the letter as a public-records
request under Sup.R. 45(B)(1) and (3), Conley requested full and legible copies of
the documents. Judge Park responded on the same day by returning the request to
Conley and stating that the court did not accept faxed filings without the court’s
prior approval.
       {¶ 3} On September 9, 2014, Conley responded to Judge Park’s letter,
pointing out that his request was not a filing but a public-records request. Conley
asserted that Judge Park had failed without justification to comply with Sup.R.
45(B)(1).
       {¶ 4} Proceeding pro se, Conley filed this action in mandamus in the court
of appeals on September 10, 2014. Conley requested a peremptory or alternative
writ of mandamus ordering Judge Park to provide the copies of the requested
records.
       {¶ 5} On September 23, before Judge Park had responded in any way to the
complaint and before 28 days had elapsed, see Civ.R. 12(A)(1) (allowing 28 days
after service to answer a complaint), the court of appeals issued a peremptory writ
and closed the case. No alternative writ was granted, and no opportunity was given
Judge Park to respond to the allegations in the complaint.
       {¶ 6} On October 14, 2014, Judge Park filed a motion for relief from
judgment under Civ.R. 60(B), and Conley filed his response on October 24. Judge
Park filed an appeal to this court on November 6. The court of appeals then issued
an entry indicating that because of the appeal, it was without jurisdiction to rule on
the motion for relief from judgment unless the case was remanded. Conley moved




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                                January Term, 2015




this court to remand the case so that the court of appeals could act on the motion
for relief from judgment.
                                      Analysis
Public records
       {¶ 7} The Rules of Superintendence specifically give an aggrieved party a
right to a writ of mandamus for a violation of Sup.R. 44 through 47: “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).
       {¶ 8} Here, Conley seeks to enforce Sup.R. 45(B) (providing for direct
access to court records upon any person’s request), which falls within the ambit of
the mandamus action allowed by Sup.R. 47(B). Therefore, Conley properly filed
an action for a writ of mandamus to obtain the requested records.
Peremptory writ
       {¶ 9} The question here is whether the court of appeals was justified in
issuing a peremptory writ without first allowing Judge Park to respond to the
complaint. We have previously held that in original actions,


       a peremptory writ of mandamus should issue in the first instance
       only when material facts are admitted disclosing that relator is
       entitled to relief as a matter both of law and fact. * * * An alleged
       right to performance is unclear when the facts underpinning the
       claimed right are not admitted and it has not been established that
       no valid excuse can be given for nonperformance of the alleged
       duty.


(Ellipsis sic.) State ex rel. Beacon Journal Publishing Co. v. Radel, 57 Ohio St.3d
102, 103, 566 N.E.2d 661 (1991), quoting State ex rel. Temke v. Outcalt, 49 Ohio




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                                SUPREME COURT OF OHIO




St.2d 189, 191, 360 N.E.2d 701 (1977). “Thus, a court generally may not grant the
writ ‘before an answer admitting or denying the material facts ha[s] been filed.’ ”
(Brackets sic.) Id., quoting State ex rel. Mazzaro v. Ferguson, 49 Ohio St.3d 37,
40, 550 N.E.2d 464 (1990).
       {¶ 10} The court of appeals acted prematurely by issuing a writ ordering
Judge Park to produce the requested documents before she had a chance to explain
the reasoning behind her refusal to treat the faxed letter as a public-records request.
                                     Conclusion
       {¶ 11} We reverse because the court of appeals issued a peremptory writ
before allowing Judge Park to answer or otherwise respond to the complaint.
                                                                   Judgment reversed
                                                                and cause remanded.
       O’CONNOR, C.J., and O’DONNELL, LANZINGER, KENNEDY, FRENCH, and
O’NEILL, JJ., concur.
       PFEIFER, J., dissents.
                                 _________________
       Craig T. Conley, pro se.
       John D. Ferrero, Stark County Prosecuting Attorney, and Ross Rhodes,
Assistant Prosecuting Attorney, for appellant.
                                 _________________




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