State ex rel. Cincinnati Enquirer v. Ghiz

[Cite as State ex rel. Cincinnati Enquirer v. Ghiz, 2017-Ohio-8965.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

STATE OF OHIO EX. REL. THE : CASE NOS. C-170268
CINCINNATI ENQUIRER, C-170269
:
STATE OF OHIO EX REL. THE
ASSOCIATED PRESS, : O P I N I O N.

STATE OF OHIO EX REL. RAYCOM :
MEDIA, d.b.a. WXIX-TV,
:
STATE OF OHIO EX REL.
OHIO/OKLAHOMA HEARST :
TELEVISION INC., d.b.a. WLWT-TV,
:
STATE OF OHIO EX REL. SINCLAIR
MEDIA III, INC., d.b.a. WKRC-TV, :

STATE OF OHIO EX REL. :
CINCINNATI PUBLIC RADIO, d.b.a.
WVXU, :

and :

STATE OF OHIO EX REL. SCRIPPS :
MEDIA INC., d.b.a. WCPO-TV,
:
Relators,
:
vs.
:
HON. LESLIE E. GHIZ, JUDGE,
HAMILTON COUNTY COURT OF :
COMMON PLEAS,
:

Respondent. :
Original Action in Prohibition and Mandamus

Judgment of Court: Writ of Prohibition Dismissed; Writ of Mandamus Granted in
Part and Denied in Part

Date of Judgment Entry on Appeal: December 13, 2017

Graydon Head & Ritchey LLP, John C. Greiner and Darren W. Ford, for Relators
State of Ohio ex rel. The Cincinnati Enquirer, State of Ohio ex rel. The Associated
Press, State of Ohio ex rel. Raycom Media, d.b.a. WXIX-TV, State of Ohio ex rel.
Ohio/Oklahoma Hearst Television Inc., d.b.a. WLWT-TV, State of Ohio ex rel.
Sinclair Media III Inc., d.b.a. WKRC-TV, State of Ohio ex rel. Cincinnati Public
Radio, d.b.a. WVXU,

Frost Brown Todd, LLC, Monica L. Dias and Susan Grogan Faller, for Relator State
of Ohio ex rel. Scripps Media Inc., d.b.a. WCPO-TV,

Isaac Wiles Burkholder & Teetor, LLC, Mark Landes, Mark R. Weaver and Holly E.
Oak, for Respondent.

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M OCK , Presiding Judge.

{¶1} On July 19, 2015, University of Cincinnati Police Officer Raymond

Tensing initiated a traffic stop of Samuel DuBose. During the course of the

encounter, Tensing discharged his firearm, killing DuBose. Ten days later, a

Hamilton County grand jury issued a two-count indictment, charging Tensing with

murder and voluntary manslaughter. Amid significant local, national, and global

media coverage, the case proceeded to trial beginning on October 31, 2016. The trial

proceeded to jury deliberation until, on November 12, the jury announced it was

hopelessly deadlocked and the trial judge declared a mistrial.

{¶2} On December 7, 2016, the case was transferred to Respondent Leslie

E. Ghiz (“Respondent”), Judge of the Hamilton County Court of Common Pleas for a

second trial. Prior to the trial commencing, Respondent put on an entry which

limited media coverage of the proceedings. Respondent also refused to release the

questionnaires that had been completed by prospective jurors in the case. As a result

of that entry, several media outlets filed complaints in this court seeking a writ of

prohibition to prevent Respondent from enforcing the restrictions. This court

granted an alternate writ, preventing Respondent from enforcing the order, holding

that “[i]n the absence of an evidentiary hearing and particularized findings, the

restrictions imposed by the Respondent are contrary to law.” In light of this court’s

ruling, Respondent vacated her original order. This court then dismissed the

petitions as moot.

{¶3} Pursuant to the mandate from this court, Respondent conducted a

hearing on the matter on June 1, 2017. During the hearing, Respondent heard

testimony from three individuals. The first individual had been the courtroom bailiff

during the first Tensing trial. He testified to the contents of an affidavit he had

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prepared in which he averred that some of the jurors during the first trial had

expressed discomfort at being publically identified as jurors. A deputy testified that

she had observed, on courthouse surveillance video, two individuals who appeared to

be photographing individuals outside the main entrance of the courthouse on the

first day of jury selection. Another deputy testified about the security measures

taken during the first Tensing trial, including the restrictions put in place for the use

of electronic devices in the area around the courtroom. Respondent also reviewed

the completed juror questionnaires. Of the 180 completed forms, the court found

that 38 individuals had said that they would not be willing to serve if their identities

became known publically, and 39 individuals said they would be “concerned about

their personal safety, reputation or standing in their community among family,

friends and associates” should they be asked to serve on the jury.

{¶4} Respondent also took judicial notice of other matters. For example,

she took judicial notice of the fact that she had presided over another criminal trial in

which an associate of that defendant had used social media to try and locate jurors.

She also took judicial notice of two separate instances involving cellular devices in

pretrial hearings: one in which a prospective juror’s phone rang during a proceeding

because he or she had forgotten to silence it, and another in which a spectator had

dropped a phone during a hearing while testimony was being taken, “causing a

distraction.” She also took “judicial notice” that “certain interactions between police

officers and African American citizens wherein deadly force was used or death

otherwise resulted have found their way into criminal courtrooms and some judicial

outcomes have led to massive public outcry and even serious violence against

persons,” but she determined that she “need not list or detail [the] incidents seen in

America over the last few years.”

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 {¶5} As a result of the hearings, and the other information of which she

had taken judicial notice, Respondent issued two separate decisions on court and

information access. First, she signed an entry in which she denied the request for

release of the questionnaires completed by the serving and prospective jurors until

after the trial had concluded. Upon the conclusion of the trial, Respondent indicated

that the questionnaires would be released, with personally-identifying information

redacted.

{¶6} Respondent later issued a separate decision in which she severely

restricted media access to the proceedings. The restrictions included limiting access

to the courtroom to four randomly selected members of the media—regardless of the

amount of seating that would otherwise be available to the general public; forbidding

the use of electronic devices in the courtroom by anyone other than attorneys or

court personnel; forbidding the use of electronic devices on the fifth floor of the

courthouse (the floor on which the trial was proceeding) except by attorneys, court

personnel, or media representatives in a specifically-designated media room;

forbidding photographing or video recording of jurors or prospective jurors; and

limiting media to using a single, shared camera with a video and audio feed that

would be available for the use of all, would be broadcast to the media room and

would be available for livestreaming on the internet or recording for later use.

{¶7} Relators filed complaints with this court, petitioning the court for

writs of prohibition and mandamus. Relators seek a writ of mandamus to compel

Respondent to release the unredacted jury questionnaires. They seek a writ of

prohibition prohibiting her from enforcing the restrictions put in place on the

media’s access to the trial proceedings. After the initial pleadings were submitted,

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Relators filed a motion for summary judgment, claiming they are entitled to relief as

a matter of law.

The Writ of Mandamus

{¶8} To be entitled to a writ of mandamus, a relator must establish (1) a

clear legal right to the relief sought, (2) a clear legal duty on the part of the

respondent to perform the requested act, and (3) the lack of an adequate remedy in

the ordinary course of law. State ex rel. Scott v. Franklin Cty. Bd. of Elections, 139

Ohio St.3d 171, 2014-Ohio-1685, 10 N.E.3d 697, ¶ 14. These requirements must be

proved by clear and convincing evidence. Id. “Mandamus is the appropriate vehicle

to compel disclosure of specific records requested under the Ohio Public Records Act

and the Ohio and United States Constitutions.” State ex rel. Beacon Journal

Publishing Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, 781 N.E.2d 180, ¶ 50,

citing State ex rel. News Herald v. Ottawa Cty. Court of Common Pleas, 77 Ohio

St.3d 40, 45, 671 N.E.2d 5 (1996).

{¶9} The right to access completed juror questionnaires arises from the

Free Speech and Free Press Clauses of the First Amendment to the United States

Constitution, together with the analogous provision of Article I, Section 11 of the

Ohio Constitution and the “open courts” provision of Article I, Section 16 of the Ohio

Constitution. See Bond at ¶ 19. The public has a presumptive right to access during

voir dire proceedings. Bond at ¶ 18, citing Press-Ent. Co. v. Superior Court of

California for Riverside Cty., 464 U.S. 501, 508-510, 104 S.Ct. 819, 78 L.Ed.2d 629

(1984). This same presumption of access applies to the answers given to written

questions, because “[t]he fact that the questioning of jurors was largely done in

written form rather than orally is of no constitutional import.” Bond at ¶ 19, quoting

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Copley Press, Inc. v. Superior Court, 228 Cal.App.3d 77, 89, 278 Cal.Rptr. 443

(1991). As the Bond court noted:

the purpose behind juror questionnaires is merely to expedite the

examination of prospective jurors, it follows that such questionnaires

are part of the voir dire process. The fact that a lawyer elicits juror

responses from written questions rather than oral questions has no

bearing on whether the responses are considered in accepting or

rejecting a juror.

Bond at ¶ 18.

{¶10} But the right of access to the voir dire proceedings is not absolute.

The First Amendment right creating a presumption of openness may be overcome

“by an overriding interest based on findings that closure is essential to preserve

higher values and is narrowly tailored to serve that interest.” Bond at ¶ 17, quoting

Press-Ent., 464 U.S. at 508, 104 S.Ct. 819, 78 L.Ed.2d 629. Additionally, identifying

information such as Social Security numbers, telephone numbers, and driver’s

license numbers should be redacted because they are not properly part of the voir

dire process. Bond at ¶ 25.

{¶11} At its core, the problem in this case is that Respondent failed to

conduct an inquiry on the issue in accordance with the procedure outlined in Bond.

The court instructed trial judges to “inform prospective jurors of their right to

request an in-camera hearing, on the record and with counsel present, regarding any

written question during the voir dire process.” Bond, 98 Ohio St.3d 146, 2002-Ohio-

7117, 781 N.E.2d 180, at ¶ 22, citing Press-Ent., 464 U.S. at 513, 104 S.Ct. 819, 78

L.Ed.2d 629. If an individual juror has a concern about the disclosure of information

on the form, the trial judge should then “make a determination on the record as to

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whether a prospective juror has a legitimate privacy interest to warrant the

nondisclosure of a response.” Id. This individual questioning could begin with the

12 jurors selected as the prospective jury before the parties commence their

challenges, and could be guided by the jurors’ responses in the questionnaires. The

Bond court concluded that “[i]f the trial judge finds a valid basis for nondisclosure,

the judge should notify the prospective juror of his or her right to refrain from

answering the question on the questionnaire form and should seal the hearing

transcript.”

{¶12} Respondent did not inquire of the individual jurors about their ability

or willingness to serve if the questionnaire information was released to the public.

She did not even voir dire those who indicated that it would. Had this occurred, the

trial court would have had several options available, including, but not limited to,

redacting information on individual questionnaires, redacting certain information on

all questionnaires, withholding disclosure of the questionnaires until the conclusion

of the trial, and excusing for cause jurors who were so sensitive to their service

becoming known that they could not serve effectively. The Bond court recognized

that each case would provide its own challenges, stating that “we defer to trial courts

to establish the manner in which prospective jurors may request an in-camera

hearing when completing juror questionnaires.” Bond at ¶ 24. But some form of

individual engagement with the jurors must occur to create a record sufficient to

justify withholding information from the public.

{¶13} And the failure to engage in this inquiry has significantly limited the

value of the evidence that is present in the record. For example, Respondent noted

that there were 38 responses indicating an unwillingness to serve if identities became

known publically, and 39 responses indicating concern about “personal safety,

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reputation or standing in their community among family, friends and associates.” 22

of the respondents answered “yes” to both questions. But we have no information

from the individual jurors to flesh out the bases for their concerns. And while

Respondent made several observations about what had occurred in the previous

litigation of the Tensing charges, in other cases over which she had presided, and in

other cases involving the use of deadly force by law enforcement across the nation,

the lack of a voir dire significantly limited evidence connecting this information to

these jurors and this case.

{¶14} On this record, Respondent made insufficient findings to support her

decision to withhold the completed juror questionnaires in their entirety from public

disclosure. In fact, the findings she made only addressed the nondisclosure of

identifying information, including the names and addresses of the jurors. Therefore,

Relators have clearly met their burden to demonstrate that they are entitled to the

release of information other than identifying information.

{¶15} The issue that remains for us to decide is whether juror-identifying

information must also be disclosed. First, we note that the Bond court specifically

held that Social Security numbers, driver’s license numbers, and telephone numbers

should be redacted. But the court considered the issue of disclosing names and

addresses separately. See Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, 781 N.E.2d 180,

at ¶ 34-47. The court concluded that “the First Amendment qualified right to access

extends to juror names and addresses.” (Emphasis added.) Id. Such a qualified right

creates a “presumption of openness” requiring disclosure—a presumption that can

only be overcome with a demonstration of “an overriding interest based on findings

that closure is essential to preserve higher values and is narrowly tailored to serve

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that interest.” Bond at 159, quoting Press-Ent., 464 U.S. at 510, 104 S.Ct. 819, 78

L.Ed.2d 629.

{¶16} In Bond, the court concluded that the names and addresses should

have been disclosed. But the court made that determination because “the trial court

failed to articulate particularized findings [necessitating] the total suppression of

juror names and addresses.” Bond at 159. In this case, we conclude that Relators

demonstrated that they had a qualified right to access the information that created a

presumption of openness, but Respondent’s findings were sufficient to overcome

that presumption. The trial court made findings that support the conclusion that

there may be a risk to the jurors in the case that exceeds the risk borne generally by

jurors who serve in criminal trials, and those findings were sufficient to rebut the

presumption of openness as to the jurors’ names and addresses.

{¶17} Along with names and addresses, and for the same reason, we further

conclude that the redaction of the identity of a juror’s current employer is

appropriate in cases where the juror is self-employed or works for a company or

organization that is so small that the release of the name of the employer would be

tantamount to identifying the juror.

{¶18} Concededly this is a close case. It was perhaps made needlessly close

by the fact that Respondent failed to conduct a proper and complete Bond hearing in

accordance with our prior order. But we conclude that the findings made by the trial

court were sufficient, if only barely. Respondent should have released the redacted

questionnaires immediately after conducting the hearing on the issue and before the

trial commenced. For these reasons, we issue a limited writ of mandamus

compelling Respondent to release the completed questionnaires after first redacting

personal identifying information such as names, addresses, Social Security numbers,

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telephone numbers, driver’s license numbers, and current employers if listing the

employer would be tantamount to identifying the individual juror.

Writ of Prohibition

{¶19} Relators also seek a writ of prohibition to compel the trial court to

rescind its restrictions on courtroom access. A writ of prohibition is a preventive

measure that “is designed to prevent a tribunal from proceeding in a matter which it

is not authorized to hear and determine.” State ex rel. Stefanick v. Marietta Mun.

Court, 21 Ohio St.2d 102, 104, 255 N.E.2d 634 (1970); see State ex rel. Jones v.

Suster, 84 Ohio St.3d 70, 73, 701 N.E.2d 1002 (1998). To prevail in this case,

Relators must establish that (1) the trial court is about to exercise judicial power, (2)

the exercise of that power is unauthorized by law, and (3) denying the writ will result

in injury for which no other adequate remedy at law exists. State ex rel. Douglas v.

Burlew, 106 Ohio St.3d 180, 2005-Ohio-4382, 833 N.E.2d 293, ¶ 9; State ex rel.

White v. Junkin, 80 Ohio St.3d 335, 336, 686 N.E.2d 267 (1997).

{¶20} We conclude that the petition is moot. The trial has concluded, the

indictments have been dismissed, and the applicable restrictions are no longer in

place. The dissent would have this court address this issue by invoking the seldom-

used authority to decide questions that are “capable of repetition, yet evading

review.” While the question involves conduct that is too short in duration to be fully

litigated prior to its cessation, we do not have a reasonable expectation that the same

complaining party will be subjected to the same action again. See State ex rel.

Cincinnati Enquirer v. Ronan, 124 Ohio St.3d 17, 2009-Ohio-5947, 918 N.E.2d 515, ¶

5, citing State ex rel. Calvary v. Upper Arlington, 89 Ohio St.3d 229, 231, 729

N.E.2d 1182 (2000). The case over which Respondent presided was singular in

terms of its subject matter and media attention. The possibility of a case of this

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nature and magnitude is far too unlikely to recur for this court to pursue this

extraordinary exercise of jurisdiction.

Conclusion

{¶21} We issue a limited writ of mandamus to compel the trial court to

release the completed juror questionnaires of all 18o potential jurors after redacting

identifying information such as names, addresses, Social Security numbers,

telephone numbers, driver’s license numbers, and places of employment where

appropriate. We dismiss the petition for the writ of prohibition as moot.

Judgment accordingly.
DETERS, J., concurs.
ZAYAS, J., concurs in part and dissents in part.

ZAYAS, J., concurring in part and dissenting in part.

{¶22} I concur with the majority’s holding regarding the petition for a writ

of mandamus. However, I respectfully dissent from the majority’s conclusion that

the petition for a writ of prohibition is moot. While the cause is technically moot,

there is a recognized exception to the mootness doctrine for cases that are “capable

of repetition, yet evading review,” and it is within our authority to raise the

applicability of this exception sua sponte. See State ex rel. Cincinnati Enquirer v.

Bronson, 191 Ohio App.3d 160, 2010-Ohio-5315, 945 N.E.2d 551, ¶ 8 (12th Dist.). To

meet this exception, the following conditions must apply: “(1) the challenged action

is too short in duration to be fully litigated prior to its cessation or expiration and (2)

there is ‘a reasonable expectation that the same complaining party will be subjected

to the same action again.’ ” Paige v. Ohio High School Athletic Assn., 2013-Ohio-

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4713, 999 N.E.2d 1211, ¶ 17 (1st Dist.), quoting State ex rel. Calvary v. Upper

Arlington, 89 Ohio St.3d 229, 231, 729 N.E.2d 1182 (2000).

{¶23} The first element is met here because a criminal trial’s duration is

almost always much shorter than this court’s typical period of review. See Press-Ent.

Co. v. Superior Court of California for Riverside Cty., 478 U.S. 1, 6, 106 S.Ct. 2735,

92 L.Ed.2d 1 (1986) (“It can reasonably be assumed that * * *, because criminal

proceedings are typically of short duration, such an order will likely evade review.”);

State ex rel. Dispatch Printing Co. v. Louden, 91 Ohio St.3d 61, 64, 741 N.E.2d 517

(2001) (“[A] closure order usually expires before an appellate court can consider

it[.]”); State ex rel. Dispatch Printing v. Geer, 114 Ohio St.3d 511, 2007-Ohio-4643,

873 N.E.2d 314, ¶ 11 (noting that an order prohibiting a newspaper from taking

photographs of a juvenile’s face during a plea hearing was, “[l]ike more typical

orders[,] * * * too brief in its duration to be fully litigated before the plea hearing

concluded.”); State ex rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety, 148

Ohio St.3d 433, 2016-Ohio-7987, 71 N.E.3d 258, ¶ 30 (noting that the “short

duration of * * * criminal proceedings”—less than two months between the suspect’s

arrest and guilty plea—“truncated the Enquirer’s ability to fully litigate its mandamus

claim before us”).

{¶24} In the case at hand, it was a mere three weeks between the beginning

of voir dire and the trial’s end.

{¶25} The second element is met because essentially every media company

in Cincinnati is a petitioner in this case, and there is a “reasonable expectation” that

a trial court will issue a substantially similar order restricting the activities of these

media companies in a future high-profile criminal trial. See Bronson at ¶ 3-4, 7-8

(holding that there was “a reasonable expectation that the same complaining party

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will be subject to the same action again” where the judge had restricted a

newspaper’s access to the jury view of the crime scene in a high-profile murder trial);

Ohio Dept. of Public Safety at ¶ 31 (holding that case was not moot because,

“[w]ithout resolution of the questions at issue here, we can reasonably expect the

Enquirer and other media outlets to continue to request dash-cam recordings and

law-enforcement agencies to continue to withhold them.”); Press-Ent., 478 U.S. at 6,

106 S.Ct. 2735, 92 L.Ed.2d 1 (holding that case was not moot because “[i]t can

reasonably be assumed that petitioner will be subjected to a similar closure order.”).

{¶26} For example, part of the relief sought in WCPO’s petition was a writ

prohibiting respondent from “forbidding WCPO from broadcasting, televising,

photographing, or recording jurors or prospective jurors.” Since the “filming, video-

taping, recording or taking photographs of jurors” is prohibited “in any

circumstance” by Hamilton County Court of Common Pleas Rule 30(F), there is, at

the very least, a “reasonable expectation” that WCPO would again be prohibited from

“broadcasting, televising, photographing, or recording jurors.” See, e.g., Geer, 114

Ohio St.3d 511, 2007-Ohio-4643, 873 N.E.2d 314, at ¶ 12 (finding a “reasonable

expectation that the judge will subject the Dispatch to comparable orders in the

future” where the judge “maintain[ed] that his order ‘was specifically authorized’ by

Sup.R. 12.”).

{¶27} Therefore, the exception to the mootness doctrine should be applied

here, and this court should proceed to rule on the merits of the petition for a writ of

prohibition because the issues are “capable of repetition, yet evading revew.”

Please note:
The court has recorded its own entry on the date of the release of this opinion.

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