Unsealing of Court Records Does Not Moot Newspaper’s Claims for Mandamus, Attorney Fees
2008-1250. State ex rel. Cincinnati Enquirer v. Heath, Slip Opinion No. 2009-Ohio-590.
Warren App. No. CA2008-03-046. Judgment reversed and cause remanded.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-590.pdf 
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(Feb. 18, 2009) The Supreme Court of Ohio held unanimously today that when the record of a trial court proceeding has been sealed and a newspaper has filed a mandamus action in a court of appeals seeking to unseal the record and to obtain an award of attorney fees, the subsequent voluntary unsealing of the requested records by the trial court is not a sufficient basis for a court of appeals to dismiss the mandamus action as moot (no longer of any practical significance), or to dismiss the newspaper’s request for attorney fees.
The case involved a lawsuit filed by the Cincinnati Enquirer newspaper to gain access to the transcript of a preliminary hearing and other records in a high-profile murder case that had been sealed by order of the Mason Municipal Court and a subsequent order of the Warren County Court of Common Pleas. When the Enquirer’s request to unseal the records was denied after a hearing before Judge James Heath of the common pleas court, the newspaper filed a mandamus action in the 12th District Court of Appeals seeking a writ of mandamus to compel disclosure of the sealed records and obtain reimbursement for its attorney fees.
While that action was pending, the defendant in the murder case, Michel Veillette, committed suicide in his jail cell. Judge Heath subsequently lifted the order sealing the records in Veillette’s case, and filed a motion asking the 12th District to dismiss the Enquirer’s mandamus action as moot since the newspaper now had access to the records that were the object of its complaint. The court of appeals granted the requested dismissal, and held that because the issue of whether the trial court acted properly in sealing its records had not been litigated, the Enquirer was not entitled to an award of attorney fees. The Enquirer appealed, arguing that the 12th District erred in dismissing its claims.
In today’s 7-0 per curiam decision, the Supreme Court reversed the 12th District’s dismissal order and remanded the case to the court of appeals with a directive that it review additional evidence and hear arguments on the Enquirer’s claims for both mandamus and attorney fees.
While acknowledging that the provision of requested records in a public-records mandamus case generally renders the mandamus claim moot, the Court noted an exception to that general rule that applies where a legal claim “is capable of repetition, yet evading review.” Quoting from its 2000 decision in State ex rel. Calvary v. Upper Arlington, the Court wrote: “This exception ‘applies only in exceptional circumstances in which the following two factors are both present: (1) the challenged action is too short in its duration to be fully litigated before its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.’”
The Court noted that in Press-Enterprise Co. v. Superior Court of California (1986) the U.S. Supreme Court held that orders “refusing the release of a transcript of a preliminary hearing in a criminal case are not rendered moot by the subsequent release of the transcript, because ‘[i]t can reasonably be assumed that [members of the news media] will be subjected to a similar closure order and, because criminal proceedings are typically of short duration, such an order will likely evade review.’ ... Therefore, based on this precedent, the mere fact that Veillette’s suicide led to Judge Heath’s lifting of the sealing order did not render the Enquirer’s mandamus claim moot. The court of appeals erred in holding otherwise.”
Because the court of appeals dismissed the Enquirer’s petition for attorney fees based on its incorrect finding that the mandamus action was moot, the Supreme Court also ordered the 12th District to review and decide the attorney fee issue on its merits. The Court went on to note that, even if the Enquirer’s mandamus claim had properly been dismissed as moot, under this Court’s 2002 holding in State ex rel. Cincinnati Enquirer v. Dupuis “a claim for attorney fees in a public-records mandamus action is not rendered moot by the provision of the requested records after the case has been filed.”
Contacts
John C. Greiner, 513.629.2734, for the Cincinnati Enquirer.
Keith W. Anderson, 513.695.1325, for Judges James J. Heath and Neal B. Bronson.