[Cite as State ex rel. Livingston v. Bates, 2018-Ohio-3986.]




                              IN THE COURT OF APPEALS OF OHIO
                                  SIXTH APPELLATE DISTRICT
                                       LUCAS COUNTY


State of Ohio, ex rel.                                         Court of Appeals No. L-18-1135
Nathaniel Livingston, Jr.

        Relator

v.

James Douglas Bates, et al.                                    DECISION AND JUDGMENT

        Respondents                                            Decided: September 28, 2018

                                                    *****

        Nathaniel Livingston, Jr., pro se.

        Julia R. Bates, Lucas County Prosecuting Attorney, Kevin A.
        Pituch and Evy M. Jarrett, Assistant Prosecuting Attorneys,
        for respondents.

                                                    *****

        MAYLE, J.

        {¶ 1} This case is before the court upon a motion for summary judgment filed on

July 25, 2018, by respondents James Douglas Bates, Presiding Judge, Lucas County

Court of Common Pleas; Gene Anthony Zmuda, Administrative Judge, Lucas County
Court of Common Pleas; Brian John Patrick, Court Administrator, Lucas County

Common Pleas Court; Roger Wayne Kerner, Jr., Court Deputies Director, Lucas County

Common Pleas Court; Chris Kilif, Bailiff, Lucas County Common Pleas Court; and

John R. Tharp, Lucas County Sheriff. Relator, Nathaniel Livingston, Jr., has filed a

memorandum in opposition to respondents’ motion. For the reasons that follow, we find

respondents’ motion well-taken.

                                     I. Background

       {¶ 2} Nathaniel Livingston, Jr. is the author of The Toledo Black Blog and The

Cincinnati Black Blog. He describes himself as a “Black man and a trained paralegal”

who has “parlayed his paraprofessional skills into his work as a civil rights advocate,”

and has become “a published advocacy journalist and leader in the civil rights

movement.”

       {¶ 3} Livingston filed an original action for writ of prohibition and mandamus in

this court on June 18, 2018. In his sworn complaint, he alleges that in late August 2016,

while he was observing the criminal trial of a former Toledo police lieutenant in the

courtroom of Judge Gene Zmuda, Judge Zmuda ordered his “courtroom overseer” to

notify Livingston that he was not permitted to “freely enter or exit the courtroom”

without Judge Zmuda’s permission. Livingston was told that his movement in the

courtroom was distracting to the court and to the jurors. Apparently believing that Judge

Zmuda’s actions were on account of his race, Livingston wrote a letter to Judge Zmuda

on September 1, 2016, accusing him of treating him like a “Black slave,” and urging him




2.
to comply with the Ohio Judicial Code of Conduct and to refrain from engaging in “racial

discrimination, bias, prejudice, or harassment.” Livingston also claimed in that letter that

Judge Zmuda failed to similarly admonish another courtroom spectator, an older white

male, who had been moving around the courtroom and who failed to stand when Judge

Zmuda and the jurors entered and exited the courtroom.

       {¶ 4} Livingston maintains that in retaliation for complaining about his

discriminatory conduct, Judge Zmuda “and his buddy Judge Bates” instructed Roger

Kerner, the court deputies director, to harass him and other members of the public who

wished to observe court proceedings. Livingston claims that Kerner and his employees

followed him around the courthouse and “interfere[d] with his ability to interview and

talk freely with members of the public, [his] colleagues in the press, and court

employees.” He insists that every Lucas County Common Pleas judge knows of this

harassment and has done nothing to stop it.

       {¶ 5} Livingston also alleges that on June 14, 2018, courtroom deputies physically

prevented him from entering Judge Bates’ courtroom, purportedly because Judge Bates

does not allow observers in the courtroom once he begins instructing the jury. Livingston

went to Patrick’s office to request a copy of the court’s order or policy to this effect, but

Patrick told him that there was no written order or policy—it was simply a long-standing

practice in all courtrooms. Later, Livingston claims, Kerner and a deputy again

prevented him from entering the courtroom, this time stating that only court employees

could enter while the jury was deliberating.




3.
       {¶ 6} Livingston asserts that an unidentified Black woman approached him in the

hallway and told him that Judge Bates had systematically kicked Black people out of the

courtroom throughout the trial. Livingston also observed that a Black woman employed

by a local television station had been allowed in the courtroom when he had been denied

access, so he again tried to enter, and Kerner again prevented him from doing so.

       {¶ 7} Livingston went to complain to Judge Zmuda about Judge Bates’ conduct in

restricting his access to the courtroom, and while waiting to speak with him, Chris Kilif,

Judge Bates’ bailiff, told Livingston that per Judge Bates’ unwritten policy, no one could

authorize Livingston to enter the courtroom.

       {¶ 8} Judge Zmuda met with Kerner and Patrick in his office. After their meeting,

Patrick told Livingston that Judge Zmuda said that while he does not enforce such a

procedure in his courtroom, he could not or would not prevent Judge Bates from doing

so. Livingston attempted to confront Judge Bates but was not permitted to speak with

him.

       {¶ 9} Livingston professes that now that he knows that select people are being

denied access to the courtroom, he wants to (1) make sure that no one—including the

judge and his staff—tampers with the jury, (2) monitor Judge Bates, his staff, and those

who enter his courtroom, (3) monitor and observe other common pleas court judges and

their staff, and (4) gather information to be published in The Toledo Black Blog and

elsewhere. He filed this action, seeking a writ of mandamus or prohibition against those

he claims are responsible for interfering with his right to attend court proceedings. He




4.
claims that respondents have a clear legal duty to allow him to attend court proceedings,

and “to hear evidence and argument and make findings of fact and conclusions of law

before restricting access to proceedings in their courtrooms.”

        {¶ 10} Livingston requested that we issue a peremptory or alternative writ of

prohibition and mandamus against the respondents prohibiting them from enforcing

orders, rules, policies, procedures, or protocols excluding him from observing court

proceedings. He also sought costs and attorney fees.

        {¶ 11} In a decision dated July 12, 2018, we found that the Lucas County

Common Pleas Court is not a proper party to this action, and we dismissed the claims

against it. As to the remaining respondents, we issued an alternative writ under R.C.

2731.06 and 2731.07, ordering that respondents, by July 30, 2018, either do the act

requested by relator in his petition or show cause why they are not required to do so by

filing (1) an answer to relator’s petition pursuant to Civ.R. 8(B), or (2) a motion to

dismiss relator’s petition pursuant to Civ.R. 12. We also issued a scheduling order,

permitting the parties to file motions for summary judgment no later than September 14,

2018.

        {¶ 12} On July 25, 2018, respondents filed an answer and a motion for summary

judgment. Livingston has opposed respondents’ motion. The motion is now decisional.

                                    II. Legal Standard

        {¶ 13} A motion for summary judgment may be granted under Civ.R. 56(C) when

it is demonstrated “(1) that there is no genuine issue as to any material fact; (2) that the




5.
moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can

come to but one conclusion, and that conclusion is adverse to the party against whom the

motion for summary judgment is made, who is entitled to have the evidence construed

most strongly in his favor.” Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64,

67, 375 N.E.2d 46 (1978).

       {¶ 14} When seeking summary judgment, a party must specifically delineate the

basis upon which the motion is brought, Mitseff v. Wheeler, 38 Ohio St.3d 112, 526

N.E.2d 798 (1988), syllabus, and identify those portions of the record that demonstrate

the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293,

662 N.E.2d 264 (1996). When a properly supported motion for summary judgment is

made, an adverse party may not rest on mere allegations or denials in the pleadings, but

must respond with specific facts showing that there is a genuine issue of material fact.

Civ.R. 56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). A

“material” fact is one which would affect the outcome of the suit under the applicable

substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 304, 733

N.E.2d 1186 (6th Dist.1999); Needham v. Provident Bank, 110 Ohio App.3d 817, 826,

675 N.E.2d 514 (8th Dist.1996), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248, 106 S.Ct. 2505, 91 L.Ed.2d 201 (1986).

                                 III. Law and Analysis

       {¶ 15} In their motion, respondents deny Livingston’s allegations that Judge Bates

or Judge Zmuda closed their courtrooms in violation of the U.S. and Ohio Constitutions.




6.
Rather, they clarify, Judge Bates (1) prohibits spectators from entering or leaving the

courtroom while he is instructing the jury, but allows those already in the courtroom to

stay; (2) bars non-staff from entering the courtroom while the jury is deliberating; and

(3) limits access to the courtroom when court is not in session. Judge Bates contends that

there is no courthouse-wide policy delineating these restrictions; rather it is within the

discretion of each judge to determine how best to preserve order and limit distractions

during jury trials. Judge Bates maintains that Livingston was barred from the courtroom

only to the extent that he sought to enter during jury instructions, while the jury was

deliberating, or while court was not in session.

       {¶ 16} Respondents insist that Judges Bates’ practices—and any limitations that

Judge Zmuda may place on spectators’ ingress and egress from the courtroom to

minimize distractions during proceedings—do not violate the U.S. or Ohio Constitutions.

       {¶ 17} As to Patrick and Kerner, respondents contend that these individuals are

non-judges, subject to the direction of the ten common-pleas court judges, and lack the

authority to set policy for the judges. Kilif, they claim, is one of two bailiffs employed

by Judge Bates, and also lacks authority to set policy. And, they maintain, Tharp had no

involvement with Livingston being denied access to any courtroom. Respondents argue

that the claims against them must be dismissed.

       {¶ 18} Finally, respondents maintain that Livingston is not entitled to attorney fees

because (1) his claims are meritless, (2) such fees cannot be assessed in original actions




7.
unless authorized by statute, and (3) as a pro se litigant, he cannot recover fees under

Ohio law.

       {¶ 19} The right of the public to attend criminal proceedings is implicit in the

guarantees of the First Amendment to the U.S. Constitution as applied to the states

through the Fourteenth Amendment. State ex rel. Repository v. Unger, 28 Ohio St.3d

418, 420, 504 N.E.2d 37 (1986). The public may be barred from criminal proceedings

only where closure is essential “to preserve higher values and is narrowly tailored to

serve that interest.” Id. at 420. A writ of prohibition—not mandamus—is the proper

vehicle to challenge an order of a trial court closing court proceedings. State ex rel. News

Herald v. Ottawa Cty. Court of Common Pleas, Juvenile Div., 77 Ohio St.3d 40, 43, 671

N.E.2d 5 (1996); State ex rel. Scripps Media, Inc. v. Hunter, 1st Dist. Hamilton No.

C-130241, 2013-Ohio-5895, ¶ 71 (“[M]andamus may only be employed to compel the

performance of a present existing duty as to which there is a present default. * * *

Mandamus will not issue to require a judicial officer to prospectively observe the law, or

to remedy the anticipated nonperformance of that duty.” (Citations omitted.)).

“Members of the press and public who seek access to a closed court proceeding have

standing to seek a writ of prohibition for this purpose.” State ex rel. Plain Dealer

Publishing Co. v. Floyd, 111 Ohio St.3d 56, 2006-Ohio-4437, 855 N.E.2d 35, ¶ 26, citing

In re T.R., 52 Ohio St.3d 6, 556 N.E.2d 439 (1990), paragraph one of the syllabus.

       {¶ 20} A trial judge has the authority to exercise control over the proceedings in

his or her courtroom. State v. Sanders, 130 Ohio App.3d 92, 97, 719 N.E.2d 619 (1st




8.
Dist.1998). To that end, “[r]easonable time, place, and manner limitations on access to

the courtroom are permitted to ensure the fair and efficient administration of justice.”

Herring v. Meachum, 11 F.3d 374, 380 (2d Cir.1993). Such limitations do not

necessarily constitute a courtroom closure implicating the constitutional right of the

public to attend criminal proceedings.

       {¶ 21} For instance, in State v. Moton, 8th Dist. Cuyahoga No. 104470, 2018-

Ohio-737, ¶ 21, the appellate court found that it was reasonable and within the trial

judge’s discretion to ask spectators to refrain from entering and exiting the courtroom

while court was in session. The court held that “[t]he movement of people in and out of

the courtroom was a legitimate concern” and had become distracting to the trial judge,

particularly in the middle of witnesses’ testimony. Id. The court determined that “the

trial judge was not excluding the public from the courtroom, but only asking these

persons to refrain from entering and exiting the courtroom so that the trial judge could

maintain control over the courtroom.” Id.

       Similarly, in State v. Wilks, Slip Opinion No. 2018-Ohio-1562, ¶ 69-74, the trial

court locked the courtroom doors during jury instructions and announced to spectators

that while they were welcome to stay, they would not be permitted to leave the courtroom

during the 30-minute jury charge. The Ohio Supreme Court found no violation of the

defendant’s right to a public trial. The court observed that the restricted access to the

courtroom was presumably for the purpose of avoiding distracting the jury during the




9.
instructions, and it determined that the public was prevented from entering and leaving

the courtroom for only a brief period.

       {¶ 22} And in State v. Hairston, 9th Dist. Lorain No. 05CA008768, 2006-Ohio-

4925, ¶ 18, the trial court allowed those already in the courtroom to remain there for

closing arguments, however, it limited ingress and egress to the courtroom until closing

arguments concluded. The appellate court recognized that this restriction was imposed

“[i]n an effort to preserve decorum and exercise control of the courtroom,” and,

specifically, “to prevent distractions to the jury, so that they could listen to the closing

arguments without interruptions.” Id. The court found that the public had not been

improperly excluded from the courtroom.

       {¶ 23} The conclusions reached in these cases are consistent with those reached by

federal and other state courts. See, e.g., Herring, 11 F.3d at 380 (finding that trial judge’s

order locking courtroom doors during jury charge—while allowing those already inside

to remain—was reasonable in light of his articulated purpose to avoid jury distraction

while the charge was being delivered); United States v. Scott, 564 F.3d 34, 37-38 (1st

Cir.2009) (finding no exclusion of the public from court proceedings where district court

closed courtroom to avoid distraction to jury during lengthy and complex charge, but

permitted—and required—already-present spectators to stay); Bell v. Evatt, 72 F.3d 421,

433 (4th Cir.1995) (finding no public-trial violation where ingress and egress to the

courtroom was limited during witness testimony to prevent disturbance of the

proceedings); United States v. Dugalic, 489 Fed.Appx. 10, 19 (6th Cir.2012) (finding no




10.
denial of public access to proceedings where district court locked courtroom doors during

closing argument to prevent jury from being distracted by spectators going in and out);

and State v. Brown, 815 N.W.2d 609, 616-618 (Minn.2012) (finding no violation of right

to public trial where trial court locked courtroom doors during jury instructions, but

allowed already-present spectators to stay).

       {¶ 24} Judge Bates’ affidavit indicates that in order to avoid distracting the jury,

he precludes spectators from leaving or entering the courtroom during jury instructions.

Livingston’s complaint alleges that Judge Zmuda also sought to limit movement in the

courtroom to minimize distractions to the jury. We conclude that these reasonable

limitations on ingress and egress to the courtroom do not violate the right of the public to

attend criminal proceedings. Having said this, we recognize—as the Ohio Supreme

Court did in Wilks, Slip Opinion No. 2018-Ohio-1562, ¶ 74—that while a trial court has

discretion to control the proceedings in such a manner, “it must exercise that discretion

carefully and sparingly.”

       {¶ 25} We next turn to Livingston’s assertion that he was denied access to Judge

Bates’ courtroom during jury deliberations. Jury deliberations—by design—are to be

conducted in private. Koch v. Rist, 89 Ohio St.3d 250, 252, 730 N.E.2d 963 (2000).

Moreover, the right to a public trial is not violated where spectators are asked to wait

outside the courtroom when court is not in session. See State v. Sibou, App. No.

A14-0870, 2015 Minn. App. Unpub. LEXIS 413, *3-7 (May 4, 2015) (finding no

violation of public-trial right where spectators were prevented from entering the




11.
courtroom at 9:00 and court did not convene until 10:00); Elso v. United States, S.D.Fla.

No. 07-21313-Civ-SEITZ, 2010 U.S. Dist. LEXIS 144563, *124 (Dec. 17, 2010) (finding

no violation of right to public trial where courtroom was locked when court was not in

session). Thus, we conclude that Livingston was not barred from attending any criminal

proceeding when he was prevented from entering the courtroom while the jury

deliberated. He has cited no case law suggesting that he had a right to be in the

courtroom while the jury was deliberating and when court was not in session.

       {¶ 26} To be entitled to a writ of prohibition, a relator must establish that “(1) the

[respondent] is about to exercise judicial or quasi-judicial power, (2) the exercise of that

power is unauthorized by law, and (3) denial of the writ will cause injury for which no

other adequate remedy in the ordinary course of law exists.” State ex rel. Henry v.

McMonagle, 87 Ohio St.3d 543, 544, 721 N.E.2d 1051 (2000). We find that Livingston

has failed to demonstrate that respondents have exercised or intend to exercise power

unauthorized by law, and is therefore not entitled to a writ of prohibition.

       {¶ 27} Moreover, we find that a writ of mandamus may not be employed “to

require a judicial officer to prospectively observe the law, or to remedy the anticipated

nonperformance of that duty,” thus Livingston is also not entitled to a writ of mandamus.

State ex rel. Scripps Media, Inc., 1st Dist. Hamilton No. C-130241, 2013-Ohio-5895, at

¶ 71. Finally, we conclude that Livingston is not entitled to attorney fees and costs.

Accordingly, we find respondents’ motion for summary judgment well-taken. We

dismiss Livingston’s complaint in its entirety as against all respondents.




12.
                                      IV. Conclusion

       {¶ 28} Placing limitations on spectators’ ingress and egress to the courtroom in an

effort to minimize distractions during jury instructions, closing arguments, and witness

testimony, does not violate the public’s right to attend criminal proceedings. The

public’s right to attend criminal proceedings is also not violated when a trial judge

restricts access to the courtroom when court is not in session. Accordingly, we find

respondents’ motion for summary judgment well-taken, and we dismiss Livingston’s

complaint in its entirety. Costs assessed to relator.


                                                                               Writ denied.




Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
James D. Jensen, J.
                                                _______________________________
Christine E. Mayle, P.J.                                    JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE




13.
