As we approach the end of an election year that includes multiple Ohio Supreme Court races, we know that the Justices of the Ohio Supreme Court and their law clerks are hard at work drafting opinions in all cases that have already been orally argued. This diligence is so that the court’s opinions in those cases can be voted on and released before the election may cause changes to the bench in January. We can expect several eventful days between now and the end of the year, when a flurry of consequential new opinions in pending cases surely will be issued.

Tuesday, October 11, was one of those eventful days.

In one opinion involving the sealed dissolution proceedings of a well-known Ohio political figure (Josh Mandel), two Justices — both of whom are on the ballot this fall — explained why they believe the Ohio Supreme Court’s Rules of Superintendence regarding public access to court records are invalid. In another opinion, the Justices quite publicly revealed the rancorous rift that has divided the court since the series of controversial legislative redistricting opinions were issued earlier this year. And on the same day it issued these notable opinions, the court accepted discretionary review of a hot-button issue of keen interest to the transgender community — an issue that will be for the next bench of Justices to resolve.

Another notable opinion favoring public access to sealed information

Earlier this year, we blogged about an opinion involving the Cincinnati Enquirer in which the Supreme Court granted extraordinary writs of mandamus and prohibition to unseal a police officer’s affidavit and preclude a party from proceeding under a pseudonym. Today, in another case promoting public access to judicial proceedings, State ex rel. Cincinnati Enquirer v. Forsthoefel, the Justices granted writs to the same newspaper in a different context, holding that an Ashland County domestic relations judge had improperly sealed documents pertaining to the marriage dissolution of Josh and Ilana Mandel. The Supreme Court held in a per curiam opinion that the judge’s sealing order was unsupported by evidence, and was overbroad in its sealing of innocuous information such as the case-designation sheet from the dissolution proceeding.

To us at Ohio Appellate Insights, perhaps the most notable aspect of this opinion is the concurring opinion by Justice Kennedy — joined by Justice DeWine. Those two Justices agree that the Supreme Court lacked authority to issue substantive rules regarding the accessibility of court records through the Rules of Superintendence, because, they opine, those rules improperly “replace the Public Records Act with respect to certain court records and thereby alter the rules by which a court will adjudicate a public-record requester’s rights.” Even though the court’s Rules of Superintendence by their terms dictate the procedures applicable for public access to court records, two Justices do not believe those Rules are valid in the first place!

Unusually caustic public sniping between Ohio Supreme Court Justices in an elections case

Another per curiam opinion issued on Oct. 11 laid bare significant tension and disagreement among the current Justices arising from the redistricting cases decided earlier this year. In State ex rel. Conrath v. LaRose, Secy. of State, et al., a 4-3 majority of the Supreme Court held that Ohio’s Republican Secretary of State, Frank LaRose, wrongly rejected the Democratic Party’s nomination of Tanya Conrath to be the replacement Democratic Party candidate for Ohio House District 94 after the prior candidate, Rhyan Goodman, had won the primary but then withdrew prior to certification of his candidacy. To us, the merits of this case and the applicable statutory provisions are less interesting than the unusually strong language employed by the majority and the three dissenting Justices (Kennedy, Fischer and DeWine).

Here is a sample of the Justices’ unusually caustic language:

From paragraph 17 of the per curiam opinion:

Disagreeing with this conclusion, one of the dissents stridently accuses this majority (and not for the first time) of judicial activism, even going so far as to state that the majority has “engage[d] in a now all-too-familiar pattern of replacing what the law actually says with what the majority needs it to say to achieve the outcome it desires” and musing, “At this point, one has to wonder whether election cases are governed by the Revised Code or simply the whims of the majority.” Dissenting opinion of Kennedy, J., ¶ 37.

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In short, it is greatly ironic that any dissent makes accusations of judicial activism while urging departure from our precedent in an effort to obtain an outcome that thwarts the plain purpose of R.C. 3513.31(B).

From paragraphs 44-50  of Justice Fischer’s dissenting opinion:

 

In addition to my concerns about this court’s failure to apply the Ohio Constitution and the Revised Code as written, I also have concerns about the tone of the so-called per curiam opinion, which I find to be insulting and inflammatory, beyond merely setting forth a differing view of the law (a view that I respectfully consider to be incorrect).

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Finally, the so-called per curiam opinion, signed on by four of my colleagues, fails to follow or meet at least seven of the aspirations of the Judicial Creed of professionalism.

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If members of the public reading this opinion had any knowledge of what has occurred regarding this decision in the last hours before the decision’s release, they would understand how much the wording and timing of the so-called per curiam opinion fail to meet those aspirations.

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I also note the lack of professionalism and professional courtesy of the authors of the so-called per curiam opinion today.

Clearly, the Ohio Supreme Court is currently divided and frustrated. That division and frustration — also plainly apparent in the court’s split redistricting and bail decisions — rings loud and clear.  It remains to be seen whether these divisions can be meaningfully repaired after the coming election, such that the Justices on Ohio’s highest court can agree to disagree about the outcome of specific cases without casting aspersions on one another in the text of their published opinions.

Accepting review of an issue of interest to the transgender community by a 4-3 vote

The three Justices who dissented in the rancorous opinion just described also dissented — without opinion — from the court’s Oct. 11 decision to accept discretionary review of In re Application for Correction of Birth Record of Adelaide. The following introductory paragraph from the appellant’s successful Memorandum in Support of Jurisdiction provides the gist of this appeal, which is of interest to members of the transgender community who are seeking to correct the sex identifiers on their birth certificates, but who are encountering obstacles in probate court (and a split in Ohio’s appellate districts):

This appeal arises out of a Second District decision establishing a rule of law constraining the jurisdiction of probate courts and effectively prohibiting them from processing corrections to the “sex” marker of transgender citizens’ birth certificates under R.C. 3705.15. This narrow interpretation of the statute, which creates a significant split of authority as to the processing of birth certificate corrections in Ohio, has no basis in the statute’s plain text, has already been rejected as unconstitutional by a federal court, and is contrary to the guidance of the Ohio Department of Health (ODH), this Court’s standard probate Form 30.0, and the standard forms and procedures of more than a dozen probate courts across the State.

Notably, Adelaide’s request to correct the birth certificate, as well as the Memorandum in Support of Jurisdiction, were unopposed at the probate court and the Supreme Court. With an election just around the corner, this interesting case will be primed for review by the next panel of Ohio Supreme Court justices in 2023 or beyond.