IN THE SUPREME COURT OF OHIO

Michelle D. Schussheim n.k.a.Henneman

Petitioner - Appellee,

V.

Alan C. Schussheim

Respondent - Appellant

] Case # 2012 1235]] On appeal from the Warren County] Court of Appeals, Twelfth Appellate] District

]]jCourt of Appeals Case No.] CA201107 078]

MERIT BRIEF OF APPELLANT

Jerry H. Shade (0074009) (COUNSEL OF RECORD)5374 A Cox Smith RoadMason, Ohio 45040(513) 370-3848Fax. No. (513) 370-3848jshadea,shadelaw rgoup.com

COUNSEL FOR APPELLANT, ALAN C. SCHUSSHEIM

Michelle D. Schussheim n.k.a.Henneman, Pro Se Appellee4354 Marival DriveMason, Ohio 45040

PRO SE APPELLEE

C^I L -QEC 14 2012

CLERK OF COURTSUPREME CdURT OF OHIO

TABLE OF CONTENTS

Page No.

TABLE OF AUTHORITIES ... .. ........... ... . ..... .... .... ... ... . .. ....... ........ . ... ...ii

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . 1

i ARGUMENT .................................................................................3

Proposition of Law No. I: Judicial review is required where the issues

involve the deprivation of established Constitutional rights,

and "Judicial restraint" or the presumption that the acts of the legislature are

Constitutional does not preempt or excuse judicial review;

the presumption is merely a factor to be considered within the framework

of the appropriate Constitutional analysis. A domestic violence civil

protection order and/or a domestic violence ex-parte civil protection order

is subject to judicial expungment because of the accused's Constitutional rights,

including due process and equal protection rights, and pursuant to

Pepper Pike v. Doe (1981) 66 Ohio S't. 2d

3741) .. . ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... 3

Proposition of Law No. II: The Constitutional analysis to decide whether or not a

judicial expungment is required is the balancing test described in Pepper Pike v. Doe 66

Ohio St. 2d 374

(1981) ..................................................................................13

Proposition of Law No. III: A public record of a Domestic Violence Civil Protection

,.,.a'... against ,." :.^as_,:a_ ,

t :,, per-se,. a^ •_°` ^ `"' the .°_'._-'- -' _-' `' - 'V1U:G1 t[^t6LlIa1, GI.t11111LIV1Ulld1 is ^JGl11G^1

'""1lGlil.al to L11G individual, iLIlU there IJ no

required prima facia showing of "actual harm" or "actual negative consequences" prior to

applying the balancing test described in Pepper Pike v. Doe 66 Ohio St.

2d 374 (1981) ... ... .. . .....................................................................14

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14PROOF OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

APPENDIX

Notice of Appeal to the Ohio Supreme Court(July 24, 2012)

Opinion of the Twelfth District Appellate Court

Judgment Entry of the Twelfth Appellate District

Appx.

1

3

16

Decision of the Warren County Common Pleas Court 17

Magistrate's Decision Warren County Common Pleas Court 19

CONSTITUTIONAL PROVISIONS & STATUTES

Ohio Constitution Equal Protection Clause .................................................3,8Ohio Constitution Due Process ...............................................................3,8

TABLE OF AUTHORITIES

Pepper Pike v. Doe (1981) 66 Ohio St. 2d 374 ........................................3,5,6.9,10, 11,

13,14

State v. S.R. (1992) 63 Ohio St. 3d 590, 596 .............................................11

Little v. Steater (1981) 452 U.S. 1, 5 101 S.1 Ct. 2202 .................................12

F.S. Royster Guano Co. v. Virginia (1920) 253 U.S. 412,415 [40 S. Ct. 560, 561, 64 L. Ed 989,

990-991 ] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

ii

In Re: Application to Seal Record of No Bill (1999) 131 Ohio App. 3d 399...........11, 12

Reiger v. Reiger(2006) 165 Ohio App. 3d 454 ..................................................6, 11

State ex Rel. Cincinnati Enquirer v. Winkler (2002) Ohio App. 3d 350 ...................................... 12

Stokes, Judicial Restraint and the Presumption of Constitutionality,

35 U.Tol.L.Rev. 347 (2003) .............................................................................3, 5

Marbury v. Madison, 5 U.S. 137,177-180 (1803) ....................................................4

Rutherford v. M'Faddon (1807), Ohio Unreported Judicial Decisions ............................4

Prior to 1823, at 71 (Ervin H. Pollack ed., 1952), cited in State ex rel. Ohio Acad of Trial

Lawyers v. Sheward, 715 N.E.2d 1062, 1097 .........................................................

iii

S TA TE1V,iENT pF lr'A C T S

Alan Schussheirn and Michelle Schusshein-i {Henneman} were Husband and Wife. Wife

filed for a Domestic Violence Civil Protection Order shortly before filing for divorce, regarding

an incident with no injury that had occurred some weeks prior, for which law enforcement was

not contacted. The CPO Petition was filed on July 13`h and the Complaint for Divorcewas filed

on July 21, 2009. The Civil Protection Petition was granted Ex-Parte on July 13, 2009 and was

dismissed on August 14, 2009 by agreement of the parties. The parties ultimately resolved the

divorce by agreement, including a shared parenting plan.

For the reasons set forth above, in April, 2011, Appellant petitioned the Warren County

Common Pleas Court to expunge or seal the record of the Civil Protection Order. A hearing was

set before the Magistrate. Wife filed an Affidavit in support of the Appellant's motion. Further,

Wife appeared at the hearing and testified before the Court stating her wishes that the matter be

sealed andlor expunged. The Magistrate denied Appellant's Motion stating there exists no

statutory authority to seal or expunge a Civil Protection Order. Appellant timely filed an

objection to the Decision of the Magistrate. Judge Oliver of the Warren County Common Pleas

Court, in record time, issued his Entry Overruling the Objections to the Magistrate's Decision

siding with the Magistrate.

Appellant timely filed his Notice of Appeal and Appeal with the 12`h District Court of

Appeals. The 12" District Court of Appeals agreed with the trial court and upheld the decision.

Appellant filed his Notice of Appeal to this Honorable Court on July 30, 2012. On November 7,

2012 this Honorable Court granted jurisdi.ction to hear this matter and allowed this Appeal.

Appellant was and is employed by Procter & Gamble as a section manager. This position

requires him to have the trust of and work with not only the senior management within Procter &

Gamble of Cincinnati, but with international divisions or P&G, and international third party

clients and vendors. Trial Court Trans. Pg. 4. Appellant testified that disclosure of a CPO could

prevent him from working with those constituencies and that his position could require

additional background and security checks at any time. Trans. Pg. 5 If Appellant is excluded

from performing his job duties for third party overseas vendors as the result of the Civil

Protection Order it could result in the loss of his position, and/ promotion opportunities.

Appellant could also have his present job or promotion opportunities thwarted if future internal

background checks are conducted by P&G. (Id.) He further testified that as a large multinational

corporation, P&G performs background checks on its employees. Appellant also testified that

his privacy interest is affected simply by knowing that this record exists and could cause him

unwarranted harm at any time. This blemish on an otherwise exemplary record is a source of

stress for him.

Wife executed an Affidavit stating she believed it to be in the best interest of herself, the

parties' children and Appellant that the Civil Protection Order proceedings be expunged and

sealed. Aff. of Michelle Henneman.

The incident that formed the basis for the ex-parte order did not actually involve domestic

violence, but was exaggerated so that Wife could secure tactical advantage prior to filing for

divorce. Appellant was never charged with criminal domestic violence in connection with this

matter nor any other matter, and has a spotless prior criminal record. Aff. of Michelle Henneman.

Wife also appeared at the hearing to expunge this matter and testified that it was in her and the

parties' children's the best interest for this matter to be expunged and the record sealed. Wife

also concurred that the allegations that gave rise to the Civil Protection Order were in the nature

of yellu^g anu that no physicai ha1111 was arlegeu. Tru`ns. Pg. v.

2

ARGUMENT

Proposition of Law #1:

Judicial review is required where the issues involve the deprivation of established

Constitutional rights, and "Judicial restraint" or the presumption that the acts of

the legislature are Constitutional does not preempt or excuse judicial review; the

presumption is merely a factor to be considered within the framework of the

appropriate Constitutional analysis. A domestic violence civil protection order

and/or a domestic violence ex-parte civil protection order is subject to judicial

expungment because of the accused's Constitutional rights, including due process

and equal protection rights, and pursuant to Pepper Pike v. Doa

The Court of Appeals upheld the trial court almost exclusively on the basis of judicial

restraint in conjunction with distinguishing prior precedent regarding records of criminal

offenses with the present case which deals with the records of civil offenses. Unfortu.nately, the

12'' District did not specifically apply the principle of judicial restraint to the facts of this case,

but divined a sort of mystic judicial restraint that attempts to discern this Courts current opinion

on judicial restraint despite prior Supreme Court precedent to the contrary.l The 12th District

majority bases its decision on a Toledo Law Review Article, which purports to summarize the

Court's philosophy on judicial restraint.2

1"{¶ 17} The courts must strive to set aside what the law should be or what they would like it tobe, and give deference to the legislature. If a remedy is needed (and we believe it is needed inthis case), the legislature, not the courts, should address it. Assuming that the supreme court's1981 decision in Pepper Pike is somehow on point in its result, this pre- statutory expungementdecision was an attempt to fashion a result-oriented remedy that will not withstand our currentstate supreme court's scrutiny concerning judicial restraint. See Stokes, Judicial Restraint andthe Presumption of Constitutionality, 35 U.Tol.L.Rev. 347 (2003)." CAP Decision, p.3.

2 Stokes, Judicial Restraint and the Presumption of Constitutionality, 35 U.Tol.L.Rev. 347r^nn3^^• 7 ^i ^The 12'' District ended the ar^al==sis after decidin^^^ .,., aRuinst Appellant on his firstassignment of error, however the majority added in dictum "Whatever "punishment" the supremecourt was alluding to is presumably criminal and is absent in this stage of appellant's ex parte

3

But such a sweeping restraint would effectively overturn Marbury v. Madison.3 At least

since Marbury was decided in 1803, the Courts have had the role ofjudicial review.4 It is

axiomatic that a just society should interpret the laws it promulgates with a just result in mind,

and that the Constitution is the embodiment of our common principles of justice as to protecting

the natural rights of liberty and property.

Nor does Stokes law review article argue that such a sweeping restraint exists in the

current Court or should exist in the current Court. The article summarizes the proper sentiment

expressed in numerous Supreme Court decisions, as "giving a presumption of Constitutionality

to enactments of the general assembly."5 Therefore any analysis based on those cases should

begin something to the effect of "We must first acknowledge that the statute in question is

presumed to be Constitutional..." and then proceed with the Constitutional analysis. However,

the 12th District majority instead presumed that no Constitutional analysis was even required,

that the General Assembly's foray into the expungment of certain records effectively preempts

all judicial scrutiny.

Judicial restraint is that sensibility of the court which combats a tendency towards

judicial activism. Judicial activism is the supplanting of the actions of the people through the

legislature with the justice's personal notion of justice; where there is good faith disagreement

with that notion; or where that notion supplants the legislatures role in crafting legislation, and

often where it is accomplished by justifying the addition to or subtraction from the plain

order. Given the evidence presented in the record, the calamities suggested by appellant aresimply speculative and conjectural.." CAP Decision, p. 7.

3 Marbury v. Madison, 5 U.S. 137,177-180 (1803)

4 Id See also, (for Ohio Courts' power of judicial review), Rutherford v. MFaddon (1807), Ohio<_unreporied .i Prior r^o rrna-23^s, at 7it {^

: ir+ _rvt•

nrn.

r rnoacan_c

7 _ 7a., 1952), c_ at-e

_u^^cn_ [^cu_ceudiciai Decisions Prr ^ eex rel. Ohio Acad. of Trial Lawyers v. Sheward, 715 N.E.2d 1062, 10975 Stokes, swra

4

language of the Constitution. Judicial activism therefore generally requires disagreement. It

cannot be activism if the particular notion of justice shares near universal agreement and evident

Constitutional protection and places little burden on the people or the legislature. It cannot be

activism to apply the very principles espoused by the legislature to a novel fact pattern. That is

nothing less than the core function the courts. Failure to act in such circumstances should not be

vaunted as restraint, but rather chastised as derogation of duty.

Likewise, Stokes summarizes the benefits of genuine judicial restraint; honoring the

legislatures duty to evaluate the Constitutionality of their own enactments, good relations with

the other branches of government, allowing the states to be the laboratories they were meant to

be, allowing true social change to occur or not occur through consensus versus judicial fiat,

tempering the power of the judiciary and promoting clear and compelling arguments in judicial

reasoning.6

In this case, there is no relevant disagreement between what the legislature has enacted

and what the appellant is asking for. The legislature said that under certain circumstances the

public record of a criminal conviction may be expunged. In Pepper Pike, The Court looked at the

circumstance of a criminal charge as opposed to a conviction, and rightly reasoned that if a

conviction can be expunged, a criminal charge that is later dismissed should also be expugnable.

Far from crying judicial activism, the legislature concurred with the Court and changed the

statute to correct the inequity. Now, nearly the exact inequity appears with the distinction being

that of a "Civil" "conviction" versus a criminal charge.

On what ground would the legislature oppose this modest extension? It does not declare

the present scheme unconstitutional. It does not force the legislature to act, as any effort required

to ^'^'"^^'., 41..' ],,.^;°:.._'."

. Tl ^ u^^ :^^' ^:a

ucttcc tu^[c^^^^4L,.++L

llic tG,. 1.. ^t"^'_^^ hasexpunge records i..̂ win vy iri^^uui^raiy^i'^c i^ ^.io cvigislaCU :[c as

6 See id.

5

considered this fact pattern and rejected the proposed relief for any reason at all, or that they

have considered it at all. No evidence that maintaining an erroneous and onerous stigma as a

person prone to domestic violence is part of an experiment that must be allowed to play out. No

special interest groups have made this a cornerstone of their agenda. Even the alleged victim not

only doesn't opposethe requested relief, she supports it under oath. Neither the magistrate, nor

Judge Oliver opposed it based on any particular interest; they merely imposed upon themselves

the same restraint that the 12th District did.

In fact, if anything the decisions ofPepper Pike and Reiger v. Reiger (decided in 2003)

confirm the General Assemblies' assent to the rationale and practice ofjudicial expungment.

Allowing for judicial expungment does not supersede or overturn any statute and the Assembly

has had the ability to challenge the practice by enacting legislation forbidding it. Even assuming,

arguendo that the General Assembly has or may refrain from acting because they believe the

matter to be decided; that problem can be easily avoided by reciting the fact that the decision is

confined to the circumstance of the legislature not specifically prohibiting the practice of judicial

expungment in general or in the specific case of the Domestic Violence CPO. It is only at that

point that a"presumption of constitutionality" must be dealt with. Conversely, it is impossible to

presume the General Assembly has independently evaluated the Constitutional ramifications of

an issue, when there is no evidence they have considered it all.

If anything, it is on one point, and in certain circumstances, that Stokes oversimplifies the

benefits of judicial restraint. While it is certainly less-confrontational for the Court to defer to

the legislature while strongly conveying disapproval within the decision - taken to its logical

conclusion, this strategy places a warm and fuzzy relationship with the legislature over the rights

6

the rights of the individual. Deference, or restraint, can be accomplished by doing the required

Constitutional analysis and finding the balance tips in favor of the governmental interest. But

what has occurred instead is pre-emption, a refusal thus far to even state what interest the

General Assembly may or may not have in preserving records of Ex-Parte CPO's that were

dismissed, and where there is significant indicia that the accuser was in fact motivated by

something other than fear of the accused.

While it is true that there is no statutory authority to seal Domestic Violence CPO

records, the Court's authority to grant a judicial expungment is rooted in the Constitution and

does not require separate statutory authority. Pepper Pike. Pepper Pike, describes the Court's

Constitutional authority to grant judicial expungments in both criminal and civil matters:

In holding a right of expungment and sealing of all recording in this case, wefollow other jurisdictions which recognize the power to grant this judicial remedy.When exercising these powers, the trial court should use a balancing test, whichweights the interest of the accused in his good name and right to be free fromunwarranted punishment against the legitimate need of government to maintainrecords. Where there is no compelling state interest or reason to retain thejudicial and police records, such as where they arise from a domestic quarrel andconstitute vindictive use of our courts, the accursed is entitled to this remedy.There can be no compelling state interest or reason to maintain the records of thecriminal proceedings against defendants like appellant here, a school teacher witha previously unblemished reputation in her community.

The case involved a criminal charge but no conviction. In fact, there was a dismissal

with prejudice and facts indicating that the accusers had fabricated the allegations. This Court

reasoned that a criminal charge can be nearly as damaging as a criminal conviction. It was also

highly inequitable for the person actually convicted of a crime to get their second chance at a

clean record, but a person who was the victim of false allegations could never get that second

chance, because they were not convicted. The guilty could have a clean record, but the innocent

^ ^ ^nnnld nn+? ^1"' 1°nci°1_ 4""°'n .^....±;"" "^+^'^ r^"'.^' s °^ ^ -- ^ '^.v..c... .ivc. , i,v av^aui u,u^. ^ auvNaivli v1 ^1ic t,vtAtt J 1cq:aVtl3ilg ^tilU correc ting the inequity Dy

9

statute does not affect or overrule the Court's Constitutional authority and duty to grant this

judicial remedy outside of the statutory framework.

Nor does the quasi-criminal, versus criminal nature of the CPO itself affect the

Constitutional concerns expressed in Pepper Pike. The Court specifically found Constitutional

authority for judicial expungment as a privacy right, but also cited with approval authority

arising out of a due process right. Id. at 376. Neither of those Constitutional rights is specific to

criminal defendants. At issue is the nature of the offense on record and its potential adverse

effect on reputation, and the economic, social, and legal implications.

A Domestic Violence CPO is a Civil matter only to the extent necessary to affect a

compromise of the rights of the accused in order to provide immediate protection from imminent

danger. The ability of a victim or a potential victim to walk into Court on their own at virtually

any time and walk out with an Order eliminating the abuser from their lives under threat of arrest

and jail has become a valuable tool in reducing domestic violence. But that protection comes at

the cost of individuals who are wrongfully accused, and have a CPO as public record against

them, before they even have an opportunity to state their case. Yet, like a criminal offense, a

CPO can restrict a respondent's freedom in a variety of ways, confiscate a respondent's property,

and allow for jail confinement if violated. A CPO on your record connotes a reputation as a

stalker or abusive person and thus has a similar stigma as a criminal record.

The ex-parte granting of a CPO occurs without the accused having a right to an attorney,

a right to confront witnesses, and a right to present any evidence whatsoever, etc. Even at a full

CPO hearing, the standard of proof is lower, the accused's required mental state is lower, the

victim's subjective fears and mental condition are often given substantial weight, and the

"1Vrblddell 11lfert¢illVe" w.iat paJt io:lidu^.t be lAsed to u11er juliul^`i 4oild:uat is ilot lvrbidd:eil.

10

This Honorable Court has long acknowledged not all records must be retained, and has

acknowledged that even children's services can be harmfiil and contain implications of criminal

actions. State v. S.R. (1992) 63 Ohio St. 3d 590, 596.

The 2nd District specifically extended the Pepper Pike authority to the case of CPO

expungment in the case of Reiger v. Reiger, (2006) 165 Ohio App.3d 454. Likewise, the 3rd

District Court of Appeals held a broad based application of the judicial authority when it found it

applicable to Children's Services records, not only absent, but contrary to statutory authority.

That case, ln Re: Application to Seal Record of No Bill, (1999) 131 Ohio App. 3d 399, 722 N.E.

2d 602 reversed the decision of the trial court denying appellant's request to expunge records

maintained by the Department of Children Services. Specifically, the appellate court held,

"However, it is clear that the trial court's decision was premised upon the mistaken belief that

the courts lack any power to seal children services records. We believe that the courts have

discretion to seal such records under the judicial expungment doctrine enunciated in Pepper

Pike." (Citations omitted) Adding,

While it may be argued that it is inappropriate for courts to supersedelegislative judgment by granting judicial expungment where the legislaturehas specifically removed statutory expungment as a remedy, it is in suchsituations where the judicial expungment remedy may well be mostappropriate. Judicial expungment is a constitutional remedy, and it iselementary that although the legislature has freedom to provide greaterprotections, it has no authority to place limits on rights guaranteed underthe Constitution. Cf. Williams v. Scudder (1921), 102 Ohio St. 305, 307,131 N.E. 481. The legislature does not control the meaning and scope ofconstitutional guarantees, and it may not limit the ability of the judiciaryto perform its ' essential functions. See generally State ex. rel. Johnston v.Taulbee (1981), 66 Ohio St. 2d 417, 423 N.E.2d 80; State v. Khong(1985), 29 Ohio App. 3d 19, 502 N.E.2d 682; State ex. Rel. Dana v.Gerber (1946), 79 Ohio App. 1, 70 N.E.2d 111. (Emphasis added)

11

Due Process is also implicated. The United States Supreme Court explained due process

in Little v. Steater (1981) 452 U.S. 1, 5 101 S.l Ct. 2202 stating:

due process, unlike some legal rules is not a technical conception with afixed content unrelated to time, place and circumstances." Rather is ifflexible and calls for such procedural protections as a particular situationdemands. Due process requires a minimum, that absent a countervailingstate interest of overriding significance, persons forced to settle theirclaims of right and duty to the judicial process must be given a meaningfulopportwnity to be heard." (Internal citations omitted)

And so is the he Equal Protection Clause. The Equal Protection Clause does not forbid

classifications. It simply keeps governmental decision makers from treating differently persons

who are in all relevant respects alike F.S. Royster Guano Co. v. Virginia (1920) 253 U.S. 412,

415 [40 S. Ct. 560, 561, 64 L. Ed 989, 990-991].

The inherent power of the courts to take action to seal a criminal, civil or quasi criminal

matter is found within the Constitution and not the legislature. And it is no effort of judicial

restraint to ignore its duty to apply the Constitution. As aptly set forth by the Honorable Judge

Piper in his dissent from the 12t' District majority:

Judicial expungment is a constitutional remedy and it is elementary that althoughthe legislature has the freedom to provide greater protections, it has no authorityto place limits on the rights guaranteed under the Constitution. The legislaturedoes not control the meaning and scope of constitutional guarantees and it maynot limit the ability of the judiciary to perform its essential functions.

ln. Re: Application to Seal Records of No Bill (1999) 131 Ohio App. 388, 403.

The record in question should have been sealed.

12

Proposition of Law #2:

The Constitutional analysis to decide whether or not a judicial expungment is

required is the balancing test described in Pepper Pike v. Doe 66 Ohio St. 2d 374

(1981).

Pepper Pike set forth a balancing test for the lower court's to consider when

expunging or sealing a Civil Protection Order. The Appellate Court completely failed to

conduct the required balancing test. Pepper Pike held:

When exercising these powers, the trial court should use a balancing testwhich weights the interest of the accused in his good name and right to befree from unwarranted punishment against the legitimate need ofgovernment to maintain records. Where there is no compelling stateinterest or reason to retain the judicial and police records, such as theyarise from a domestic quarrel and constitute vindictive use of our courts,the accused is entitled to this remedy. There can be no compelling stateinterest or reason to maintain the records of the criminal proceedingsagainst defendants like appellant here, a school teacher with previouslyunblemished reputation in her community.

The evidence in the instant matter is un-refuted. Appellant and Wife had a

domestic quarrel. This quarrel resulted in an Ex-Parte Civil Protection Order being

issued against Appellant. The Order was dismissed approximately one month later. Wife

took the step of signing an Affidavit stating she believed it to be in the best interest of the

parties' two minor children, herself and Appellant for the matter to be sealed.

Judge Piper's dissent summarizes as follows:

Permitting the Court to balance the various interests provides a person theopportunity to be heard while also maintaining governmental interest inkeeping records public. The public's need to know is an important,legitimate governm.ental consideration. Additionally a person's publicemployment may be a factor in weighing that person's right to privacy.But the potential adverse and onerous effect of keeping records open to thepublic where there has been no formal charge substantiated may also,%vaiaiit being weighed. iius balaniing process iightfuliy s^'v'uid 'u`3ciude

13

the allegations of a criminal nature interwoven into a civil Ex Parteproceeding

Proposition of Law No. III: A public record of a Domestic Violence Civil

Protection order against an individual is per-se, detrimental to the individual, and

there is no required prima facia showing of "actual harm" or "actual negative

consequences" prior to applying the balancing test described in Pepper Pike v Doe

66 Ohio St. 2d 374 (1981).

The Appellate Court seemed to suggest a threshold question of actual harm

having occurred, or being imminent, "The evidence presented in the record, the

calamities suggested by the Appellant are simply speculative and conjectural." As has

already been discussed throughout, there is no threshold question, and the nature of the

record itself is a detriment to anyone with any concern whatsoever for their reputation,

among other things.

CONCLUSION

For the foregoing reasons, Appellant respectfully requests this Honorable Court

reverse the previous decisions in this matter and order Appellant's record sealed.

Ad

Respelly submitted

e (0074009 )Attorney for Appellant5374 A Cox Smith RoadMason, Ohio 45040513 370 3848 Phone / Faxishade@shadelawgroup.com

14

CERTIFICATE OF SERVICEThe undersigned does hereby state that a true copy of the foregoing was sent to

the Appellee Michelle Henneman at 4354 IVlarival Drive, Mason, Ohio 45040 on this the14'h day of December, 2012 by ordinary U.S. Mail.

^°-

H.Shade (6074009)

15

IN THE SUPREME COURT OF OHIO

Michelle D. Schussheim n.k.a.HennemanPetitioner - Appellee,

V.

Alan C. Schussheim

Respondent - Appellant

] On appeal from the Warren County] Court of Appeals, Twelfth Appellate] District

]]] Court of Appeals Case No.] CA201107 078]

NOTICE OF APPEAL OFAPPELLANT ALAN C. SCHUSSHEIM

7hitaker & Shade,LLC

:torneys at Law

!6 Reading Road

ason OH 45040

ww.wsattorneys.com

one: S 13-398-1910

x:513-398-0181

mes A Whitaker, ESQ.

:ensed in Ohio & Wyoming

hitaker@wsattorneys.com

rry Shade, ESQ.

-ensed in Ohio & Kentucky

ade@wsattorneys.com

^al W. Duiker, ESQ.

ensed in Ohio

uiker @wsattorneys.com

Jerry H. Shade (0074009) (COUNSEL OF RECORD)226 Reading RoadMason, Ohio 45040(513) 398-1910Fax. No. (513) 398-0181ishade@w,sattorneys.com

COUNSEL FOR APPELLANT, ALAN C. SCHUSSHEIM

Michelle D. Schussheim n.k.a.Henneman, Pro Se Appellee4354 Marival DriveMason, Ohio 45040

PRO SE APPELLEE FREDJUL 2 4 20 12

CLERK OF COURTSUPREME COURT OF OHIO

Notice of Appeal of Appellant Alan C . Schussheim

Appellant Alan C. Schussheim hereby gives notice of appeal to the Supreme Court of

Ohio from the judgment of the of the Warren County Court of Appeals, Twelfth Appellate

District, entered in Court of Appeals Case No. CA2011-07-078 on June 11, 2012.

This case raises a substantial constitutional question and is one of public or great general

interest.

submitted,

Je Shade (0074009)

B0R2 eading Road

ason, , OhioPh. (513) 398-1910Fax. (513) 398-0181ishade@wsattomeys.com

COUNSEL OF RECORD ANDCOUNSEL FOR APPELLANT,ALAN C. SCHUSSHEIM

Certificate of Service

f10*0Vhitaker & Shade, LLC

ttorneys at Law

26 Reading Road

[ason OH 45040

ww.wsattorneys.com

ione: 513-398-1910

x:513-398-0181

mes A Whitaker, ESQ.

censed in Ohio & Wvoming

,hitaker@ wsattorneys.com

rry Shade, ESQ,

censed in Ohio & Kentucky

iade@wsattorneys.com

aal W. Duiker, ESQ.

;ensed in Ohio

uiker@wsattoriieys.com

I certify that a copy of this Notice of Appeal was sent by ordinary U.S. mail toMichelle Schussheim n.k.a. Michelle Henneman at 4354 Marival Drive, Mason Ohip..45040on this the 23RD day of July, 2012. z

H. Shade (0074009)

6 ^ o

^ ^+4

- vs -

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

MICHELLE D. SCHUSSHEIM n.k.aHENNEMAN,

Petitioner-Appellee,

ALAN C. SCHUSSHEIM,

Respondent-Appellant.

CO qA^ o ^oPPEqiSFIE^N1Y

JU'V 2012.^^; ^r• ^^^ CI

BA^O/V ®Hlp er^

CASE NO. CA2011-07-078

OPINION6/11/2012

APPEAL FROM WARREN COUNTY COURT OF COMMON PLEASDOMESTIC RELATIONS DIVISION

Case No. 09DV4460

Michelle D. Schussheim n.k.a. Henneman, 4354 Marival Drive, Mason, Ohio 45040,petitioner-appellee, pro se

Jerry H. Shade, 226 Reading Road, Mason, Ohio 45040, for respondent-appellant

RINGLAND, J.

{¶ 1} Respondent-appellant, Alan Schussheim, appeals a decision of the Warren

County Court of Common Pleas, Domestic Relations Division, denying his motion to expunge

and seal the record of a civil protection order (CPO) issued against him and later dismissed.

{¶ 2} On July 13, 2009, petitioner-appellee, Michelle Henneman (f.k.a. Michelle

Warren CA2011-07-078

' Schussheim), sought a CPO against appellant, her then husband. An ex parte CPO was

issued against appellant that same day. A week later, Henneman filed for divorce. She

subsequently moved to dismiss the CPO. On August 14, 2009, the trial court dismissed the

CPO. The parties eventually divorced and co-parent their two minor children under a shared

parenting agreement. Appellant was never charged with or convicted of domestic violence in

connection with this matter or otherwise.

{¶ 3} In April 2011, appellant moved the trial court to expunge and seal the record of

the CPO. Appellant asserted that the CPO was the result of a domestic quarrel; there was

no compefling^ state interest to maintain the record of the CPO against him, an "upstanding

citizen" with "an unblemished criminal record;" and he was afraid the record of the CPO could

have adverse effects on his employment with regard to future promotions, transfers, and/or

income. Appellant is a section manager for Procter & Gamble. Henneman filed an affidavit

in support of appellant's motion.

{¶ 4} Following a brief hearing on the motion, the magistrate denied appellant's

motion. The magistrate first stated that while there were two statutory methods to expunge

or seal criminal records, there was no statutory authority to expunge or seal CPO records.

The magistrate then noted that in 1981, the Ohio Supreme Court established the doctrine of

judicial expungement, and that the doctrine and its balancing test were applied by the

Second Appellate District to a motion to expunge and seal the record of a CPO. Turning to

appellant's motion, the magistrate first found that the Twelfth Appellate District has never

held that courts have the authority to seal CPO records. The magistrate then found that even

under the supreme court's balancing test, appellant's motion failed as. "there has been no

proof presented that [appellant] has had any negative consequences from the record of the

^,^,.., .,^..^., rnn^^ ......raccompanying -'. . .. . -• - -parte ^^r-^^ a^ ^u acwrn^anyrng arsmissai.°° Apperrant tited objections to the magistrate's

decision.

-2-

6 , ,Warren CA2011-07-078

' {¶ 5} On July 13, 2011, the trial court overruled the objections and denied appellant's

motion to expunge and seal the record of the CPO. The trial court found that appellant's

failure to present evidence that his employment (1) had been affected or directly harmed by

the record of the CPO, and/or (2) would be hindered or terminated under a company policy

as a result of the CPO, was detrimental to his motion. -

{¶ 6} Appellant appeals, raising three assignments of error.

{¶ 7} Assignment of Error No. 1:

{¶ 8} THE TRIAL COURT HAD AUTHORITY UNDER THE CONSTITUTION AND

DECISION OF THE OHIO SUPREME COURT TO GRANT THE REQUESTED JUDICIAL

EXPUNGEMENT OF A DOMESTIC RELATIONS EX-PARTE CPO, AND THE TRIAL

COURT FAILED TO CONSIDER THE APPELLANT'S CONSTITUTIONAL RIGHTS TO DUE

PROCESS AND PRIVACY.

{¶ 9} Appellant argues that even though there is no statutory authority to expunge

and seal CPO records, courts have the authority to judicially expunge and seal such records

following the Ohio Supreme Court's 1981 decision in Pepper Pike v. Doe, 66 Ohio St.2d 374

(1981). We disagree.

{¶ 10) The CPO was issued against appellant pursuant to R.C. 3113.31. It is

undisputed there is no statutory authority in Ohio to expunge and seal CPO records, or more

generally, civil (or noncriminal) records. By contrast, there are currently two statutory

methods to expunge and seal criminal records: R.C. 2953.32, which allows convicted first-

time offenders to seek the expungement and sealing of their. conviction records, and R.C.

2953.52, which allows for the expungement and sealing of a defendant's criminal records if

the defendant was found not guilty, the case was dismissed, or a grand jury returned a no

bill.

{¶ 111 Pepper Pike dealt with the question of whether a defendant charged with but

-3-

Warren CA2011-07-078

not convicted of a criminal offense had a right to a judicial expungement of his criminal

record. Pepper Pike, 66 Ohio St.2d at 376; State v. Ruffle, 12th Dist. No. CA96-12-124,

1997 WL 401574, *1 (July 14, 1997). The supreme court held that:

The trial courts in Ohio have jurisdiction to order expungementand sealing of records in a criminal case where the charges aredismissed with prejudice prior to trial by the party initiating theproceedings.

The trial courts have authority to order expungement where suchunusual and exceptional circumstances make it appropriate toexercise jurisdiction over the matter. When exercising thispower, the court should use a balancing test which weighs theprivacy interest of the defendant against the government'slegitimate need to maintain records of criminal proceedings.

Pepper Pike at paragraphs one and two of the syllabus.

{¶ 12} In the opinion, the supreme court stated that "even absent statutory

authorization, trial courts in unusual and exceptional circumstances expunge criminal records

out of a concern for the preservation of the privacy interest." Id. at 376. The court further

stated that when exercising judicial expungement, trial courts "should use a balancing test,

which weighs the interest of the accused in his good name and right to be free from

unwarranted punishment against the legitimate need of government to maintain records." Id.

at 377. The court cautioned, however, that this judicial power should not be exercised as a

matter of course. Id. (em-phasizing that its holding was not to be construed as a carte

blanche for every defendant acquitted of criminal charges in Ohio courts).

{¶ 13} At the time Pepper Pike was decided, no statutory procedure existed for

expunging criminal records in cases where offenders were charged with crimes but were

found not guilty or where the charges were dismissed. Statutory expungement was limited

only to persons who had been convicted of a criminal offense. As a result, the supreme court

fashioned the foregoing remedy in Pepper Pike. Then, in 1984, the General Assembly

enacted R.C. 2953.52 which provides for the sealing of criminal records in cases where the

-4-

Warren CA2011-07-078

offender was acquitted or charges were dismissed. R.C. 2953.52 requires trial courts to

weigh the interest of the accused in having his criminal records sealed against the legitimate

need of the government to maintain the records. R.C. 2953.52(B)(2)(d).

{¶ 14) In 2006, the Second Appellate District applied the doctrine of judicial

expungement to a motion to seal the record of a CPO. Rieger v. Rieger, 165 Ohio App.3d

454, 2006-Ohio-482 (2d Dist.). In that case, Joseph Rieger consented to the issuance of a

CPO (which was sought by his former wife). One year after the CPO expired, Mr. Rieger

moved to seal the record of the CPO on the ground its accessibility on the Internet was

preventing him from obtaining a better job. The trial court denied the motion. On appeal, the

Second Appellate District reversed the trial coUrt's decision and remanded the case on the

basis of Pepper Pike.

{¶ 15) The appellate court first quoted a significant portion of the decision in Pepper

Pike which (1) briefly stated that the basis for judicial expungement is the constitutional right

of privacy, (2) explained the balancing test, and (3) emphasized that its holding was not a

carte blanche for every defendant acquitted of criminal charges in Ohio courts. Rieger at

461, quoting Pepper Pike, 66 Ohio St.2d at 377. The appellate court then held:

As a matter of public policy, we think it is ultimately for thelegislature to provide a remedy for the problem presented here.In 1984, the legislature provided a remedy for the problem thecourt faced in Pepper Pike. See R.C. 2953.52. We conclude,however, that the trial court erred in two respects: (1) inconcluding that it required statutory authorization to seal therecord of the CPO, and (2) in performing an incorrect balancingtest, having assumed arguendo the authority to judiciallyexpunge the record of the CPO.

(Emphasis sic.) Rieger at"¶ 47.

11116) While we are sympathetic to appellant's plight, we decline to extend the holding

of Pepper Pike to include non-criminal cases or proceedings. As stated earlier, there are no

statutory provisions in Ohio providing for the expungement and sealing of records of a CPO,

-5-

Warren CA2011-07-078

' or more generally, of civil (or noncriminal) records. "The law stated in a Supreme Court

opinion is contained within its syllabus (if one is provided), and its text, including footnotes."

S.Ct.R.Rep.Op. 1(B)(1). The second paragraph of the syllabus, which sets forth the doctrine

of judicial expungement and its balancing test, cannot be read in isolation from the first

paragraph of the syllabus or from the opinion itself which is plainly and solely directed to

individuals with criminal charges and criminal records. See In re Hashim, 6th Dist. No. L-00-

1064, 2000 WL 1161890 (Aug. 18, 2000); State v. Netter, 64 Ohio App.3d 322 (4th

Dist.1989); Pepper Pike, 66 Ohio St.2d at paragraphs one and two of the syllabus and 375-

378 (regularly using the term "criminal" throughout the opinion).

{¶ 17} The courts must strive to set aside what the law should be or what they would

like it to be, and give deference to the legislature. If a remedy is needed (and we believe it is

needed in this case), the legislature, not the courts, should address it. Assuming that the

supreme court's 1981 decision in Pepper Pike is somehow on point in its result, this pre-

statutory expungement decision was an attempt to fashion a result-oriented remedy that will

not withstand our current state supreme court's scrutiny concerning judicial restraint. See

Stokes, Judicial Restraint and the Presumption of Constitutionality, 35 U.Tol.L.Rev. 347

(2003).

{¶ 18} We therefore decline to apply the doctrine of judicial expungement as

established in Pepper Pike, a decision solely involving a criminal case, to the case at bar, a

civil case involving a CPO. Appellant's first assignment of error is accordingly overruled.

{¶ 19} Assignment of Error No. 2:

{¶ 20} THE TRIAL COURT ERRED IN ITS APPLICATION OF THE PEPPER PIKE V.

DOE BALANCING TEST. "NEGATIVE CONSEQUENCES" IS NOT REQUIRED.

{TI 21} Assignment of Error No. 3:

{¶ 22} THE TRIAL COURT FAILED TO CONSIDER THE COMPLETE LACK OF THE

-6-

w Warren CA2011-07-078

GOVERNMENT'S INTEREST IN MAINTAINING REORDS. [SIC]

11[231 In light of our holding under the first assignment of error, we find it unnecessary

to reach the issues presented in appellant's second and third assignments of error.

Accordingly, the second and third assignments of error are moot. However, even assuming

arguendo that Pepper Pike is on point and controlling, and judicial philosophy aside, there

was insufficient evidence provided to allow the trial court to establish appellant's "right to be

free of unwarranted punishment" under the balancing test of Pepper Pike.' Whatever

"punishment" the supreme court was alluding to is presumably criminal and is absent in this

stage of appellant's ex parte order. Given the evidence presented in the record, the

calamities suggested by appellant are simply speculative and conjectural.

{¶ 24} Judgment affirmed.

HENDRICKSON, P.J., concurs.

PIPER, J., dissents.

PIPER, J., dissenting.

The Seriousness of Domestic Violence Allegations

11251 "State statutes need to protect women and children during and after the break-

up of relationships because of their continuing, and often heightened, vulnerability to

violence." Felton v. Felton, 79 Ohio St.3d 34, 1997-Ohio-302, quoting Klein & Orloff,

Providing Lega/ Protection to Battered Women: An Analysis of State Statutes and Case Law

(1993), 21 Hofstra L.Rev. 801, 816. Thus, "[i]n Ohio, the domestic violence statutes grant

police and courts great authority to enforce protection orders, and violations of those

protection orders incur harsh penalties." Felton at 45. Advanced societieG take intra-farr,ii^^.....^ ..,....

violence seriously and therefore "the Ohio legislature has passed one of the most

-7-

Warren CA2011-07-078

comprehensive set of statutes authorizing Civil Protection Orders to combat domestic

violence. * * * The legislation that provides for Civil Protection Orders is responsive to the

immediate needs of the victims and provides a necessary alternative and supplement to

criminal legal remedies." Id., quoting Voris, The Domestic Violence Civil Protection Order

and the Role of the Court (1990), 24 Akron L.Rev. 423, 432.

The General Assembly enacted the domestic violence statutesspecifically to criminalize those activities commonly known asdomestic violence and to authorize a court to issue protectionorders designed to ensure the safety and protection of acomplainant in a domestic violence case. Accordingly, R.C.3113.31 authorizes a court in an ex parte hearing to issue atemporary protection order when the court finds there to be an"[i]mmediate and present danger of domestic violence to thefamily or household member." R.C. 3113.31(D).

Id. at 38. (Internal citations omitted.)

{¶ 261 Society does not condone violence in general and violence within the family unit

is particularly disturbing. Therefore, ex parte proceedings make it easy and convenient for

"victims" to present criminal domestic violence accusations. There is no denying that the

stigma of such allegations can be damaging and onerous.

When Statutory Expungement is Absent, Unusual and Exceptional CircumstancesMay Require Judicial Expungement

{¶ 271 The majority opinion acknowledges the holding in Pepper Pike which

establishes that a judge has the authority or power to order expungement, or seal records,

once a balancing test has been performed to determine whether the individual's privacy

interest outweighs the government's legitimate need to maintain the records. The majority

opinion believes that because Pepper Pike was a criminal proceeding such judicial authority

can only be exercised in a criminal proceeding.

{¶ 28) In Pepper Pike, a woman was acquitted and she subsequently requested her

records be sealed. The Supreme Court determined the need for a balancing test which

-8-

Warren CA2011-07-078

't weighs the interest of the accused and his or her good name and right to be free from

unwarranted penalty against the legitimate need of government to maintain records. The

Supreme Court stated in Pepper Pike "[t]here can be no compelling state interest or reason

to maintain the records of the criminal proceeding against defendants like appellant here, a

school teacher with a previously unblemished reputation in her community." 66 Ohio St.2d at

377.

11[291 The majority opinion offers no logic as to why the accused in a criminal

proceeding may be heard on the issue and have the matter "weighed" but yet an accused in

a unilateral, ex parte civil protection proceeding that is subsequently dismissed has no such

remedy. In the absence of statutory procedure permitting an expungement or sealing of

records, courts have routinely provided a remedy in unusual and exceptional circumstances,

under the principle of "inherent power" or "inherent authority." State v. Stadler, 14 Ohio

App.3d 10, 11 (9th Dist.1 983), superseded by statute on other grounds; see also Hari v. Hari,

2nd Dist. No. 21448, 2007-Ohio-324, ¶ 10.

Judicial Expungement Springs From the Constitution Not the Legislature

{¶ 30} The effect of the majority opinion is that the judiciary is paralyzed from providing

a remedy because the legislature has failed to provide a statutory framework in situations like

the one before us. The inherent authority of the judiciary, however, springs from fundamental

constitutional principles, not the legislature.

Judicial expungement is a constitutional remedy, and it iselementary that although the legislature has freedom to providegreater protections, it has no authority to place limits on rightsguaranteed under the Constitution. The legislature does notcontrol the meaning and scope of constitutional guarantees, andit may not limit the ability of the judiciary to perform its essentialfunctions.

In re Application to Seal Records of No Bill, 131 Ohio App.3d 399, 403 (3rd Dist.1999).

(Emphasis in original.) (Internal citations omitted.)

-9-

Warren CA2011-07-078

I Ir I ' ' {¶ 31} "[T]he exercise of the court's inherent authority should be done on a case by

case basis." Bound v. Biscotti, 76 Ohio Misc.2d 6, *11 (M.C.1995). Yet, we must remain

mindful that,

due process, "unlike some legal rules, is not a technicalconception with a fixed content unrelated to time, place andcircumstances." Rather, it is "flexible and calls for suchprocedural protections as a particular situation demands." Dueprocess requires, at a minimum, that absent a countervailingstate interest of overriding significance, persons forced to settletheir claims of right and duty to the judicial process must begiven a meaningful opportunity to be heard.

Little v. Streater, 452 U.S. 1, 5 101 S.Ct. 2202 (1981). (Internal citations omitted.) While

acknowledging that some courts order expungement or sealing of records in appropriate

circumstances out of concern for due process rights, the Ohio Supreme Court expressed that

"[t]the basis for such expungement, in our view, is a constitutional right to privacy." Pepper

Pike, 66 Ohio St.2d at 377, citing Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, (1973);

Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507 (1971); and Griswold v.

Connecticut, 381 U.S. 479, 85 S.Ct. 1678 (1965). In applying the constitutional right to

privacy, the cases cited by the Ohio Supreme Court are civil cases. In other words, the Ohio

Supreme Court has not distinguished a different constitutional right to privacy as applicable to

criminal proceedings than the right to privacy found in civil proceedings.

{¶ 32} Permitting the court to balance the various interests provides a person the

opportunity to be heard while also maintaining governmental interests in keeping records

public. The public's need to know is an important, legitimate governmental consideration.

Additionally, a person's public employment may be a factor in weighing that person's right to

privacy. But the potential adverse and onerous effect of keeping records open to the public

where there has been no formal charge substantiated may also warrant being weighed. This

balancing process rightfully should include the allegations of a criminal nature interwoven into

-10-

Warren CA2011-07-078

a civil ex parte proceeding.

{¶ 33} The allegation before us is one of domestic violence which is a criminal

accusation regardless if the proceeding is labeled criminal, civil, or quasi-criminal. Although

the affidavit seeking a CPO is not evidence, the mere allegations can have extremely serious

and severe effects. When discussing the appropriateness of judicial expungement, the

Supreme Court specifically said "where there is no compelling state interest, or reason to

retain the judicial and police records, such as where they arise from a domestic quarrel and

constitute vindictive use of our courts, the accused is entitled to this remedy." Pepper Pike,

66 Ohio St.2d at 377. (Emphasis added.) The ex parte CPO, being reviewed here, was

dismissed and arose from a domestic quarrel.

{¶ 34} With the facts before us, there is no legitimate need of government which

outweighs appellant's interest in his good name being preserved without suffering the

negative and severe stigmatization of domestic violence accusations. Appellant's ex-wife

testified on his behalf and supports the records being sealed. The majority opinion applies

the constitutional principles in Pepper Pike so narrowly as to deny appellant the process he is

due and an opportunity to be heard on his request for a potential remedy. Both parties are

desirous of "privacy" being applied to the circumstances that arose from their domestic

quarrel, which occurred a long time ago.

Other Courts Have Used Judicial Expungement

{¶ 35} Records other than those possessed by law enforcement may contain

allegations which implicate the accused in conduct of a criminal nature. In State v. S.R., 63

Ohio St.3d 590, 596 (1992), the Ohio Supreme Court acknowledged the children services

records retained by the Children Services Board should not always be retained. "There may

be strong reasons to permit the sealing of records kept by CSB which implicate the accused

in criminal conduct." !d. at 596.

- 11 -

Warren CA2011-07-078

1 -1 , " ° {¶ 36} In Rieger v. Rieger, 165 Ohio App.3d 454, 2006-Ohio-482 (2nd Dist.), the court

considered the appellant's request to seal the civil protection order which had expired. The

court of appeals concluded that while there was a preference for the legislature to provide a

remedy for the problem, the trial court nevertheless erred in concluding that it required

statutory authorization to seal records pertaining to the CPO. The court noted that an

allegation of domestic violence was a necessary predicate to the issuance of a protective

order and thus instructed the trial court to engage in the weighing process of the various

interests involved to determine whether the circumstances were unusual and exceptional

such that sealing the record was required.

Conclusion

{¶ 37} Even when records are expunged or sealed, Pepper Pike made it clear that

those records are still available for official law enforcement purposes. Furthermore, previous

decisions have acknowledged that even records sealed can be unsealed. See State exreL

Highlander v. Ruddick, 103 Ohio St.3d 370, 2004-Ohio-4952; Davis v. Cincinnati Enquirer,

164 Ohio App.3d 36, 2005-Ohio 5719 (1st Dist.). The exceptions that permit nondisclosure

within the public records act, R.C. 149.43, are applicable in both civil and criminal

proceedings. Furthermore, investigatory records belonging to law enforcement have a

specific exception which applies in criminal, quasi criminal, civil, or administrative

proceedings which exempts the disclosure of information pertaining to an uncharged suspect.

See R.C. 149.43(A)(2)(a).

{¶ 38} Therefore, a judicial remedy springing from constitutional principles should

provide no less. The accused in an ex parte civil protection order which is dismissed, or

unsubstantiated, should at least have the due process of having his privacy interest weighed

by the court, particularly where the allegations arose from a domestic quarrel where the

parties subsequently divorced and are currently raising their children together and the party

-12-

Warren CA2011-07-078

$ ^ who originally initiated the ex parte proceedings supports the sealing of the records. The

inherent authority of the trial court to administer justice should be permitted to operate,

particularly where the legislature has failed to act.

This opinion or decision is subject to further editing by the Supreme Court ofOhio's Reporter of Decisions. Parties interested in viewing the final reported

version are advised to visit the Ohio Supreme Court's web site at:http://www.sconet.state.oh.us/ROD/documents/. Final versions of decisions

are also available on the Twelfth District's web site at:http://www.twelfth.courts.state.oh.us/search.asp

-13-

`^ fi Ct

IN THE COURT OF APPEALS

C

oARR^^AppEqF^^ ^bPN7J,,

Juiv ' I 201,^TWELFTH APPELLATE DISTRICT OF

O^i^H^^

lerkWARREN COUNTY A(O/V 0/1/0

MICHELLE D. SCHUSSHEIM n.k.aHENNEMAN,

Petitioner-Appellee,CASE NO. CA2011-07-078

JUDGMENT ENTRY

- vs -

ALAN C. SCHUSSHEIM,

Respondent-Appellant.

The assignments of error properly before this court having been ruled upon, itis the order of this court that the judgment or final order appealed from be, and thesame hereby is, affirmed.

It is further ordered that a mandate be sent to the Warren County Court ofCommon Pleas, Domestic Relations Division, for execution upon this judgment andthat a certified copy of this Judgment Entryshall constitute the mandate pursuant toApp.R. 27.

Costs to be taxed in compliance with App.R. 24.

Robert A. Hendrickson, Presiding Judge

Robert P. Ringland, Judge

(Dissents)

Robin N. Piper, Judge

-.f^:. .

y1i:TO THE CLEg' •SERVE NO714" . :: : .r i3GENENTPURSUAW "a' *,'*: 'Ji...RULE 58(B) ZO ^ ^ JUL {3 hM 8'. 33

^ '7 • ►3 • t 1 ., f:^ ^. i E l.,. :_ : ..p^.^ ^F CpUR^TS

f

(,Li.ZSTATE OF OHIO, WARREN COUNTYIN THE COURT OF COMMON PLEAS 713 566

DIVISION OF DOMESTIC RELATIONS -LY7-K

MICHELLE D SCHUSSHEIM } CASE NO: 09DV4460Plaintiff,

V.

ALAN C SCHUSSHEIMDefendant.

ENTRY OVERRULINGOBJECTIONS TOMAGISTRATE'S DECISION

Judge Tim OliverMagistrate Ronald C Carey

The above matter came on for Submission on July 12, 2011 upon Objections filed by

Husband. Husband's Objections were filed June 9, 2011. The Magistrate's Decision was filed

May 27, 2011.

Husband objects to the Magistrate's Decision denying his request for the Court to

expunge and seal the record of proceeding regarding a domestic violence civil protection order.

Husband argues that his domestic violence case will have a negative impact on his employment

with Proctor and Gamble. Husband also argues that because his case was dismissed, the records

should be sealed and expunged. To determine whether or not Husband's request should be

granted, the Magistrate applied a balancing test adopted by the Ohio Supreme Court in Pepper

Pike v. Doe, 66 Ohio St.2d 374 (Ohio 1981), which weighs the interests of the accused against

`he legitimate need of the government to maintain records. Further, the Magistrate considered

another case, Reiger v. Reiger, 165 Ohio App.3d 454 (2006) where the court employed the

Pepper Pike balancing test to consider sealing or expunging Respondent's prior civil protection

1II^N3YI^N YIBpEI6pA0^

713 567order. On appeal, the Reiger Court found that absent a clear, direct connection between the civil

protection order and the respondent's alleged difficulty or inability to find employment, the

respondent's interest in having the record sealed or expunged is insufficient. Reiger v. Reiger,

2007 Ohio App. LEXIS 2001 at 27 (May 11, 2007). The court also noted the need for a

compelling or extraordinary reason to justify sealing the records of a consensual civil protection

order. Id at 19. Here, Wife agrees to Husband's record being sealed and expunged. However,

Husband presented no evidence showing that his employment had been directly harmed or that

promotions had been denied or passed over based on his previous domestic violence case.

Similarly, Husband did not present any evidence of a company policy indicating that his

employment would be hindered or terminated as a result of his civil protection order. Husband's

employment concerns are entirely speculative. Therefore, this Court agrees with the Magistrate's

decision to deny Husband's request for the court to expunge or seal records regarding his

domestic violence case. Accordingly, Husband's objection is Overruled.

For the foregoing reasons, Husband's objection is Overruled and the decision of the

Magistrate is adopted as if fully rewritten herein as a final appealable order.

Q--QJudge Tim Oliver

C.C. Jerry H. ShadeMichelle D. Schussheim nka Henneman

3: t, [

. . . ._ , . 1 (

IN THE COURT OF COMMON PLEAS " `, i ^ ^ SVV.A RItE N C C) UN'I' ^.', OH:I: C)

DIVISION OF DOMESTIC RELATIONS

MICHELLE D. SCHUSSHEIM n.ka HENNEMAN, ) CASE NO. 09DV4460

Petitioner, )

-Vs- ) MAGISTRATE'S DECISION

ALAN C. SCHUSSHEIM, )

Respondent. )

'I"his matter canae before the Court on May 12, 2011 upon Respondent's Application to

Expunge and Seal Record of Proceedings ("Application") filed April 5, 2011. Petitioner

("Wife") was present in Cottrt without counsel. Respondent ("Husband") was present in Court

with his counsel, Jerry H. Shade.

The Application states:

"... Respondent... moves this Honorable Court to expunge and seal the record ofproceeding regarding Case #09DU4460... "

Husband represented to the Court that there have been no other acts of domestic violence

and. that he is currently exercising a Shared Parenting Plan with Wife.

The Court further finds Wife testified she is in agreement that the record should be

expunged.

Husband testified he fears, in his empl.oyment with Proctor and Gamble, where he has

contact with domestic and foreign company representatives, the parties' domestic violence case

may cause him to lose promotions, etc. However, as of the date of the filing of Husband's

Application, he was unaware of any information where he had been harmed or that his

employment of proinotions had been impeded.

There are two statutory methods to expunge or seal certain records. Ohio Revised Code

Section 2953.32 provides for the expungement of a criminal conviction for a first time offender.

Ohio Revised Code Section 2953.52 provides for expungement of criminal records for

individuals charged, but not convicted of criminal charges. There is no statutory authority to

expunge or seal records concerning civil protection orders ("CPO").

In Peoer Pike v. Doe (1981), 66 Ohio St.2d 374 the Supreme Court held that statutory

authority is not necessarily required to seal a case. The Court in Pepd?er Pike v. Doe dealt with an

individual charged, but not convicted of a criminal offense. This case occurred prior to the

adoption of O.R.C. Section 2953.52.1 The Supreme Court held that courts should exercise a

balancing test when determining whether to expunge or seal criminal. records. This balancing

test "weighs the interest of the accused. in his good name and riglit to be free from unwarranted

punislunent against the legitimate need of government to maintain records." Reiger v. Reiger

(2006), 165 Ohio App. 3d 454, 461 quoting Pepper Pike v. Doe.

The Second District discussed sealing CPO records and applied the Pepper Pike v. Doe

balancing test. Reiger v. Reiger (2006), 165 Ohio App.3d 454. In Reiger v. Reiger, based on

Pepper Pike v. Doe, the Second District found that statutory authority was not necessary to

expunge or seal CPO records. The Court in Reiger held that the trial courts must apply the

balancing test outlined in Pepper Pike v. Doe to detennine if records should be expunged or

1 Apparently, following the Supreme Court's decision in Pepper Pike v. Doe, the Ohio Legislature

amended Section 2953 to provide for expungenient of criminal records of individuals charged but not

convicted of criminal offenses. See O.R.C Section 2953.52.

Page 2 of 4Simmons v. Sinunons08DV3978Magistrate's Decision

sealed. On reniand, the trial court found that the respondent failed to desnonstrate that there was

any compelling or extraordinary reason to justify scaling the record. Mr. Reiger appealed again.

The Second District affrmed the trial court. Mr. Reiger asserted that the CPO made it more

difficult for hini to find a new job because potential employers might see the CPO when

conducting background checks. The trial court and the Second District found that Mr. Reiger

failed to demonstrate "any clear, direct connection between the CPO record and his alleged

difficulty or inability to find employers." Reiger v. Reiger, at p. 27. Therefore, the Court did not

grant the request.

Here, first and foren-iost, this Magistrate finds that there is no statutory authority for

sealing of records in civil cases generally or civil protection orders specifically. Moreover, there

is no authority from the Twelfth District Court of Appeals indicating that courts have the

authority to seal such records.

Even, however, applying the balancing test of Pepper Pike v. Doe, the request to seal the

record in this case is denied. Here, the only reasons Husband provided for sealing the record is

that the case was dismissed and that there have been no further acts or conduct of domestic

violence and no crizninal. charges pending and that he fears the record could inhibit future

employment. The Court finds there has been no proof offered that Husband has had any negative

consequences from the record of the ex parte civil protection order and accompanying dismissal.

Therefore, Husband's motion is hereby denied.

Court Costs

Husband shall pay the Coui1: costs within 30 days from the mailing of a cost statement by

the Clerk o:f Courts.

Page 3 of 4Simmons v. Sin-irnons08DV3978Maaistrate's Decision

NOTICE TO ATTORNEYS AND PARTIES

Pursuant to Civil Rule 53(D)(3), the parties shall have fourteen (14) days from the date of

filing of this decision to file written objections with the Clerk of Court's Office. The objections

shall be specific and state Nvi.tla. particularity all grounds for objection. Any objection to a factual

finding shall be suppoa-ted by a transcript of all the evidence submitted to the Magistrate relevant

to that finding or an affidavit of that evidence if a transcript is not available. A party shall not

assign as error on appeal. the Court's adoption of any factual fiz3ding or legal coasclusion of law

unless the party has objected to that finding or conclusion as required by Civ. R. 53(D)(3)(b).

;GISTRATE RO A

Page 4 of 4Simmons v. Sinunons08DV3978Magistrate's Decision

COPY41AN+ES L. SPAETH, CLERKWARREN COUNTY, O1-110^OMMON PLEAS G URT

3Y - --^--^----p---^--E^^U`i"Y