Ohio Supreme Court Rejects Sealing of Court Documents as to Politician Josh Mandel’s Divorce

State ex rel. Cincinnati Enquirer v. Forsthoefel, Slip Opinion No. 2022-Ohio-3580

OCT 11, 2022 | REPUBLISHED BY LIT: OCT 24, 2022

JUDGE RAVI SANDILL VIOLATES THE BASIC TENETS OF ACCESS TO COURTS BY BLOCKING THE ENTIRE CASE WITHOUT FOUNDATION IN LAW #VoteHimOut https://t.co/0SCEi1h0Te@harrisdemocrats @statebaroftexas @LStarLegal @tedcruz @abc13houston @KPRC2 @HuntonAK @LockeLord @bradleylegal #txlege pic.twitter.com/7eOGbnbhRU

— lawsinusa (@lawsinusa) October 23, 2022

I. BACKGROUND

{ 2} In April 2020, Joshua Mandel and Ilana Mandel filed in the Ashland County Common Pleas Court, Domestic Relations Division, a marriage-dissolution petition and a motion to seal 22 related case documents, including the dissolution petition, the separation agreement, and the shared-parenting plan.

The motion described Joshua as a

“former State Treasurer of Ohio and member of the Ohio House of Representatives” and Ilana as coming from a “very public family in the state” with ties to “national financial and civic communities.”

The Mandels requested sealing to

“preserve [their] right to protect the confidentiality of personal financial information and help protect the privacy, safety, and security of their minor children.”

The motion cited no legal authority to support sealing.

{ 3} Judge Forsthoefel granted the motion the day it was filed, summarily concluding that the motion was “well-taken” and stating that 21 of the 22 documents would be “subject to unsealing and review only upon further order of the Court.”

The lone document he did not seal had not been presented to him for sealing.

He did not hold a hearing in deciding the motion, and his order does not illuminate his reasoning.

{¶ 4} In February 2021, after the Enquirer filed its complaint in this case, members of Joshua’s staff provided the Enquirer with documents related to the dissolution case.

Around this time, the Enquirer published an article titled

“ ‘Differences have arisen’: Mandel discloses divorce records amid Senate bid.”

According to Judge Forsthoefel, the information contained within the article is consistent with the documents that he placed under seal.

II. ANALYSIS

A. Mootness

{ 5} Judge Forsthoefel argues that this case is moot because the Enquirer has received documents relating to the dissolution case.

In support, he cites State ex rel. Toledo Blade Co. v. Ohio Bur. of Workers’ Comp., 106 Ohio St.3d 113, 2005-Ohio-3549, 832 N.E.2d 711, ¶ 16, in which this court concluded that a newspaper company’s mandamus claim seeking the production of records under the Public Records Act, R.C. 149.43, was moot because the respondents had provided the records.

{ 6} But Judge Forsthoefel misunderstands the type of relief that the Enquirer seeks.

The Enquirer does not seek the production of documents; rather, it seeks an order directing Judge Forsthoefel to vacate his sealing order and provide public access to the sealed documents and an order barring him from enforcing his sealing order.

Additionally, the relief sought by the Enquirer in its complaint pertains to the documents in their entirety; Judge Forsthoefel acknowledges that the copies provided to the Enquirer by the Mandels were redacted.

We therefore determine that this case presents a live controversy.

See Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d 371 (1970)

(it is the duty of courts “to decide actual controversies between parties legitimately affected by specific facts and to render judgments which can be carried into effect” and “to refrain from giving opinions on abstract propositions * * * or advice upon potential controversies”).

B. Mandamus

{ 7} The Enquirer relies on the Rules of Superintendence to support its mandamus request.

We have observed that mandamus is the appropriate remedy to enforce provisions of the Rules of Superintendence requiring courts to provide public access to court records.

See State ex rel. Cincinnati Enquirer v. Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354, 14 N.E.3d 989, ¶ 11, citing Sup.R. 47(B).

{ 8} The rules provide that “

The term “court record” means “both a case document and an administrative document regardless of physical form or characteristic, manner of creation, or method of storage.” Sup.R. 44(B).

Subject to certain exceptions, “case document” means a “document and information in a document submitted to a court or filed with a clerk of court in a judicial action or proceeding.” Sup.R.

44(C). The rule excludes from the definition of a “case document” certain personal identification information (Social Security numbers and financial-account numbers, for instance), Sup.R. 44(C)(2)(b) and (H), as well as particular types of documents filed in domestic-relations cases, Sup.R. 44(C)(2)(h).

{ 9} A party to a judicial action may by written motion request that the court restrict public access to a case document or information within it. Sup.R. 45 (E)(1).

“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 after considering” the factors of Sup.R. 45(E)(2)(a) through (c). Sup.R. 45(E)(2).

A court must use the “least restrictive means available” when restricting public access. Sup.R. 45(E)(3).

1. Adequate remedy

{¶ 10} In State ex rel. Cincinnati Enquirer v. Shanahan, 166 Ohio St.3d 382, 2022-Ohio-448, 185 N.E.3d 1089, ¶ 18, we recently concluded that because Sup.R. 47(B) 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 need show only a clear legal right to relief and a clear duty on the part of the respondent to provide it and does not need to also show the lack of an adequate remedy in the ordinary course of law.

This conclusion forecloses Judge Forsthoefel’s argument that the Enquirer has an adequate remedy by way of Sup.R. 45(F)(1)’s motion procedure, which provides that “[a]ny person, by written motion to the court, may request access to a case document or information in a case document that has been granted restricted public access.”

2. Clear legal right and clear legal duty

{¶ 11} We conduct our clear-legal-right and clear-legal-duty analyses by “review[ing] the correctness of [the] [j]udge[’s] order[].” Shanahan at ¶ 19. Our review of the order is de novo. Id.

{¶ 12} The Enquirer argues that it is entitled to a writ of mandamus for two reasons.

First, it says that Judge Forsthoefel lacked clear and convincing evidence to support restricting public access to the Mandels’ case documents.

Second, it says that Judge Forsthoefel’s sealing order departs from the requirement that he use the least restrictive means available in restricting public access.

{ 13} In restricting public access, a court must consider “[w]hether public policy is served by restricting public access,” “[w]hether any state, federal, or common law exempts the document or information from public access,” or “[w]hether 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)(a) through (c).

If a court decides to restrict public access to information in a document, then one option it has is to “[r]edact[] the information rather than limiting public access to the entire document.” Sup.R. 45(E)(3)(a).

{ 14} In Shanahan, 166 Ohio St.3d 382, 2022-Ohio-448, 185 N.E.3d 1089, we granted a writ of mandamus ordering a trial judge to allow public access to a police officer’s affidavit that the judge had sealed over concerns that the officer and his family were at risk of harm.

The judge’s sealing order cited an uptick in violence against law-enforcement officers and a threat that someone might publish the officer’s personal information. Id. at  6.

Although the judge’s order did not expressly say so, we surmised that the judge’s ruling stemmed in part from a social media post that the officer had attached to his affidavit. Id. at  7.

In the post, the author stated that he was thinking about publicizing the officer’s name, address, and phone number.

We determined that the judge’s order was not supported by clear and convincing evidence of risk of injury to persons, individual privacy rights and interests, or public safety, Sup.R. 45(E)(2).

First, the social-media post did not express a clear intent to publicize the officer’s personal information.

Second, there was no evidence of a threat of physical harm directed at the officer or his family.

And third, because the social-media poster already had the officer’s information, disclosing that information would not have increased the risk that the poster would publish it.

Self-dealing has caused Judge Bennett to enter judgment.

The judgment should not be enforced because equity will not enforce judgments procured by fraud.

The Court holds that an unconstitutional failure to recuse constitutes structural error.https://t.co/1Zi9C2qghg #txlege pic.twitter.com/Z3oSesZbPw

— lawsinusa (@lawsinusa) October 23, 2022

{ 15} Our analysis in this case is more straightforward than it was in Shanahan because of the lack of evidence to support Judge Forsthoefel’s order.

In Shanahan, the judge’s reasoning in support of restricting public access was apparent from the face of her order and the evidence she found persuasive was inferable from the documents the officer had filed.

Here, Judge Forsthoefel simply announced, without any analysis, that the Mandels’ motion was “well-taken.”

He did not disclose what evidence supported his decision.

Neither Joshua nor Ilana submitted an affidavit explaining why sealing was necessary to protect their interests.

And the joint motion to seal that Joshua’s attorney filed, which fleshes out the Mandels’ arguments in support of restricting public access, is not evidence.

See Woodward v. Woodward, Twelfth Dist. Warren No. 404, 1981 WL 5199, *1 (Sep. 9, 1981)

(“The arguments of attorneys are not evidence”).

{ 16} The fact that Judge Forsthoefel went so far as to seal the case-designation sheet is, as the Enquirer points out, perhaps the most glaring example of the lack of clear and convincing evidence supporting his order.

The case-designation sheet asks for the parties’ names, the case number, and the type of complaint (e.g., dissolution with minor children)—basic information that the Mandels disclosed in their motion to seal and that the parties have freely discussed in briefing.

See http://www.ashlandcommonpleas.com/index_files/Page341.htm

(template version of the Ashland County Common Pleas Court domestic-relations case-designation sheet).

Judge Forsthoefel does not explain how it could be proper for a court to restrict public access to something as innocuous as the case-designation sheet.

{ 17} The sweeping nature of Judge Forsthoefel’s sealing order is also at odds with Sup.R. 45(E)(3)’s requirement that he use the “least restrictive means available.”

Not only does his order fail to explain why he thought the wholesale sealing of 21 case documents was the only legally proper way of resolving the Mandels’ motion, it also fails to disclose whether he considered a less restrictive means of limiting public access, such as redaction, see Sup.R. 45(E)(3)(a).

{ 18} Judge Forsthoefel responds in his brief by pointing to an affidavit he filed in this case, in which he says that he performed the analysis prescribed by the Rules of Superintendence.

But this argument does not square with his order, which fails to cite, let alone discuss, the Rules of Superintendence.

In any event, Judge Forsthoefel’s affidavit is beside the point.

This court is reviewing the correctness of Judge Forsthoefel’s order, not his after-the-fact descriptions of that order.

{ 19} Next, Judge Forsthoefel points to the order itself, noting that it names the 22 documents that the parties requested be sealed, it shows he crossed out one of the 22 documents on the list and initialed the change, and it shows he signed the order.

But the superintendence rules require more than a judge’s editing and signing of an order to justify restricting public access—they require a court to find through clear and convincing evidence that restricting public access is justified and they require the court to use the least restrictive means available.

What is more, Judge Forsthoefel exaggerates the degree to which his edit of the list is evidence that he scrutinized the documents offered for sealing.

The only edit he made was to strike a document from the list because, as he noted in his order, it had “[n]ot [been] filed with the Clerk of Courts.”

{ 20} Last, Judge Forsthoefel points to dicta in State ex rel. Richfield v. Laria, 138 Ohio St.3d 168, 2014-Ohio-243, 4 N.E.3d 1040, which he claims supports his assertion that mandamus cannot lie to correct a result; rather, he says, mandamus can lie only to force him to make a ruling. Id. at  11

(“ ‘Mandamus will not lie to control judicial discretion, even if that discretion is abused’ ”),

quoting State ex rel. Rashada v. Pianka, 112 Ohio St.3d 44, 2006-Ohio-6366, 857 N.E.2d 1220,  3.

Shanahan, which rejected this standard, forecloses this argument. 166 Ohio St.3d 382, 2022-Ohio-448, 185 N.E.3d 1089, at 19.

{ 21} The Enquirer has established that Judge Forsthoefel’s order was overbroad and was not supported by clear and convincing evidence.

We therefore conclude that the judge erred in issuing the order and the Enquirer is entitled to relief.

{ 22} We note, however, that Judge Forsthoefel asserted in his affidavit that some of the documents contain information that would not qualify as a “court record” under Sup.R. 44.

And the Enquirer appears to concede this point, saying:

“Although some of the information in the twenty-two case documents the [Mandels’] Motion asked the Court to seal would fall within one of the domestic relations exemptions set forth in [Sup.R. 44](C)(2), it is clear that is not the case for all.”

{ 23} The documents subject to Judge Forsthoefel’s order have not been filed with the clerk of this court, so we are unable to conclude whether any information contained within the documents is subject to exclusion under Sup.R. 44(C)(2).

We therefore grant a writ of mandamus ordering Judge Forsthoefel to vacate his sealing order and to conduct a proper review of the documents that are the subject of his sealing order, pursuant to Sup.R. 44 and 45 and consistent with the analysis in this decision.

C. Prohibition

{ 24} To prevail on its prohibition claim, the Enquirer must establish that Judge Forsthoefel is about to or has exercised unauthorized judicial power and that it lacks an adequate remedy in the ordinary course of law.

See State ex rel. Balas-Bratton v. Husted, 138 Ohio St.3d 527, 2014-Ohio-1406, 8 N.E.3d 933,  15.

In Shanahan, 166 Ohio St.3d 382, 2022-Ohio-448, 185 N.E.3d 1089, at ¶ 29, we summarily granted a writ of prohibition barring the trial judge from restricting access to the officer’s affidavit, reasoning that because the relators had shown entitlement to a writ of mandamus, they were necessarily entitled to a writ of prohibition.

Applying Shanahan’s logic here, we conclude that the Enquirer is entitled to a writ of prohibition because it has shown entitlement to a writ of mandamus.

III. CONCLUSION

{ 25} We grant a writ of prohibition barring Judge Forsthoefel from enforcing his order sealing the documents filed in the dissolution case and grant 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.

concur.

Writs granted. O’CONNOR, C.J., and FISCHER, DONNELLY, STEWART, and BRUNNER, JJ.,

KENNEDY, J., concurs in judgment only, with an opinion joined by DEWINE, J.