[Cite as State ex rel. Parikh v. Berkowitz,

.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY

STATE EX REL. PAVAN V. PARIKH, : HAMILTON COUNTY CLERK OF COURTS, : CASE NO. C-240187

Relator/Cross-Respondent, : OPINION

: - vs - :

THE HON. JOSH BERKOWITZ, et al., : JUDGES OF THE HAMILTON COUNTY MUNICIPAL COURT, :

Respondents/Cross-Relators. :

Original Action in Prohibition; Counterclaim in Mandamus Judgment of the Court: Writ of Prohibition denied; Writ of Mandamus granted Date of Judgment Entry on Appeal: September 27, 2024

Strauss Troy Co., L.P.A., and Emily Supinger and Alexa Wainscott, for Relator/Cross- Respondent.

Montgomery Jonson, L.L.P., and Linda L. Woeber, for Respondents/Cross-Relators.

PIPER, J.

{¶ 1} This matter is before the Court on the petition for writ of prohibition filed by

Relator, Pavan V. Parikh, Hamilton County Clerk of Courts ("Clerk"), against Case No. C-240187

Respondents, Hon. Josh Berkowitz, Hon. Bernie Bouchard, Hon. Gwen Bender, Hon. Ted

Berry, Hon. Janaya Trotter Bratton, Hon. Jackie Ginocchio, Hon. Donte Johnson, Hon.

William Mallory, Hon. Heather Russell, Hon. Brad Greenberg, Hon. Dwane Mallory, Hon.

Mike Peck, Hon. Tyrone Yates, and Hon. Samantha Silverstein ("Judges"), of the

Hamilton County Municipal Court ("Municipal Court"). The Judges filed a counterclaim

requesting a writ of mandamus against the Clerk. The Clerk then filed a Civ.R. 12(B)(6)

motion to dismiss the Judges' petition for a writ of mandamus. The Judges also filed a

Civ.R. 12(C) motion for judgment on the pleadings. The matter is now ripe for review.

{¶ 2} For the reasons that follow, the Clerk's motion to dismiss the Judges'

mandamus counterclaim is DENIED, the Judges' motion for judgment on the pleadings is

GRANTED. A writ of mandamus is hereby issued against the Clerk and the Clerk is

hereby ORDERED to rescind his previously initiated Policy and comply with

Administrative Order 23-45.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Clerk's Policy Removed Remote Online Access for Certain Court Records

{¶ 3} In May 2022, the Clerk issued a policy ("Policy") eliminating remote online

access for court records in residential eviction cases that were older than three years from

the date of judgment satisfaction. The Clerk's stated purpose of the Policy was to prevent

certain members of the public, being primarily employers and landlords, from potentially

relying upon court documents in considering fulfilling employment, housing, and other

potential opportunities to individuals. The Clerk emphasized that his policy did not

obstruct the public's ability to access court records previously made available for remote

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online viewing because access remained available by physically going to the Clerk's office

during business hours to request retrieval of the court records.

B. The Judges Disagreed with The Policy and The Clerk's Website Disclaimer

{¶ 4} The Judges learned of the Clerk's unilateral implementation of the Policy

from a May 24, 2022 article published in the Cincinnati Enquirer. The Judges objected to

the Clerk's Policy, concerned that providing online access to only more recent court

proceedings may mislead the public, limit transparency, and unnecessarily impinge upon

the ease of accessibility. The Judges requested that the Clerk rescind his Policy, which

changed the way in which court records had previously been made available.

{¶ 5} The Clerk did not rescind the Policy, instead providing the Judges examples

of disclaimers used on other clerks' websites. In an attempt to reach a resolution, the

Judges proposed that the website include a disclaimer that would "conspicuously inform"

the public "that a remote search for eviction records would not include eviction actions

that are greater than three years of age." This would notify the public that other court

records may exist. However, the Clerk informed the Judges that he would use a different

disclaimer as follows:

Pursuant to Rule 45(C) of the Rules of Superintendence for the Courts of Ohio, a clerk of court is not required to offer remote access to a particular case file or case document. If you believe a case file or particular document exists but is not available online, please visit the Clerk's Office or submit an online request for a copy of the specific record you are attempting to obtain.

The Judges found the disclaimer insufficient to satisfy their concerns, as it leaves the

public to guess what documents might exist or be available at the Clerk's office.

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{¶ 6} On October 10, 2023, the Judges issued Administrative Order No. 23-45,

which specifically ordered the Clerk to do all of the following:

• Comply with Local Rule 9.16;

• Comply with Rule of Superintendence 45; and

• Rescind the Clerk's unilaterally initiated Policy.

On October 11, 2023, the Clerk sent a letter to the Judges stating that he would consult

with counsel regarding Administrative Order No. 23-45.

{¶ 7} In January 2024, the Judges offered to hold a meeting with the Clerk

regarding the Policy and Administrative Order 23-45. The Clerk stated that he would not

meet without having his retained counsel present. As a result, the Judges also retained

counsel.

{¶ 8} On March 15, 2024, the Judges, through counsel, informed the Clerk that

he could be held in contempt of court for failing to rescind the Policy as ordered in

Administrative Order 23-45. The Judges requested that the Clerk comply within 10 days,

or by March 25, 2024.

C. The Clerk and the Judges Each Seek Extraordinary Relief Against the Other

{¶ 9} On March 26, 2024, the Clerk filed a petition for a writ of prohibition against

the Judges, requesting that this Court issue a writ of prohibition to prevent the Judges

from enforcing Administrative Order 23-45 as well as to prevent the Judges from holding

the Clerk in contempt for his noncompliance with Administrative Order 23-45.

{¶ 10} The Judges filed an Answer and Counterclaim requesting a writ of

mandamus ordering the Clerk to comply fully with Administrative Order 23-45. The

Judges state that "[t]he importance of public internet access to [] [c]ourt records in an ever

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more technologically dependent society cannot be overstated." The Judges take the

position that:

[r]equiring a citizen to physically visit the courthouse, go through security, and explain to the Clerk's office which documents they believe are not accessible online does not comport with that representation or the goals of openness, transparency of process, and accountability.

The Judges request that this Court grant a writ of mandamus directing the clerk to comply

with his statutory duties, Sup.R. 45(A), Local Rule 9.16, and Administrative Order 23-45,

and specifically requiring him to rescind his Policy.

D. The Parties Seek Judgment as a Matter of Law on Their Respective Claims

{¶ 11} The Judges moved for judgment on the pleadings regarding the Clerk's

prohibition claim, asserting that the Clerk cannot establish any of the mandatory elements

of a prohibition claim. The Judges argue that they do not patently and unambiguously

lack jurisdiction to direct the Clerk's operations as they relate to the duties affecting the

Municipal Court's records. The Judges argue that they possess "inherent powers to

effectuate an orderly and efficient administration of justice." The Judges allege that

Administrative Order 23-45 is reasonable, lawful, and enforceable by contempt, even

though the Clerk is a separately elected public official. The Judges claim they have

subject-matter jurisdiction over the administration of the Municipal Court's records and

the public availability of those court records, citing the Municipal Court's inherent authority

and R.C. Ch. 1901. The Judges assert that the Clerk had an adequate remedy at law

through an appeal following any contempt finding.

{¶ 12} The Clerk moved to dismiss the Judges' counterclaim for mandamus

pursuant to Civ.R. 12(B)(6), arguing that the Judges cannot establish any of the required

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elements. The Clerk asserts that R.C. 1901.31 does not impose any clear duty on the

Clerk to provide remote access to any case document. The Clerk likewise argues the

Judges have no clear legal right to issue and enforce Administrative Order 23-45

because, as statutorily created courts, municipal courts only have the clear legal rights

afforded to them by statute. According to the Clerk, "inherent authority" cannot be the

source of a clear legal right for the Judges. The Clerk characterizes this matter as an

"inter-office dispute" rather than something internal to the Municipal Court's basic

functioning. The Clerk argues that the Judges have an adequate remedy at law, namely,

to hold the Clerk in contempt. The Clerk asserts that any expense and inconvenience

would not render contempt an ineffective remedy at law for the Judges.

{¶ 13} The Clerk also alleges that the Judges' requested relief is moot because

the Clerk is "largely in compliance with the substance of Administrative Order No. 23-45."

The Clerk claims that Sup.R. 45 and Local Rule 9.16 of the Hamilton County Municipal

Court provide that the Clerk may provide remote access to certain enumerated classes

of court records but does not require that the Clerk provide remote access to court records

as directed by the Judges.

II. LAW AND ANALYSIS

A. Petitions for Writs Are Civil Actions, Governed by the Civil Rules

{¶ 14} A petition seeking an original writ is a civil action. See Civ.R. 1(A) and (C).

Thus, it may be resolved on pretrial motions pursuant to the Rules of Civil Procedure such

as a Civ.R. 12(B)(6) or (C) motion. State ex rel. Denton v. Bedinghaus,

(1st Dist.); Barge v. City of St. Bernard,

(1st Dist.); State ex rel.

Hilltop Basic Resources, Inc. v. City of Cincinnati,

, ¶ 9-10 (1st Dist.).

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B. Motion to Dismiss 12(B)(6) Standard Applies, Tests Pleading Sufficiency

{¶ 15} The Ohio Rules of Civil Procedure authorize dismissal of a pleading for

"failure to state a claim upon which relief can be granted." Civ.R. 12(B)(6). Such a motion

tests only the legal sufficiency of the complaint. Centennial Plaza III Inv., LLC v.

Centennial Plaza Inv., LLC,

. For a court to dismiss on this basis, it

must appear beyond doubt from the complaint that the plaintiff can prove no set of facts

entitling him to recovery.

{¶ 16} The relator must plead facts satisfying all elements of mandamus to

withstand a motion to dismiss. State ex rel. Iacovone v. Kaminski,

; State

ex rel. Clark v. Lile,

. In construing a complaint upon a Civ.R. 12(B)(6)

motion, this Court must presume that all factual allegations of the complaint are true and

make all reasonable inferences in favor of the non-moving party. Mitchell v. Lawson Milk

Co.,

(1988).

C. Judgment on the Pleadings Civ.R. 12(C) Standard Applies; Tests the Pleadings

{¶ 17} Similar to a Civ.R. 12(B)(6) motion, a motion for judgment on the pleadings

made under Civ.R. 12(C) tests the sufficiency of the claims pled in light of all of the

information averred in or attached to all of the initial pleadings. Civ.R. 12(C). When

deciding a Civ.R. 12(C) motion, a court reviews only the allegations in the pleadings and

any writings attached to the pleadings. White v. King,

(5th Dist.);

Peterson v. Teodosio,

(1973). Judgment on the pleadings is

appropriate when, after construing all the material allegations in the complaint, along with

all reasonable inferences therefrom in favor of the nonmoving party, the court finds that

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the party can prove no set of facts in support of its claim that would entitle it to relief. State

ex rel. Midwest Pride IV, Inc. v. Pontius,

.

D. The Clerk Does Not Meet the Civ.R. 12(C) Standard in his Prohibition Claim

{¶ 18} The Judges' Motion for Judgment on the Pleadings on the Clerk's

prohibition claim is granted because the Clerk cannot meet all of the required elements

as a matter of law.

{¶ 19} Prohibition is an extraordinary writ issued to prevent a court or other entity

from usurping or exercising judicial power or judicial functions which have not been

conferred upon it by law. State ex rel. Daily Reporter v. Court of Common Pleas of

Franklin Cty.,

(1990); State ex rel. Plain Dealer Publishing Co. v.

Floyd,

, ¶ 26; State ex rel. Dispatch Printing Co. v. Geer, 2007-Ohio-

4643, ¶ 14, 20.

{¶ 20} A writ of prohibition will not lie unless the exercise of power is unauthorized

by law. State ex rel. Elder v. Camplese,

. Prohibition is "a high

prerogative writ to be used with great caution in the furtherance of justice and only where

there is no other regular, ordinary, and adequate remedy." State ex rel. Stark v. Summit

Cty. Court of Common Pleas,

(1987).

{¶ 21} A writ of prohibition is not a correctional remedy. State ex rel. Henneke v.

Davis,

(1986). Prohibition will not be issued to prevent an erroneous

judgment, or to serve the purpose of appeal, or to correct mistakes of the lower court in

deciding questions within its jurisdiction. Helfrich v. Ward,

(5th

Dist.), citing State ex rel. Sparto v. Juvenile Court of Darke Cty.,

(1950).

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{¶ 22} Three elements are necessary for a writ of prohibition:

(1) the exercise of judicial power1; (2) the lack of authority to exercise that power; and (3) the lack of an adequate remedy in the ordinary course of law.

State ex rel. Elder v.

. If the lack of authority is patent and unambiguous,

a petitioner need not establish the lack of an adequate remedy at law. State ex rel. Sapp

v. Franklin Cty. Court of Appeals,

, ¶ 15. A party seeking a writ of

prohibition has the burden to prove his entitlement to extraordinary relief by clear and

convincing evidence. State ex rel. Federle v. Warren Cty. Bd. of Elections, 2019-Ohio-

849, ¶ 10.

1) The Clerk failed to show that the Judges acted without authority

{¶ 23} The Clerk has failed to demonstrate that the Judges patently and

unambiguously lacked authority to hold him in contempt for failing to comply with

Administrative Order 23-45.

{¶ 24} To determine if a statutorily created court, like the Municipal Court, lacked

jurisdiction or authority to act, the analysis must consider whether the General Assembly

empowered the tribunal to proceed. State ex rel. Fiser v. Kolesar,

. A municipal court is a statutory creation with only limited jurisdiction and

may exercise only such powers as are directly conferred by legislative action.

citing

State ex rel. Johnson v. Perry Cty. Court,

(1986). A municipal court's

1. The Judges have conceded that they exercised judicial power by issuing Administrative Order 23-45 and threatening the Clerk with contempt. Having conducted its own analysis de novo, this Court agrees that the Judges exercised judicial power, as only courts have the ability to hold individuals in contempt of court.

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statutory authority is narrowly construed. State ex rel. Finley v. Miller,

(1934); Strongsville v. Waiwood,

(8th Dist. 1989).

{¶ 25} R.C. 1901.14(A)(2)-(3) allows municipal courts "[t]o adopt, publish, and

revise rules relating to the administration of the court." Municipal courts also have

statutory and inherent authority to punish contempt. R.C. 1901.13(A)(1); In re Sherlock,

(2d Dist. 1987). Under R.C. 2705.01, a municipal court has the power

to "punish a person guilty of misbehavior in the presence of or so near the court or judge

as to obstruct the administration of justice." State v. Johnson,

(1st

Dist. 1987).

{¶ 26} A relator was not entitled to a writ of prohibition where a municipal court set

fees and costs because R.C. 1901.26 gives municipal courts judicial power to do so.

Farmer v. State,

(5th Dist.). Where there was no statute

precluding a judge from taking the challenged action, the judge did not act patently and

unambiguously without jurisdiction. Helfrich,

.

{¶ 27} Here, the Judges cannot be said to patently and unambiguously lack

jurisdiction. Like in Farmer and Helfrich, the Judges have the statutory power to issue

certain administrative orders and to enforce their orders via contempt. Since the law vests

the Judges with the power to make administrative orders and hold noncomplying

individuals in contempt, it cannot be said that the Judges patently and unambiguously

acted without authority.

2) The Clerk has at least one adequate remedy at law

{¶ 28} The Clerk has failed to demonstrate that he lacks an adequate remedy at

law, either in the form of an appeal from any decision holding him in contempt for failing

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to comply with Administrative Order 23-45 or from filing a declaratory judgment action to

determine the respective rights and duties of the parties. Absent a patent and

unambiguous lack of authority, for an extraordinary writ to issue, a relator must show that

no other adequate remedy at law exists. State ex rel. Elder v. Camplese,

.

{¶ 29} Appealing a contempt order is an adequate remedy at law for the contemnor

that will result in denial of the requested writ. State ex rel. Mason v. Burnside, 2007-Ohio-

6754, ¶ 15 (internal citation omitted); State ex rel. Simpson v. Melnick,

. Without more, the delay caused by an appeal does not make that appeal an

inadequate remedy. State ex rel. Sponaugle v. Hein,

(internal

citations omitted). See also State ex rel. Lyons v. Zaleski,

, 1996-

Ohio-267 ("contentions that appeal from any subsequent adverse final judgment would

be inadequate due to time and expense are without merit").

{¶ 30} The pleadings and their attachments demonstrate that the Clerk has an

adequate remedy at law and that the Judges are entitled to judgment on the pleadings on

the Clerk's prohibition claim. We make this determination construing the pleadings and

attachments in the light most favorable to the Clerk.

E. The Judges Have Sufficiently Pled Their Mandamus Counterclaim {¶ 31} The Clerk's Motion to Dismiss the Judges' counterclaim in mandamus is

denied because the Judges have met all of the required elements of their mandamus

claim as a matter of law.

{¶ 32} To obtain a writ of mandamus, the relator must show:

(1) the relator has a clear legal right to the requested relief;

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(2) the respondent has a clear legal duty to perform the requested relief; and (3) there must be no adequate remedy at law.

State ex rel. Foster,

(1st Dist.), citing State ex rel. Newell v. Gaul,

(8th Dist.).

{¶ 33} Like with a prohibition action, to prevail in a mandamus action, the relator

must prove these elements by clear and convincing evidence. State ex rel. Ware v.

Crawford,

, ¶ 14. "Clear and convincing evidence" is a degree of proof that

is more than a preponderance of the evidence but less than the beyond-a-reasonable-

doubt standard required in a criminal case; clear and convincing evidence produces in

the trier of fact's mind a firm belief of the fact sought to be established. State ex rel. Miller

v. Ohio State Hwy. Patrol,

. A writ of mandamus is not granted by

right. Its issuance rests in the sound discretion of the court. State ex rel. Mettler v.

Stratton,

(1941), paragraph one of the syllabus. The Ohio Supreme Court

will review the denial of a writ of mandamus for abuse of that discretion. State ex rel.

Paluch v. Zita,

.

1) The Judges have shown a clear legal right to order the Clerk to restore remote online access and rescind the Policy

{¶ 34} The Judges have shown that they have a clear legal right to order the Clerk

to restore the remote online access of court records in accordance with Administrative

Order 23-45, which necessarily includes rescinding the Clerk's Policy impinging upon the

Judges' administration of their records to be made available to the public.

{¶ 35} For mandamus to lie, the right "'must be specific, definite, clear, and

unequivocal.'" State ex rel. Lanter,

(1st Dist.) (internal citation

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omitted). See also State ex rel. Manley,

(mandamus appropriate

"where the right is clear, and does not depend upon complication of disputed facts").

{¶ 36} Here, the Judges have the clear legal right to prevent the Clerk from

usurping a judicial power conferred specifically and exclusively on the Judges. This case

is not truly about the Clerk's decision to initially provide remote online access in eviction

cases, but rather about the Clerk's desire to restrict remote online access to entire judicial

proceedings on the premise that he was protecting litigants (who had not requested any

such protection). Yet, the Judges possess the sole authority to restrict public access to

court records, as is part of their inherent authority as well as provided by Sup.R. 45(E).

{¶ 37} Under Sup.R. 45(E), "[a]ny 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 access to the information or, if necessary,

the entire document."

{¶ 38} Courts, not clerks, have the authority to weigh if and when an individual's

right to privacy outweighs the strong presumption of public access of court records:

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 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.

Sup.R. 45(E)(1)(Bold emphasis added.). When an interested party makes an application

to restrict public access, the court, but not the Clerk, is vested with the authority to balance

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the competing interests of the individual's privacy and the public's right to access court

records.

{¶ 39} Importantly, courts have long had inherent authority to seal some or all of

the documents in civil cases. Schussheim v. Schussheim,

. Courts

have this power because "every court ultimately has supervisory power over its own

records and files." Capital One Bank United States, N.A. v. Essex,

, ¶ 12

(2d Dist.). Sup.R. 45(E) expands upon courts' inherent authority to balance the competing

interests of public access and constitutional privacy. In the civil context, Ohio courts

possess this limited inherent authority to seal records, whether individual case documents

or an entire case, where "unusual and exceptional circumstances" exist, and the interests

of the applicant outweigh the legitimate interest of the government to maintain the record.

{¶ 40} As discussed above, the Clerk only has the powers conferred upon it by

statute and those powers are ministerial, not judicial, in nature. Nothing in Sup.R. 44-47,

nor in anything cited by the Clerk, provides the Clerk with the authority to restrict the

public's access to case documents or negates the Judges' supervisory power over the

Municipal Court's records and files.

{¶ 41} Here, the Clerk overreached to exercise a judicial function en masse

specifically conferred to the Judges, without having the power or right to do so, without

any party seeking such relief, and without any evidence being brought forth to justify such

restriction. Any decision to restrict public access must be based upon evidence in the

record. See State ex rel. Dispatch Printing Co. v. Geer,

, ¶ 19. The Clerk

anointed himself to determine that the needs of some litigants might be benefitted and

that those needs outweigh the courts' authority to provide the public with transparency in

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court proceedings and in the most accessible medium feasible. The courts serve all of

the people, not designated, select groups. In fulfillment of that service, the Judges'

concerns for clarity as to what records are available, the public's accessibility, and the

transparency in court proceedings is not misplaced. These fundamental principles, quite

naturally, are rightfully guarded by the courts.

{¶ 42} The Clerk undertook a function belonging exclusively to the court he serves,

and the Judges have a clear legal right to protect their authority, both inherent and

provided by rule, to balance the equities when parties request to restrict public access of

case documents from being usurped by the Clerk.

2) The Clerk has a clear legal duty to comply with Administrative Order 23-45 and restore remote online access to all case documents as directed

{¶ 43} The Judges have shown that the Clerk has a clear legal duty to obey

Administrative Order 23-45, rescind the Policy, and restore remote online access.

{¶ 44} Statutes or administrative rules adopted pursuant to legislative authority

may provide the basis for a clear legal duty and a clear legal right in a mandamus case.

See State ex rel. Pipoly v. State Teachers Retirement Sys.,

. A clerk

may be ordered by way of a writ of mandamus to commence a ministerial act. See State

ex rel. Focke v. Price,

(2d Dist. 1955).

{¶ 45} As a creature of statute, the Clerk is without discretion to disregard a

statutory mandate. See State ex rel. Bey v. Byrd,

(Kennedy, C.J.,

concurring in judgment only in part and dissenting in part), citing Euclid v. Camp Wise

Assn.,

, 210 (1921). Further:

The courts uniformly hold that the office of clerk of a court of justice is ministerial, and that it includes no judicial authority except by constitutional or legislative provision. There is some

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conflict of opinion as to the judicial or ministerial nature of certain specific duties of a clerk of court; but if his official duty is prescribed by law, then his action in performance of that duty is ministerial.

Hornack v. State,

(8th Dist. 1931).

{¶ 46} A municipal clerk of court has statutory duties enumerated in R.C. 1901.31,

including to:

file and safely keep all journals, records, books, and papers belonging or appertaining to the court; record the proceedings of the court; perform all other duties that the judges of the court may prescribe; and keep a book showing all receipts and disbursements, which book shall be open for public inspection at all times.

R.C. 1901.31(E) (Bold emphasis added.). Administrative Order 23-45 clearly prescribed

how the Judges intended their records be made available to the public.

{¶ 47} Contrary to the Clerk's assertions, Sup.R. 44-47 does not provide the Clerk

with discretion to restrict remote online access to court records after the fact, particularly

where, as here, the Judges he serves have ordered him to restore such access. Court

rules do not carry the same legal weight as statutes passed by the Ohio General

Assembly. In particular, it is well settled that the "Rules of Superintendence 'do not have

the same force as a statute or case law, but are rather purely internal housekeeping rules

which do not create substantive rights in individuals or procedural law.'" Hunter-June v.

Pitts,

(12th Dist.), quoting Elson v. Plokhooy,

(3d Dist.). Accord In re B.J.,

(12th Dist.). Rather, the preface to

the Superintendence Rules explains that those rules were adopted to ensure the "prompt

disposition of all causes, at all times, in all courts of this state." Sup.R. Preface; State v.

Akladyous,

(12th Dist.). Noncompliance with a Rule of

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Superintendence is generally not grounds for reversal in a criminal case, much less

grounds to shift the judicial power to weigh the privacy needs of individuals against the

public's right to access court documents to a non-judicial officer such as the Clerk.

{¶ 48} Further, if a rule created pursuant to Ohio Const., art. IV, § 5(A)(1), such as

Sup.R. 44-47, conflicts with a statute, the rule will control for procedural matters, and the

statute will control for matters of substantive law. Proctor v. Kardassilaris, 2007-Ohio-

4838, ¶ 17. Here, the parties' dispute is substantive. The Clerk's interpretation of Sup.R.

44-47, if adopted, would impermissibly create an exception to his statutory duty to follow

orders from the Judges. The General Assembly could have amended R.C. 1901.31 to

allow the Clerk the final decision on what court documents will have remote online access,

or to invest the Clerk with the power to disable such access after the fact. The Ohio

Supreme Court enacted Sup.R. 44-47 in 2009 and because the General Assembly has

not added such a caveat to the Clerk's obligation to obey orders from the court he serves,

this Court will not legislate such an exception from the bench.

{¶ 49} Sup.R. 44-47 cannot be reasonably interpreted to provide the Clerk with the

authority to disregard the Judges' order to restore online access. Such an interpretation

of Sup.R. 44-47 would render the portion of R.C. 1901.31 that a clerk must "perform all

other duties that the judges of the court may prescribe" superfluous. The rule against

surplusage is a well-established rule of statutory interpretation that precludes an

interpretation that renders a portion of a statute meaningless. State ex rel. McQueen v.

Court of Common Pleas,

.

{¶ 50} The Ohio Supreme Court has stated that the purpose of Sup.R. 44-47 is to

provide a procedural claim for third parties who wish to obtain or limit access to court

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records. Sup.R. 45(C)(2) provides a shield to the clerk or the court against a third-party

litigant who might bring a claim because a particular case document is not available

online. Nothing in Sup.R. 44-47 suggests that the Clerk can unilaterally decide to disable

remote online access that had been previously provided or that the Clerk may act contrary

to the direction of the Court he has been elected to serve.

{¶ 51} Accordingly, the Clerk has a clear legal duty to restore remote online access

to the court records otherwise removed by the Clerk's Policy, as well as to rescind the

Policy in accordance with Administrative Order 23-45.

3) The Judges lack an adequate remedy at law

{¶ 52} The Clerk argued that the Judges have an adequate remedy at law because

the Judges can hold him in contempt for failing to abide by Administrative Order 23-45.

However, contempt is a power, not a remedy for the judges.

{¶ 53} Contempt is not a remedy for the Judges because the Judges cannot

control if, when, or how a purge of the contempt might take place. A contempt punishes

the Clerk for his conduct, but it does not solve the problem for which the Judges seek a

remedy, namely that the Clerk has impermissibly exceeded his authority by unilaterally

implementing his Policy and restricting remote online access to court documents contrary

to the Judges' direction. That is to say, even if the Judges hold the Clerk in contempt for

non-compliance, they can levy a further sanction, but they cannot ensure management

of the court's records as requested.

{¶ 54} Moreover, there is no remedy at law that values the autonomy of judicial

authority, which here was usurped by the Clerk when he decided to perform a function

within the sole authority of the courts which he serves. The Clerk misunderstands and

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thus conflates the difference between a remedy at law and a sanction for contempt. A

finding that the Clerk is in contempt may result in a sanction being levied upon the Clerk,

but it does not fulfill the implementation of Administrative Order 23-45.

{¶ 55} The Judges have no means to obtain relief by way of specific performance.

To adjudicate the Judges' authority to compel the Clerk to restore remote online access

to court records documenting their proceedings the Judges would need to seek both

declaratory judgment and a mandatory injunction. Notably however, the Ohio Supreme

Court has specifically held that where a party must seek both a declaratory judgment and

a mandatory injunction, the party lacks an adequate remedy at law and a writ of

mandamus may issue. See State ex rel. Maras v. Larose,

(internal

citations omitted). See also State ex rel. Smith v. Industrial Com.,

(1942)("[t]he functions of an injunction are ordinarily to restrain motion and enforce

inaction, while those of mandamus are to set in motion and to compel action").

{¶ 56} Here, the Judges are seeking to compel the Clerk to undertake the official

actions of rescinding his Policy and restoring remote online access to the court's records

as previously directed. Mandamus is an appropriate action for the Judges to undertake.

4) The Judges' mandamus claim is not moot

{¶ 57} The Clerk argues that the Judges' mandamus claim is moot because he

alleges that he has complied in part with Administrative Order 23-45. Where a requested

action has already been taken, a relator's mandamus claim is moot. Clough v. Lawson,

, ¶ 8 (11th Dist.). A writ of mandamus will not issue to compel an act

already performed. State ex rel. Shaw v. Clerk of Cuyahoga Cty. Probate Court, 2019-

Ohio-3780, ¶ 8 (8th Dist.).

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{¶ 58} The burden to prove that a claim is moot rests with the respondent. State

ex rel. Toledo Blade Co. v. Toledo-Lucas Cty., Port Auth.,

. A

respondent meets its burden by providing an affidavit that demonstrates that the actions

to be compelled by the requested writ have occurred.

Here, the Clerk did not provide

an affidavit, nor any other evidence, to support his assertion that he has complied with

any part of Administrative Order 23-45. Therefore, the Clerk did not meet his burden to

prove mootness.

{¶ 59} Even where an affidavit is provided, a matter will not be moot where the

claims meet the capable-of-repetition exception. This exception applies only in

exceptional circumstances in which the following two factors are both present: (1) the

challenged action is too short in duration to be fully litigated before its cessation or

expiration; and (2) there is a reasonable expectation that the same complaining party will

be subject to the same action again. State ex rel. Calvary v. Upper Arlington,

,

; State ex rel. Cincinnati Enquirer v. Ronan, 2009-Ohio-

5947, ¶ 5. The Ohio Supreme Court has recognized that a continuing pattern and practice

of preventing access to public records can support a finding that the-capable-of-repetition

exception to mootness applies. See Id. at ¶ 6.

{¶ 60} Here, the issues are not moot because the situation is capable of repetition

yet evading review. The Clerk has the ability to restrict remote online access without it

being detected by the Judges or others. The Judges averred that they learned that the

Clerk issued the Policy from the news media. The Clerk gave no prior notice to the Judges

that he was undertaking such action. The Clerk could restrict remote online access and

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then simply restore the same should the Judges file a court action, mooting the action but

never solving the underlying issue.

{¶ 61} The Clerk's mootness argument fails as a matter of law.

III. CONCLUSION {¶ 62} For the reasons discussed herein, this Court DENIES the Clerk's Motion to

Dismiss the Counterclaim and GRANTS the Judges' Motion for Judgment on the

Pleadings.

{¶ 63} Writ of Mandamus is hereby GRANTED.

{¶ 64} Writ of Prohibition is DENIED.

BYRNE, P.J., and M.POWELL, J., concur.

______________________

Judges Robin N. Piper, Mike Powell, and Matthew R. Byrne, of the Twelfth Appellate District, sitting by assignment in the First Appellate District pursuant to Ohio Const., art. IV, § 5(A)(3).

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