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State ex rel. Parisi v. Dayton Bar Association Certified Grievance Committee

Court of Appeals of Ohio, Second District, Montgomery

December 18, 2017

THE STATE OF OHIO EX REL GEORGIANNA I. PARISI Relator
v.
DAYTON BAR ASSOCIATION CERTIFIED GRIEVANCE COMMITTEE, et al. Respondents

         Original Action in Mandamus

          Georgianna Parisi, Relator.

          Stephen Freeze, Lisa Hesse, Attorneys for Respondents.

          DECISION AND FINAL JUDGMENT ENTRY

          PER CURIAM.

         I. INTRODUCTION

         {¶ 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 judgment.

         {¶ 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.

         II. LEGAL STANDARDS

         A. 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.

         B. Standard for Summary Judgment under Civ.R. 56

         {¶ 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).

         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. 149.011(G).

         {¶ 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, ¶ 6.

         {¶ 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.

         D. Standards for Confidentiality in the Ohio Attorney Disciplinary Process

         {¶ 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, [1] 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 DBACGC.

         {¶ 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 against attorneys.

         {¶ 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).[2] 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).[3] 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) and (iii).

         {¶ 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 complaint:

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 relevant material.

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 section." Id.

         {¶ 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 entirety." Id.

         {¶ 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 provision.

         {¶ 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.

         Rule V, 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.

         III. ANALYSIS

         A. Preliminary Motions

         1. Motion for Leave to File Memorandum of Additional Authorities

         {¶ 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.

         2. Motion to Strike Exhibits to Parisi's Motion for Summary Judgment

         {¶ 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."[4] 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.

         B. Ma ...


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