Myers v. Myers

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[Cite as Myers v. Myers, 2002-Ohio-6380.] IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO MELISSA MYERS : Plaintiff-Appellee vs. : : C.A. CASE NO. 19325 T.C. CASE NO. 99-DR-1821 BRYAN MYERS, et al. : (Civil Appeal from Common Pleas Court) Defendant : and : MONTGOMERY COUNTY CORONER S OFFICE Appellant : : . . . . . . . . . O P I N I O N Rendered on the 22nd day of November, 2002. . . . . . . . . . Douglas B. Gregg, 130 W. Second Street, Suite 310, Dayton, Ohio 45402, Atty. Reg. No. 0001466 Attorney for Plaintiff-Appellee Mathias H. Heck, Jr. Pros. Attorney; Laura G. Mariani, Asst. Pros. Attorney, P.O. Box 972, Dayton, Ohio 45422, Atty. Reg. No. 0063284 Attorney for Appellant . . . . . . . . . GRADY, J. {¶1} This appeal is brought by the Montgomery County Coroner s Office from an order of the domestic relations division of the court of common pleas. The order denied a motion the Coroner s Office had filed, asking the court to quash a subpoena duces tecum served on it. The subpoena required the Coroner s Office to produce records concerning its investigation of the death of an infant, Jansen Myers. The subpoena was served in a post-decree custody proceeding at the request of the deceased child s mother, Melissa A. Myers. The proceeding concerns the question of which of the divorced parents should have custody of their surviving child, Brian Myers, after a shared parenting agreement to which they had agreed was terminated. Temporary custody was awarded to his father, Bryan Myers, during the pendency of the post-decree proceeding. {¶2} The Coroner s Office has ruled that Jansen Myers death was a syndrome. homicide, A consistent suggestion with apparently the was shaken made in baby the underlying custody action that his mother, Melissa Myers, is somehow culpable. She sought the information requested in the subpoena to rebut the suggestion. {¶3} The subpoena was issued pursuant to Civ.R. 45. The Coroner s Office then sought to quash the subpoena, arguing subpoena that process Records Act. the the records pursuant requested to R.C. are exempt 149.43, from the the Public A hearing was held on the motion, after which magistrate decided that the several exceptions to release of the records on which the Coroner s Office relied have no application to the records that were subpoenaed. The magistrate s decision was adopted by the trial court on the date it was filed, March 27, 2002, pursuant to Civ.R. 53(E)(4)(c). {¶4} The Coroner s Office filed a motion asking the court to reconsider its order. contra. Melissa Myers filed a motion The domestic relations court had not ruled on the motions when, on April 26, 2002, the Coroner s Office filed a notice of appeal from the order denying its motion to quash. ASSIGNMENT OF ERROR {¶5} THE TRIAL COURT ERRED IN OVERRULING THE MOTION TO QUASH SUBPOENA FILED BY THE CORONER S OFFICE, BECAUSE THE RECORDS REQUESTED ARE EXEMPT FROM THE PUBLIC RECORDS LAW. {¶6} 1. THE RELEASE OF THE REQUESTED RECORDS WOULD CREATE A HIGH PROBABILITY OF DISCLOSURE OF THE IDENTITY OF AN UNCHARGED SUSPECT. {¶7} 2. CREATE A THE RELEASE OF THE REQUESTED RECORDS WOULD HIGH CONFIDENTIAL PROBABILITY INVESTIGATORY OF DISCLOSURE TECHNIQUES OR OF SPECIFIC PROCEDURES OR SPECIFIC INVESTIGATORY WORK PRODUCT. {¶8} 3. THE TISSUE SAMPLES, SLIDES, AND OTHER PHYSICAL EVIDENCE REQUESTED BY SUBPOENA ARE NOT RECORDS AND THEREFORE NOT DISCLOSABLE UNDER THE PUBLIC RECORDS LAW OR CRIM.R. 16. {¶9} The appellate jurisdiction of this limited to review of final orders and judgments. court is General Acc. Ins. Co. v. Insurance Co. of North America (1989), 44 Ohio St.3d 17. Generally, an order denying motion to quash a subpoena is not a final, appealable order. In re Coastal Petroleum, Inc. (1972), 32 Ohio St.2d 81. {¶10}Previously, and on the basis of a response the Coroner s Office filed to our order to show cause, we held that the order from which this appeal was taken is a final, appealable order. We so held on a finding that, In re Costal Petroleum, Inc., notwithstanding, and even though the Coroner s Office is a non-party in the custody proceeding, the order is final and appealable because the Coroner s Office has no recourse other than to appeal. We relied on Foor v. Huntington National Bank (1986), 27 Ohio App.3d 76, to so hold. {¶11}Our further review of this matter has revealed other difficulties, however. The domestic relations court adopted its magistrate s decision as the court s own order, pursuant to Civ.R. 53(E)(4)(c). order as final and appealable. parties that, absent timely The court designated the The court also advised the objections, the magistrate s decision would be the court s permanent order and that, absent objections, a party may not assign as error on appeal a finding of fact or conclusion of law contained in the court s order. {¶12}No Absent timely 53(E)(3)(b). objections objections, to the decision the error is were waived. filed. Civ.R. The Coroner s Office did file a motion for reconsideration. In this case the motion, which was timely filed within fourteen days after the court s order adopting the decision and which challenges the findings and conclusions in the decision, can function as objections. However, the court didn t rule on the before the notice of appeal was filed. motion/objection Unless and until the court rules on objections to a magistrate s decision, no final order of the court exists for purposes of appeal. Weitz v. Paulik (July 13, 1998), Stark App. No. 98CA0035. {¶13}We find that we lack jurisdiction to determine this appeal because it was not taken from an order that is final and appealable. Therefore, we must dismiss. Even if the order was final and appealable, however, the record before us would be insufficient to resolve the issues presented. {¶14}The subpoena the Coroner s Office moved to quash was issued pursuant to Civ.R. 45. states: Nothing in this Division (F) of that rule rule shall be construed to authorize a party to obtain information protected by any privilege recognized by law, or to authorize any person to disclose such privilege of information. a witness, Evid.R. person, 501 state states: or The political subdivision thereof shall be governed by statute enacted by the General Assembly or by principles of common law as interpreted by the courts of this state in the light of reason and experience. {¶15}Statutory privileges are granted to those communications identified in R.C. 2317.02, which generally encompass the common law privileges. against self-incrimination is Further, the privilege guaranteed by the Fifth Amendment to the United States Constitution and Article I, Section 10, of the Ohio Constitution. A witness may not refuse to testify in a judicial proceeding in the absence of a privilege created by constitution or statute. In re Frye (1951), 155 Ohio St. 345. {¶16}R.C. public offices 149.43, to the make Public public Records records in Act, requires their custody available for inspection and to provide copies thereof upon request. Paragraph (A)(1(a)-(v) of that section creates numerous exceptions the equivalent the the The Coroner s Office argues, in essence, that the in limiting involved. are record by of exceptions public requirement definition these a to of a circumstance privilege for purposes of Evid.R. 501 and Civ.R. 45(F), and therefore require the court to quash the subpoena that was issued. However, those statutory exceptions are not privileges, as such, and by their terms apply when pursuant to a Public Records Act. a request is made Whether they should be extended to apply to a subpoena issued pursuant to Civ.R. 45 is an open question, and the legal issue involved here. {¶17}The Coroner s Office contends that not only does R.C. 149.43 create a legal exception to the court s subpoena power, but also that the particular records requested fit within several of those exceptions. referenced in its assignment of Those arguments are error, above. The magistrate and the trial court denied its motion to quash because the Coroner s Office had only asserted the exceptions but not shown how those exceptions apply to the particular records requested. That would require some form of evidentiary process to more specifically identify and examine the records, a process that the court didn t employ. As a result, we have no way of resolving the issue because we do not have those records before us, even in sealed form, to determine whether and how the exceptions to the Public Records Act apply to them. {¶18}R.C. aggrieved commence by a 149.43(C) a failure mandamus authorizes to disclose action to a a require person public who record disclosure. is to A mandamus action is an original action that may be commenced in the court of common pleas, in this court, or in the Supreme Court. involved, It is well-suited to evaluate the claims protect information that should remain confidential, and provide prompt relief. {¶19}An action on a petition for a writ of prohibition is likewise an original action that may be filed in this court or in the Supreme Court. 3, Ohio Constitution. Article IV, Sections 2 and A writ of prohibition permits the court that grants the writ to limit or restrict a lower tribunal from taking some contemplated action when three things are shown: (1) that the court or officer against whom the relief is sought is about to exercise judicial or quasijudicial power, (2) that the exercise of such power is unauthorized by law, and (3) that the refusal of the writ would result in an injury for which there is no adequate remedy in the ordinary course of law. State ex rel Fraternal Order of Police v. Dayton (1977), 49 Ohio St.2d 219. {¶20}With respect to the first of those factors, the domestic relations division is a court and the judge or clerk who issues the subpoena is an officer of the court. The subpoena though one prohibition constitutes that has could an exercise already prevent taken the court of judicial place. from A power, writ enforcing of its subpoena through contempt proceedings for failure to comply. {¶21}Going to the third factor, and as we previously held, the Coroner s Office has no adequate remedy in the ordinary course of law to avoid the injury it complains of, which cannot be avoided if its records are disclosed in this custody proceeding. We held that the rule of Foor might offer by some relief way of an appeal, impracticalities of that process are evident. but the Further, in Foor, there was no question that the subpoena was authorized by law. The only question was whether, as a matter of policy, the subpoena should be subject to conditions that would protect an attorney s security interest in his papers by requiring the former client who caused the subpoena to issue to post security in the amount of the unpaid fees. Here, there is no request for such a condition; instead, an absolute exception is asserted. {¶22}The question presented here involves the issue involved in the second of three factors, which is whether the domestic relations court s enforcement of its subpoena is unauthorized by law. The Coroner s Office claims that it is, relying on the exceptions to requests for disclosure under the Public Records Act. We have discussed that question, and while we express no view concerning its merits we believe that the issue it presents squarely fits within the second of the three requirements for a writ of prohibition set out above. {¶23}A proceeding on a writ of prohibition would have several practical advantages over the procedure that was followed here, in the custody action. not be in issue. First, custody would Second, the materials concerned can be submitted under seal and reviewed in camera, if the Public Records Act exceptions are held to apply to a Civ.R. 45 subpoena. Third, the domestic relations division court itself would be the respondent, permitting the legal issue to be more squarely defended. Fourth, prompt relief is availabe. {¶24}We encourage the Coroner s Office to consider an action on a petition for a writ of prohibition as a way of resolving the factual and legal issues it presents, as well as obtaining relief in the most expeditious fashion. We would consider a request for an injunction to prohibit the domestic relations court from proceeding while the action is pending. {¶25}This appeal will be dismissed for lack of a final, appealable order. WOLFF, P.J. and FAIN, J., concur. Copies mailed to: Douglas B. Gregg, Esq. Laura G. Mariani, Esq. Hon. Denise L. Cross

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