Court of Appeals of Ohio, Second District, Montgomery
THE STATE OF OHIO EX REL GEORGIANNA I. PARISI Relator
DAYTON BAR ASSOCIATION CERTIFIED GRIEVANCE COMMITTEE, et al. Respondents
Action in Mandamus
Georgianna Parisi, Relator.
Stephen Freeze, Lisa Hesse, Attorneys for Respondents.
DECISION AND FINAL JUDGMENT ENTRY
1} On May 26, 2016, Georgianna I. Parisi filed a
Verified Petition for Writ of Mandamus against the
Dayton Bar Association and the Dayton Bar Association
Certified Grievance Committee (the "DBA" and
"DBACGC, " respectively). Parisi, an attorney, asks
this court to compel the respondents to produce public
records related to grievances against her. The DBA and DBACGC
moved to dismiss the petition, arguing that the records
sought are related to the attorney disciplinary process and
are not subject to release. Parisi filed a response; the DBA
and DBACGC filed a reply.
2} On February 15, 2017, this court notified the
parties that it intended to convert the motion to dismiss to
a motion for summary judgment, and gave the parties an
opportunity to submit additional evidentiary materials and
argument. Civ.R. 12(B); Loc.App.R. 8(A). The DBA and DBACGC
filed a notice that they would stand on the materials already
filed. Parisi filed a response to the notice, and separately
asked for a continuance to conduct discovery pursuant to
Civ.R. 56(F), a request this court overruled on April 3,
2017. We then gave Parisi additional time to file an
additional response to the converted motion for summary
3} In response, Parisi filed her own motion for
summary judgment, to which the DBA and DBACGC responded.
Respondents also moved to strike the exhibits to Parisi's
motion, arguing that they were not subm itted in accordance
with Civ. R. 56 or were otherwise improper. Parisi filed a
reply to both filings.
4} This matter is therefore before the court on: 1)
the DBA and DBACGC's converted motion for summary
judgment; 2) Parisi's motion for summary judgment; and 3)
the DBA and DBACGC's motion to strike exhibits to
Parisi's motion for summary judgment. Parisi's
previously-filed motion for leave to file a memorandum of
additional authorities is also pending. For the reasons that
follow, we conclude that the DBA and DBACGC are entitled to
judgment as a matter of law. We deny the request for a writ
of mandamus and dismiss this action.
Standard for a Writ of Mandamus
5} "A writ of mandamus is an extraordinary
remedy that only applies in a limited set of
circumstances." State ex rel. Parisi v. Heck,
2d Dist. Montgomery No. 25709, 2013-Ohio-4948, ¶ 4. It
is also an appropriate way to seek compliance with Ohio's
Public Records Act. R.C. 149.43(C)(1)(b); State ex rel.
Beacon Journal Publishing Co. v. Akron, 104 Ohio St.3d
399, 2004-Ohio-6557, 819 N.E.2d 1087, ¶ 23.
6} To be entitled to a writ of mandamus, Relator
must establish that she has a clear legal right to the public
records she's requested, and that Respondents have a
clear legal duty to provide those records. State ex rel.
McQueen v. Weibling-Holliday, 150 Ohio St.3d 17,
2016-Ohio-5107, 78 N.E.3d 825, ¶ 6. Unlike other
relators filing in mandamus, "persons requesting records
under R.C. 149.43(C) need not establish the lack of an
alternative, adequate legal remedy in order to be entitled to
the writ." State ex rel. Lucas Cty. Bd. of Commrs.
v. Ohio Environmental Protection Agency, 88 Ohio St.3d
166, 171, 724 N.E.2d 411 (2000); State ex rel. Caster v.
Columbus, Ohio Sup. Ct. Slip Opinion No. 2016-Ohio-8394,
¶ 15. "Mandamus will not issue to compel an act
that has already been performed." State ex rel.
Madsen v. Jones, 106 Ohio St.3d 178, 2005-Ohio-4381, 833
N.E.2d 291, ¶ 11.
Standard for Summary Judgment under Civ.R.
7} Mandamus actions "ordinarily proceed as
civil actions under the Ohio Rules of Civil Procedure."
Loc.App.R. 8(A). To be entitled to summary judgment under
Civ.R. 56, a party must show that: "(1) No genuine issue
as to any material fact remains to be litigated; (2) the
moving party is entitled to judgment as a matter of law; and
(3) it appears from the evidence that reasonable minds can
come to but one conclusion, and viewing such evidence most
strongly in favor of the party against whom the motion for
summary judgment is made, that conclusion is adverse to that
party." Temple v. Wean United, Inc., 50 Ohio
St.2d 317, 327, 364 N.E.2d 267 (1977), citing Civ.R. 56(C).
Standards for Public Records Act Requests
8} Ohio's Public Records Act ("PRA")
is codified in R.C. 149.43. The PRA requires a "public
office" to provide "public records" maintained
by that office upon request, subject to certain exceptions
and exemptions. A "public office, " for purposes of
the PRA, "includes any state agency, public institution,
political subdivision, or other organized body, office,
agency, institution, or entity established by the laws of
this state for the exercise of any function of
government." R.C. 149.011(A); State ex rel. Toledo
Blade Co. v. Univ. of Toledo Found., 65 Ohio St.3d 258,
259-260, 602 N.E.2d 1159 (1992) (using definition in R.C.
149.011(A) to determine if R.C. 149.43 applied). Of note, a
"state agency" "includes every department,
bureau, board, commission, office, or other organized body
established by the constitution and laws of this state for
the exercise of any function of state government, including
any state-supported institution of higher education, the
general assembly, any legislative agency, any court or
judicial agency, or any political subdivision or agency
of a political subdivision." (Emphasis added.) R.C.
149.011(B). But see Thomas J. Moyer, Chief
Justice Offers Historical Perspective on Public Records, Open
Government, Supreme Court & Judicial System News
(Feb. 12, 2008), available at https://www.supremecourt.ohio
.gov/PIO/news/2008/pubrecords_021208.asp (accessed Nov. 7,
2017) ("While the courts in Ohio have always acted in
accordance with the Public Records Act, the act does not
govern the courts").
9} A "Record" includes "any document,
device, or item, regardless of physical form or
characteristic, including an electronic record as defined in
section 1306.01 of the Revised Code, created or received by
or coming under the jurisdiction of any public office of the
state or its political subdivisions, which serves to document
the organization, functions, policies, decisions, procedures,
operations, or other activities of the office." R.C.
10} Under the PRA, a public record means
"records kept by any public office." R.C.
149.43(A)(1). However, not all records kept by a public
office are public records. The definition of public records
excludes, among other things, "records the release of
which is prohibited by state or federal law." R.C.
149.43(A)(1)(v). Of relevance here, the Supreme Court Rules
for the Government of the Bar (the "Disciplinary
Rules") have been treated by courts as state law that
may prohibit the release of records. See, e.g., State ex
rel. McCaffrey v. Mahoning Cty. Prosecutor's Office,
133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877, ¶ 30
(records relating to a filed grievance were exempt from
disclosure in a public records request by a previous version
of the Disciplinary Rules); State ex rel. Parisi v.
Heck, 2d Dist. Montgomery No. 25709, 2013-Ohio-4948,
¶ 11 (same).
11} The PRA "mandates access to public records
upon request unless the requested records are specifically
excepted from disclosure." State ex rel. Lucas Cty.
Bd. of Commrs. v. Ohio Environmental Protection Agency,
88 Ohio St.3d 166, 170, 724 N.E.2d 411 (2000), citing
State ex rel. Miami Student v. Miami Univ., 79 Ohio
St.3d 168, 170, 680 N.E.2d 956 (1997). "Release may be
prohibited by an exception or by another statute providing
protection to the subject of the information sought."
Cuyahoga Cty. Bd. of Health v. Lipson O'Shea Legal
Group, 145 Ohio St.3d 446, 2016-Ohio-556, 50 N.E.3d 499,
12} The records "custodian has the burden to
establish the applicability of an exception" to release
or access. State ex rel. Beacon Journal Publishing Co. v.
Akron, 104 Ohio St.3d 399, 2004-Ohio-6557, 819 N.E.2d
1087, ¶ 23; State ex rel. Carr v. Akron, 112
Ohio St.3d 351, 2006-Ohio-6714, 859 N.E.2d 948, ¶ 30.
The PRA is "to be construed liberally as favoring broad
access, and any questions should be determined in favor of
disclosure of public records." State ex rel. Dayton
Newspapers v. Dayton Bd Of Edn., 140 Ohio App.3d 243,
246, 747 N.E.2d 255 (2d Dist.2000).
13} Even with such a construction, a "
'relator must still establish entitlement to the
requested extraordinary relief by clear and convincing
evidence.' " State ex rel. Caster v.
Columbus, Ohio Sup. Ct. Slip Opinion No. 2016-Ohio-8394,
¶ 15, quoting McCaffrey at ¶ 16.
"Clear and convincing evidence is 'that measure or
degree of proof which is more than a mere "preponderance
of the evidence, " but not to the extent of such
certainty as is required "beyond a reasonable
doubt" in criminal cases, and which will produce in the
mind of the trier of facts a firm belief or conviction as to
the facts sought to be established.' " State v.
Corp. for Findlay Mkt, 135 Ohio St.3d 416,
2013-Ohio-1532, 988 N.E.2d 546, ¶ 15, quoting Cross
v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954),
paragraph three of the syllabus.
Standards for Confidentiality in the Ohio Attorney
14} The public records requests at issue here seek
records from a bar association and its certified grievance
committee related to grievances against an attorney. In this
unusual situation, Parisi is both the requestor and the
subject of the requests. The DBA and DBACGC are the putative
public offices. The DBACGC also conducted the investigations
into grievances made against Parisi. The parties refer to the
DBA and DBACGC together in this action,  although the
initial request was directed to the DBA. In responding, the
DBA/DBACGC stated that it understood Parisi's request to
"seek records maintained by the Dayton Bar
Association's Certified Grievance Committee, " a
statement Parisi did not challenge. Because the parties have
not distinguished between the DBA and the DBACGC for purposes
of their summary judgment motions, we will do the same and
refer to both Respondents hereafter collectively as the
15} As discussed above, courts have applied the
Supreme Court Rules for the Government of the Bar (the
"Disciplinary Rules") as prohibiting disclosure of
records that may otherwise have been public records under the
PRA. See, e.g., State ex rel. Parisi v. Heck, 2d
Dist. Montgomery No. 25709, 2013-Ohio-4948, ¶ 11; R.C.
149.43(A)(1)(v) (excepting "records the release of which
is prohibited by state or federal law"). The
Disciplinary Rules contain standards for confidentiality of
documents and proceedings during the attorney disciplinary
process. Gov. Bar R. V, or "Rule V, " of the
Disciplinary Rules in particular sets out the
"Disciplinary Procedure" for grievances filed
16} The current version of the relevant part of Rule
V went into effect on January 1, 2015. Gov. Bar R. XX,
Section 2(UUUU). The parties all refer in their pleadings
to this version of Rule V, rather than the version or
versions that were in effect while the grievances discussed
herein were pending. We do the same here, without deciding
which version applies as a matter of law. See Rule
V, Section 27(C) ("This rule * * * shall apply to all
pending investigations and complaints so far as may be
practicable and to all future investigations, complaints, and
petitions * * *"). The current disciplinary procedure is
described generally and to the extent relevant to this case
in the following paragraphs.
17} The Disciplinary Rules provide that "a
certified grievance committee shall review and may
investigate a grievance that alleges facts that, if
substantiated, would constitute misconduct by a judicial
officer or attorney * * *." Rule V, Section
9(C)(1). A certified grievance committee
("CGC") "shall review and may investigate any
matter filed with it or that comes to its attention and may
file a complaint pursuant to this rule in cases where it
finds probable cause to believe that misconduct has occurred
* * *." Id. A CGC may retain outside experts
such as an independent investigator or other experts in the
course of its investigation. Rule V, Section 9(E).
18} A grievance filed with a CGC "may be
dismissed without investigation if the grievance and any
supporting material do not contain an allegation of
misconduct" by the attorney. Rule V, Section 9(C)(2).
"If, upon review or investigation of a grievance, a
certified grievance committee * * * determines that the
filing of a complaint with the Board is not warranted, the
grievant and the judicial officer or attorney shall be
notified in writing of that determination * * *." Rule
V, Section 10(C). In this situation, a copy of the grievance
is available upon request of the attorney involved. Rule V,
Section 10(C). "Files related to any matter that the
committee dismissed without investigation shall be retained
for two years, " while those "related to any matter
in which the committee initiated an investigation shall be
retained for ten years." Rule V, Section 5(D)(1)(f)(ii)
19} Conversely, a CGC may file a complaint with the
Board of Professional Conduct (the "Board") upon a
majority vote of the CGC, after giving the attorney an
opportunity to respond. Rule V, Section 10(A) and (B). While
the "complaint shall not include any documents,
exhibits, or other attachments unless specifically required
by Civ. R. 10, " (Rule V, Section 10(E)(2)), certain
other materials must be submitted to the Board with the
The relator shall submit with the complaint sufficient
investigatory materials to demonstrate probable cause. The
materials shall include any response submitted by or on
behalf of the respondent to the notice of intent to file
provided by the relator pursuant to Section 10(A) and an
affidavit from bar counsel or other appropriate
representative of the relator documenting relator's
contacts with or attempts to contact the respondent prior to
filing the complaint. The materials may include investigation
reports, summaries, depositions, statements, and any other
Rule V, Section 10(F).
20} At this point in this process, the materials are
generally confidential: "[p]rior to a determination of
probable cause by the Board, all proceedings, documents, and
deliberations relating to review, investigation, and
consideration of grievances shall be confidential"
unless one of three exceptions apply. Rule V, Section
8(A)(1). Likewise, and subject to the same exceptions,
"all investigatory materials prepared in connection with
an investigation conducted pursuant to Section 9 of this rule
or submitted with a complaint filed pursuant to Section 10 of
this rule shall be confidential prior to certification of a
formal complaint pursuant to Section 11 of this rule."
Rule V, Section 8(A)(3).
21} One exception is "[w]here the respondent
expressly and voluntarily waives confidentiality of the
proceedings." Rule V, Section 8(A)(1)(a). However, the
same provision somewhat confusingly notes that "[a]
waiver of confidentiality does not entitle the respondent or
any other person access to documents or deliberations
expressly designated as confidential under this
22} A probable cause panel of the Board reviews the
complaint and investigatory materials submitted by a CGC and
"make[s] an independent determination of whether
probable cause exists for the filing of a complaint."
Rule V, Section 11 (A). "The panel shall issue an order
certifying the complaint, in whole or in part, to the Board
or dismissing the complaint and investigation in its
23} If the complaint is dismissed without a finding
of probable cause and is not certified to the Board by a
probable cause panel, the documents, proceedings, and
investigatory materials prepared or submitted remain
confidential. Rule V, Section 8(A)(3). It is unclear whether
the aforementioned exceptions, including the
waiver-of-confidentiality exception, also apply to this
24} If a complaint is not dismissed but is instead
certified to the Board, different confidentiality provisions
apply. As relevant here, the Disciplinary Rules provide that:
From the time a complaint has been certified to the Board by
a probable cause panel, the complaint and all subsequent
proceedings conducted and documents filed in connection with
the complaint shall be public except as follows:
(3) The summary of investigation prepared by the relator
shall be confidential as workproduct of the relator. All
other investigatory materials and any attachments prepared in
connection with an investigation conducted pursuant to
Section 9 of this rule or submitted with a complaint filed
pursuant to Section 10 of this rule shall be discoverable as
provided in the Ohio Rules of Civil Procedure.
Section 8(B)(3). Proceedings then continue on the certified
complaint before the Board and the Supreme Court of Ohio as
appropriate. Rule V, Sections 12 through 17.
25} With these standards in mind, we turn to the
matters pending before the court.
Motion for Leave to File Memorandum of Additional
26} On January 30, 2017, Parisi filed a Motion
for Leave to File a Memorandum of Additional
Authorities. Therein, she cites to the recent Ohio
Supreme Court case of State ex rel. Caster v.
Columbus, Ohio Sup. Ct. Slip Opinion No. 2016-Ohio-8394,
and the Sixth Circuit's affirmance of the dismissal of
her separate civil rights action against the DBA and others.
Parisi v. Heck, 666 Fed.Appx. 384 (6th Cir.2016).
The motion is SUSTAINED.
Motion to Strike Exhibits to Parisi's Motion for Summary
27} On May 10, 2017, the DBACGC moved to strike the
exhibits to Parisi's Motion for Summary
Judgment, filed April 13, 2017. The exhibits include: A)
an Affidavit of Dianna M. Anelli, Parisi's former
counsel; B) a printout of a deposition of Joseph Moore (an
investigator) that is not signed/certified; and C) two pages
that purport to be an excerpt of a letter written by Jonathon
L. Beck recommending that the DBACGC "refer this matter
to the Probable Cause Panel of the Board of Commissioners for
Grievances & Discipline." The motion is SUSTAINED in
part and OVERRULED in part.
28} The DBACGC moves to strike the Anelli Affidavit
on the basis that it offers expert legal opinion on the legal
questions currently before the court. Among other things,
Anelli opines that "the Dayton Bar Assn. is a public
entity" for purposes of the PRA; that the "Supreme
Court of Ohio has held that work product ends when
litigations ends"; and that "it is my opinion to a
reasonable degree of legal certainty that the documentation
that Ms. Parisi seeks is no longer protected as work product
under Gov. Bar R. V(8)(B)(3)." Anelli Affidavit at
¶¶ 16, 17, 21. Parisi agrees that Anelli
"offered her professional opinion" on these issues,
but asserts that "her opinion is meant to provide
guidance" to this court.
29} We strike the Anelli Affidavit. "The
purpose of expert testimony is to aid and assist the trier of
fact in understanding the evidence presented and in arriving
at a correct determination of the litigated issues."
Waste Mgt. of Ohio v. Cincinnati Bd. of Health of
Cincinnati, 159 Ohio App.3d 806, 2005-Ohio-1153, 825
N.E.2d 660, ¶ 55 (10th Dist.), citing McKay Machine
Co. v. Rodman, 11 Ohio St.2d 77, 81-82, 228 N.E.2d 304
(1967). "However 'an expert's interpretation of
the law should not be permitted, as that is within the sole
province of the court.' " Id., quoting
Wagenheim v. Alexander Grant & Co., 19 Ohio
App.3d 7, 19, 482 N.E.2d 955 (10th Dist.1983). See also
Am. Energy Corp. v. Datkuliak, 174 Ohio App.3d 398,
2007-Ohio-7199, 882 N.E.2d 463, ¶ 92 (7th Dist.)
("Expert testimony is not admissible to assist the court
in making its decision for issues that solely require a
determination of a question of law and that raise no factual
issue"). The Anelli Affidavit offers a legal opinion on
the questions of law currently before the court. We therefore
find the affidavit improper and strike it as an exhibit to
Parisi's Motion for Summary Judgment.
30} The DBACGC argues that we should also strike the
remaining exhibits to Parisi's motion because they are
not sworn, certified, or authenticated by an affidavit.
See Civ.R. 56(C) ("No evidence or stipulation
may be considered except as stated in this rule").
Exhibit B purports to be a transcript of a deposition of
Joseph Moore, taken in In re: Georgianna I. Parisi
(Respondent) v. Dayton Bar Association (Relator), Case
No. 09-064 before the Board of Commissioners on Grievances
and Discipline. The certification appended to the transcript
is not signed. Exhibit C purports to be a two-page excerpt of
letter written by Jonathon L. Beck, apparently an
investigator for the DBACGC.
31} Exhibits B and C were not attached to an
affidavit describing them and averring that they are true and
accurate copies. However, a full copy of the Moore Deposition
and the Beck Letter were attached to Parisi's May 24,
2017 Relator's Reply Memorandum, along with
Parisi's affidavit attempting to authenticate the
documents. While the procedure is not quite perfect under
Civ.R. 56, we may relax the requirements pursuant to
Loc.App.R. 8(A) where justice is better served. We decline to
strike Exhibits B and C.
32} Accordingly, we SUSTAIN in part and OVERRULE in
part the DBACGC's Motion to Strike Exhibits to
Parisi's Motion for Summary Judgment The Anelli
Affidavit (Exhibit A) is STRICKEN and will not be considered;
the Moore Deposition and the Beck Letter (Exhibits B and C)
remain in the record.