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The Merchant Law Firm, P.C. v. Emerson

Supreme Court of Georgia

May 30, 2017

THE MERCHANT LAW FIRM, P.C.
v.
EMERSON, JUDGE et al.

          PETERSON, JUSTICE.

         Judge David T. Emerson, a superior court judge in Douglas County, issued an order denying a request by the Merchant Law Firm, P.C. (the "Firm") to obtain copies of audio recordings that a court reporter used in preparing trial transcripts. The Firm then filed a complaint seeking mandamus, injunctive relief, and a declaratory judgment in an attempt to copy the recordings. The trial court dismissed the complaint, and the Firm appeals. The Firm argues that it was entitled to the relief sought because (1) the right of access to court records, as provided by Uniform Superior Court Rules 21 through 21.6 ("Rule 21"), includes the right to make copies of the recordings, (2) the Firm lacked an adequate legal remedy to vindicate that right, and (3) public officials violated their public duties by refusing to allow the Firm to make copies. But the procedures available under Rule 21, including an appeal from Judge Emerson's order, constitute an adequate remedy at law. Accordingly, we affirm the dismissal of the Firm's mandamus and injunctive claims, which require a showing that no such adequate remedy exists. We also affirm dismissal of the Firm's claim for declaratory judgment, because such a claim cannot be used as a collateral attack on Judge Emerson's order.

         The record shows that in the course of representing criminal defendants in two cases, an attorney at the Firm participated in three hearings before Judge Emerson in June and October 2015. Each of these proceedings was open to the public and audio-recorded by court reporter Melissa Cantrell, who subsequently transcribed the hearings. On October 8, 2015, the Firm sent an email to Cantrell requesting copies of the audio recordings of the three hearings. On October 9, Cantrell responded, stating that she had consulted with Judge Emerson, who advised that the Firm should file a motion in order to make a formal request for the recordings. Later that day, the Firm responded by email to Cantrell (and copied to Judge Emerson) that "no such motion is needed, and any instruction that these tapes be withheld until a motion is filed (and presumably ruled upon) is contrary to the Court's rules and the long-established black letter law in Georgia regarding the public's access to court records[, ]" which the Firm argued included the requested recordings. On October 11, 2015, Judge Emerson issued an order sua sponte in each of the two underlying criminal cases; the order allowed the Firm to listen to the recordings but expressly did not allow the Firm to make copies of the recordings or require Cantrell to do so.

         Following further efforts to persuade Judge Emerson to reconsider his ruling, and to persuade Cantrell to reconsider her own refusal to provide copies of the recordings, the Firm filed the complaint in this case against Judge Emerson, Cantrell, and Cantrell's court reporting firm, CA-BO Enterprises, Ltd. (collectively, "Appellees"). The complaint did not specify in what capacity Appellees were sued. The complaint sought a writ of mandamus, alleging that the Firm, acting in its capacity as a member of the public, has a clear legal right to "inspect and copy" the audio recordings of the hearings, and that the Firm had exhausted all other avenues for relief and had no other adequate legal remedy to assert this right. The complaint also sought a declaratory judgment and an injunction compelling Appellees, as public officials, to provide copies of the recordings.[1] Appellees moved to dismiss the complaint, arguing (among other things) that the complaint's requested relief was unavailable because appealing Judge Emerson's October 11 order was an adequate legal remedy and the order could not be collaterally attacked by declaratory judgment.

         The trial court dismissed the complaint, concluding that mandamus relief was unavailable because the Firm was offered the adequate legal remedy of listening to the audio recordings, and the Firm had not established a clear legal right to make copies of the recordings. The trial court also dismissed the claims for injunctive and declaratory relief, finding that the Firm faced no risk of future injury because the requested recordings would be preserved.

         1. Mandamus is unavailable because Rule 21 provides an adequate legal remedy.

         The Firm argues that the trial court erred in dismissing its mandamus claim, because the Firm's ability to listen to the recordings was not an adequate legal remedy, and it had a clear legal right to copies of the recordings. We agree that merely listening to the tapes is not an adequate legal remedy when the Firm has requested copies. Nevertheless, we conclude that the trial court was right to dismiss the mandamus claim because the Firm had an adequate legal remedy; unlike the trial court, we conclude that the adequate remedy was a request under Rule 21 and an appeal from Judge Emerson's October 11 order denying that request. In arriving at this conclusion, we conclude that Rule 21 and its procedures apply to records in criminal cases (not merely civil), and a member of the public who has requested and been denied access to records need not take any affirmative action to become a party to the case before appealing the court's order denying that request.

         "Mandamus is an extraordinary remedy to compel a public officer to perform a required duty when there is no other adequate legal remedy." R.A.F. v. Robinson, 286 Ga. 644, 646 (1) (690 S.E.2d 372) (2010); see also OCGA § 9-6-20. The Firm bears the burden to show that it lacks an adequate legal remedy so that an action for mandamus will lie. See Thompson v. Paulk, 265 Ga. 479, 479-480 (457 S.E.2d 665) (1995).

         The Firm claims that it has a clear legal right to copies of the audio recordings at issue under Rule 21. That right, if it exists, may be vindicated by requesting the court records under Rule 21. To see why, we must review the scope of Rule 21 in order to understand how a member of the public, the alleged status in which the Firm seeks the audio recordings, may request court records.

         (a) Rule 21 provides non-party members of the public with the right of access to court records.

         Rule 21 governs the right of access to court records and the process for limiting that right with respect to specific records. "All court records are public and are to be available for public inspection unless public access is limited by law or by the procedure set forth below." USCR 21. Rule 21.1 states that "[u]pon motion by any party to any civil or criminal action, or upon the court's own motion, after hearing, the court may limit access to court files respecting that action." An order limiting access may be amended, as Rule 21.5 provides:

Upon notice to all parties of record and after hearing, an order limiting access may be reviewed and amended by the court entering such order or by the Supreme Court at any time on its own motion or upon the motion of any person for good cause.

         The text of the cited rules shows that Rule 21 provides a mechanism for non-parties to access court records. Rule 21 references public inspection and public access, while Rule 21.5 states that "any person" may move to amend an order limiting access. This language stands in contrast to Rule 21.1, which provides only parties to a case (or the court sua sponte) with the ability to seek a limitation on the public's ability to access certain records. As a whole, the provisions of Rule 21 primarily govern the public's right of access, and these procedures establish that non-party members of the public have a right of access to court records. See In re Gwinnett Cty. Grand Jury, 284 Ga. 510, 511 (668 S.E.2d 682) (2008) ("The rule embodies the right of access to court records which the public and press in Georgia have traditionally enjoyed, and presumes the public will have access to all court records."). Indeed, we have recognized that non-party members of the public may both request access to court records and appeal an order limiting the requested access. See USCR 21.4 ("An order limiting access may be reviewed by interlocutory application to the Supreme Court")[2]; see also In re Atlanta Journal-Constitution, 271 Ga. 436, 437 (519 S.E.2d 909) (1999) (noting that this Court granted newspaper's application seeking to appeal denial of Rule 21 motion for access to court records in case in which it was not a party); Atlanta Journal v. Long, 258 Ga. 410, 410-411 (369 S.E.2d 755) (1988) (after trial court granted a party's request to seal the records in the case, non-parties moved for access to the court records under Rule 21 and successfully appealed denial of access).[3]

         (b) Rule 21 allows non-parties to request court records ...


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