Parisi Left Intact for Now: Mandamus Dismissed Without Opinion While Chief Justice Kennedy Calls to Restore Public Records Act Control Over Court Records and Apply H.B. 265’s Affirmation Requirement

Introduction

This commentary examines the Supreme Court of Ohio’s October 23, 2025 “merit decision without opinion” in State ex rel. Gray v. Toms (No. 2025-0882), which granted the respondent’s motion to dismiss a mandamus action seeking “court records” related to 2020 grand juries in Cuyahoga County. Although the court issued no majority rationale, Chief Justice Kennedy filed a detailed dissent that squarely challenges a foundational access-to-court-records precedent—State ex rel. Parisi v. Dayton Bar Assn. Certified Grievance Committee, 2019-Ohio-5157—and urges the court to restore the Public Records Act, R.C. 149.43, as the controlling substantive law for judicial records. The dissent also spotlights the newly enacted procedural requirements in 2024 Sub.H.B. No. 265 (effective April 9, 2025), including the requirement that a mandamus relator attach a written affirmation of service and a three-day waiting period before suit.

The parties are relator Gianni Gray, an incarcerated individual, and respondent Darren Toms, Public Information Officer for the Cuyahoga County Court of Common Pleas. The central issues presented by the filings and the dissent are: (1) whether access to “court records” is governed by the Public Records Act or by the Supreme Court’s Rules of Superintendence (Sup.R. 44–47), (2) the effect of new H.B. 265 filing prerequisites on court-records mandamus actions, (3) the applicability of R.C. 149.43(B)(8)’s inmate-specific limitation, and (4) the scope of Crim.R. 6(E)’s grand-jury secrecy as against requests for certain non-deliberative or administrative court records.

Summary of the Court’s Action

The court’s disposition is succinct: “In Mandamus. On respondent’s motion to dismiss. Motion granted. Cause dismissed.” The votes and separate writings are telling:

DeWine, Hawkins, and Shanahan, JJ., concur.
Brunner, J., concurs but would deny the motion as moot and sua sponte dismiss the cause for lack of prior affirmation (a reference to the H.B. 265 affirmation requirement under R.C. 149.43(C)(1)–(2)).
Deters, J., concurs but would deny the motion and sua sponte dismiss the cause.
Fischer, J., dissents and would grant an alternative writ.
Kennedy, C.J., dissents, with an opinion.

There is no majority opinion explaining the basis for dismissal. The only full analysis comes from the Chief Justice’s dissent. In her view, the case exposes a constitutional fault line: Parisi and the Superintendence Rules cannot displace the substantive rights and duties codified in the Public Records Act. At the same time, she argues that—unless Parisi is overruled—stare decisis obliges the court to issue an alternative writ and proceed to briefing and evidence under the Superintendence Rules for at least part of Gray’s request.

Summary of Chief Justice Kennedy’s Dissent

The dissent makes three principal moves:

It argues the Public Records Act (R.C. 149.43) is substantive law—creating rights, duties, and enforceable remedies (including damages, fees, and costs)—and therefore cannot be supplanted by Superintendence Rules adopted under Article IV, Section 5(A)(1) of the Ohio Constitution.
It criticizes Parisi for declaring Sup.R. 44–47 “the sole vehicle” for accessing court records, asserting that this exceeds the court’s constitutional rulemaking authority and conflicts with legislative supremacy over substantive law.
It applies both legal frameworks:
- If the Public Records Act controls, Gray’s mandamus action “shall be dismissed” for failing to file the H.B. 265 affirmation that he served his request and allowed three days to pass before suing. R.C. 149.43(C)(1)–(2).
- If Parisi remains binding, the court should not dismiss on respondent’s grounds (R.C. 149.43(B)(8), Crim.R. 6(E), or “requests for information”) without evidence. Several of Gray’s requested items (e.g., names of the presiding judge, attendance-taker, or court reporter) may not be protected by grand-jury secrecy and are plainly “records,” not mere “information.” Under precedents applying Sup.R. 44–47, the proper course is to grant an alternative writ and develop the record.

Ultimately, the Chief Justice would overrule Parisi and “repeal Sup.R. 44 through 47” to restore the Public Records Act’s reach over court records; but absent that, she would follow Parisi and allow the case to proceed for certain requests.

Analysis

Precedents and Authorities Discussed

Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978) and Ohio cases recognizing a common-law and constitutional tradition of access to judicial records. The dissent invokes Nixon, State ex rel. Scripps Howard Broadcasting Co. v. Cuyahoga Cty. Court of Common Pleas, Juv. Div., 73 Ohio St.3d 19 (1995), and State ex rel. Cincinnati Enquirer v. Winkler, 2004-Ohio-1581, to ground openness in common law and Ohio’s “open courts” clause (Art. I, § 16).
Public Records Act policy cases: State ex rel. Natl. Broadcasting Co., Inc. v. Cleveland, 38 Ohio St.3d 79 (1988); State ex rel. Dann v. Taft, 2006-Ohio-1825; Kish v. Akron, 2006-Ohio-1244. These decisions emphasize Ohio’s robust policy favoring transparency and the legislature’s codification of that policy.
Incarcerated requester limits: State ex rel. Russell v. Thornton, 2006-Ohio-5858, and State ex rel. Ware v. O’Malley, 2025-Ohio-1855, interpreting R.C. 149.43(B)(8) as imposing “heightened requirements” on inmates seeking records “concerning a criminal investigation or prosecution.”
Parisi (2019-Ohio-5157): The key precedent holding that Sup.R. 44–47, not the Public Records Act, “are the sole vehicle” to obtain judicial records. The dissent describes Parisi as having “caused immense confusion” and as a separation-of-powers overreach.
Constitutional rulemaking cases: State v. Singer, 50 Ohio St.2d 103 (1977), State v. Steffen, 1994-Ohio-111, Morris v. Morris, 2016-Ohio-5002, Toledo v. State, 2018-Ohio-2358, and State ex rel. Parker Bey v. Byrd, 2020-Ohio-2766 (separate opinions). These authorities frame the distinction between (a) the court’s “superintendence” authority under Art. IV, § 5(A)(1)—administrative, non-preemptive, not altering substantive rights—and (b) its “practice and procedure” rules under § 5(B), which can supersede conflicting statutes but may not “abridge, enlarge, or modify any substantive right.”
Substantive law definition: Pivonka v. Corcoran, 2020-Ohio-3476 (“A substantive law is one that creates duties, rights, and obligations.”). The dissent uses Pivonka to classify the Public Records Act as substantive because it creates rights of access and imposes duties on custodians, enforceable with mandamus, statutory damages, fees, and costs.

Legal Frameworks in Tension

The Public Records Act (R.C. 149.43) and H.B. 265’s New Filing Requirements

Scope: The Act codifies Ohioans’ right to access public records; it expressly includes “any court or judicial agency” within a “state agency,” R.C. 149.011(B). Records are public unless exempted by statute.
Inmate limitation (R.C. 149.43(B)(8)): A public office, including a court, need not furnish records “concerning a criminal investigation or prosecution” to an incarcerated person unless the sentencing judge (or successor) finds the information necessary to support a justiciable claim.
H.B. 265 (effective Apr. 9, 2025):
- R.C. 149.43(C)(1) requires serving the records request on the custodian and allowing three days to pass before filing mandamus.
- R.C. 149.43(C)(2) requires a written affirmation of that pre-suit service and waiting period; failure to file the affirmation means “the suit shall be dismissed.”
Remedies: Mandamus remains the enforcement vehicle, with potential statutory damages, attorney fees, and costs—remedies not available under Sup.R. 44–47.

The Rules of Superintendence (Sup.R. 44–47)

Presumption of access: Sup.R. 45(A) presumes public access to “case documents.”
Definition exclusions: Sup.R. 44(C)(2)(a) excludes from “case documents” any “document or information in a document exempt from disclosure under state, federal, or the common law.” Thus, if a law like Crim.R. 6(E) confers secrecy, those materials fall outside “case documents.”
Discretionary restriction: Sup.R. 45(E) permits restriction of access following a balancing of higher interests (public policy, statutory/common-law exemptions, risk of harm, privacy, proprietary interests, public safety, or fairness of the adjudicatory process).
No statutory remedies: Unlike the Act, the Superintendence Rules do not provide damages, fees, or costs, and they lack H.B. 265’s pre-suit affirmation requirement or an inmate-specific restriction like R.C. 149.43(B)(8).

The Dissent’s Conflict Analysis

The dissent emphasizes several conflicts:

Substantive rights and remedies: The Act’s damages, fees, and costs provisions are substantive rights that Sup.R. 44–47 omit entirely.
Requester class limits: The Act’s inmate-specific restriction (R.C. 149.43(B)(8)) has no analogue in Sup.R. 44–47.
Filing prerequisites: H.B. 265’s affirmation/waiting requirements are absent from Sup.R. 44–47.

Constitutionally, the dissent argues, Superintendence Rules cannot displace substantive statutes. Article IV, Section 5(B) allows procedural rules to supersede statutes (subject to legislative oversight and the prohibition on altering substantive rights), but Section 5(A)(1) does not empower supersession at all. From this, the dissent concludes that Parisi misassigned primacy to the Superintendence Rules and should be overruled; the Act should control court records.

Stare Decisis and the Two-Track Outcome Proposed by the Dissent

Despite her constitutional critique, the Chief Justice accepts that Parisi remains binding unless overruled. On that premise, she reasons that the court should have issued an alternative writ (not dismissal) because at least some of Gray’s requests plausibly seek non-exempt records under Sup.R. 44–47. She notes that requests for the identities of the presiding judge, the bailiff taking attendance, and the court reporter may fall outside Crim.R. 6(E)’s secrecy for “matters occurring before the grand jury,” or be subject to redaction rather than wholesale denial. Conversely, if the Public Records Act governs, she would dismiss the mandamus for failure to include the H.B. 265 affirmation.

Application to the Case: The Three Dismissal Grounds and the Dissent’s Response

Respondent Toms moved to dismiss on (1) R.C. 149.43(B)(8) (lack of sentencing-judge permission), (2) Crim.R. 6(E) grand-jury secrecy, and (3) the characterization that Gray sought “information,” not “records.” The dissent explains why these cannot support dismissal under Sup.R. 44–47 without evidence:

R.C. 149.43(B)(8) is a Public Records Act limitation; under Parisi, Superintendence Rules govern “court records,” and they do not impose a sentencing-judge-permission prerequisite.
Crim.R. 6(E) secrecy is not categorical as to all requested items. Administrative or non-deliberative materials (e.g., the name of a presiding judge or court reporter) may not reveal “matters occurring before the grand jury” and could be disclosed or redacted accordingly.
“Information” vs. “records”: At least some requests are for identifiable records, not abstract information.

Because the majority did not provide reasoning, the dismissal does not clarify whether the court relied on any of these grounds—or on H.B. 265’s affirmation requirement. Notably, however, two concurring justices (Brunner and Deters) would have sua sponte dismissed for lack of the H.B. 265 affirmation, signaling openness to applying the new statutory filing prerequisite even in court-records cases.

Grand-Jury Secrecy and the Scope of Disclosure

Crim.R. 6(E) protects grand-jury deliberations and “matters occurring before the grand jury” but does not invariably shield all court-generated or court-maintained materials tangential to grand-jury functioning. The dissent highlights an important distinction: requests may target non-deliberative, administrative, or logistical records (e.g., the identity of court personnel) that do not expose the substance of grand-jury proceedings. Such records might be disclosable outright or with redactions, consistent with Sup.R. 44(C)(2)(a) and 45(E)’s balancing framework or—as the dissent would prefer—consistent with the Public Records Act’s statutory exemptions and obligations.

Impact

What This Decision Does—and Does Not—Decide

No new majority rule: The court dismissed without opinion; no binding rationale was announced.
Parisi remains on the books: The court did not overrule Parisi, so Sup.R. 44–47 continue (doctrinally) to serve as the framework many courts use for “court records,” despite the dissent’s constitutional objections.
Signals about H.B. 265: Two concurring votes to sua sponte dismiss for lack of the statutory affirmation demonstrate that some justices would enforce H.B. 265’s pre-suit filing requirement even in judicial-records mandamus actions. Practitioners should take notice.

Practical Consequences for Future Cases

Filing strategy: Relators seeking court records should strongly consider complying with H.B. 265’s affirmation and three-day wait, even if proceeding under Sup.R. 44–47, given the risk of dismissal and the split signals from the justices.
Incarcerated requesters: The ongoing tension between R.C. 149.43(B)(8) and Sup.R. 44–47 remains unresolved. Until clarified, respondents may invoke (B)(8), while relators will cite Parisi to argue that the Superintendence Rules govern and contain no inmate-specific limitation.
Grand jury–adjacent records: Requesters should narrowly tailor requests to administrative or metadata-like items that do not reveal “matters occurring before the grand jury,” thus avoiding categorical denials under Crim.R. 6(E) and increasing the likelihood of partial disclosure or redaction.
Remedies landscape: If eventually the court adopts the dissent’s view, court records would again be subject to the Public Records Act’s damages, fees, and costs regime—materially altering incentives and litigation dynamics for courts and requesters alike.

Doctrinal Trajectory

The dissent is a comprehensive invitation to reexamine Parisi on separation-of-powers grounds and to re-anchor court-records access in the Public Records Act. Given the concurring votes focused on H.B. 265’s affirmation requirement, a future merits decision could explicitly address whether those statutory prerequisites apply to judicial records and, more broadly, whether Parisi should be narrowed or overruled. This case thus serves as a bellwether rather than a final word.

Complex Concepts Simplified

Mandamus: A special writ compelling a public official or office to perform a clear legal duty. In public-records matters, mandamus is the primary enforcement tool.
Alternative writ: An order from an appellate court directing the respondent to show cause or otherwise proceed, signaling that the relator has stated a potentially valid claim warranting briefing and evidence.
Sua sponte dismissal: A dismissal by the court on its own initiative, without a party’s motion, often for jurisdictional or clear procedural reasons (here, some justices would have dismissed for failure to attach the H.B. 265 affirmation).
Rules of Superintendence vs. Rules of Practice and Procedure:
- Superintendence (Art. IV, § 5(A)(1)): Administrative oversight rules to promote efficient, orderly court operations; they do not supersede statutes and are not designed to alter substantive rights.
- Practice and Procedure (Art. IV, § 5(B)): Court-prescribed procedural rules that can supersede conflicting statutes, provided they do not “abridge, enlarge, or modify” substantive rights and are subject to legislative oversight.
Substantive vs. Procedural law: Substantive law creates rights and duties (e.g., the Public Records Act’s right of access, custodian obligations, damages/fees). Procedural law prescribes the methods of enforcing rights.
R.C. 149.43(B)(8): Limits inmate access to records “concerning a criminal investigation or prosecution” unless a sentencing judge finds the information necessary to support an apparent justiciable claim.
Crim.R. 6(E): Protects the secrecy of grand-jury deliberations and “matters occurring before the grand jury,” but does not necessarily shield all administrative or non-substantive records maintained by a court related to grand jury administration.

Conclusion

State ex rel. Gray v. Toms was dismissed without a majority opinion, setting no new binding rule. Yet the decision is significant for what it reveals. Chief Justice Kennedy’s dissent presents a full-throated argument that the Public Records Act is substantive law that cannot be displaced by Superintendence Rules; it calls for overruling Parisi and applying H.B. 265’s affirmation requirement—and, more broadly, the Act’s rights and remedies—to court records. At the same time, recognizing stare decisis, the dissent would have permitted the case to proceed under Sup.R. 44–47 for at least some non-secret, non-deliberative records.

Practitioners should treat this case as a cautionary signal: compliance with H.B. 265’s pre-suit affirmation and three-day waiting period is a prudent hedge even in court-records cases; careful tailoring of requests to avoid Crim.R. 6(E) secrecy increases the odds of disclosure; and the doctrinal status of Parisi remains contested at the highest levels. The enduring tension between statutory transparency mandates and judicial-adopted access rules is now squarely teed up for a future merits resolution. Until then, Parisi technically governs, but the court’s internal division suggests that the controlling framework for court records—and the application of new statutory filing prerequisites—may soon be revisited.