My Motion Opposing Pseudonymity and Asking to Unseal Affidavit in Cincinnati Police Officer Case
My excellent pro bono local counsel Jeffrey M. Nye and I have put together an updated motion in this case, which is now captioned M.R., a Cincinnati Police Officer v. Niesen. (Our original motion was filed when, because of an apparent error on the Clerk’s Office part, the entire case seemed to have been sealed.) I thought I’d pass the heart of it along below:
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This brief is a supplement to Professor Volokh’s Motion to Unseal. Public access to most of the case documents was restored on August 10. Only two public-access issues now remain: the plaintiff has been permitted to file an affidavit under seal, and has been permitted to proceed under a pseudonym. Because public access to the case file (including the order permitting the affidavit to be sealed and allowing the plaintiff to proceed under a pseudonym) was restricted when Professor Volokh filed his motion on August 5, that motion was not able to address those two issues specifically. This brief does….
[1.] The affidavit should be unsealed.
The plaintiff is a public official who is not only trying to silence a critic—he has gotten a prior restraint against the further publication of his name, and he is seeking a broader prior restraint as well. (“The United States Supreme Court has repeatedly recognized that police officers are public officials,” Soke v. The Plain Dealer (1994), 69 Ohio St.3d 395, 397, and the public has an interest in “anything which might touch on a[ public] official’s fitness for office.” Id., quoting Garrison v. Louisiana (1964), 379 U.S. 64, 77. This extends to an interest in monitoring a police officer’s conduct at trial, including the officer’s sworn statements. Id.)
But even if Ohio citizens’ free speech about public officials can be restricted this way, the decision should not be made based on secret evidence. “The open courtroom is a bedrock principle of the American judicial system,” and the Ohio Bill of Rights includes “a constitutional requirement that ‘all courts shall be open ….'” Woyt v. Woyt, 8th Dist. Cuyahoga no. 107312, 2019-Ohio-3758, ¶ 59. “It should only be in the rarest of circumstances that a court seals a case from public scrutiny. When a litigant brings his or her grievance before a court, that person must recognize that our system generally demands the record of its resolution be available for review.” Id. at ¶ 67. See Sup.R. 45(A) (“Court records are presumed open to public access.”); In re T.R. (1990), 52 Ohio St.3d 6, 16 n.9 (observing that “adult civil actions, are presumptively open to the public”); State ex rel. The Repository v. Unger, 28 Ohio St.3d 418, 421 (1986) (while most public-access cases discuss the right to access “trials,” “we hold that the right to a public trial pursuant to the United States and Ohio Constitutions extends to pretrial proceedings.”).
The reason that public access is so important is that the right of access gives the public “confidence that standards of fairness are being observed” and “that
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