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Sheil v. Horton

Court of Claims of Ohio

May 16, 2018

WILLIAM B. SHEIL Requester
v.
JOHN HORTON Respondent

          Sent to S.C. Reporter 6/18/18

          DECISION

          PATRICK M. MCGRATH Judge.

         {¶1} Requester William B. Sheil of WJW-TV has brought a complaint against respondent John Horton, Media Relations Manager, Integrated Communications Department, Cuyahoga Community College, wherein he has alleged a denial of access to public records. Before the court are the following: (1) a report and recommendation issued on April 16, 2018, by Special Master Jeffery W. Clark, (2) Horton's objections to Special Master Clark's report and recommendation filed on April 30, 2018, (3) Horton's motion for leave to exceed this court's local rules pertaining to page limits for supporting memorandum briefs, which Horton filed on April 30, 2018, and (4) Sheil's response to Horton's objections filed on May 9, 2018.

         {¶2} For reasons set forth below, the court determines that Horton's motion for leave to exceed this court's local rules relative to page limitations should be denied. The court also determines that Horton's fifth and seventh objections should be sustained and that Horton's first, second, third, fourth, sixth, and eighth objections should be overruled. The court further determines that the special master's report and recommendation should not be adopted.

         Background and Procedural History

         {¶3} On September 19, 2017, Sheil filed a complaint with attachments wherein he claimed that respondent John Horton denied him access to public records. In the complaint, Sheil stated: "As you can see in the attached email, the Cuyahoga Community College Foundation will not provide a copy of the contract it has with actress Octavia Spencer regarding a fee for speaking at an upcoming luncheon. This, despite the fact that the foundation calls itself 'a component unit' of the college. * * * This is time-sensitive: The lunch is October 4th" The court appointed Jeffrey W. Clark as a special master in the cause and the court referred the matter to mediation. After mediation failed to successfully resolve all disputed issues between the parties, the court returned the case to Special Master Clark's docket.

         {¶4} On April 16, 2018, Special Master Clark issued a report and recommendation. In this report and recommendation, Special Master Clark stated that this case "presents two issues: (1) whether Tri-C Foundation is subject to the Public Records Act, and (2) if so, whether its contract with a speaker for a fundraising event may be withheld as a trade secret. The evidence establishes (1) that Tri-C Foundation is subject to the Public Records Act, and (2) the speaker contract contains no material that falls under the definition of trade secret." (Report and Recommendation, at 2.) And in the conclusion of the report and recommendation Special Master Clark stated:

Upon consideration of the pleadings and attachments, I find by clear and convincing evidence that Tri-C Foundation is the functional equivalent of a public office and a person responsible for public records. I further find respondent has failed to show that any material in the requested contract constitutes trade secret. I therefore recommend that the court ORDER respondent to provide Sheil with an unredacted copy of the contract as submitted under seal. I further recommend that Sheil be entitled to recover the amount of the filing fee and any other costs associated with the action that he has incurred. R.C. 2743.75(F)(3)(b).

(Report and Recommendation, 25.) The court forwarded copies of Special Master Clark's report and recommendation by certified mail to the parties' counsel. According to the court's docket, the parties' counsel received the court's mailing on April 19, 2018.

         {¶5} Seven business days later-on April 30, 2018-Horton moved for leave to exceed this court's page limits. That same day Horton filed written objections to Special Master Clark's report and recommendation that exceeded this court's page limits. According to the certificate of service attached to Horton's objections, Horton's counsel served the objections upon Sheil's counsel by electronic mail and by U.S. certified mail, return receipt requested. On May 9, 2018, Sheil filed a response to Horton's objections to the special master's report and recommendation wherein he urged the court to overrule all of Horton's objections, adopt the special master's report and recommendation without any modification, and order the production of the requested record.

         Horton's motion for leave to exceed page limitations

         {¶6} Horton, through counsel, moves for leave to exceed this court's page limitations for supporting memorandum briefs. In the motion Horton's counsel also states: "Should the Court deny this Motion, Respondent requests the ability to refile its brief at the 15-page limit."

         {¶7} L.C.C.R. 4(E) governs page limitations in this court. It provides: "Supporting, opposing, or memorandum briefs shall not exceed fifteen pages in length, exclusive of attachments. * * * Applications for leave to file a long brief shall be by motion that sets forth the unusual and extraordinary circumstances which necessitate the filing of a long brief." The fifteen-page limitation set forth in L.C.C.R. 4(E) has a purpose-it assists parties with the presentation of arguments without surplusage and it assists the court in disposing of disputed matters in an economical manner. As a federal district court has observed:

Page limitations "exist for good reason, to protect litigants and judicial resources alike, and [they] are neither aspirational nor advisory." Morgan v. Bill Vann Co., Inc., 2011 U.S. Dist. LEXIS 140394, 2011 WL 6056083, *1 (S.D. Ala. Dec. 6, 2011) (emphasis added); accord Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1477-78 (Fed. Cir. 1998) (strict adherence to page limits is essential to "proper[] marshal[ing]" of judicial resources).

Beining v. Commr. of Social Sec, W.D.Pa. Civil Action No. 13-305, 2014 U.S. Dist. LEXIS 42765, at *1-2 (Mar. 31, 2014).

         {¶8} The court is not persuaded that leave is warranted in this circumstance. Here, without leave of court, on April 30, 2018-seven days after Horton, through counsel, received a copy of the special master's report and recommendation and the date that is the deadline for filing written objections in this case, see R.C. 2743.75(F)(2) (providing that either party may object to a report and recommendation within seven business days after receiving the report and recommendation)-Horton filed objections that exceed this court's page limitations contained in L.C.C.R. 4(E). As a federal circuit judge noted in dissent:

Instead of getting leave to file an oversized brief before the deadline, lawyers wait for the last minute to file chubby briefs and dare us to bounce them. Of course, it's hard to decide cases without a brief from one of the parties, and denying the motion usually knocks the briefing and argument schedule out of kilter. Denying the motion is thus more trouble than allowing the brief to be filed and putting up with the additional unnecessary pages. Sly lawyers take advantage of this institutional inertia to flout our page limits with impunity. This encourages disdain for our rules and penalizes lawyers * * * who make the effort to comply.
For my part, I don't feel bound to read beyond the 14, 000 words allowed by our rules, so I won't read past page 66 of the state's brief. * * *

Cuevas v. Hartley, 835 F.3d 892, 893 (9th Cir.2016) (Kozinski, J., dissenting). The court finds that the dissenting jurist's sentiments are well-founded. Just as the dissenting jurist in Cuevas did not feel bound to read beyond the amount of words allowed by the federal court's rules when he was presented with an oversized brief, in this instance the court does not feel bound to read beyond the fifteen pages allowed by this court's local rules with respect to Horton's filed objections. The court is not persuaded by Horton's contention that an "increase of the page limitation is necessary and appropriate given the length of the Special Master's opinion (26 pages) and the complex and factual and legal record in this case that is relevant to this Court's determination."

         {¶9} Horton's motion labeled "Respondent's Motion For Leave To Exceed Page Limit On Respondent's Objections To The Special Master's Report and Recommendation" filed on April 30, 2018, is not well-taken. Horton's request to re-file his brief at the 15-page limit also is not well-taken. The court determines that Horton's motion should be denied.

         Horton's objections to the special master's report and recommendation

         Horton presents eight written objections for the court to adjudicate:

1. Objection No. 1: The Special Master erred by applying a "liberal interpretation" in favor of "broad access" to the speaker contract.
2. Objection No. 2: The Special Master erred when he concluded that raising scholarship funds to support post-secondary education is a "traditional government function" (the first prong of the Oriana House test).
3. Objection No. 3: The Special Master erred in concluding, in using a unique counterfactual calculation, that the government provides a substantial amount of funding to the Foundation (the second prong of the Oriana House test).
4. Objection No. 4: The Special Master erred in finding that the government's involvement and/or regulation of the Foundation is significant, based on the fact that government officials occupy four out of 63 Foundation board of director positions (the third prong of the Oriana House test).
5. Objection No. 5: The Special Master erred in finding that the Foundation was created by the government to avoid the requirements of the Public Records Act (the fourth prong of the Oriana House test).
6. Objection No. 6: The Special Master erred in concluding that the relationship between the Foundation and Tri-C is analogous to that presented in State ex rel. Toledo Blade Co. v. University of Toledo Foundation.
7. Objection No. 7: The Special Master erred in concluding that the Foundation is "a person responsible" for the public records of Tri-C.
8. Objection No 8: The Special Master erred in concluding that the speaker contract does not contain trade secrets protected by Ohio law.

         For ease of analysis, the court shall combine some of Horton's objections or consider them in an order that is different than the order offered by Horton.

         {¶10} R.C. 2743.75(F)(2) governs objections to a report and recommendation issued by a special master of this court. Pursuant to R.C. 2743.75(F)(2):

Either party may object to the report and recommendation within seven business days after receiving the report and recommendation by filing a written objection with the clerk and sending a copy to the other party by certified mail, return receipt requested. Any objection to the report and recommendation shall be specific and state with particularity all grounds for the objection. If neither party timely objects, the court of claims shall promptly issue a final order adopting the report and recommendation, unless it determines that there is an error of law or other defect evident on the face of the report and recommendation. If either party timely objects, the other party may file with the clerk a response within seven business days after receiving the objection and send a copy of the response to the objecting party by certified mail, return receipt requested. The court, within seven business days after the response to the objection is filed, shall issue a final order that adopts, modifies, or rejects the report and recommendation.

         {¶11} Upon review, the court finds that, in accordance with requirements contained in R.C. 2743.75(F)(2), Horton has filed his objections within seven business days after receiving the special master's report and recommendation. Additionally, Horton's counsel has represented in a certificate of service that they served the objections upon Sheil's counsel by certified mail, return receipt requested, and by electronic mail. Because Horton's counsel has complied with procedural requirements contained in R.C. 2743.75(F)(2) relative to the filing deadline and service of written objections, the court determines that Horton's objections are properly before the court.

         {¶12} The court also determines that Sheil's response to Horton's objections are timely filed. According to the court's docket, the court sent a copy of Horton's objections to Sheil's counsel on May 1, 2018. And the copy of Horton's objections was delivered to Sheil's counsel on May 7, 2018. Two days ...


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