State ex rel. Dreamer v. Mason

874 N.E.2d 510, 115 Ohio St. 3d 190
CourtOhio Supreme Court
DecidedSeptember 20, 2007
DocketNo. 2007-0379
StatusPublished
Cited by38 cases

This text of 874 N.E.2d 510 (State ex rel. Dreamer v. Mason) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Dreamer v. Mason, 874 N.E.2d 510, 115 Ohio St. 3d 190 (Ohio 2007).

Opinion

Per Curiam.

{¶ 1} This is an appeal from a judgment granting a writ of mandamus in favor of certain elections board employees to compel a county prosecutor to provide access to files relating to the 2004 general election and recount based upon the board’s waiver of its attorney-client privilege regarding these files. Because appellees disclaimed any entitlement to these records under R.C. 149.43, the [191]*191Public Records Act, they have or had adequate remedies in the ordinary course of law to obtain these files in order to defend against criminal charges. Therefore, we reverse that portion of the judgment of the court of appeals.

{¶ 2} Pursuant to R.C. 309.09(A), the Cuyahoga County Prosecuting Attorney acts as the legal advisor of the Cuyahoga County Board of Elections. Appellant, Cuyahoga County Prosecuting Attorney William Mason, delegated the responsibility for representing the board of elections to Assistant Prosecuting Attorneys Reno Oradini and Kathleen Martin. In December 2004, the board of elections conducted a recount of the votes cast during the November 2004 general election. Appellees, Kathleen Dreamer, Rosie Grier, and Jacqueline Maiden, were employed by the board of elections during the 2004 general election and recount.

{¶ 3} In August 2005, Mason recused himself as prosecutor in a criminal investigation of the board’s handling of the 2004 general election and recount, and upon his motion, the Cuyahoga County Court of Common Pleas appointed Erie County Prosecuting Attorney Kevin Baxter as special prosecutor “in the matter of the grand jury investigation concerning allegations of fraud in connection with the Cuyahoga County Board of Elections recount of the 2004 general election, and in any legal action available that he considers necessary and appropriate.” Dreamer, Grier, and Maiden were subsequently indicted on charges of violating R.C. 3599.16 (misconduct of members or employees of board of elections), R.C. 3599.17 (failure of registrars, judges, and clerks to perform duties), R.C. 3599.32 (failure of election official to enforce law), R.C. 3599.23 (knowingly or unlawfully opening or permitting to open a sealed package containing ballots or other forms), and R.C. 3599.24 (interference with conduct of election). Shortly after appellees were indicted, the elections board released a statement publicly supporting the conduct of its employees during the 2004 election and recount.

{¶ 4} Dreamer requested that the board waive its attorney-client privilege regarding the board’s representation by the Cuyahoga County Prosecutor’s office in order to obtain records to assist in her criminal defense. The board approved “a waiver of the attorney-client privilege as it relates to legal counsel to the Board, namely, the Cuyahoga County Prosecutor’s Office, solely with respect to Cuyahoga County Court of Common Pleas[ ] Case Number CR-05-470245B, The State of Ohio vs. Kathleen Dreamer.”

{¶ 5} Dreamer, through counsel, then requested that Mason’s office provide “all information in its possession in relation to” the criminal case, including all information “relating to the November 2004 recount.” In a follow-up request, Dreamer’s counsel requested “pursuant to the Public Records Act, Ohio Revised Code § 149.43, and the attorney-client waiver, * * * the files of Kathleen Martin and Reno Oradini regarding the recount that took place following the November 2004 general election.” After the prosecutor denied the requests, Dreamer’s [192]*192attorney reiterated that Dreamer was entitled to these materials “since the Board of Elections has waived its attorney-client privilege as it relates to this matter.”

{¶ 6} Upon the common pleas court judge’s suggestion, Dreamer’s counsel issued a subpoena in her criminal case to the custodian of records for the prosecutor’s office for the requested records. The common pleas court granted the motion of the prosecutor’s office to quash the subpoena and granted a protective order. The court also ordered the special prosecutor to submit the requested records under seal for the court’s in camera inspection. The county prosecutor’s office later denied a request by the board of elections for the files related to the 2004 presidential election recount.

{¶ 7} In December 2006, upon the request of Dreamer’s counsel, Special Prosecutor Baxter provided a large portion — but not all — of the requested records to Dreamer.

{¶ 8} In January 2007, appellees, Dreamer, Grier, and Maiden, in case No. 89249, filed a complaint in the Court of Appeals for Cuyahoga County for a writ of mandamus to compel Mason to provide them with the elections board’s files concerning the 2004 general election. In their complaint, appellees claimed entitlement to the writ because “the Board of Elections has waived its attorney-client privilege with respect to these files and has granted [appellees] permission to review these files” and based upon DR 9-102(B)(4) (requiring prompt delivery upon request of client’s property in the lawyer’s possession). Mason moved to dismiss. Appellees filed a response to the dismissal motion in which they claimed that Mason was trying “to avoid the real issues at hand by making the erroneous argument that Criminal Rule 16 and the Public Records Act apply to [appellees’] request” to Mason and that appellees were seeking these documents “pursuant to the attorney-client waiver voted on and approved by the Board of Elections on September 26, 2005 and in the presence of its legal counsel, not the Public Records Act.”

{¶ 9} The court of appeals consolidated appellees’ mandamus case (case No. 89249) with a mandamus case instituted against Mason by the board of elections (case No. 89250) for purposes of hearing and decision. In case No. 89250, the board was represented by the same attorneys who represented appellees in case No. 89249, and the board sought the same records as in case No. 89249.

{¶ 10} On January 22, 2007, the court of appeals, in a two-to-one decision, denied Mason’s motion to dismiss appellees’ complaint in case No. 89249 and granted a writ of mandamus to compel Mason to provide appellees with the files of his office relating to the 2004 general election and ensuing recount. In case No. 89250, the court of appeals dismissed the board’s complaint because it had not been properly instituted by the board’s authorized counsel. The court also denied Mason’s motion for Civ.R. 11 sanctions in case No. 89250. In this appeal [193]*193as of right, Mason challenges the court of appeals’ issuance of the writ of mandamus in case No. 89249 and its denial of his motion for sanctions in case No. 89250.

Mandamus

{¶ 11} In order to be entitled to the requested extraordinary relief in mandamus, appellees had to establish a clear legal right to the records related to the 2004 election and recount, a corresponding clear legal duty on behalf of the county prosecutor to provide these records, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Boccuzzi v. Cuyahoga Cty. Bd. of Commrs., 112 Ohio St.3d 438, 2007-Ohio-323, 860 N.E.2d 749, ¶ 13.

{¶ 12} Appellees have not established this requirement, because mandamus will not lie to control judicial discretion, even if that discretion is abused. State ex rel. Rashada v. Pianka, 112 Ohio St.3d 44, 2006-Ohio-6366, 857 N.E.2d 1220, ¶ 3; R.C. 2731.03.

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Cite This Page — Counsel Stack

Bluebook (online)
874 N.E.2d 510, 115 Ohio St. 3d 190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-dreamer-v-mason-ohio-2007.