State ex rel. Podolsky v. Wenninger

[Cite as State ex rel. Podolsky v. Wenninger, 2014-Ohio-3288.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BROWN COUNTY

STATE OF OHIO ex rel. :
JOSEPH G. PODOLSKY, CASE NO. CA2013-12-019
:
Plaintiff-Appellant, OPINION
: 7/28/2014

- vs - :

:
DWAYNE WENNINGER,
:
Defendant-Appellee.
:

CIVIL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS
Case No. 2002-2234

Kenneth W. Porter, 8055 Hayport Road, CV02-13, Wheelersburg, Ohio 45694, for plaintiff-
appellee, State of Ohio

Renata Y. Staff, Assistant Ohio Attorney General, 30 East Broad Street, 16th Floor,
Columbus, Ohio 43215, for plaintiff-appellant, Ohio Attorney General

Thomas G. Eagle Co., L.P.A., Thomas G. Eagle, 3386 North State Route 123, Lebanon,
Ohio 45036, for plaintiffs-appellants, Joseph Podolsky and The Post & Email

Gary A. Rosenhoffer, 313 East Main Street, Batavia, Ohio 45103, for defendant-appellee,
Dwayne Wenninger

M. POWELL, J.

{¶ 1} Movant-appellant, Joseph Podolsky, and intervenor-appellant, The Post &
 Brown CA2013-12-019

Email (hereinafter referred to respectively as Podolsky and The Post & Email and collectively

as appellants), appeal a decision of the Brown County Court of Common Pleas denying their

motion to unseal court records related to the 2003 acquittal of Brown County Sheriff Dwayne

Wenninger (Wenninger) of certain criminal charges (the records sought by appellants shall

hereinafter be referred to as "the court records").

{¶ 2} In December 2002, Wenninger was indicted on one count of falsification and

one count of election falsification. The falsification count was subsequently dismissed and

the remaining count was tried to a jury. On October 8, 2003, Wenninger was acquitted of

falsifying election records related to his qualifications to run for and hold the sheriff's office.

On October 10, 2003, pursuant to R.C. 2953.52, Judge Robert P. Ringland (sitting in the

Brown County Common Pleas Court by assignment) granted Wenninger's motion to seal the

record of his criminal case.

{¶ 3} In 2013, Podolsky requested the Brown County Prosecuting Attorney to file a

taxpayer lawsuit on his behalf pursuant to R.C. 309.12 to unseal the records of Wenninger's

criminal case. Podolsky intended to file a lawsuit to challenge Wenninger's qualifications to

hold the office of sheriff and to recover the sheriff's salary paid Wenninger during his years in

office. The prosecutor declined to file a taxpayer lawsuit on the grounds that (1) following the

Ohio Supreme Court's decision in State ex rel. Varnau v. Wenninger, 131 Ohio St.3d 169,

2012-Ohio-224, there was no legal basis to file a lawsuit to challenge Wenninger's present

term of office; (2) once Wenninger assumed office, he became a de facto officer whose acts

were valid, thus, there was no legal basis to recover his salary for his current or expired

terms; and (3) Judge Ringland properly sealed Wenninger's criminal court records under

R.C. 2953.52.

{¶ 4} On July 12, 2013, Podolsky filed a motion in the trial court to unseal and

-2-
 Brown CA2013-12-019

produce all courts records related to Wenninger's 2002-2003 criminal case.1 The motion was

filed pursuant to R.C. 309.13, sought to "disclose evidence of fraudulent activity by an

elected county official," and consequently sought to recover the salary paid to Wenninger for

his current and expired terms as well as "damages resulting from the execution of [the

sheriff's] illegal employment contract." The gravamen of the motion alleged that the sealing

of the records was unconstitutional, in violation of R.C. 2953.52, and an abuse of discretion.

The motion also alleged that keeping the records sealed would perpetuate the ongoing

election fraud given Wenninger's lack of qualifications to serve as county sheriff. The motion

asserted that Wenninger's acquittal did not mean he was qualified to run for and hold the

sheriff's office, and that he would not have been indicted absent a false statement about his

educational qualifications to be a candidate.

{¶ 5} Wenninger moved to dismiss the motion to unseal. Wenninger argued that

Podolsky was not one of the persons entitled to access the sealed court records under R.C.

2953.52(D), and that in light of our decision in State v. Wenninger, 12th Dist. Brown No.

CA2009-07-026, 2010-Ohio-1009, Podolsky's claims were barred by res judicata.

{¶ 6} On July 29, 2013, The Post & Email, an online newsletter publication, moved to

intervene in Podolsky's action based upon a First Amendment public right to know. In an

affidavit attached to the motion, The Post & Email stated it was "requesting access to [the

court records] for the purpose of reporting to the public the basis for the claims of illegal

conduct by Sheriff Wenninger and further evidence he is, or is not, holding the office while

meeting all the legal qualifications to do so."

1. In 2009, Dennis Varnau, a candidate for the Brown County Sheriff's Office, likewise moved the trial court to
unseal and produce court records from Wenninger's 2002-2003 criminal case. Varnau sought to have the
records unsealed for purposes of using them in his then pending petition for a writ of quo warranto challenging
Wenninger's claim to office. The trial court denied Varnau's motion to unseal the court records. This court
upheld the trial court's decision on the grounds that Varnau was not entitled to access the sealed records under
either R.C. 2953.53(D) or Sup.R. 44 through 47. State v. Wenninger, 12th Dist. Brown No. CA2009-07-026,
2010-Ohio-1009, ¶ 18, 30.
-3-
 Brown CA2013-12-019

{¶ 7} Subsequently, appellants filed memoranda in support of their motion to unseal

and in opposition to Wenninger's motion to dismiss. In their memoranda, appellants

asserted, both explicitly and implicitly, several other grounds which they claimed entitled them

to the court records. We detail those various grounds below.

{¶ 8} A hearing was held on appellants' motion to unseal the court records. At the

conclusion of the hearing, appellants asked the trial court to unseal Wenninger's criminal

case file and determine whether in sealing the records, Judge Ringland properly balanced

the public and private interests in compliance with R.C. 2953.52. Both Wenninger and the

state supported the request.

{¶ 9} On December 13, 2013, the trial court denied appellants' motion to unseal and

produce the court records. After reviewing Judge Ringland's sealing entry, the trial court

found that "Judge Ringland performed the requisite balancing test and thus his sealing of this

case in 2003 was done in a constitutional manner." The trial court noted that R.C. 2953.52

was found to be constitutional by the Ohio Supreme Court. See State ex rel. Cincinnati

Enquirer v. Winkler, 101 Ohio St.3d 382, 2004-Ohio-1581. The trial court also found that

appellants' motion to unseal was "not a civil action seeking to recover county monies under

the clearly defined and limited circumstances set forth in [R.C. 309.13.]"

{¶ 10} Finally, the trial court found that appellants were not entitled to access to the

sealed court records under R.C. 2953.52(D): "Subsequent to a Court sealing a record [,] the

legislature has delineated a finite number of people who may seek the unsealing of a

properly sealed record for specific purposes under R.C. 2953.52(D) * * *. Neither Movant nor

Intervener fall within any of these categories of person nor categories of purpose."

{¶ 11} Appellants appeal, raising one assignment of error:

{¶ 12} THE TRIAL COURT ERRED BY NOT UNSEALING OR OTHERWISE MAKING

AVAILABLE FOR PUBLIC INSPECTION THE COURT RECORDS.
-4-
 Brown CA2013-12-019

{¶ 13} Appellants broadly challenge the trial court's denial of their motion to unseal

and produce court records related to Wenninger's criminal case on the grounds that (1) the

public and the press have a statutory and constitutional right to access sealed court records

of an elected official's criminal case; (2) the private interest of an elected official in having

such court records sealed is outweighed by the public interest in accessing those records

and the public's right to know what is in the records; and (3) the trial court failed to support its

decision that Judge Ringland properly sealed the court records and failed to conduct a new

balancing test of the private interest against the public interest. Within those general

grounds, appellants raise several specific issues.

{¶ 14} Appellants argue they were entitled to the court records under R.C. 2953.53

and that it was error for the trial court to deny their motion to unseal and produce court

records because R.C. 2953.53(D) is not the only means of access to sealed court records.

Appellants assert they are also entitled to the court records pursuant to R.C. 309.13, Sup.R.

44 through 47, R.C. 149.43, the First Amendment to the United States Constitution, and the

inherent authority of a court to unseal records it has previously ordered sealed.

{¶ 15} Podolsky filed the motion to unseal and produce court records pursuant to R.C.

309.13. The trial court found that contrary to Podolsky's assertion, the motion to unseal was

"not a civil action seeking to recover county monies under the clearly defined and limited

circumstances set forth in [R.C. 309.13]."

{¶ 16} R.C. 309.12 allows a county prosecutor "to initiate legal action to restrain the

contemplated misapplication of county funds or completion of illegal contracts or to recover

funds or damages from illegal contracts that have been executed or funds that have been

misapplied." State ex rel. Teamsters Local Union 436 v. Cuyahoga Cty. Bd. of Commrs., 132

Ohio St.3d 47, 2012-Ohio-1861, ¶ 11. If a taxpayer presents a written request to the county

prosecutor to take action pursuant to R.C. 309.12 and is denied assistance from the county
-5-
 Brown CA2013-12-019

prosecutor, the taxpayer may initiate his own action on behalf of the county pursuant to R.C.

309.13. Id. A taxpayer's action instituted against a county officer under R.C. 309.13 is "for

misconduct in office or neglect of [the officer's] duty, to recover money illegally drawn or

illegally withheld from the county treasury, and to recover damages resulting from the

execution of such illegal contract." R.C. 309.13; State ex rel. Jones v. Hamilton Cty. Bd. of

Commrs., 124 Ohio App.3d 184, 188 (1st Dist.1997).

{¶ 17} We find that appellants' motion to unseal and produce court records is not a

taxpayer's action as contemplated by R.C. 309.13. While Podolsky filed the motion under

R.C. 309.13 purportedly to "recover the salary paid to Sheriff Wenninger for his current and

expired terms" and for "damages resulting from the execution of [the sheriff's] illegal

employment contract," the motion actually challenged Judge Ringland's sealing of the court

records. While appellants' reason for seeking access to the records may have been to use

them to challenge Wenninger's qualifications to run for and hold the sheriff's office and to

recover the salary he received as sheriff, the immediate object of the motion (i.e., the

unsealing of the court records) is not one cognizable under R.C. 309.13. During the hearing,

appellants' counsel briefly asserted that R.C. 309.13 should not be narrowly construed as to

only encompass a taxpayer's action to recover funds. Appellants have not cited, and we

have not found, any case law supporting the use of R.C. 309.13 solely to obtain records to be

used later for a proper R.C. 309.13 purpose. We reject appellants' interpretation of R.C.

309.13.

{¶ 18} We therefore find that R.C. 309.13 is not a proper mechanism to seek the

unsealing of records sealed under R.C. 2953.52.

{¶ 19} Appellants also assert, for the first time on appeal, that they are entitled to the

sealed court records under Sup.R. 44 through 47.

{¶ 20} Effective July 1, 2009, the Ohio Supreme Court adopted Rules of
-6-
 Brown CA2013-12-019

Superintendence for the Courts of Ohio regarding public access to court records, specifically

Sup.R. 44 through 47. State ex rel. Cincinnati Enquirer v. Lyons, __ Ohio St.3d __, Slip

Opinion No. 2014-Ohio-2354, ¶ 13. Pursuant to Sup.R. 45(A), "Court records are presumed

open to public access." We need not analyze whether appellants are entitled to the court

records pursuant to Sup.R. 44 through 47. Sup.R. 44 through 47 became effective on July 1,

2009, and are the sole vehicle for obtaining court records in actions commenced after July 1,

2009. Sup.R. 47(A)(1); State ex rel. Richfield v. Laria, 138 Ohio St.3d 168, 2014-Ohio-243, ¶

8. This case commenced in 2002. Hence, the public-access superintendence rules are

inapplicable to appellants' motion to unseal. State ex rel. Striker v. Smith, 129 Ohio St.3d

168, 2011-Ohio-2878, ¶ 21, fn. 2. We also note that appellants never argued in the trial court

that they were entitled to the court records pursuant to Sup.R. 44 through 47. Appellants'

failure to raise the issue before the trial court results in the waiver of that issue for appellate

purposes. See Wohl v. Swinney, 12th Dist. Butler No. CA2006-05-123, 2007-Ohio-592.

{¶ 21} Appellants next dispute the trial court's finding they are not entitled to the

sealed court records under R.C. 2953.53 because they are not one of the persons listed in

R.C. 2953.53(D).

{¶ 22} R.C. 2953.53(D) sets forth the individuals who are permitted access to sealed

records, and states in pertinent part:

The sealed official records * * * shall not be available to any
person, except that the official records of a case that have been
sealed may be made available to the following persons for the
following purposes:

(1) To the person who is the subject of the records upon written
application, and to any other person named in the application, for
any purpose;

(2) To a law enforcement officer who was involved in the case,
for use in the officer's defense of a civil action arising out of the
officer's involvement in that case;

-7-
 Brown CA2013-12-019

(3) To a prosecuting attorney or the prosecuting attorney's
assistants to determine a defendant's eligibility to enter a pre-trial
diversion program established pursuant to section 2935.36 of the
Revised Code;

(4) To a prosecuting attorney or the prosecuting attorney's
assistants to determine a defendant's eligibility to enter a pre-trial
diversion program under division (E)(2)(b) of section 4301.69 of
the Revised Code.

{¶ 23} As the trial court properly found, appellants do not fall within any of these

classifications of persons to whom sealed records may be made available, nor do they seek

the records for any of the purposes delineated in the statute. Failure to satisfy either the

"person" or "purpose" prong of R.C. 2953.53(D) denies one the benefit of the statute.

Appellants satisfy neither prong. Appellants, therefore, were not entitled to have access to

the sealed court records pursuant to R.C. 2953.53(D). Wenninger, 2010-Ohio-1009 at ¶ 18.

{¶ 24} Appellants also assert they are entitled to the sealed court records under R.C.

149.43, the Public Records Act.

{¶ 25} R.C. 149.43(B)(1) states in relevant part that "[u]pon request * * *, all public

records responsive to the request shall be promptly prepared and made available for

inspection to any person at all reasonable times during regular business hours." "The rule in

Ohio is that public records are the people's records, and that the officials in whose custody

they happen to be are merely trustees for the people; therefore, anyone may inspect such

records at any time[.]" Dayton Newspapers, Inc. v. Dayton, 45 Ohio St.2d 107, 109 (1976).

{¶ 26} R.C. 149.43 has consistently been construed in favor of broad access and any

doubt is resolved in favor of disclosing the records. State ex rel. WBNS TV, Inc. v. Dues, 101

Ohio St.3d 406, 2004-Ohio-1497, ¶ 24. The Public Records Act permits anyone to obtain

public records pursuant to R.C. 149.43(A) regardless of the requester's reasons for or

objectives in requesting the records. State v. Athon, 136 Ohio St.3d 43, 2013-Ohio-1956, ¶

14. "[M]andamus is the appropriate remedy to compel disclosure of specific records
-8-
 Brown CA2013-12-019

requested under the Ohio Public Records Act and the Ohio and United States Constitutions."

State ex rel. Beacon Publishing Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, ¶ 50; R.C.

149.43(C)(1).

{¶ 27} Notwithstanding its lofty goals, the right of public access to criminal proceedings

however, is not absolute. Winkler, 2004-Ohio-1581 at ¶ 9. "'No one has a right to any

particular degree of openness or secrecy, except as provided by law.'" Id., quoting State ex

rel. Beacon Journal Publishing Co. v. Waters, 67 Ohio St.3d 321, 324 (1993). "[N]ot every

iota of information is subject to public scrutiny." State ex rel. Wallace v. State Med. Bd. of

Ohio, 89 Ohio St.3d 431, 438 (2000). Thus, R.C. 149.43 mandates full access to all public

records upon request unless the requested records fall within one of the specified

exemptions. Dues, 2004-Ohio-1497 at ¶ 29.

{¶ 28} One exception to the general rule of openness is found in R.C. 149.43(A)(1)(v),

for "[r]ecords the release of which is prohibited by state or federal law." "Sealed court

records fall within this exception, since R.C. 2953.55(B) makes it a fourth-degree

misdemeanor to release sealed records." Winkler at ¶ 9. Thus, once court records are

properly sealed, they cease to be public records and the basis for public access to the

records does not exist. Id. at ¶ 6, 12; State ex rel. Highlander v. Rudduck, 103 Ohio St.3d

370, 2004-Ohio-4952, ¶ 11.

{¶ 29} We find that appellants' motion to unseal the court records is not a R.C. 149.43

public records request. R.C. 149.43 establishes a public right to inspect and copy public

records. Dayton Newspapers, Inc., 45 Ohio St.2d at 108. Appellants' motion was not a

request to inspect and copy the court records and was not filed pursuant to R.C. 149.43.

Appellants' motion was a request "to permanently unseal" the court records and invoked the

trial court's judicial discretion to unseal previously sealed records (which, they asserted,

should never have been sealed). We decline to construe a motion to unseal court records as
-9-
 Brown CA2013-12-019

a public records request.

{¶ 30} However, even assuming, arguendo, that appellants' motion to unseal court

records was a public records request under R.C. 149.43, appellants would not be entitled to

the sealed court records under R.C. 149.43 as the latter lost their status as public records

pursuant to R.C. 149.43(A)(1)(v) and R.C. 2953.55(B). Winkler, 2004-Ohio-1581 at ¶ 6 (trial

court properly denied newspaper's public records request for court records related to a police

officer's criminal case where the records were sealed under R.C. 2953.52 and were therefore

no longer public records under R.C. 149.43[A][1][v]).

{¶ 31} R.C. 2953.52 allows a defendant found not guilty of an offense to apply to the

trial court to have his record sealed. Id. at ¶ 10; R.C. 2953.52(A)(1). The defendant bears

the burden to demonstrate the need for sealing the record. State v. Gross, 12th Dist. Warren

No. CA2010-03-030, 2011-Ohio-55, ¶ 5.

{¶ 32} When considering an application to seal a criminal record under R.C. 2953.52,

a trial court must hold a hearing and (1) determine whether the applicant was found not guilty

or the criminal offense was dismissed, (2) determine whether criminal proceedings are

pending against the applicant, (3) consider the prosecutor's objections, if any, and (4) weigh

the applicant's interest in having the official criminal records sealed against the legitimate

interest of the government to maintain those records (colloquially known as the balancing test

of the public and private interests). R.C. 2953.52(B)(2). Once the trial court holds a hearing

and complies with R.C. 2953.52(B)(2), it may seal court records. See R.C. 2953.52(B)(3). A

trial court's decision to grant or deny an application to seal criminal records is a matter of

judicial discretion. See Gross at ¶ 4.

{¶ 33} Appellants argue the trial court erred in denying their motion to unseal because

the trial court failed to provide findings of facts to support its decision that Judge Ringland

properly sealed the court records. Appellants cite State v. Orth, 12th Dist. Clermont No.
- 10 -
 Brown CA2013-12-019

CA93-03-020, 1993 WL 534675 (Dec. 27, 1993), in support of their argument. We note that

appellants also cite several other decisions in support of their argument the trial court was

required to make specific findings of fact before denying the motion to unseal. See State v.

Forrest, 10th Dist. Franklin No. 10AP-481, 2010-Ohio-5878; State v. Francis, 104 Ohio St.3d

490, 2004-Ohio-6894. However, unlike Orth, these decisions do not involve the sealing of

criminal court records (rather, they involve motions to suppress or to vacate a plea). We will

therefore not address those decisions.

{¶ 34} In Orth, the state appealed a trial court's order sealing the record of Orth's

conviction. One of the issues on appeal was whether the trial court strictly complied with the

applicable statute (R.C. 2953.32) in granting Orth's motion to seal. We observed that:

The record shows that the trial court issued a one page decision
granting Orth's application to seal the record of his conviction. In
support of its decision, the court simply cites two Ohio Supreme
Court cases. No fact findings or conclusions of law accompany
the court's decision. Consequently, the court's entry provides no
evidence of any determination by the court that Orth was a first
offender, that no criminal proceeding was pending against him,
and that he had been rehabilitated to the satisfaction of the court.
It also provides no evidence of any weighing of Orth's interest in
having the record of his conviction sealed against the State's
legitimate interest in preserving Orth's record.

Orth, 1993 WL 534675 at *2. In light of the foregoing, we further observed that:

we think that the trial court did not follow the requirements set
forth in R.C. 2953.32. However, the State did not raise the issue
on appeal. Indeed, although there are no express stipulations or
acknowledgments as to the requirements of R.C. 2953.32, the
record seems to indicate that the parties considered these
requirements to be impliedly met. In addition, an appellate court
must presume the regularity of trial court proceedings.

Id. at *3. Consequently, this court upheld the sealing of the record of conviction. Id.

{¶ 35} We find that the reasoning in Orth is inapplicable here. The case at bar came

before us in a different procedural posture than Orth in that it involves the appeal of the

denial of a motion to unseal court records whereas Orth involved the appeal of the sealing of
- 11 -
 Brown CA2013-12-019

the record of conviction in the first instance. In the case at bar, the trial court did not grant a

sealing of the records but merely determined that Judge Ringland properly conducted the

balancing test under R.C. 2953.52 and properly followed the requirements under R.C.

2953.52. Further, appellants failed to request findings of fact and conclusions of law. See

Civ.R. 52; In re D.R., 12th Dist. Butler No. CA2006-12-310, 2008-Ohio-2259 (failure to timely

request findings of fact and conclusions of law waives the right to challenge the trial court's

lack of an explicit finding with respect to an issue). We have reviewed Judge Ringland's

sealing order and find that it supports the trial court's determination that Judge Ringland

complied with R.C. 2953.52 before sealing the court records.

{¶ 36} Appellants also cite a decision from the Fourth Appellate District, State ex rel.

Leadingham v. Schisler, 4th Dist. Scioto No. 02CA2827, 2003-Ohio-7293, to support their

claim they are entitled access to the sealed court records (presumably pursuant to R.C.

149.43, as Leadingham is an original action in mandamus to compel compliance with R.C.

149.43).

{¶ 37} In Leadingham, an original action in mandamus was brought under the Public

Records Act against two municipal judges and a sheriff, as custodians of certain records.

Leadingham brought the action after he was denied access to sealed criminal court records.

The Fourth Appellate District found that the trial court lacked personal jurisdiction to issue the

expungement order because of procedural errors, including a failure to notify the prosecutor

in violation of R.C. 2953.52(B)(1). Consequently, the court of appeals granted the writ of

mandamus and ordered the judges to unseal the court records. In discussing the issue of

the trial court's personal jurisdiction, the court of appeals found that:

The expungement statutes are exceptions to and a limitation on
the public's pre-existing right of access to public records. We
find, therefore, that a stranger to a judgment of expungement,
who seeks access to the expunged records as unlawfully sealed
public records, may collaterally attack the expungement order for
- 12 -
 Brown CA2013-12-019

lack of jurisdiction to preserve his or her (and the public's) pre-
existing right of access to public records.

Leadingham, 2003-Ohio-7293 at ¶ 27.

{¶ 38} "The objective of a collateral attack is to modify a previous judgment because it

is allegedly ineffective or flawed for some fundamental reasons." Ohio Pyro, Inc. v. Ohio

Dept. of Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, ¶ 19. Because of the firm and

longstanding principle that final judgments are meant to be just that – final, collateral or

indirect attacks are disfavored and will succeed only in certain very limited situations. Id. at ¶

22, citing Coe v. Erb, 59 Ohio St. 259, 267-268 (1898). Specifically, "the reasons for

disfavoring collateral attacks do not apply in two principal circumstances - when the issuing

court lacked jurisdiction or when the order was the product of fraud (or of conduct in the

nature of fraud)." Ohio Pyro at ¶ 23, citing Coe at 271 (strangers to a judgment are permitted

to attack the judgment based on "fraud and want of jurisdiction").

{¶ 39} The Leadingham decision does not support appellants' entitlement to the court

records. Leadingham does not stand for the proposition that anyone may access sealed

records. Rather, the Fourth Appellate District held that anyone, including a stranger to a

sealing entry, may seek access to unlawfully sealed public records. Appellants confuse the

right to collaterally attack the propriety of an order sealing records under R.C. 2953.52(B)

with the right to access the records.

{¶ 40} In the case at bar, regardless of the authority pursuant to which appellants may

have sought the unsealing of the court records, the trial court entertained appellants’

collateral attack upon Judge Ringland's order sealing the records, reviewed Judge Ringland's

entry, and found that "Judge Ringland performed the requisite balancing test [under R.C.

2953.52(B)] and thus his sealing of this case in 2003 was done in a constitutional manner."

Again, we have reviewed Judge Ringland's sealing entry and find that it supports the trial

- 13 -
 Brown CA2013-12-019

court's determination. Thus, the court records were properly sealed under R.C. 2953.52 and

as "[r]ecords the release of which is prohibited by state or federal law" under R.C.

149.43(A)(1)(v), are not subject to public access pursuant to R.C. 149.43.

{¶ 41} Appellants also claim they are entitled to the sealed court records based upon

the public's First Amendment right of access to the records.

{¶ 42} "The First Amendment to the United States Constitution provides a qualified

right of access to criminal proceedings." Winkler, 2004-Ohio-1581 at ¶ 8. Likewise, "Section

16, Article I of the Ohio Constitution guarantees the public right to open courts. This right of

access found in both the federal and state Constitutions includes records and transcripts that

document the proceedings." Id. Hence, "[c]riminal proceedings are presumptively open to

the public." State ex rel. Beacon Journal Publishing Co. v. Radel, 82 Ohio App.3d 193, 197

(5th Dist.1993).

{¶ 43} In Winkler, pursuant to R.C. 149.43, a newspaper sought to inspect the sealed

court records of a police officer. The trial judge denied the request and the newspaper filed a

mandamus action in the First Appellate District. The court of appeals declined to issue a writ

of mandamus after finding that the records were properly sealed. The newspaper appealed

to the Ohio Supreme Court on the grounds it was entitled to the release of the records

because they were public records under the Public Records Act, and R.C. 2953.52 was

unconstitutional and could not be used as an exception to the Public Records Act.

{¶ 44} The supreme court upheld the First Appellate District's judgment denying a writ

of mandamus to compel production of the sealed records pursuant to R.C. 149.43. The

supreme court held that (1) R.C. 2953.52 was constitutional on its face and as applied; (2)

R.C. 2953.52 did not violate the public's constitutional right of access to public records; (3)

the trial court complied with R.C. 2953.52 before sealing the court records; (4) once the court

records were sealed under R.C. 2953.52, they were no longer public records pursuant to
- 14 -
 Brown CA2013-12-019

R.C. 149.43(A)(1)(v) and R.C. 2953.55(B); and (5) Judge Winkler was justified in refusing the

newspaper's request to inspect the records. Winkler, 2004-Ohio-1581 at ¶ 6, 11-13.

{¶ 45} In finding that R.C. 2953.52 was not unconstitutional as applied, the supreme

court noted that "there was a full public trial with widespread media attention. * * * The

record remained open for more than five weeks after the trial concluded." Id. at ¶ 12.

Although the record of Wenninger's criminal case here was sealed a mere two days after the

trial concluded, the proceedings were nonetheless open to the public and covered by the

media.

{¶ 46} We find that appellants' constitutional claim is not well taken on the basis of

Winkler. As stated earlier, we have reviewed Judge Ringland's sealing entry and find that it

supports the trial court's determination that Judge Ringland complied with R.C. 2953.52

before sealing the court records. Therefore, appellants would not be entitled to the court

records under the First Amendment as they were properly sealed pursuant to a

constitutionally valid statute.

{¶ 47} Appellants additionally assert that, notwithstanding a proper sealing of the

records in the first instance, they are entitled to the sealed court records because the

balancing test cannot be met here as the public's interest in accessing the records outweighs

any privacy interest of Wenninger. At the heart of this argument are appellants' assertions

that whenever a request to unseal records is made, the balancing test under R.C. 2953.52

must be conducted anew, with the individual whose records are sealed to bear, once again,

the burden to prove the need for keeping the records sealed.

{¶ 48} We decline to hold, as a matter of law, that whenever a request to unseal

records is filed, absent unusual and exceptional circumstances as discussed below, the

individual whose records are sealed must relitigate the case and establish anew that his

privacy interest continues to outweigh the public interest in accessing the records, or that a
- 15 -
 Brown CA2013-12-019

trial court must conduct the balancing test of the private and public interests anew. Neither a

new burden of proof nor a re-balancing of the opposing interests arises whenever one seeks

to access sealed records. To adopt appellants' argument would result in endless litigation

with no finality to a court's order sealing records.

{¶ 49} Further, the cases cited by appellants do not support their argument. Most of

the cases involved a direct appeal by the state or the defendant of a judgment entry granting

or denying a motion to seal records, as opposed to a motion to unseal records. See State v.

Lovelace, 1st Dist. Hamilton No. C-110715, 2012-Ohio-3797; State v. Crews, 179 Ohio

App.3d 521, 2008-Ohio-6230 (2d Dist.); State v. Smith, 7th Dist. Mahoning No. 12-MA-176,

2013-Ohio-2872; In re J.D., 8th Dist. Cuyahoga No. 99521, 2013-Ohio-4706; State v. Evans,

10th Dist. Franklin No. 13AP-158, 2013-Ohio-3891.

{¶ 50} Appellants also implicitly argue that the court records should have been

unsealed pursuant to the trial court's inherent authority to unseal previously sealed court

records, and cite State v. Vanzandt, 1st Dist. Hamilton No. C-130079, 2013-Ohio-2290, in

support of their argument.

{¶ 51} Ohio courts have recognized the inherent authority of a court to seal or unseal

records independent of statutory authority. See Schussheim v. Schussheim, 137 Ohio St.3d

133, 2013-Ohio-4529; Pepper Pike v. Doe, 66 Ohio St.2d 374 (1981); Vanzandt.2 It must be

noted that the exercise of this inherent authority to unseal a court record is limited:

The inherent authority of a court to expunge and seal a record
does not turn on whether a proceeding is criminal or civil.
Rather, the determination is whether "unusual and exceptional
circumstances" exist and whether the interests of the applicant
outweigh the legitimate interest of the government to maintain
the record.

2. Although Schussheim and Pepper Pike deal with the inherent authority to seal records, it was recognized in
Vanzandt that "within the court's power to seal its records is a concomitant power to unseal such records in
appropriate circumstances." Vanzandt, 2013-Ohio-2290 at ¶ 13.
- 16 -
 Brown CA2013-12-019

Schussheim at ¶ 16.

{¶ 52} "Unusual and exceptional circumstances" to seal or unseal a court record

include circumstances such as (1) the sealing of the record of an assault charge, where the

charge, which was subsequently dismissed with prejudice, arose from a domestic dispute

involving a vindictive use of the criminal justice system, Pepper Pike at 376; (2) the sealing of

records related to a dissolved civil protection order (CPO) where the complainant who

petitioned the court for an ex parte CPO later moved to dissolve the CPO and submitted an

affidavit that expungement was in the best interest of herself and her children, Schussheim at

¶ 14-16; and (3) the unsealing of the record of the defendant's acquittal where the defendant

retaliated against a witness from the sealed case a mere three days after the record was

sealed, where the state sought to unseal the records to use them in a subsequent

prosecution of the defendant for witness retaliation, and where the defendant sought to keep

the record sealed not to save his good name, but to "save his skin." Vanzandt at ¶ 17-20.

{¶ 53} Appellants claim that unusual and exceptional circumstances are present here

due to the public's right to know whether an elected official is qualified to run for and hold

public office. These same circumstances existed at the time the court records were ordered

sealed and certainly entered into the balancing test conducted by Judge Ringland when he

sealed the records.

{¶ 54} Podolosky further claims that he was not a resident of Brown County at the time

of Wenninger's criminal trial and therefore, neither he nor other new residents of Brown

County know the specifics of Wenninger's 2003 trial. The fact that current Brown County

residents did not reside in Brown County at the time of Wenninger's trial and thus, may not

be aware of those proceedings, does not constitute an "unusual and exceptional

circumstance." That people would move into and out of Brown County in the years following

the sealing of the records would be expected and is neither "unusual" nor "exceptional."
- 17 -
 Brown CA2013-12-019

Additionally, at least one other individual, Varnau, has unsuccessfully attempted to have the

court records unsealed. See Wenninger, 2010-Ohio-1009 (motion to unseal properly denied

where movant was not one of the individuals authorized under R.C. 2953.53(D) to have

access to sealed records); see also Wenninger, 2012-Ohio-224 (losing candidate for sheriff

cannot seek to invalidate incumbent's present term of office based on alleged prior

disqualifications from expired terms of office). This case does not present "unusual and

exceptional circumstances."

{¶ 55} For all of the foregoing reasons, we find that the trial court properly denied

appellants' motion to unseal all court records related to Wenninger's 2002-2003 criminal

case.

{¶ 56} Appellants' assignment of error is accordingly overruled.

{¶ 57} Judgment affirmed.

HENDRICKSON, P.J., and S. POWELL, J., concur.

- 18 -