[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Shubert v. Breaux, Slip Opinion No. 

.]




                                           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. 

                 THE STATE EX REL. SHUBERT v. BREAUX, JUDGE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
        may be cited as State ex rel. Shubert v. Breaux, Slip Opinion No.
                                     

.]
Mandamus—Prohibition—Common pleas court judge’s orders sealing documents
        in a criminal case were not supported by clear and convincing evidence and
        did not discuss whether less restrictive means of limiting public access were
        considered—Writ of prohibition granted barring judge from enforcing
        sealing orders—Writ of mandamus granted ordering judge to vacate
        sealing orders and to conduct a proper review of the documents sought to
        be restricted under Sup.R. 44 and 45—Motion to strike judge’s motion to
        dismiss granted.
       (No. 2024-0675—Submitted June 18, 2024—Decided June 28, 2024.)
                            IN MANDAMUS AND PROHIBITION.
                                   __________________
                             SUPREME COURT OF OHIO




       The per curiam opinion below was joined by FISCHER, DEWINE,
DONNELLY, STEWART, and DETERS, JJ.             BRUNNER, J., concurred in part and
dissented in part and would deny the motion to strike as moot. KENNEDY, C.J.,
concurred in judgment only in accordance with her separate opinion in State ex rel.
Cincinnati Enquirer v. Forsthoefel, 

.

       Per Curiam.
       {¶ 1} Relator, Craig Shubert, filed an original action in mandamus and
prohibition against respondent, Summit County Common Pleas Court Judge Alison
Breaux. Judge Breaux issued orders restricting public access to records in a
criminal case currently pending before her. Shubert, a former journalist and a
member of the public interested in that criminal case, seeks a writ of mandamus
ordering Judge Breaux to vacate the orders and a writ of prohibition barring Judge
Breaux from enforcing the orders. For the following reasons, we grant the writs.
            I. FACTUAL AND PROCEDURAL BACKGROUND
                                 A. Factual history
       {¶ 2} In February 2024, Jeremiah Stoehr was indicted in the Summit
County Court of Common Pleas on one count of rape, two counts of kidnapping,
one count of gross sexual imposition, and one count of disseminating matter
harmful to juveniles. The record contains some ambiguity regarding how many
alleged victims there were, but at least one alleged victim was under the age of ten.
Stoehr was a high school student when the complaint in this action was filed, and
the criminal case against him has received media attention. Judge Breaux is
presiding over Stoehr’s pending criminal case. Shubert states that he is a former
journalist who is interested in the proceedings of Stoehr’s case. Stoehr is not a
party to this extraordinary writ action.
       {¶ 3} On May 9, Stoehr filed a motion in the trial court to seal the docket
and remove public access to case filings during the pendency of Stoehr’s case.




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                                January Term, 2024




Stoehr’s motion to seal states that after media began reporting on his case, Stoehr
was assaulted and threatened, his parents were followed, and his address was
published online. The motion was not supported by any affidavits. The same day
the motion was filed, Judge Breaux issued an order granting it.
       {¶ 4} On May 16, Judge Breaux sua sponte issued an amended sealing
order. The amended order states that before Stoehr filed his motion to seal, the trial
court held a meeting in chambers with the prosecution and defense counsel. During
the meeting, “it was brought to the attention of the Court” that Stoehr, his family,
and his counsel had been threatened, intimidated, and confronted. The prosecution
also expressed a concern about the minor victim being identified. The trial court
“weigh[ed] the risk of injury to persons, public safety and fairness of the
adjudicatory process against the presumption of allowing public access to the
docket and [found], by clear and convincing evidence, that the restricting [of]
access to information in this case is warranted to protect the parties and counsel.”
The amended order directs the Summit County Clerk of Courts to remove any
online public access to the docket or images in Stoehr’s case and to remove any
public access to the docket or images “regarding subpoenas, summons returns,
search warrants, service returns, any court filing containing information protected
under Marsy’s Law, and any court filing containing private information of the
Defendant or other records as provided by state, federal, or common law.”
                               B. Procedural history
       {¶ 5} On May 13, Shubert filed his complaint in this action and a motion
for immediate issuance of a peremptory writ of mandamus and peremptory writ of
prohibition, or alternatively for an order directing an expedited response. The
initial complaint discusses only Judge Breaux’s original sealing order because she
had not yet issued the amended order. On May 17, Judge Breaux filed a motion to
dismiss the complaint.




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                              SUPREME COURT OF OHIO




         {¶ 6} On May 20, Shubert filed a memorandum opposing the motion to
dismiss. He also filed a motion for leave to file a supplemental and amended
complaint, which this court granted.           

.     The supplemental
complaint includes discussion of the amended sealing order.
         {¶ 7} In his supplemental complaint, Shubert seeks a writ of mandamus
ordering Judge Breaux to vacate the sealing orders and, “pursuant to Ohio Sup.R.
44 and 45, to conduct a proper consideration of evidence and all legal standard[s]
prior to imposing any restriction or prohibition, if any, upon public access to court
documents” in Stoehr’s case. Shubert also seeks a writ of prohibition barring Judge
Breaux from enforcing the sealing orders.
         {¶ 8} On May 30, this court denied the motion to dismiss the original
complaint, issued an alternative writ, ordered Judge Breaux to answer, and ordered
the submission of evidence and briefs. 

. As evidence, Judge
Breaux submitted her own affidavit, in which she summarizes the reasons that she
granted the sealing orders. She also submitted an affidavit from Stoehr’s father and
an affidavit from Stoehr’s mother. The affidavits from Stoehr’s parents detail
threats that Stoehr received online and in-person and state that Stoehr’s mother
reported to the police that a suspicious vehicle had been following her. The three
affidavits are dated June 6—three weeks after Judge Breaux issued the amended
order.
                              II. LEGAL ANALYSIS
         A. Shubert’s motion to strike Judge Breaux’s motion to dismiss
         {¶ 9} As an initial matter, after Shubert filed his motion for leave to file a
supplemental complaint, but before the court granted that motion and accepted the
supplemental complaint, Judge Breaux filed a motion to dismiss the supplemental
complaint. Shubert has filed a motion to strike that motion to dismiss.
         {¶ 10} Judge Breaux filed a motion to dismiss a complaint that we had not
yet accepted for filing. Her motion was effectively a nullity. In addition, under



                                           4
                                 January Term, 2024




Civ.R. 15(E), “[i]f the court deems it advisable that the adverse party plead to the
supplemental pleading, it shall so order, specifying the time therefor.” But we made
no such order here. We therefore grant Shubert’s motion to strike and strike the
motion to dismiss the supplemental and amended complaint.
                    B. Sup.R. 45 and access to court documents
       {¶ 11} Certain information in court filings may be confidential under
specific provisions of state or federal law or rules. See Sup.R. 44(C). But
otherwise, court records are generally “presumed [to be] open to public access.”
Sup.R. 45(A); see also State ex rel. Cincinnati Enquirer v. Forsthoefel, 2022-Ohio-
3580, ¶ 8.
       {¶ 12} However, Sup.R. 45(E)(1) allows persons who are the subject of
information in a case document to, by motion, “request that the court restrict public
access to the information or, if necessary, the entire document.” A court may also
restrict public access to a case document on its own order. 

 The court shall
restrict public access to a case document
       if it finds by clear and convincing evidence that the presumption of
       allowing public access is outweighed by a higher interest after
       considering each of the following:
                 (a) Whether public policy is served by restricting public
       access;
                 (b) Whether any state, federal, or common law exempts the
       document or information from public access; [and]
                 (c) 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). Additionally, when restricting public access, the court must use
the least restrictive means available. Sup.R. 45(E)(3).



                                            5
                                 SUPREME COURT OF OHIO




        {¶ 13} Any person may, by motion, request access to restricted case
documents. Sup.R. 45(F). The court may hold a hearing on the motion. If the
court finds “by clear and convincing evidence that the presumption of allowing
public access is no longer outweighed by a higher interest,” it may permit access to
the case document. 

 In addition, “[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” under R.C. Ch. 2731. Sup.R. 47(B).
               C. State ex rel. Cincinnati Enquirer v. Forsthoefel
        {¶ 14} In State ex rel. Cincinnati Enquirer v. Forsthoefel, 

,
we decided issues similar to those raised by Shubert. Because our analysis relies
on the opinion in Forsthoefel, we summarize it here.
        {¶ 15} Forsthoefel involved an underlying marriage-dissolution case
between former Treasurer of State Josh Mandel and his ex-wife. Id. at ¶ 2. The
Mandels filed a motion in the trial court to seal 22 case documents. Id. Judge
Forsthoefel granted the motion the day it was filed, “summarily concluding that the
motion was ‘well-taken,’ ” and sealed 21 of the 22 documents. Id. at ¶ 3. The
Enquirer filed an action in this court for writs of mandamus and prohibition,
requesting that Judge Forsthoefel be ordered to vacate and barred from enforcing
his sealing order. Id. at ¶ 1.
        {¶ 16} In Forsthoefel, we reiterated our conclusion from State ex rel.
Cincinnati Enquirer v. Shanahan, 

, that because Sup.R. 47(B)
explicitly allows a mandamus action as a remedy for a person aggrieved by a court’s
failure to comply with Sup.R. 44 through 47, the person does not need to show the
lack of an adequate remedy in the ordinary course of the law. 

.
Applying that conclusion, we determined that the Enquirer was not required to first
file a motion in the trial court under Sup.R. 45(F) to obtain access to the sealed
documents before bringing its mandamus action. See 

 We held that Judge
Forsthoefel’s sealing order did not show the need for sealing by clear and



                                           6
                                 January Term, 2024




convincing evidence because it did not provide any analysis or disclose the
evidence on which Forsthoefel based his conclusion. Id. at ¶ 15. Our opinion also
noted that neither of the Mandels submitted an affidavit with the motion to seal
explaining why sealing was necessary and found that the attorney’s arguments in
the motion to seal were “not evidence.” Id. at ¶ 15.
        {¶ 17} We also held that Judge Forsthoefel’s sealing order was at odds with
Sup.R. 45(E)(3)’s requirement that courts use the least restrictive means available
of limiting public access, noting that the order did not disclose whether he had even
considered a less restrictive means. Forsthoefel, 

. We
noted that Judge Forsthoefel had submitted as evidence in the writ action an
affidavit explaining his sealing order but found that the affidavit was “beside the
point” because “[t]his court [was] reviewing the correctness of Judge Forsthoefel’s
order, not his after-the-fact descriptions of that order.” Id. at ¶ 18. We granted a
“writ of prohibition barring Judge Forsthoefel from enforcing his order sealing the
documents filed in the dissolution case and grant[ed] a writ of mandamus ordering
him to vacate his sealing order and to conduct a proper review of the documents
pursuant to Sup.R. 44 and 45.” Id. at ¶ 25.
                                    D. Mandamus
        {¶ 18} Shubert seeks a writ of mandamus ordering Judge Breaux to vacate
the orders in Stoehr’s case and, “pursuant to Ohio Sup.R. 44 and 45, to conduct a
proper consideration of evidence and all legal standard[s] prior to imposing any
restriction or prohibition, if any, upon public access to court documents” in Stoehr’s
case. To be entitled to a writ of mandamus, Shubert must prove by clear and
convincing evidence: (1) a clear legal right to the relief he requests, (2) a clear legal
duty on the part of Judge Breaux to provide it, and (3) the lack of an adequate
remedy in the ordinary course of the law. State ex rel. Manley v. Walsh, 2014-
Ohio-4563, ¶ 18.




                                           7
                              SUPREME COURT OF OHIO




                      1. Adequate remedy in the ordinary course
                           of the law and related arguments
          {¶ 19} Judge Breaux argues that Shubert has an adequate remedy in the
ordinary course of the law by filing a motion under Sup.R. 45(F) requesting access
to the documents. But this argument is foreclosed by Forsthoefel. There, we
reiterated that because Sup.R. 47(B) explicitly allows a person “aggrieved” by a
court’s failure to comply with Sup.R. 45 to bring a mandamus action, the person
need not show the lack of an adequate remedy in the ordinary course of the law.

; see also Shanahan, 

. Shubert does not
first need to bring a Sup.R. 45(F) motion to unseal before bringing this mandamus
action.
          {¶ 20} Judge Breaux also argues that our holding in State ex rel. Parisi v.
Dayton Bar Assn. Certified Grievance Commt., 

, supports her
position that Shubert has an adequate remedy in the ordinary course of the law
under Sup.R. 45(F). In Parisi, we held that Sup.R. 44 through 47 “set forth the
process that the public must use to seek to obtain records held by the judicial
branch.” 

. “If a party seeks to obtain judicial records through means
other than Sup.R. 44 through 47, the party is not entitled to a writ of mandamus, as
the Rules of Superintendence are the sole vehicle by which a party may seek to
obtain such records.” 

. Judge Breaux thus argues that because Shubert
did not first request access to the records under Sup.R. 44 through 47, he is not
entitled to a writ of mandamus. But these statements in Parisi were made in the
context of discussing whether the Public Records Act or the Rules of
Superintendence governs requests for production of court records. See 

 at ¶ 19-
20. In this case, Shubert is not requesting production of records—he seeks a writ
of prohibition barring Judge Breaux from enforcing the sealing orders and a writ of
mandamus ordering her to vacate the orders.




                                           8
                                January Term, 2024




       {¶ 21} Similarly, Judge Breaux argues that Shubert is not “aggrieved”
because he did not attempt to obtain “direct access” to the documents. See Sup.R.
44(J) (defining “direct access” as “the ability of any person to inspect and obtain a
copy of a court record at all reasonable times during regular business hours at the
place where the record is made available”). But Judge Breaux’s sealing orders
restrict “any public access” to a broad set of documents, and Shubert is not required
to make a trip to the courthouse before bringing this case.
                           2. Compliance with Sup.R. 45
       {¶ 22} Shubert argues that Judge Breaux did not comply with Sup.R. 45
when she issued the sealing orders for two reasons. First, he argues that Judge
Breaux’s sealing orders were not supported by any evidence, much less clear and
convincing evidence. Second, he argues that Judge Breaux did not consider
whether the sealing orders were the least restrictive means available to restrict
public access.
       {¶ 23} We review the correctness of Judge Breaux’s order de novo.
Forsthoefel, 

. “A court shall restrict public access . . . if it
finds by clear and convincing evidence that the presumption of allowing public
access is outweighed by a higher interest . . . .” Sup.R. 45(E)(2).
       {¶ 24} Stoehr filed with the trial court a motion to seal the docket which
stated that after his criminal case received media attention, he had been assaulted
and threatened, and that his parents had been followed by unknown vehicles. But
the motion was not supported by an affidavit or any other evidence. See 

 (holding that arguments made in a motion to seal filed without an affidavit
explaining why sealing was necessary are not evidence). In addition, the amended
order states that “it was brought to the attention of the Court” at an in-chambers
meeting with counsel that Stoehr, his family, and his counsel had been threatened
and intimidated. But the information provided by counsel at this meeting was not
supported by evidence. As “[w]e have long held . . . ‘statements of counsel are not



                                          9
                             SUPREME COURT OF OHIO




evidence.’ ” RNG Properties, Ltd. v. Summit Cty. Bd. of Revision, 

, quoting Corporate Exchange Bldgs. IV & V, L.P. v. Franklin Cty. Bd.
of Revision, 

, 299 (1998); see also State v. Wood, 

 (2d Dist. 2001) (stating that “a representation by counsel does not
constitute evidence”).    Finally, as evidence in this action, Judge Breaux has
submitted affidavits from Stoehr’s parents that detail threats Stoehr received online
and in-person, and state that they reported to the police that a suspicious vehicle
had followed Stoehr’s mother. But these affidavits postdate the amended order and
thus Judge Breaux could not have relied on them when she issued the amended
order. In sum, the amended order’s statement that restricting access to the court
documents was necessary to protect Stoehr and his counsel was not supported by
any evidence.
       {¶ 25} Judge Breaux’s brief largely fails to address Shubert’s argument that
the assertions regarding Stoehr’s safety made in Stoehr’s motion to seal and during
the in-chambers meeting were not supported by evidence. Rather, the gravamen of
her brief is that if Shubert believes that he is entitled to information in the case
documents he can file a Sup.R. 45(F) motion to access them. But Judge Breaux’s
argument flips the procedures set forth in Sup.R. 44 through 47 on their head. In
order to restrict access to court documents, a court must first determine by clear and
convincing evidence that the presumption of allowing public access is outweighed
by a higher interest. Sup.R. 45(E). Only then is a person required to file a Sup.R.
45(F) motion to access the documents. Here—at the time of the amended order—
there was no testimony or other evidence before the court regarding any threats or
dangers to Stoehr or his family, only unsupported assertions. We conclude that
such assertions are not enough to establish by clear and convincing evidence that
restricting access is necessary.
       {¶ 26} Shubert also argues that Judge Breaux did not adequately consider
whether the amended order was the least restrictive means available to restrict



                                         10
                                January Term, 2024




public access. We agree. When restricting public access to case documents a court
must use the “least restrictive means available.”       Sup.R. 45(E)(3); see also
Forsthoefel, 

. Means less restrictive than limiting access to
an entire document include redacting certain information within a document,
restricting remote access but maintaining direct access, and using initials or other
identifiers in place of parties’ proper names. Sup.R. 45(E)(3). Here, the amended
order does distinguish between documents that are restricted in their entirety and
documents that are accessible directly but not remotely. But the amended order
does not address how Judge Breaux decided which documents should be placed in
which category. And it fails to disclose whether she considered less restrictive
means, such as only redacting certain information within each document.
       {¶ 27} Judge Breaux stresses that the amended order also states that
restricting access is necessary to protect the identity of the minor victim and other
information protected by Marsy’s Law, see Ohio Const., art. I, § 10a, or by other
state, federal, or common law. But this information is protected from disclosure
even absent the amended order. See Sup.R. 44(C)(2)(a) (excluding from the
definition of “case document” information “exempt from disclosure under state,
federal, or the common law”); see also R.C. 2930.07 (generally prohibiting, upon
victim request, disclosure of the victim’s identity).
       {¶ 28} In sum, Shubert has shown that the sealing orders do not meet the
requirements of Sup.R. 45.
                              3. Remaining arguments
       {¶ 29} Judge Breaux argues, citing State ex rel. Richfield v. Laria, 2014-
Ohio-243, ¶ 2, that mandamus cannot be used to challenge her discretion in issuing
a sealing order. But in Forsthoefel, we addressed this same argument based on
Laria and rejected it. Forsthoefel, 

.
       {¶ 30} Judge Breaux also briefly argues that this case differs from
Forsthoefel because criminal cases implicate constitutional rights that are not



                                          11
                                 SUPREME COURT OF OHIO




present in civil matters. She generally cites Ohio Constitution, Article I, Section
10 (rights of an accused) and Section 10a (rights of victims), but does not state with
specificity what these rights entail. Nor does she explain why these rights would
be imperiled if she cannot seal documents without meeting the requirements in
Sup.R. 45. We need not address this undeveloped constitutional argument. See
Mason City School Dist. Bd. of Edn. v. Warren Cty. Bd. of Revision, 2014-Ohio-
104, ¶ 38 (rejecting undeveloped constitutional argument that lacked authority and
argumentation).
                                   iv. Mandamus relief
       {¶ 31} Shubert has established that the sealing orders were not supported
by clear and convincing evidence and did not address whether less restrictive means
would adequately protect the information. We conclude that Judge Breaux erred in
issuing the orders and that Shubert is entitled to relief. However, Judge Breaux
asserts that some information in the documents is protected from disclosure under
state, federal, or common law, including victim-identifying information, which
would not qualify as court records. See Sup.R. 44(C)(2); see also Sup.R. 44(B).
As we did in Forsthoefel, we grant a writ of mandamus ordering Judge Breaux to
vacate the sealing orders and to conduct a proper review of the documents that are
the subject of the orders. See 

. This new review will allow Judge
Breaux to protect any restricted information from being disclosed and to review
any evidence regarding danger to Stoehr, his family, or his counsel that is properly
before the court at that time.
                                     E. Prohibition
       {¶ 32} Shubert also seeks a writ of prohibition barring Judge Breaux from
enforcing the sealing orders. To be entitled to a writ of prohibition, Shubert must
prove by clear and convincing evidence that (1) Judge Breaux exercised judicial
power, (2) the exercise of that power was unlawful, and (3) he lacks an adequate
remedy in the ordinary course of the law. State ex rel. Federle v. Warren Cty. Bd.



                                           12
                                      January Term, 2024




of Elections, 

. In Forsthoefel we summarily granted a writ of
prohibition barring the trial judge from restricting access to the records at issue
there, reasoning that because the relator had shown entitlement to a writ of
mandamus, it was necessarily entitled to a writ of prohibition. Forsthoefel, 2022-
Ohio-3580, at ¶ 24; see also Shanahan, 

. Similarly here,
because Shubert has shown entitlement to a writ of mandamus, we conclude that
Shubert is also entitled to the requested writ of prohibition.
                          F. Shubert’s constitutional argument
         {¶ 33} Shubert also argues that in addition to the Rules of Superintendence,
his relief in mandamus and prohibition is warranted by the First Amendment of the
United States Constitution. Because we conclude that Shubert is entitled to relief
on other grounds, we do not need to address his constitutional argument. See State
ex rel. Vindicator Printing Co. v. Wolff, 

 (finding that this
court need not address the relator’s constitutional claims, because relator
established entitlement to relief under the Rules of Superintendence).1
                                     III. CONCLUSION
         {¶ 34} The sealing orders state that restricting access to the case documents
is necessary because of danger to the criminal defendant, his family, and his
counsel. However, no evidence regarding such danger was before the court when
Judge Breaux issued the orders, so this danger could not have been established by
clear and convincing evidence. In addition, the sealing orders do not discuss
whether Judge Breaux considered a less restrictive means to limit public access.
         {¶ 35} We therefore grant a writ of prohibition barring Judge Breaux from
enforcing her orders sealing the documents filed in the underlying criminal case.



1. In his supplemental complaint, Shubert requests that this court “retain jurisdiction over Judge
Breaux concerning” any additional sealing orders that she might issue in response to the writs.
Shubert does not address this request for relief in his merit brief, so he has waived it. See State ex
rel. Stuart v. Greene, 

.




                                                 13
                            SUPREME COURT OF OHIO




We also grant a writ of mandamus ordering Judge Breaux to vacate her sealing
orders and to conduct a proper review of the documents sought to be restricted
under Sup.R. 44 and 45.
       {¶ 36} We also grant Shubert’s motion to strike Judge Breaux’s motion to
dismiss the proposed verified supplemental and amended complaint, and we strike
the motion to dismiss.
                                                                 Writs granted.
                               _________________
       The Law Firm of Curt C. Hartman and Curt C. Hartman, for relator.
       Elliot J. Kolkovich, Summit County Prosecuting Attorney, and Jennifer M.
Piatt, Assistant Prosecuting Attorney, for respondent.
                               _________________




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