IN THE SUPREME COURT OF OHIO

STATE OF OHIO ex relDean Boland

CASE NO. 2014-1296

Relator,

vs.

CUYAHOGA COUNTY CLERK OFCOURT, ET AL,

Respondents.

ORIGINAL ACTION IN MANDAMUS

RELATOR'S REPLY TO RESPONDENT CUYAHOGA COUNTY CLERK OFCOURT'S OPPOSITION TO INTERVENOR'S MOTION TO INTERVENE

Dean Boland 65693Boland Legal, LLC1475 Warren RoadUnit 770724Lakewood, OH 44107216.236.8080 phdean@bolandlegal.com

Robin Wilson 66604Cuyahoga CountyDepartment of Law2079 East 9th StreetCleveland, OH 44115216.443.7042 ph216.698.2744 fax

Barbara Marburger 19152Assistant Prosecuting Attorney

Cuyahoga County Prosecutor's Office1200 Ontario StreetCleveland, OH 44113216.443. 7800 ph

John Q. Lewis (0067235)TUCKER ELLIS LLP950 Main Avenue, Suite 1100Cleveland, OH 44113Tel: (216) 592-5000Fax: (216) 592-5009peter.reed@tuckerellis com

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MEMORANDUM

This reply is necessary because Respondent Cuyahoga County Clerk of Court

submits within its opposition to Intervenor's motion to intervene an opposition to

Relator's opposition to Intervenor's motion as well as new arguments to dismiss this

matter entirely. "The Court does not need to, and should not, entertain... Relator

Boland's Memorandum in Opposition to [Intervenor's motion]." Respondent Clerk

of Court's Opposition to Intervenor's Motion at 3. "The Court should also not

entertain Relator Boland's October 15, 2014 Application for Dismissal of

Respondent Cuyahoga County Court of Common Pleas Administrator." Id.

RESPONDENT CLERK OF COURT AGREES WITH RELATOR THATINTERVENOR IS NOT A PROPER PARTY

Respondent Clerk of Court agrees with Relator that Intervenor is not a

proper party to this action. Id. at 4-5.

RESPONDENT AUTHORITATIVELY RELIES ON SUP.R. 44-47 AS THEGOVERNING AUTHORITY OVER PUBLIC RECORDS REQUESTS FOR PUBLIC

COURT RECORDS FROM CLERKS OF COURT

"Relator Boland seeks to have this Court compel the Clerk of Courts to

prepare a new compilation of a bulk distribution of information - an act over

which she expressly has discretion pursuant to Rule 46 of The Rules of

Superintendence for the Courts of Ohio ("Rules of Superintendence")." Id. at 3.

Emphasis added. The phrases "new compilation" and "bulk distribution" exi.st in

Sup.R. 44-47 and not in R.C. 149.43 or the Cuyahoga County Code.

Respondent Clerk of Court cites to various rules within Sup.R. 44-47 as valid

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authority governing the Clerk of Court's responses to public records requests. Id. at

5-6. Respondent Clerk of Court inserts a footnote at page 5 of their opposition

including definitions from Sup.R. 44-47. It quotes large portions of Sup.R. 45(B)(1).

This reliance on Sup.R. 44-47 by Respondent Clerk of Court as governing

authority over its responses to public records requests for public court records is a

first for it in this case. Respondent Clerk of Court's currently pending motion to

dismiss omits this argument entirely. Instead, Respondent Clerk of Court solely

argues the jurisdictional priority rule merits dismissal - a seeming agreement that

Relator's argument that the Rules of Superintendence do not and can not govern the

Clerk of Court as valid legal authority. The content of Respondent's opposition to

Intervenor's motion, however, reveals this new theory to dismiss Relator's

complaint which initially appears consistent with Respondent Court

Administrator's argument, but upon review is internally contradictory.

RESPONDENT CLERK OF COURT'S ARGUMENT REJECTS CONTROL OVERITS PUBLIC RECORDS RESPONSES BY THE LOCAL JUDICIARY BUT

CONCEDES CONTROL BY THE SUPREME COURT

Respondent Clerk of Court's argument for dismissal of Relator's complaint

can now be summarized as follows: The Clerk of Court is the entity whose records

are at issue and those records cannot be controlled by Intervenor, i.e. ahe Cuyahoga

County Judiciary. However, the Clerk of Court's response to Relator's request is

solely governed by the Supreme Court Rules of Superintendence, i.e., the Ohio

Supreme Court Judiciary.

This is no mere oversight. Respondent Clerk of Court wants to assert

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singular control over its public court records to defeat Intervenor's motion and

simultaneously assert the predominance of the Supreme Court Rules of

Superintendence to defeat Relator's entire complaint. A have your cake and eat it

too legal strategy.

While taking this opportunity to insert an entirely new argument against

Relator's complaint within its response to Intervenor's motion, it is notable what the

Clerk of Court does not do. The Respondent Clerk of Court does not challenge any

of the Constitutional, statutory or case law authority in Relator's response to the

inotions to dismiss. Respondent Clerk of Court does not dispute Relator's legal

analysis of the Constitutional authority for the Rules of Superintendence versus the

Rules of Practice and Procedure. It does not dispute the twelve district courts of

appeal that have all held that Rules of Superintendence to not preempt statutes.

Respondent Clerk of Court does not dispute the validity of R.C. 149.43 and its

applicability to Respondent Clerk of Court's responses to public records requests for

public court records. It does not dispute the decades of decisions by this court

within Relator's responses to the motions to dismiss which support Relator's

response to both pending motions to dismiss.

RESPONDENT CLERK OF COURT'S ARGUMENT FOR DISMISSAL IS NOWINTERNALLY CONTRADICTORY

The Rules of Superintendence are Court made rules. In fact, no other entity

but the judiciary controls the content of the Rules of Superintendence. Ohio

Constitution, Article IV § 5(A)(1). It is impossible to untangle Respondent Clerk of

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Court's argument at this point. It emphatically asserts that the Intervenor has no

authority to control public records requests by it but the Supreme court Rules of

Superintendence do. It is arguing that the Intervenor, the representative of the

Cuyahoga County Common Pleas Court, has no authority over the Clerk of Court's

public records requests and policies, but the Supreme Court of Ohio has all

authority over those requests pursuant to the Rules of Superintendence. Murkier

still, Respondent Clerk of Court summarizes its argument in the last paragraph of

its opposition by claiming that "[blased on the Ohio Revised Code Ohio Public

Records law, and the Rules of Superintendence, Respondent Clerk of Courts is the

keeper of Court records in her office, and as such is responsible for and has the

authority to respond to public records requests or public access requests directed to

her office." Id. at 6. Emphasis added.

Is the Respondent Clerk of Court implying that the Public Records Act,

Revised Code and Sup.R. 44-47 contain identical directives regarding how to

respond to public records requests? Respondent Clerk of Court is apparently

convinced that simultaneous compliance with R.C. 149.43 and Sup.R. 44-47 is

possible but it does not provide its insight as to how. It fails to respond to the

indelible and irreconcilable differences in those sources of governing authority

outlined in Relator's response to the motions to dismiss.

The muddled response by Respondent Clerk of Court leaves Relator and

others seeking public records from Respondent more bewildered than before its

opposition to Intervenor. Respondent Clerk of Court's still currently published

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public records policy makes no mention of Sup.R. 44-47 as any governing authority

over public records requests. Its public records policv cannot be published in good

faith when it omits an entire body of rules, Sup.R. 44-47, that it now claims govern

responses to public requests for public court records. (Respondent Clerk of Court

does not outline how those competing governing authorities actually work in

application to public records requests made to it for public court records).

Respondent Clerk of Court also references authoritatively the Cuyahoga

County Code in resisting Intervenor's motion to intervene. Id. at 5. It does so

without noting the hypocrisy of that citation with its refusal to recognize the

Cuyahoga Code as any authority over its public records request responses. The

Cuyahoga. County Code requires Respondent Clerk of Court to provide the

requested records and contains none of the "bulk distribution" or "new compilation"

constructs that it mentions in its opposition to intervenor's motion to intervene.

Respondent Clerk of Court cannot decide. Does it believe it has to follow R.C.

149.43 and the Cuyahoga County Code relating to public records requests or does it

not? Does it feel that it can decide which provisions are legally binding authority,

the ones implicated in its opposition to the intervention, and then cast aside others

in favor of Supreme Court Rules of Superintendence when that choice becomes

advantageous?

It cites to the Public Records Act itself, authoritatively, yet argues that

Sup.R. 44-47 apply to Relator's request and not R.C. 149.43. This self-serving

sleight of hand is astonishing in its flexibility. R.C. 149.43 and other Ohio Revised

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Revised Code sections matter to Respondent Clerk of Court to support its assertion

of control over the records at issue to the exclusion of Intervenor's control. But, R.C.

149.43 and the Cuyahoga County Code can be swept aside in favor of the Rules of

Superintendence when it comes to what authority governs Respondent Clerk of

Court's response to Relator's public records request.

"When statutes impose a duty on a particular official to oversee records, that

official is the `person responsible' under [the Ohio Public Records law] Ohio Rev.

Code §149.43(B).°' See Respondent Clerk of Court's Opposition at 4.

Respondent also makes the curious claim that "[t]he Rules of

Superintendence recognize the Ohio Public Records Act" while simultaneously

ignoring that this court has held in cases starting in 2009 that the Public Records

Act is no authority at all overpublic records reauests for public court records. It is

of no importance to claim that Sup.R. 44-47 "recognize" the Public Records Act

when subsequent cases summarily delete the from Public Records Act the ability to

govern public records requests for public court records. That is the sort of

"recognizing" that means the opposite of the word. Respondent Clerk of Court has

authored a sentence which translates into "the Supreme Court Rules of

Superintendence recognize the Ohio Public Records Act in determining that the

Supreme Court does not recognize the Public Records Act as applicable to public

records requests for public court records."

The Clerk of Court's acceptance, for the first time in its opposition to

Intervenor's motion, that Sup.R. 44-47 govern its responses to public records

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requests is problematic for an additional reason. The Supreme Court rules of

Superintendence mandate that Administrative Judges take all necessary actions to

insure the Supreme Court rules of Superintendence are observed as written.

"RULE 4.01. Powers and Duties of Administrative Judge.

An administrative judge of a court or a division of a court shall do allof the following:

(A) Be responsible for and exercise control over the administration,docket, and calendar of the court or division;(B) Be responsible to the Chief Justice of the Supreme Court in thedischarge of the administrative judge's duties, for the observance ofthe Rules of Superintendence for the Courts of Ohio, and for thetermination of all cases in the court or division without undue delayand in accordance with the time guidelines set forth in Sup.R. 39."Emphasis added.

Intervenor is responsible to the Chief Justice of the Supreme Court to insure

the Rules of Superintendence are observed. Since Respondent Clerk of Court

acknowledges that Sup.R. 44-47 are governing authority over its handling of public

records requests for court records, its opposition to Intervenor's motion is not well

taken. Reliant on Respondent Clerk of Court's new argument, Intervenor has every

right, in fact a duty under the Rules of Superintendence, to insure that Respondent

Clerk of Court handles public records requests in accordance with Sup.R. 44-47.

To put it plainly, the Administrative and Presiding Judge has the authority to

control Respondent Clerk of Court's responses to public records requests to insure

they are consistent with the Rules of Superintendence. Nothing in the Rules of

Superintendence prohibits Intervenor from issuing orders controlling Respondent

Clerk of Court's handling of those public records requests for court records to

comply with his duty under Sup.R. 4.01. In short, if Respondent Clerk of Court

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persists in its position that Sup.R. 44-47 are governing authority over it for these

purposes, it must consent to control by Intervenor to whatever extent Intervenor

decides to exert that control. Under that posture, only this court can reign in

Intervenor if it believes his orders in this regard are improper. In the meantime,

Respondent Clerk of Court must follow them or face penalties accordingly.

(Meanwhile, the wishes of the voters of Cuyahoga County whom elected the County

Council that, in turn, enacted the Cuyahoga County Code and its public records

policies and appointed Respondent Clerk of Court, are to be ignored).

Therefore, the Respondent Clerk of Court must choose whether the Rules of

Superintendence are the governing authority over its public records requests or not.

If it maintains its current position that those rules do govern its responses to

Relator's request, then it must also acknowledge that the Intervenor is duty bound

under Rule 4.01 to insure that those rules are observed. Therefore, if Respondent

Clerk of Court maintains its new argument that Sup.R. 44-47 govern its responses

to Relator's request, its opposition to Intervenor's motion is meritless. Ultimately,

Intervenor can issue orders, both standing and on a case by case basis, that permits,

restricts or entirely prohibits Respondent Clerk of Court from releasing some or all

public court records consistent with its duties under Rule 4.01.

THE SEEMING IRRECONCILABLE LEGAL ENTANGLEMENTSIN THIS CASE HAVE AN EASY SOLUTION

The Supreme Court of Ohio now sits with intertwining and contradictory

legal arguments from the two Respondents in this matter and the Intervenor.

s

Respondent Court Administrator claims Sup.R. 44-47 are the sole governing

authority over Relator's request. It has failed entirely to respond to the

constitutional obstacles to that position as well as the lack of statutory or case laiv

authority supporting that position other than the cases from this court summarily

stating that position, without citation to any authority themselves, beginning in

2009.

Respondent Clerk of Court now claims that Sup.R. 44-47 are the sole

governing authority over Relator's request, but simultaneously claims R.C. 149.43 is

"recognized" by the court. It assets that Intervenor has no authority over

Respondent Clerk of Court with regard to public records requests. It is silent as to

the authority of the Cuyahoga County Code § 106 which regulates public records

requests by the Clerk of Court in Cuyahoga County

Intervenor, controls the records at issue.

It claims that it, not the

Intervenor claims that the records at issue are owned by the judiciary in

Cuyahoga County and it has exclusive control over Respondent Clerk of Court's

responses to public records requests. There is no legal support for Intervenor's

claim on this point. The Supreme Court Rules of Superintendence mandate that

Intervenor insure Sup.R. 44-47, if valid legal authority over Respondent Clerk of

Court, are observed.

Following the arguments which are supported by constitutional and statutory

authority leaves no room for doubt. This court can resolve this conflict easily. It

can recognize the limitations on the authority of Supreme Court Rules of

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Superintendence that all twelve district courts of appeal have recognized. Then, it

can find that the Public Records Act and the Cuyahoga County Code are the

governing authority over Relator's request based upon the analysis and authority

that all other districts have held as valid and no Respondent nor Intervenor has

challenged.

That simple and legally supportable act merits denial of Respondent's

motions to dismiss and denial of Intervenor's attempt to intervene. It simplifies

this case to a consideration of the application of R.C. 149.43 and the Cuyahoga

County Code (and forty years of case law interpreting R.C. 149.43) to Relator's

request.

The difficult path travels in the opposite direction of the judicial economy

that Respondent Clerk of Court cites as motivating. It is a path that ignores the

constitution, all twelve district courts of appeal, R.C. 149.43 and the Cuyahoga

County Code and instead attempts to assert the predominance of Sup.R. 44-47. The

simple answer here, and also the only one supported by the Ohio Constitution, is

the one this court should choose.

For the reasons cited above, this court should ignore Respondent Clerk of

Court's opposition to Intervenor's motion to intervene based upon the legal

arguments made in that motion. It should deny Respondent Clerk of Court's new

arguments to dismiss Relator's complaint. It should grant Relator's application to

dismiss the unnecessary party, the Cuyahoga County Court Administrator and

deny intervention into this case by another unnecessary party, the Intervenor.

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Finally, it should set a briefing schedule for discovery and move ahead considering

the applicability of R.C. 149.43 and the Cuyahoga County Code to Relator's public

records request.

Respectfully submitted,

Dean Boland 65693Boland Legal, LLC1475 Warren RoadUnit 770724Lakewood, OH 44107216.236.8080 phdean@bolandlegal.com

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SERVICE

A copy of the foregoing was served by regular mail and email this 8th day ofDecember, 2014.

Barbara Marburger 19152Assistant Prosecuting AttorneyCuyahoga County Prosecutor's Office1200 Ontario StreetCleveland, OH 44113216.443.7800 ph

Robin Wilson 66604Cuyahoga CountyDepartment of Law2079 East 9th StreetCleveland, OH 44115216.443.7042 ph216.698.2744 fax

John Q. Lewis (0067235)Benjamin C. Sasse (0072856)Megan R. Miller (0085522)Peter T. Reed (0089948)TUCKER ELLIS LLP950 Main Avenue, Suite 1100Cleveland, OH 44113john.lewis@tuckerellis.combenjamin.sasse@tuckerellis.commegan.miller@tuckerellis.competer.reed@tuckerellis.com

Respectfully Submitted,

Dean Boland 65693

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