State ex rel. Summers v. Fox

163 Ohio St.3d 217

169 N.E.3d 625

[The STATE EX REL.] SUMMERS

v.FOX, Pros. Atty., et al.

No. 2018-0959

Supreme Court of Ohio.

Submitted September 22, 2020

Decided December 10, 2020

Santen & Hughes and H. Louis Sirkin, Cincinnati, for relator.

Zashin & Rich Co., L.P.A., Drew C. Piersall, Dayton, and Jonathan J. Downes, Columbus; and Mathew K. Fox, Mercer County Prosecuting Attorney, and Amy B. Ikerd, Assistant Prosecuting Attorney, for respondents.

Ohio Crime Victim Justice Center and Elizabeth A. Well, for intervening respondent, J.K.

Rittgers & Rittgers, Konrad Kircher, and Ryan J. McGraw, Lebanon, urging denial of the writ for amici curiae National Crime Victim Law Institute, Ohio Domestic Violence Network, and Ohio Alliance to End Sexual Violence.

Kooperman, Mentel, Ferguson & Yaross, Ltd., Sean A. Mentel, Columbus, Katherine C. Ferguson, and Lindsay M. Nelson, urging denial of the writ for amicus curiae Buckeye State Sheriffs' Association.

Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Jacquenette S. Corgan, Assistant Prosecuting Attorney, urging denial of the writ for amicus curiae Ohio Prosecuting Attorneys Association.

Per Curiam.

{¶ 1} Relator, Charles A. Summers, seeks a writ of mandamus to compel the production of public records by respondents, Mercer County Prosecuting Attorney Matthew Fox and Mercer County Sheriff Jeff Grey (collectively, "the county").

We grant the writ in part and deny it in part.

{¶ 2} Also pending are three motions: (1) the county's motion for an order sealing its evidence, (2) the county's motion to seal its merit brief, and (3) a motion filed by the Ohio Prosecuting Attorneys Association ("OPAA") for leave to file an amicus brief. We grant the motions to seal and deny as moot the motion for leave to file.

I. BACKGROUND

A. The Mercer County prosecution

{¶ 3} In February 2013, a Mercer County grand jury returned a 47-count indictment against Christopher Summers, which included two counts of rape and more than 40 counts of felonious sexual battery. The alleged crimes occurred when Christopher was employed by the Fort Recovery School District.

{¶ 4} J.K. attended Fort Recovery High School, where Christopher was both her teacher and coach. In 2012, J.K. reported to law enforcement that Christopher had coerced her into a sexual relationship lasting more than two years.

{¶ 5} The state voluntarily dismissed the rape charges on the first day of trial. On the third day of trial, after J.K.'s testimony was nearly complete, Christopher entered a plea of guilty to eight counts of sexual battery in violation of R.C. 2907.03, which prohibits sexual conduct between a teacher or coach and a student who is enrolled at the school where the teacher or coach is employed. He was sentenced to an aggregate prison term of 20 years. The court of appeals affirmed his conviction and sentence in October 2014. State v. Summers , 2014-Ohio-4538, 21 N.E.3d 632, ¶ 53 (3d Dist.).

B. The Darke County prosecution

{¶ 6} In January 2013, Christopher was indicted on a single count of sexual battery against J.K. in Darke County. He was convicted and sentenced to one year in prison, to be served consecutively to his sentence in the Mercer County case.

{¶ 7} On October 19, 2018, Darke County Prosecutor R. Kelly Ormsby III received an e-mail from a woman named Joyce White, requesting "everything you have on Chris Summers." In December 2018, Ormsby provided White with all the documents in his possession relating to Christopher's prosecution in Darke County. The documents included what appears to be J.K.'s detailed account of Christopher's behavior, containing graphic sexual content.

C. The "Justice for Chris" Facebook page

{¶ 8} Relator, Charles Summers, and Vicki Summers are Christopher's parents. In May 2015, they started a Facebook page called "Justice for Chris." The page states that it was created "with the hope that everyone who knows us will learn the whole truth behind what happened to our son."

{¶ 9} Charles and Vicki have used the page as a platform to attack officials connected with the case against Christopher, calling the detectives "bumbling fools" and the trial judge "a very vindictive and mean little man" and accusing county officials of prosecuting Christopher in order to cover up a larger rape scandal.

{¶ 10} But the primary target of the "Justice for Chris" site was J.K., who is described in posts as "sick minded and a huge liar," a "sociopathic liar," and in need of "a psychological exam." The posts routinely identified her by name. Charles and Vicki posted J.K.'s weight and photos of her eating, ostensibly to refute her claim that the stress of her experience with Christopher caused her to lose weight. They questioned how she could become engaged, married, and pregnant so soon after the events involving Christopher.

{¶ 11} In early postings, Charles and Vicki set out to prove that J.K. had lied in court, by comparing her trial testimony with that of other witnesses. They also insisted that Christopher should not have been prosecuted, because J.K. had been a willing participant in the sexual relationship. They pointed to J.K.'s texts as "irrefutable proof that the relationship was mutual and consensual," not a product of force or coercion.

{¶ 12} As they acquired documents related to the case, Charles and Vicki posted them online, along with their comments. In April 2018, they posted excerpts from J.K.'s written statement to the police, apparently the same one provided to White by Darke County, with a link to the full document. On January 21, 2018, they wrote: "Recently, some of the interview videos have been posted on another website." They then reposted clips of police interviewing J.K., adding captions and summaries for each clip.

{¶ 13} In June 2019, Charles and Vicki were indicted in Celina Municipal Court on 62 counts of menacing by stalking, telecommunications harassment, and attempts to commit those offenses. On February 10, 2020, the municipal court stayed all proceedings in the case pending the resolution of related litigation between the parties.

D. Charles's public-records requests

{¶ 14} On or about February 1, 2017, Charles sent a public-records request to the Mercer County Prosecutor's Office. He requested the following:

[1] Any and all video recordings of interviews with the accuser and any other witnesses that were interviewed in the case of State of OH vs Christopher A. Summers 12-CRM-129 and 13-CRM 030.

[2] Any and all audio recordings of interviews or phone calls made with the accuser or potential witness [sic] in the case of State of OH vs Christopher A. Summers 12-CRM-129 and 13-CRM 030.

[3] Any and all notes made by the prosecutor or [a] member of his staff or the sheriff's detectives during interviews with the accuser or any potential witnesses in the case of State of OH vs Christopher A. Summers 12-CRM-129 and 13-CRM 030.

[4] Any and all police reports filed by members of the Mercer County Sheriff's Dept in the case of State of OH vs Christopher A. Summers 12-CRM-129 and 13-CRM 030.

[5] Recordings of any phone calls made to the sheriff's office or 911 from the mother of the accuser on or about November 5, 2012. Also any other recordings of phone calls to central dispatch or sheriff's office concerning the case of State of OH vs Christopher A. Summers 12-CRM-129 and 13-CRM 030.

[6] Copies of letters sent to potential defense witnesses by the prosecutor or any member of his staff in the case of State of OH vs Christopher A. Summers 12-CRM-129 and 13-CRM 030.

[7] Any pictures or notes taken during the search of the home of Chris and Laurie Summers on or about November 6, 2012.

[8] Any correspondence between the prosecutor and/or members of his staff to the defense lawyers, Howell and Lammers in the case of State of OH vs Christopher A. Summers 12-CRM-129 and 13-CRM 030.

[9] Any statements (written or recorded) made by the accuser [J.K.] to any member of the Sheriff's Dept or the Prosecutor's Office.

[10] Any statements (written or recorded) made by the accuser's mother [L.K.] or any member of the [K.] family.

{¶ 15} On March 6, 2017, he sent a similar public-records request to the Mercer County sheriff. He requested the following:

[1] Any and all video recordings of interviews with the accuser [J.K.] and any other witnesses that were interviewed in the case of State of OH vs Christopher A. Summers 12-CRM-129 and 13-CRM 030.

[2] Any and all audio recordings of interviews or phone calls made with the accuser or potential witnesses in the case of State of OH vs Christopher A. Summers 12-CRM-129 and 13-CRM 030.

[3] Any and all notes made by the sheriff's detectives during interviews with the accuser or any potential witnesses in the case of State of OH vs Christopher A. Summers 12-CRM-129 and 13-CRM 030.

[4] Any and all police reports filed by members of the Mercer County Sheriff's Dept in the case of State of OH vs Christopher A. Summers 12-CRM-129 and 13-CRM 030.

[5] Recordings of any phone calls made to the sheriff's office or 911 from the mother of the accuser on or about November 5, 2012. Also any and all other recordings of phone calls to central dispatch or sheriff's office concerning the case of State of OH vs Christopher A. Summers 12-CRM-129 and 13-CRM 030.

[6] Any pictures or notes taken during the search of the home of Chris and Laurie Summers on or about November 6, 2012.

[7] Any correspondence between members of the Mercer County Sheriff's Department to [sic] the Mercer County Prosecutor of member [sic] of his staff in the case of State of OH vs Christopher A. Summers 12-CRM-129 and 13-CRM 030.

[8] Any statements (written or recorded) made by the accuser [J.K.] to any member of the Sheriff's Department.

[9] Any statements (written or recorded) made by the accuser's mother [L.K.] or any member of the [K.] family.

{¶ 16} The county denied Charles's requests, offering multiple justifications. As an inmate, Christopher would have had to secure approval from the judge who sentenced...