[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Doe v. Gallia Cty. Common Pleas Court, Slip Opinion No. 2018-Ohio-2168.]




                                           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. 2018-OHIO-2168
        THE STATE EX REL. DOE v. GALLIA CTY. COMMON PLEAS COURT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
   may be cited as State ex rel. Doe v. Gallia Cty. Common Pleas Court, Slip
                             Opinion No. 2018-Ohio-2168.]
Mandamus—Procedendo—R.C. 2953.52(A)(1)—Sealing of official records—
        Request for writ of mandamus sua sponte converted to request for writ of
        procedendo—Writ of procedendo granted.
      (No. 2017-1673—Submitted January 23, 2018—Decided June 7, 2018.)
                            IN MANDAMUS AND PROCEDENDO.
                                    ________________
        Per Curiam.
        {¶ 1} On November 30, 2017, relator, John Doe, filed a complaint for a writ
of mandamus to compel respondent, Gallia County Common Pleas Court
(“common pleas court”), to enforce its 2013 order sealing the record in a criminal
case against Doe in accordance with R.C. 2953.52 and to rule on his 2017 motion
to reseal the record. The common pleas court has filed a motion to dismiss Doe’s
                              SUPREME COURT OF OHIO




complaint. For the reasons that follow, we deny the common pleas court’s motion
to dismiss, sua sponte convert Doe’s complaint to a request for a writ of procedendo
(the appropriate writ to compel the relief he seeks), and grant a writ.
                                    Background
       {¶ 2} A jury convicted Doe of three fifth-degree felonies and found him not
guilty of several other charged offenses. In 2012, the Fourth District Court of
Appeals vacated Doe’s convictions and remanded his case to the common pleas
court, where the charges were dismissed with prejudice.
       {¶ 3} Doe filed an application in the trial court to seal his official records in
the case pursuant to R.C. 2953.52(A)(1), under which “[a]ny person, who is found
not guilty of an offense by a jury or a court or who is the defendant named in a
dismissed complaint, indictment, or information may apply to the court for an order
to seal the person’s official records in the case.” Former common pleas court judge
D. Dean Evans found that


       (1) the applicant was found NOT GUILTY of Counts 3, 5, and 6 of
       the Indictment, * * * the remaining Counts were vacated on appeal,
       and then, upon application of the parties, DISMISSED with
       prejudice, (2) there is no criminal proceeding pending against the
       applicant, (3) the application was filed in a timely manner, and (4)
       the interest[s] of the applicant are not outweighed by any legitimate
       governmental need to maintain such records.


(Capitalization sic.) Because these findings met the criteria set forth in R.C.
2953.52(B), Judge Evans entered an order sealing the records of Doe’s case
pursuant to R.C. 2953.52(B)(4)’s mandate that if the statutory criteria are met, “the
court shall issue an order directing that all official records pertaining to the case be




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                                     January Term, 2018




sealed and that, except as provided in [R.C. 2953.53], the proceedings in the case
be deemed not to have occurred.” (Emphasis added.)
           {¶ 4} Doe alleges that after this order was issued, the trial-court and
appellate-court records were sealed; however, the appellate court’s opinion was still
available on court websites. Doe alleges that he filed a motion in the court of
appeals that somehow resulted in the court of appeals making his appellate records
public again. It is unclear on this record why the court of appeals, which has the
general responsibility to control its own records, did not grant Doe relief.
           {¶ 5} In 2017, Doe filed an emergency motion in the common pleas court
for an order resealing his records. According to Doe, Judge Margaret Evans1 held
a conference call with Doe, his counsel, and counsel for the state in July 2017,
during which the state “agreed that the records should be sealed.” Doe alleges that
since the conference call, Judge Evans has neither taken action to enforce her
predecessor’s 2013 order to seal nor ruled on his motion to reseal.
           {¶ 6} On November 30, 2017, Doe filed, under seal, his complaint for a writ
of mandamus. On December 6, 2017, outside counsel for the common pleas court
filed a notice of appearance, which prompted Doe to file a motion to disqualify
outside counsel. On December 22, 2017, the common pleas court filed a motion to
dismiss, which Doe opposed. The same day, the common pleas court filed its
memorandum in opposition to Doe’s motion to disqualify.
                                           Analysis
                                      Motion to dismiss
           {¶ 7} The common pleas court moved to dismiss Doe’s complaint on the
ground that it fails to state a claim for which relief can be granted. Dismissal is
required if it appears beyond doubt, after presuming the truth of all material factual
allegations in the complaint and making all reasonable inferences in Doe’s favor,


1
    In November 2016, Judge Margaret Evans was elected to replace former Judge D. Dean Evans.




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that he is not entitled to the requested extraordinary relief. State ex rel. Bates v.
Court of Appeals for the Sixth Appellate Dist., 130 Ohio St.3d 326, 2011-Ohio-
5456, 958 N.E.2d 162, ¶ 8.
       {¶ 8} The common pleas court first contends that Doe’s complaint should
be dismissed because he failed to caption his complaint “in the name of the state on
the relation of the person applying,” in compliance with R.C. 2731.04. But we
recently held that “the requirements of that statute are not jurisdictional,” noting a
number of cases that were not dismissed for the relator’s failure to caption his or
her complaint in the name of the state. Salemi v. Cleveland Metroparks, 145 Ohio
St.3d 408, 2016-Ohio-1192, 49 N.E.3d 1296, ¶ 15. Moreover, Doe has requested
leave to amend the case caption, which we grant.
       {¶ 9} The common pleas court next argues that Doe is not entitled to relief
because he has an adequate remedy in the ordinary course of the law, the lack of
which is required for Doe to receive extraordinary relief, e.g., State ex rel. Ward v.
Reed, 141 Ohio St.3d 50, 2014-Ohio-4512, 21 N.E.3d 303, ¶ 9-10.
       {¶ 10} The common pleas court asserts that “the sealing statute itself”
provides Doe with an adequate remedy in the ordinary course of the law. Under
that statute, an order to seal “applies to every public office or agency that has a
record of the case that is the subject of the order.” R.C. 2953.53(C). The statute
provides that “[t]he court * * * shall send notice of any order issued pursuant to
[R.C. 2953.52(B)(4)] to any public office or agency that the court knows or has
reason to believe may have any record of the case, whether or not it is an official
record, that is subject to the order,” R.C. 2953.53(A)(1), and “[a] person whose
official records have been sealed pursuant to an order issued pursuant to [R.C.
2953.52] may present a copy of that order and a written request to comply with it,
to a public office or agency that has a record of the case that is the subject of the
order,” R.C. 2953.53(B).




                                          4
                                January Term, 2018




       {¶ 11} Upon receipt of a sealing order or “upon otherwise becoming aware
of an applicable order to seal official records * * * a public office or agency shall
comply with the order.” (Emphasis added.) R.C. 2953.53(D). However, the public
office or agency “may maintain a record of the case that is the subject of the order
if the record is maintained for the purpose of compiling statistical data only and
does not contain any reference to the person who is the subject of the case and the
order.” Id.
       {¶ 12} An adequate remedy in the ordinary course of the law “ ‘includes
equitable as well as legal remedies; and where there is an adequate equitable
remedy, mandamus will not lie.’ ” State ex rel. Pressley v. Indus. Comm., 11 Ohio
St.2d 141, 168, 228 N.E.2d 631 (1967), quoting 35 Ohio Jurisprudence 2d,
Mandamus, Section 31, at 278. “The alternative must be complete, beneficial, and
speedy in order to constitute an adequate remedy at law.” State ex rel. Ullmann v.
Hayes, 103 Ohio St.3d 405, 2004-Ohio-5469, 816 N.E.2d 245, ¶ 8. While R.C.
2953.53(B) provides the person whose case is subject to a sealing order the right to
notify any public office, it is not a legal or equitable remedy, as the common pleas
court contends, and is therefore not an adequate remedy that will preclude the
issuance of an extraordinary writ.
       {¶ 13} The common pleas court also submits that Doe has an adequate
remedy through petitioning the common pleas court to enforce its own order.
Indeed, Doe’s complaint alleges that he recently filed in the common pleas court
an “[e]mergency [m]otion * * * seeking to Order the records re-sealed.” However,
the gist of Doe’s complaint is that the common pleas court has not taken any action
in regard to his emergency motion to reseal.
       {¶ 14} We conclude that procedendo, not mandamus, is the appropriate writ
to achieve the result Doe seeks. “ ‘A writ of procedendo is appropriate when a
court has either refused to render a judgment or has unnecessarily delayed
proceeding to judgment.’ ” State ex rel. R.W. Sidley, Inc. v. Crawford, 100 Ohio




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St.3d 113, 2003-Ohio-5101, 796 N.E.2d 929, ¶ 16, quoting State ex rel. Weiss v.
Hoover, 84 Ohio St.3d 530, 532, 705 N.E.2d 1227 (1999). “Although mandamus
will lie in cases of a court’s undue delay in entering judgment, procedendo is more
appropriate, since ‘[a]n inferior court’s refusal or failure to timely dispose of a
pending action is the ill a writ of procedendo is designed to remedy.’ ” State ex rel.
Dehler v. Sutula, 74 Ohio St.3d 33, 35, 656 N.E.2d 332 (1995), quoting State ex
rel. Levin v. Sheffield Lake, 70 Ohio St.3d 104, 110, 637 N.E.2d 319 (1994).
       {¶ 15} Although Doe’s complaint seeks a writ of mandamus, we use our
plenary authority to sua sponte convert his request to one for a writ of procedendo.
See State ex rel. Dispatch Printing Co. v. Louden, 91 Ohio St.3d 61, 66, 741 N.E.2d
517 (2001). As in Louden, the common pleas court has not asserted that the
complaint should be dismissed “because it was improperly styled,” id.
       {¶ 16} A writ of procedendo is appropriate when the petitioner has “a clear
legal right to require the trial court to proceed,” there is “a clear legal duty on the
part of the trial court to proceed,” and there is no adequate remedy in the ordinary
course of the law. Ward, 141 Ohio St.3d 50, 21 N.E.3d 303, 2014-Ohio-4512, at
¶ 9. Here, Doe alleges that he filed a motion to reseal in 2017 and that the common
pleas court has not ruled on that motion, despite the state’s assurance in a telephone
conference with the common pleas court in July 2017 that it does not object to the
motion. While that does not mean that the motion must be granted, Doe has a clear
legal right to have the motion ruled on, and the common pleas court has a clear
legal duty to rule on it. We have already determined that Doe lacks an adequate
remedy in the ordinary course of the law.
       {¶ 17} We do not know the current status of Doe’s motion to reseal. But
the common pleas court has not asserted in any of its filings in this court that it has
ruled on the motion. We therefore deny the common pleas court’s motion to
dismiss Doe’s complaint, and we issue a writ of procedendo ordering the common
pleas court—if it has not already done so—to rule on Doe’s motion to reseal, and




                                          6
                                 January Term, 2018




to serve on the Fourth District Court of Appeals a copy of its ruling on that motion
and a copy of its 2013 order sealing the record.
                                    Motion to seal
       {¶ 18} Our Rules of Practice provide that documents filed in this court
“shall be available for public access pursuant to Sup.R. 44 through 47. A document
that has been sealed pursuant to a court order * * * or is the subject of a motion to
seal pending in the Supreme Court, shall remain under seal and not be made
available for public access unless ordered by the Supreme Court.” S.Ct.Prac.R.
3.02(A)(1)(b). Doe attached to his complaint a redacted copy of the common pleas
court’s 2013 order to seal his records. The common pleas court does not challenge
the validity of the 2013 order to seal. Doe asserts that the pleadings filed in this
court in this original action should not be publicly available and should be sealed,
and the common pleas court does not oppose Doe’s motion. We order that the
pleadings filed in this original action be sealed.
                     Motion to disqualify respondent’s counsel
       {¶ 19} Doe asks that this court disqualify the common pleas court’s counsel
on the basis of R.C. 309.09(A), which states:


       The prosecuting attorney shall be the legal adviser of the board of
       county commissioners, board of elections, all other county officers
       and boards, and all tax-supported public libraries * * *. The
       prosecuting attorney shall prosecute and defend all suits and actions
       that any such officer, board, or tax-supported public library directs
       or to which it is a party, and no county officer may employ any other
       counsel or attorney at the expense of the county, except as provided
       in [R.C. 305.14].




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                             SUPREME COURT OF OHIO




If there is a conflict between the prosecutor and the county officer or board that the
prosecutor must represent, R.C. 305.14(A) provides the process by which private
counsel may be employed.
       {¶ 20} Because we grant Doe a writ of procedendo, we deny as moot his
request to disqualify the common pleas court’s counsel.
                                     Conclusion
       {¶ 21} We deny the common pleas court’s motion to dismiss, grant Doe’s
motion to amend the case caption, and sua sponte convert Doe’s request for a writ
of mandamus to a request for a writ of procedendo. We grant a writ of procedendo
ordering the common pleas court—if it has not already done so—to rule on Doe’s
motion to reseal, and to serve on the Fourth District Court of Appeals a copy of its
ruling on that motion and a copy of its 2013 order sealing the record. We grant
Doe’s motion to seal the pleadings filed in this original action. And we deny as
moot Doe’s motion to disqualify counsel.
                                                            Motion to dismiss denied
                                                     and writ of procedendo granted.
       O’CONNOR, C.J., and FRENCH and FISCHER, JJ., concur.
       O’DONNELL, J., concurs in part and dissents in part, with an opinion.
       KENNEDY, J., dissents, with an opinion.
       DEWINE and DEGENARO, JJ., not participating.
                                _________________
       O’DONNELL, J., concurring in part and dissenting in part.
       {¶ 22} I dissent from the lead opinion’s decision to sua sponte convert
Doe’s request for a writ of mandamus to a request for a writ of procedendo, as that
is not a practice undertaken by this court on behalf of litigants. I would grant a writ
of mandamus pursuant to R.C. 2953.52(B)(4) ordering the Gallia County Common
Pleas Court to rule on Doe’s motion to reseal if it has not yet done so and to serve
a copy of its ruling on the Fourth District Court of Appeals. The law of the case




                                          8
                                January Term, 2018




has already been established and the predecessor judge made the requisite findings
necessary to satisfy the statute requiring that the record be sealed.
       {¶ 23} Therefore, in accordance with the statute, the common pleas court
“shall issue an order directing that all official records pertaining to the case be
sealed and that * * * the proceedings in the case be deemed not to have occurred.”
I concur in the lead opinion in all other respects.
                                _________________
       KENNEDY, J., dissenting.
       {¶ 24} Because the lead opinion in this case grants a peremptory writ of
procedendo without first allowing respondent, Gallia County Court of Common
Pleas, to answer the complaint, I dissent.
       {¶ 25} Before a writ of procedendo may issue, the relator is required to
demonstrate a clear legal right to have the respondent proceed. State ex rel. Charvat
v. Frye, 114 Ohio St.3d 76, 2007-Ohio-2882, 868 N.E.2d 270, ¶ 13. However,
relator, John Doe, never sought that writ, and as the lead opinion admits, “[w]e do
not know the current status of Doe’s motion to reseal.” Lead opinion at ¶ 17. By
itself, this factual question precludes us from issuing a peremptory writ of
procedendo, which is appropriate only “if the pertinent facts are uncontroverted and
it appears beyond doubt that [the relator] is entitled to the requested writ.” State ex
rel. Rodak v. Betleski, 104 Ohio St.3d 345, 2004-Ohio-6567, 819 N.E.2d 703, ¶ 12.
       {¶ 26} The lead opinion also points out that the common pleas court “has
not asserted in any of its filings in this court that it has ruled on the motion.” Lead
opinion at ¶ 17. That is irrelevant, because the common pleas court had no duty to
controvert the allegations of the complaint in filing a motion to dismiss.
       {¶ 27} S.Ct.Prac.R. 12.04 permits a respondent to file an answer to a
complaint or a motion to dismiss the complaint. Although the Rules of Practice do
not provide the consequence of filing one or the other, S.Ct.Prac.R. 12.01(A)(2)(b)
states that “[t]he Ohio Rules of Civil Procedure shall supplement these rules unless




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clearly inapplicable.” And pursuant to the Civil Rules, the filing of a motion to
dismiss simply delays the deadline for the filing of an answer until after the court
denies the motion. Civ.R. 12(A)(2) and (B); State ex rel. Yeagley v. Harden, 68
Ohio St.3d 136, 137, 624 N.E.2d 702 (1993).
        {¶ 28} The respondent’s duty to admit or deny the allegations of the
complaint in an answer therefore does not arise until the court denies the motion to
dismiss. Civ.R. 8(D); Yeagley at 137. This is why we presume the truth of all
material factual allegations of the complaint when we review a motion to dismiss a
procedendo action, see Rodak, 104 Ohio St.3d 345, 2004-Ohio-6567, 819 N.E.2d
703, at ¶ 10.
        {¶ 29} For these reasons, a court generally may not grant a peremptory writ
before an answer admitting or denying the material facts has been filed. State ex
rel. Conley v. Park, 146 Ohio St.3d 454, 2015-Ohio-5226, 58 N.E.3d 1112, ¶ 9-10;
State ex rel. Beacon Journal Publishing Co. v. Radel, 57 Ohio St.3d 102, 103, 566
N.E.2d 661 (1991); State ex rel. Temke v. Outcalt, 49 Ohio St.2d 189, 191, 360
N.E.2d 701 (1977). A peremptory writ will not issue unless the relator is entitled
to relief as a matter of law and fact, Conley at ¶ 9, and until the answer is filed, all
we have to review are allegations in a complaint.
        {¶ 30} At this stage of the proceedings in this case, no answer has been filed
and the common pleas court may still deny the allegations in the complaint, dispute
the authenticity of the documents attached to it, or assert an affirmative defense
precluding relief in Doe’s favor. The decision to grant a peremptory writ of
procedendo in this case is therefore premature.
        {¶ 31} Accordingly, I would deny the motion to dismiss and order the
common pleas court to file an answer to Doe’s complaint.
                                _________________
        J. Roger Smith II, for relator.




                                          10
                            January Term, 2018




      Montgomery, Rennie & Jonson, Lisa M. Zaring, and Anthony M.
McNamara, for respondent.
                            _________________




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