State ex rel. Steffen v. Kraft

[This opinion has been published in Ohio Official Reports at 

67 Ohio St.3d 439

.]




THE STATE OHIO EX REL. STEFFEN, APPELLANT, v. KRAFT, JUDGE, APPELLEE.
               [Cite as State ex rel. Steffen v. Kraft, 

1993-Ohio-32

.]
Public records—R.C. 149.43—Trial judge's personal handwritten notes made
        during the course of a trial are not public records.
     (No. 92-2255—Submitted August 16, 1993—Decided October 6, 1993.)
     APPEAL from the Court of Appeals for Hamilton County, No. C-920565.
                                  __________________
        {¶ 1} In 1983, a jury convicted relator-appellant, David J. Steffen, of rape,
aggravated burglary and aggravated murder, and recommended the death penalty.
Subsequently, we affirmed Steffen's death sentence. State v. Steffen (1987), 

31 Ohio St.3d 111

, 31 OBR 273, 

509 N.E.2d 383

, certiorari denied, Steffen v. Ohio
(1988), 

485 U.S. 916

, 

108 S.Ct. 1089

, 

99 L.Ed.2d 250

.
        {¶ 2} In July 1992, Steffen petitioned for a writ of mandamus in the court
of appeals directed against respondent, Judge Robert S. Kraft, who had presided at
his murder trial. Steffen asserted he was entitled to review notes that Judge Kraft
had made during the murder trial as "public records" under R.C. 149.43. Judge
Kraft moved to dismiss, asserting the complaint "failed to state a cause of action."
The court of appeals agreed and dismissed Steffen's complaint.
        {¶ 3} The cause is now before us upon an appeal as of right.
                                  __________________
        James Kura, Ohio Public Defender, and Dale A. Baich, Assistant Public
Defender, for appellant.
        Joseph T. Deters, Hamilton County Prosecuting Attorney, and William E.
Breyer, Assistant Prosecuting Attorney, for appellee.
                             SUPREME COURT OF OHIO




       Baker & Hostetler, David L. Marburger and Beth A. Brandon, urging
reversal for amici curiae, Cincinnati Post, Ohio Newspaper Association and Plain
Dealer Publishing Company.
                               __________________
       Per Curiam.
       {¶ 4} The court of appeals did not err in dismissing Steffen's mandamus
complaint seeking public access to respondent's personal trial notes. That court
also properly acted within its discretion in declining to conduct an in camera review
of the notes.
       {¶ 5} A trial judge's personal handwritten notes made during the course of
a trial are not public records. State ex rel. Mothers Against Drunk Drivers v. Gosser
(1985), 

20 Ohio St.3d 30, 32

, 20 OBR 279, 281, 

485 N.E.2d 706, 709, fn. 2

; State
ex rel. Martinelli v. Corrigan (1991), 

71 Ohio App.3d 243

, 

593 N.E.2d 364

.
       {¶ 6} R.C. 149.43(A)(1) defines "public record" as a "record that is kept by
any public office" (emphasis added); it does not define a "public record" as any
piece of paper on which a public officer writes something. No law or regulation
requires such notes. Of course, the General Assembly amended R.C. 149.43, in
1985, to delete the previous language defining a "public record" as a record
"required to be kept" by a public office. See State ex rel. Cincinnati Post v.
Schweikert (1988), 

38 Ohio St.3d 170, 173

, 

527 N.E.2d 1230, 1232

. However, we
cannot believe the General Assembly thereby intended to convert a judge's personal
handwritten trial notes into public records.
       {¶ 7} Instead, such notes are simply personal papers kept for the judge's
own convenience and not official records. Steffen has not asserted that other court
officials had access to or used the notes, nor does Steffen assert the clerk of courts
had custody of the notes as official records. See R.C. 2303.09 and 2303.14.
       {¶ 8} Federal courts have also recognized that personal uncirculated
handwritten notes reflecting an employee's impression of substantive discussions




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                                 January Term, 1993




and agency business meetings are not "agency records." See Sibille v. Fed. Reserve
Bank (S.D.N.Y. 1991), 

770 F.Supp. 134

; British Airports Auth. v. Civ. Aeronautics
Bd. (D.D.C. 1982), 

531 F.Supp. 408

; Izaak Walton League of Am., Porter Cty.
Chapter v. United States Atomic Energy Comm. (N.D.Ind. 1974), 

380 F.Supp. 630

.
See, also, United States Dept. of Justice v. Tax Analysts (1989), 

492 U.S. 136, 147

,

109 S.Ct. 2841, 2849

, 

106 L.Ed.2d 112, 127

; Bur. of Natl. Affairs, Inc. v. United
States Dept. of Justice (C.A.D.C. 1984), 

742 F.2d 1484

; Annotation (1980), 50
A.L.R.Fed. 336.
        {¶ 9} Moreover, permitting a litigant access to a judge's personal trial notes
would intrude upon a judge's subjective thoughts and deliberations, threatening the
orderly administration of justice.     If the notes were available, counsel could
presumably ask the court to explain the notes, such as why the court recorded some
events and not others, or why the trial court characterized certain events in a certain
manner. By comparison, courts do not permit counsel to inquire of jurors as to their
deliberations. See Evid.R. 606(B); Cleveland Elec. Illum. Co. v. Astorhurst Land
Co. (1985), 

18 Ohio St.3d 268

, 18 OBR 322, 

480 N.E.2d 794

, paragraph three of
the syllabus.
        {¶ 10} Thus, if R.C. 149.43 were interpreted to mandate public access to a
trial judge's personal notes, that result could be construed as an unconstitutional
legislative encroachment upon the independence of the judiciary. Where possible,
a court will construe a statute so as to avoid potential conflict between the statute
and the Constitution. See Van Fossen v. Babcock & Wilcox Co. (1988), 

36 Ohio St.3d 100, 105

, 

522 N.E.2d 489, 495

. Thus, we decline to read R.C. 149.43(A)(1),
"record that is kept by any public office," as including a judge's trial notes, since to
read it so would raise serious constitutional questions.




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                                  SUPREME COURT OF OHIO




        {¶ 11} Neither litigants nor any other persons lose any information as a
result of this holding.1 The notes are no substitute for the transcript, and any
reference that Judge Kraft made concerning his notes, prior to sentencing Steffen,
meant nothing more than recalling to his mind the trial testimony. Steffen, his
counsel, and the general public have free and unrestricted access to the complete
transcript of what occurred at trial. See R.C. 2929.03(G); Crim.R. 22, C.P.Sup.R.
10; State ex rel. Spirko v. Court of Appeals (1986), 

27 Ohio St.3d 13

, 27 OBR 432,

501 N.E.2d 625

.
        {¶ 12} We also reject Steffen's claim that the court of appeals should have
conducted an in camera review of Judge Kraft's notes. An in camera inspection
would be superfluous when the complaint fails to state a cause of action under R.C.
149.43. See State ex rel. Shane v. New Philadelphia Police Dept. (1990), 

56 Ohio St.3d 36

, 

564 N.E.2d 89

; State ex rel. McGee v. Ohio State Bd. of Psychology
(1990), 

49 Ohio St.3d 59, 60

, 

550 N.E.2d 945

.
        {¶ 13} Accordingly, the judgment of the court of appeals dismissing the
complaint is affirmed.
                                                                           Judgment affirmed.
        MOYER, C.J., A.W. SWEENEY, DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY
and PFEIFER, JJ., concur.
                                    __________________




1. Contrary to Steffen's claims, the "open courts" provision of the Ohio Constitution "creates no
greater right of public access to court proceedings" than that accorded by the Free Speech and Free
Press Clauses of the Bill of Rights amending the United States Constitution and comparable sections
of the Ohio Constitution. In re T.R. (1990), 

52 Ohio St.3d 6

, 

556 N.E.2d 439

, paragraph two of the
syllabus.




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