Tuesday, Nov. 9, 2021
M.R., a Cincinnati Police Officer pleading under a pseudonym v. Julie Niesen and Terhas White and James Noe and Alissa Gilley, Case no. 2020-1131
First District Court of Appeals (Hamilton County)
State, ex rel. The Cincinnati Enquirer, a Division of Gannett GP Media, Inc. v. Hon. Megan E. Shanahan, Case no. 2021-0047
First District Court of Appeals (Hamilton County)
State of Ohio, ex rel. Eugene Volokh v. Hon. Megan E. Shanahan, Case no. 2021-0169
First District Court of Appeals (Hamilton County)
State ex rel. The Cincinnati Enquirer v. Hon. Megan Shanahan, Case no. 2021-0136
First District Court of Appeals (Hamilton County)
State of Ohio v. Miranda C. Smith, Case no. 2021-0051
Fourth District Court of Appeals (Highland County)
Disciplinary Counsel v. Hon. Thomas Mark O’Diam, Case no. 2021-0971
Can Temporary Order Limiting Social-Media Posting About Police Officer Be Appealed?
M.R., a Cincinnati police officer v. Julie Niesen et al., Case No. 2020-1131
First District Court of Appeals (Hamilton County)
ISSUE: Can a temporary restraining order that places a prior restraint on free speech be appealed to an Ohio appellate court?
OVERVIEW:
In the wake of the 2020 murder of George Floyd by a Minnesota police officer, public protests ensued worldwide, including in Cincinnati. Four cases before the Ohio Supreme Court address a lawsuit filed by a Cincinnati police officer against protestors. The officer’s lawsuit identifies him only by the initials “M.R.” and requests that all the officer’s personal information be concealed during the litigation. The trial court’s grant of the identity protection to the officer has drawn national interest from the news media and First Amendment rights advocates.
The Supreme Court will hear one case regarding the free-speech rights of those who posted photos and comments about the officer, which the officer claims defame him. The other cases concern objections from the media and the public to the trial court’s sealing the officer’s court records.
BACKGROUND:
In June 2020, M.R., a Cincinnati police officer, was among officers assigned to provide crowd control and security at an open forum presented by the Cincinnati City Council Budget and Finance Committee. The forum was offered in response to public protests regarding race and policing.
Julie Niesen and Terhas White were among several citizens attending the meeting. At the meeting, the officer made the “OK” hand gesture, touching his thumb and index finger. He claims the gesture was in response to a question about the status of another officer. Niesen, White, and others interpreted the symbol as gesture used by white supremacists. The two women and others posted comments on social media indicating M.R. was a white supremacist, a racist, and was using the gesture to intimidate members of the forum crowd.
The day after the council meeting, White filed a formal complaint against the officer with the Citizen Complaint Authority, a city agency that receives and investigates complaints against Cincinnati police officers. On social media, James Noe threatened to publish personal identifying information about the officer.
Officer Sues Protestors
The officer filed a lawsuit in Hamilton County Common Pleas Court against Niesen, White, and several other named and unnamed defendants, claiming, among other things, defamation and invasion of privacy. He requested permission from the court to proceed anonymously under the pseudonym “M.R.” He indicated he was an officer assigned to the department’s Violent Crimes Squad and was a member of the Gang Unit and SWAT team. He maintained that the current anti-police climate and the threats made to him on social media made him fear for the safety of himself and his family.
The trial court granted him the right to proceed under the initials M.R. and to seal an affidavit he submitted with the reasons supporting his need to remain anonymous. The officer also requested a temporary restraining order (TRO) and a preliminary injunction preventing Niesen, White, Noe, and others from publishing identifying information about him, including his name and address. He also asked that the court order the removal of social media posts portraying him as a white supremacist.
At a July 24, 2020, hearing, the trial court denied M.R.’s request to remove the social media postings but approved a TRO prohibiting the defendants from publicizing M.R.’s “personal identifying information.” While the order didn’t indicate what constituted “personal identifying information,” Niesen and White determined -- by the fact that the officer’s identity was concealed – that they couldn’t even identify the public official who sued them.
The trial judge indicated the TRO would remain in effect for six days until a hearing on the preliminary injunction could occur. The hearing was ultimately delayed until Sept. 1, 2020, with the TRO remaining in effect. Prior to the hearing, Niesen and White appealed the TRO to the First District Court of Appeals, arguing it was an unconstitutional prior restraint on their free-speech rights.
The First District ruled that a TRO isn’t a final appealable order and dismissed the case. The appellate court ruled it was without jurisdiction to consider the matter unless the order was an injunction, which the trial court had not yet imposed.
Of the parties sued by M.R., only Niesen and White appealed the issuance of the TRO to the Supreme Court, which agreed to hear the case.
Similarly, several news media organization and supporters of First Amendment rights filed separate lawsuits arguing their First Amendment rights were violated when the trial judge sealed M.R.’s records, preventing them from fully observing and reporting on the officer’s lawsuit against the protestors. The Court also agreed to hear oral arguments in those cases.
Any Order Restricting Free Speech Can Be Appealed, Protestors Argue
The women argue the First District was “fixated” on the title of the order rather than the substance. The First District’s decision cited case law indicating that TROs are not final appealable orders, and it had no right to hear the case. The women counter that both U.S. Supreme Court and Ohio Supreme Court rulings make it clear that any trial court order that restrains speech – be it a TRO or an injunction – can be immediately appealed.
The protestors cite the Ohio Supreme Court’s 2020 Bey v. Rasawher decision, which stated that prior restraints on “First Amendment expression are presumptively unconstitutional.” The Court in Bey also noted that TROs and permanent injunctions that forbid speech are “classic examples of prior restraints,” the protestors explain. The women argue that the U.S. Supreme Court’s 1977 National Socialist Party of America v. Village of Skokie ruling found that any decision by a trial court to restrain speech was subject to immediate appellate review.
Because the women were restricted from identifying the officer, they maintain the trial court is preventing them from publishing accurate information about a public official. They also stated in trial court they didn’t know the officer’s address and never indicated an intent to post it online. The protestors also note the trial court sided with them in ruling the comments already posted on social media were protected free speech, and they assert that U.S. courts have determined that terms like “racist” and “white supremacists” are opinions and not defamatory.
The trial court ruling didn’t adequately explain why M.R. deserved the protections granted him, nor indicate how the women would engage in speech that isn’t protected by the First Amendment, the protestors maintain. An immediate review by an appeals court will allow for an examination of the trial court’s order and whether it is permissible, they assert.
Protective Order Provided Necessary Limited Protection, Officer Maintains
A TRO that was set to last six days was a proper, limited-scope protection provided by the trial court until a hearing to consider the preliminary injunction was conducted, M.R. argues. The First District was correct in ruling that TROs aren’t appealable, the officer argues, noting that all the cases the women cite that overturned judicial orders restraining speech involved injunctions and not TROs. The officer explains the TRO maintained the status quo and prohibited the women from publishing his private information for six days.
M.R. argues the women seek the right to publish unprotected false statements about him and engage in a practice known as “doxing,” by publishing a person’s personal information such as home address. The officer argues that even if the women were restrained from publicly speaking about him, the prior restraint was a valid order because his safety outweighs their rights to comment about him. M.R. maintains that falsely identifying him as a racist during a time of rising anti-police sentiment, coupled with the dangerous nature of his work on the police force, makes publication of his name and address a serious risk of harm. Courts are permitted to craft a temporary, limited restraint under these circumstances, he concludes.
Friend-of-the Court Brief Submitted
An amicus curiae brief supporting the Niesen and White’s position was submitted jointly by the Ohio Association of Broadcasters, Ohio Coalition for Open Government, and Ohio News Media Association. Another brief supporting the women was submitted jointly by nine law professors, Euclid Media Group, First Amendment Lawyers Association, Institute of Free Speech, National Writers Union, NewsGuild-CWA, and the Society for Professional Journalists.
Argument Time Divided
The Court permitted Niesen and White to share their allotted oral argument time with Eugene Volokh, one of the nine law professors who joined an amicus brief supporting the women’s position.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Julie Niesen: Erik Larsen, 513.457.5545
Representing Terhas White: Jennifer Kinsley, 513.708.2595
Representing M.R., a Cincinnati police officer: Robert Thumann, 513.381.5050
Can Trial Court Block Media Access to Records in Police Officer’s Lawsuit against Protestors?
State of Ohio ex rel. the Cincinnati Enquirer v. the Honorable Megan E. Shanahan, Case No. 2021-0047
State of Ohio ex rel. Eugene Volokh v. the Honorable Megan E. Shanahan, Case Nos. 2021-0169 and 2021-0136
First District Court of Appeals (Hamilton County)
ISSUES:
- Can a police officer file a defamation lawsuit against private citizens using a pseudonym to conceal his identity?
- Did a trial court violate the Rules of Superintendence for the Courts of Ohio and the First Amendment to the U.S. Constitution by partially sealing an affidavit filed anonymously by a police officer?
- Must a party seeking access to court records first request that a trial court reconsider its decision before seeking a writ of mandamus?
OVERVIEW:
Based on the facts of the M.R. v Niesen case above, the Cincinnati Enquirer and Law Professor Eugene Volokh from the University of California, Los Angeles filed separate motions to compel Hamilton County Common Pleas Court Judge Megan Shanahan to lift her orders allowing a Cincinnati police officer to pursue his lawsuit against protestors by identifying him only by the initials “M.R.” The Enquirer and Volokh also objected to the court’s decision to seal the officer’s affidavit submitted to explain his reasoning for seeking anonymity.
BACKGROUND:
The Enquirer and Volokh learned about the trial court’s authorization of the officer’s request and filed motions with the trial court to unseal the records. The trial court denied the requests that M.R. be required to pursue the case using his real name. However, the judge modified the original sealing order and directed the officer to submit a redacted version of the affidavit that provided some of the reasoning for seeking anonymity.
Before the trial court modified the sealing order, the Enquirer and Volokh each requested writs from the First District Court of Appeals compelling the trial court to release the unredacted version of the affidavit and to prevent the court from allowing the officer to move forward with the case under the pseudonym. The First District determined the cases were moot since the trial court modified the order. In opposition to the writs, the trial court noted that during the defamation lawsuit proceedings, the Enquirer was able to identify the officer and published articles that named the officer.
The Enquirer and Volokh filed three separate appeals of the First District’s decisions. The Enquirer and Volokh each appealed the writs denied by the First District. Volokh filed a second appeal, arguing the First District didn’t follow the proper process to conclude the issue was moot. He urged the Supreme Court to consolidate his second appeal with the first. The Supreme Court is required to hear such appeals and consolidated the cases for oral arguments.
Court Didn’t Follow Rules When Sealing, News Media Argues
In separate briefs, Volokh, a frequent author of articles and columns on First Amendment issues, and the Enquirer maintain the trial judge didn’t follow the requirement of Ohio Rules of Superintendence that allows for a record to be sealed. Under Sup.R. 45(E), a court must find by clear and convincing evidence that the “presumption of allowing public access is outweighed by a higher interest,” the media explain.
The media note the U.S. Supreme Court has ruled the public has a First Amendment right to obtain access to court records, and only in limited circumstances can records be sealed. The media indicate the court rules don’t have an exact standard that addresses when a party can proceed under a pseudonym, but at least one Ohio appellate court has adopted a standard developed by federal courts. One of the considerations is whether “threats of retaliation have been made against the plaintiff,” the media note.
The judge made the determination to seal the record and allow the officer to pursue the case anonymously only after reading the officer’s affidavit and discussing the matter with his attorney. The media argue that M.R. didn’t point to any evidence that he had been threatened with retaliation, and the judge pointed to no such evidence. The media contend that the judge offered “little more than speculation” about the general anti-police climate at the time the lawsuit was filed, which doesn’t meet the clear and convincing evidence standard.
The judge also opposes the granting of a writ to compel disclosure because the Enquirer didn’t first follow the rule requiring it to raise an objection in the trial court before seeking the writ. The Enquirer counters that the rule, Sup.R. 45(F)(2), allows an individual to ask for a record to be unsealed when public access “is no longer” outweighed by a higher interest. The newspaper argues that process is only triggered when a trial court validly seals a record. The Enquirer argues the trial court never proved a higher interest outweighed public access and it had a right to seek an order from the First District to compel disclosure.
Volokh challenges the decision by the First District to consider the unsealing moot because the judge revised the order and partially released a document. He maintains that when full access hasn’t been granted, the issue isn’t moot, and the First District should act on his request that the record by fully unsealed.
Court Complied with Rules, Judge Maintains
Judge Shanahan asserts that while the media may not like the outcome of the decision, the trial court followed the rules when it sealed the records and allowed the officer to pursue the case under the initials M.R. The judge points to the statements made on the record when issuing the sealing orders, noting the officer’s duties involve the apprehension of very violent and dangerous criminals, and expose the officer to physical harm. The order indicated in the “current climate, with the uptick of violent acts being perpetrated against law enforcement,” there is a real and serious threat of physical harm to the officer. The judge noted one of the defendants did threaten in writing to publish the personal identifying information of the officer.
The judge also maintains the media has suffered no harm to any constitutional rights because the order doesn’t block access to any aspect of the court proceedings. The judge notes the news media already know the identity of the officer and the only practical effect of the sealing order is to prevent those relying on the clerk of court’s website from gaining access to the officer’s information. Because the media can’t prove any harm from the order, the Court should deny writs to unseal the records, the trial court concludes.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2021-0047; 2021-0169; 2021-0136).
Contacts
Representing the Cincinnati Enquirer: Darren Ford, 513.629.2734
Representing Eugene Volokh: Jeffrey Nye, 513.533.6714
Representing the Honorable Megan E. Shanahan from the Hamilton County Prosecutor’s Office: Pamela Sears, 513.946.3082
Did Evidence Presented by State Support Rape Conviction?
State of Ohio v. Miranda C. Smith, Case No. 2021-0051
Fourth District Court of Appeals (Highland County)
ISSUE: Must a rape conviction based on the sexual conduct of insertion, as defined in state law, be supported by evidence that the accused person inserted a body part or object into another person?
BACKGROUND:
In December 2019, Miranda Smith was indicted in Highland County on six offenses, including two counts of rape. Following negotiations with the prosecutor, Smith pled no contest to two offenses – rape of a child under 13 years old and burglary. The state dismissed the other charges.
The rape offense was based on an incident earlier that year involving Smith’s 2-year-old son. Smith instructed her child to insert a sex toy into her vagina. She filmed it and sent the video to her boyfriend at his request.
The trial court sentenced Smith to a prison term of 10 years to life on the rape charge and two years for burglary, to be served consecutively.
Smith appealed to the Fourth District Court of Appeals, which in December 2020 upheld her convictions. She appealed to the Ohio Supreme Court, which accepted the case.
Mother Asserts She Didn’t Commit Rape, as Defined in Law
One part of Ohio’s rape statute, R.C. 2907.02, states: “No person shall engage in sexual conduct with another … when …[t]he other person is less than thirteen years of age ….” As relevant for this case, “sexual conduct” is defined as “the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another.”
Smith’s brief contends that to convict someone of rape, the accused must have inserted a body part or object into another. However, Smith didn’t insert any body part or object into another person, the brief states. Because Smith didn’t engage in “sexual conduct” as defined in the law, she didn’t commit rape, the brief argues.
The brief notes, however, that the offense of gross sexual imposition prohibits causing another to make “sexual contact” with the offender. The brief acknowledges that Smith’s actions constituted gross sexual imposition because she caused another to have sexual contact with her.
If it wanted to, the General Assembly could have written the rape statute to encompass this behavior, but it didn’t, Smith’s brief states. Smith concludes that the prosecutor failed to establish all the necessary elements to support her rape conviction. She asks the Court to vacate the rape conviction.
State Counters that Mother’s Interpretation Too Narrow
The Highland County Prosecutor’s Office responds that Smith’s interpretation of “sexual conduct” is incorrect. The law doesn’t require that an offender insert a body part or object only into someone else, the prosecutor maintains. Instead, the office argues, the law conveys that sexual conduct occurs when one individual inserts an object into another individual. In this case, the child (one individual) inserted the object into Smith (another individual) – which is sexual conduct, the prosecutor concludes.
According to the prosecutor, four appellate courts have followed this interpretation in their decisions. Sexual conduct doesn’t always involve the offender penetrating someone other than the offender, the prosecutor maintains.
The office also states that Smith’s conduct went beyond gross sexual imposition, as defined, concluding that Smith’s conviction for rape was supported by the evidence.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Miranda C. Smith from the Ohio Public Defender’s Office: Max Hersch, 614.466.5394
Suspension Proposed for Probate Judge Who Accused Man of Questioning His Integrity
Disciplinary Counsel v. Hon. Thomas M. O’Diam, Case No. 2021-0971
Greene County
A Greene County probate court judge faces a six-month suspension without pay because of his treatment of a man who publicly questioned whether the judge should preside over cases in which his daughter represents a party in the matter.
Prior to his 2013 appointment as Greene County probate judge, Thomas O’Diam practiced estate planning and probate law for 27 years as a member of the O’Diam, Steck & Sove Law Group. While he was still in private practice, Judge O’Diam’s daughter, Brittney, was admitted to practice law and joined the firm.
After Judge O’Diam took the probate court bench, the firm reorganized and arranged a plan to buy out the judge’s interest through payments that ended in 2021. Brittney continued to work at the new firm and gained an ownership interest.
Daughter Represents Family in Probate Matter
In 2018, Carolee Buccalo died and her granddaughter, Yvonne Martin, was named executor of Buccalo’s estate. Martin hired Brittney to represent her in administering the estate in the probate court in which Judge O’Diam is the sole judge.
After opening the estate, Brittney presented waivers of disqualification to participants in the Buccalo estate, including three that required the signature of Grant Buccalo, a son of the deceased.
All the waivers stated that “circumstances exist that may disqualify Judge O’Diam from presiding over this proceeding” and that his prior law firm is indebted to the judge under a stock-redemption agreement. The waivers also stated that Brittney O’Diam is the daughter of Judge O’Diam, and noted those signing “acknowledge that these circumstances may lead someone to reasonably question Judge O’Diam’s impartiality,” but that the signers “trust that Judge O’Diam will act impartially and fairly.”
Buccalo signed the waivers, and Brittney worked on probating the will.
Judge, County Commissioners, and Beneficiary Intersect
While the Buccalo probate matter was pending, Judge O’Diam was engaged in a legal dispute with the Greene County Commissioners regarding courthouse space for the probate court. The matter escalated to the Ohio Supreme Court, which in early May 2019 ruled that Judge O’Diam couldn’t force the county to designate that a courtroom be reserved exclusively for probate cases three days a week.
About two weeks after the Supreme Court decision, Buccalo called the county commissioners and requested to speak on matters at their weekly meeting, which was granted. At the meeting, Buccalo expressed his belief that Judge O’Diam should recuse himself from cases in which “family members” represent parties. Buccalo stated that “justice depends on the appearance as well as the reality of fairness in all things. Otherwise, it erodes public confidence in the legal system.”
Buccalo spoke for about two-and-a-half minutes, stating he wanted to make sure the commissioners were aware of the practice. He didn’t specifically mention’s his mother’s estate case or express any concern about his own involvement with Judge O’Diam. He concluded by stating he intended to file a grievance against the judge with the Office of Disciplinary Counsel.
Judge O’Diam became aware of Buccalo’s comments and requested a recording of the meeting. Buccalo submitted his grievance, which the disciplinary counsel’s intake division dismissed without investigation.
Judge and Daughter Grill Beneficiary on Stand
Judge O’Diam spoke to his daughter and arranged a status conference on the estate. The judge ordered Martin, Buccalo, and three other beneficiaries of the will to appear and stated that failure to appear “will be deemed contempt.”
Judge O’Diam discussed the matter in advance with Brittney, and each prepared exhibits and questions for the conference. Buccalo wasn’t informed by the court about the conference’s purpose and didn’t know he would be called to testify under oath. Buccalo didn’t request his lawyer to appear at the proceeding.
At the conference, Judge O’Diam explained a “very disturbing incident” had taken place and it needed to be resolved that day. He played the recording of Buccalo at the commission meeting. Judge O’Diam then placed Buccalo on the witness stand and proceeded to question him for more than an hour.
Judge O’Diam accused Buccalo of slandering him at the commissioners’ meeting and accused Buccalo of telling the commissioners the judge was behaving inappropriately. He asked Buccalo if he understood the waivers and, if he didn’t, questioned why he would sign them. Buccalo told the judge he did not see his comments to the commissioners as something Judge O’Diam should take “personally.” Judge O’Diam replied, “Oh, I see this as very personal.”
After an hour, Judge O’Diam turned the questioning over to Brittney, who also questioned if Buccalo had any concerns signing the waivers. She also accused Buccalo of impugning her character at the county commission meeting.
At the end of the status conference, Judge O’Diam recused himself from the estate matter and announced he was asking the Supreme Court to appoint a visiting judge. Judge O’Diam told Buccalo his actions were going to delay the case. Brittney informed Buccalo the matter created additional legal work and increased the costs the estate would have to pay to settle the estate.
In September 2019, an anonymous grievance was submitted to the disciplinary counsel regarding the judge and his daughter’s questioning of Buccalo. Judge O’Diam stated he believed Buccalo filed the grievance.
A week after the status conference, Judge O’Diam and Brittney appeared at a county commission meeting and told the commissioners that Buccalo was being untruthful when he spoke to them the month before. The judge told the commissioners that Buccalo’s accusations were “despicable.”
Board Rules Judge Behaved Inappropriately
The disciplinary counsel filed a complaint against Judge O’Diam with the Board of Professional Conduct, charging that the judge violated the Ohio Rules of Judicial Conduct. Nearly two years after Buccalo made his comments, and weeks before a three-member board panel was to consider the matter, Judge O’Diam sent a letter to Buccalo apologizing for the way he treated Buccalo during the status conference.
The panel found Judge O’Diam violated the rule requiring judges to be “patient, dignified, and courteous” to those involved in legal matters and require similar conduct of lawyers and others “subject to the judge’s direction and control.” The board indicated the way Judge O’Diam conducted himself and allowing his daughter to grill Buccalo violated the rule.
Judge O’Diam and the disciplinary counsel agreed the matter was a one-time occurrence and that the judge had no prior disciplinary record. They jointly proposed that the board recommend a public reprimand.
However, the panel maintained that the judge’s actions were not an isolated incident. The panel noted the judge arranged and prepared materials for a status conference without giving Buccalo any warning of the nature of the proceeding and then “interrogated him for over an hour in a disparaging manner.” Coupled with allowing his daughter to also interrogate Buccalo without restriction, then going to the county commission meeting to complain, constituted a pattern of misconduct. The panel recommended that Judge O’Diam receive a fully stayed six-month suspension with the condition that he not commit further misconduct.
The board amended the panel’s recommendation and suggested the Supreme Court suspend Judge O’Diam for six months without pay, and that he completes six hours of continuing judicial education focused on judicial demeanor, civility, and professionalism.
Judge Objects to Sanction
Judge O’Diam objects to the proposed sanction, noting that he admitted to violating the rule and expressed remorse for his actions. In his brief, he maintains the proposed “punishment is overly punitive and unprecedented.” The judge has cited several cases where similar judicial misconduct resulted in a public reprimand or a fully stayed suspension.
Judge O’Diam notes that during the disciplinary proceedings and after the conclusion of the panel hearing, the disciplinary counsel shared his assessment that this matter was an isolated incident, and not a pattern of misconduct that warrants a reprimand. He argues that none of the board findings that would justify increasing the sanction were supported by the necessary clear and convincing evidence.
Suspension Appropriate, Disciplinary Counsel Asserts
The disciplinary counsel acknowledges it recommended a public reprimand, but states that based on the board’s findings and conclusions, it agrees that a six-month suspension, at a minimum, is the appropriate punishment.
The office maintains that the judge was wrong to berate Buccalo for expressing concerns at a county commission meeting and argues in its brief that any member of the public “should be assured that they are able to express concern with their elected officials without fear of retaliation from that public official.”
The disciplinary counsel maintains that considering the aggravating factors, the case law supports imposing a six-month suspension, with the only question being whether the suspension should be stayed. The office also supports the conditions proposed by the board that Judge O’Diam would have to meet to lift the suspension.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Judge Thomas M. O’Diam: Christopher Weber, 614.462.5200