State ex rel. Curtis v. Turner

2023 Ohio 1814

• Court: Ohio Court of Appeals
• Decided: May 26, 2023
• Docket: 111879
• Status: Published

Opinion

[Cite as State ex rel. Curtis v. Turner, 2023-Ohio-1814.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE EX REL., MARC D. CURTIS, :

Relator, : No. 111879 v. :

EARLE B. TURNER, CLERK OF : COURTS, CLEVELAND MUNICIPAL COURT, :

Respondent. :

JOURNAL ENTRY AND OPINION

JUDGMENT: WRIT DENIED DATED: May 26, 2023

Writ of Mandamus Order No. 564203

Appearances:

Marc D. Curtis, pro se.

Mark Griffin, Cleveland Director of Law, and Amy K. Hough, Assistant Law Director, for respondent.

LISA B. FORBES, J.:

On August 25, 2022, pursuant to Sup.R. 44-47, the relator, Marc D.

Curtis, commenced this public records mandamus action against the respondent, Earle B. Turner, Clerk of Courts for Cleveland Municipal Court. For the reasons set

forth below, we deny his request.

The dockets of State v. Curtis, Cleveland M.C. No. 2019-CRA-

000446, and State v. Curtis, Cuyahoga C.P. No. CR-19-636250-A, show that Curtis

was arrested for rape on January 9, 2019, for an incident occurring on December 24,

2018. On January 11, 2019, the warrant for his arrest was recalled and Curtis was

bound over to the common pleas court. The common pleas court docket reflects that

the municipal court record was received by the court of common pleas that day. On

February 15, 2019, the common pleas court ordered a DNA specimen to be taken.

On July 25, 2019, Curtis pleaded guilty to two counts of rape, two counts of sexual

battery, and one count of gross sexual imposition. In September 2019, the trial judge

sentenced him to an aggregate sentence of 18 years.

Between November 9, 2021, and January 22, 2022, Curtis made

multiple public records requests, pursuant to Sup.R. 44 through 47, related to

Cleveland v. Curtis, Cleveland M.C. No. 2019-CRA-000446. On August 25, 2022,

Curtis filed his complaint for a writ of mandamus in which he asserted that he had

not received the following records: (1) the arrest warrant, (2) the arrest warrant

return, (3) DNA search warrant, (4) DNA search warrant supporting affidavit

and/or complaint, (5) DNA search warrant return, (6) cell phone search warrant, (7)

cell phone search warrant supporting affidavit and/or complaint, and (8) cell phone

search warrant return. After respondent filed his answer, this court issued several briefing

orders for the submission of evidence and briefs. On January 23, 2023, respondent

filed briefing and evidence in the form of an affidavit addressing what was and was

not disclosed. Curtis filed his response brief and affidavit on February 21, 2023. The

court has reviewed the briefing and the evidence submitted. This matter is ripe for

resolution.

Sup.R. 47(B) provides that a person aggrieved by the failure of a clerk

of court to comply with the requirements of Sup.R. 44 through 47 may pursue an

action in mandamus pursuant to Chapter 2731 of the Revised Code. To prevail in a

mandamus action, the relator must prove by clear and convincing evidence that he

has a clear legal right to the requested relief — access to the records — and that the

respondent has a clear, legal duty to provide the requested records. State ex rel.

Pressley v. Indus. Comm., 11 Ohio St.2d 141, 228 N.E.2d 631 (1967); and State ex

rel. Pietrangelo v. Avon Lake, 149 Ohio St.3d 273, 2016-Ohio-5725, 74 N.E.3d 419.

Because mandamus is the specified remedy, the relator need not establish that there

is no adequate remedy at law. State ex rel. Gooden v. Kagel, 138 Ohio St.3d 343,

2014-Ohio-869, 6 N.E.3d 1170.

In Ohio, public records are the people’s records. To that end, the

public records law is to be construed liberally in favor of broad access and disclosure.

The courts are to resolve any doubt in favor of disclosure. State ex rel. Vindicator

Printing Co. v. Youngstown, 104 Ohio St.3d 1436, 2004-Ohio-1120, 819 N.E.2d

1120. Exemptions to disclosure must be strictly construed against the public records custodian, and the government bears the burden of establishing the applicability of

an exception. Morgan v. New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, 857

N.E.2d 1208. However, “[r]espondents have no duty to create or provide access to

nonexistent records.” State ex rel. Lanham v. Smith, 112 Ohio St.3d 527, 2007-

Ohio-609, 861 N.E.2d 530, ¶ 15. See also State ex rel. Morgan, supra; State ex rel.

White v. Goldsberry, 85 Ohio St.3d 153, 707 N.E.2d 496 (1999). The fact that no

responsive documents exist may be proven by affidavit. State ex rel. Chatfield v.

Gammill, 132 Ohio St.3d 36, 2012-Ohio-1862, 968 N.E.2d 477; State ex rel. Striker

v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878, 950 N.E.2d 952; and Viola v.

Cuyahoga Cty. Prosecutor’s Office, 8th Dist. Cuyahoga No. 110315, 2021-Ohio-

4210.

Respondent maintains that he has provided Curtis with all of the

records he possesses and that he does not have any records responsive to the eight

disputed requests. In support of this position, respondent submitted an affidavit

attesting to the following:

2. The Clerk of Court does not keep the records requested, to wit: arrest warrant, arrest warrant return; DNA search warrant; DNA search warrant supporting affidavit and/or complaint; DNA search warrant return; Cell phone search warrant; Cell phone search warrant supporting affidavit and/or complaint; Cell phone search warrant return.

3. In a good faith attempt to resolve this dispute, I produced the records that are kept by the Clerk of Court, to wit: Complaint for Rape; Sworn Affidavit Establishing Probable Cause for an Arrest Warrant; Request for High Bond; Warrant Registry Information; Booking Information Sheet; Felony Arraignment Journalized Entry. 4. There are no additional records held by Earle B. Turner, Clerk of Courts Criminal Division, Cleveland Municipal Court.

In his supporting affidavit, Curtis swears that he has not been

provided with any records related to the eight disputed requests. Curtis invokes

numerous provisions of R.C. Chapter 2303 and other rules regarding the clerk’s duty

to file and preserve the requested records. For example, Curtis cites Ohio

Sup.R. 26.05(G)(7), which provides: “Search warrant records shall be indexed and

the warrants and returns retained in their original form for five years after the date

of service or last service attempts.” Curtis highlights R.C. 2303.09, which requires

the clerk to file and carefully preserve in the clerk’s office all papers delivered to him

for that purpose in every action and proceeding.

Under the facts and circumstances of this case, where respondent’s

affidavit establishes that he does not, in fact, have the requested records, we

conclude that Curtis has not satisfied his burden to prove by clear and convincing

evidence that the respondent clerk is the custodian of the requested records.

Accordingly, this court denies the application for a writ of mandamus.

Relator to pay costs. This court directs the clerk of courts to serve all parties notice

of the judgment and its date of entry upon the journal as required by Civ.R. 58(B). Writ denied.

_______________________________ LISA B. FORBES, JUDGE

MICHELLE J. SHEEHAN, P.J., and EMANUELLA D. GROVES, J., CONCUR