In a decision Friday from the Ohio Supreme Court: Former rel. Shubert v. Breaux:
In February 2024, Jeremiah Stoehr was indicted in Summit County Court of Common Pleas on one count of rape, two counts of kidnapping, one count of serious sexual imposition, and one count of distributing material harmful to a minor. The records are ambiguous as to the number of victims, but at least one victim was under the age of 10. Stoehr was a high school student when the complaint was filed, and his criminal case has received media attention. Judge [Alison] Bro is handling the store’s pending criminal case.
On May 9, Storey filed a motion with the court to seal the records of the case and block public access to the case while the lawsuit is pending. Storey’s motion to seal states that after the media began reporting on his case, Storey was assaulted and threatened, his parents were tracked down, and his address was posted online. The motion was not supported by any affidavit. The same day the motion was filed, Judge Bro issued an order granting it.
On May 16, Judge Broe issued an amended sealing order on the spot. The amended order states that the court held a meeting with the prosecution and defense attorneys in court before Storey filed the motion to seal. During the meeting, “it was made known to the court that Storey, his family, and his defense attorney had been threatened, intimidated, and confronted.” The prosecution also expressed concern about the identification of the minor victim. The court stated that “[ed] Risk of harm to human life, public safety, fairness of the judicial process, and the presumption that the public has access to the record of the case. [found]limited by clear and convincing evidence; [of] Access to information in this case is necessary to protect the parties and their counsel.”
The amended order directs the Summit County Clerk of Courts to remove: online Public access and removal of documents or images from the Stoehr case any Public access to documents or images relating to subpoenas, subpoena returns, search warrants, service returns, any court papers containing information protected by Marsy’s Law, any court papers containing personal information of a defendant, or any other records provided by state, federal, or common law…
“[Craig] Schubert, a former journalist and public figure interested in the case, asked for a review of the sealing order, and the Ohio Supreme Court agreed that the order was improperly issued.
[Under the Rules of Superintendence for Courts of Ohio, a] Courts should limit public access to case documents.
After considering each of the following, if you find by clear and persuasive evidence that the presumption of allowing public access outweighs the higher benefits:
(a) Whether restricting public access is consistent with public policy.
(b) Whether state, federal, or common law exempts the document or information from public access. [and]
(c) Whether there are any factors that limit public access, such as the risk of personal injury, the privacy rights and interests of individuals, proprietary business information, public safety, or the fairness of the judicial process.
Additionally, courts should use the least restrictive means possible when limiting public access.
[Stoehr’s motion to seal] It was not supported by affidavits or other evidence. Additionally, the amended order states that it was “made known to the court” during an internal meeting with counsel that Stoehr, his family, and his attorney had been subjected to threats and intimidation. However, the information provided by counsel in that meeting was not supported by evidence.”[w]We have long argued that ‘the attorney’s statement is not evidence.'”
Finally, as evidence in this case, Judge Bro submitted an affidavit from Storey’s parents detailing threats Storey had received online and in person, and that Storey had reported to the police that a suspicious vehicle had followed Storey’s mother. However, because this affidavit was dated to the amended order, Judge Broy could not have relied on it when issuing the amended order. In short, the statement in the amended order that access to court documents should be restricted to protect Storey and his attorneys was not supported by any evidence… .
Schubert also argues that Judge Broe failed to properly consider whether the amended order was the least restrictive means available to limit public access. We agree. When limiting public access to case documents, courts must use the “least restrictive means available.” Less restrictive means than limiting access to the entire document include redacting specific information within the document, limiting remote access but preserving in-person access, and using initials or other identifiers in place of the parties’ proper names.
The amended order here distinguishes between documents that are restricted in their entirety and those that are not remotely accessible but are accessible in person. However, the amended order does not address how Judge Bro determined which documents should be placed in which category. It also does not disclose whether he considered less restrictive means, such as only removing certain information from each document.
Judge Bro emphasized that the amended order stated that the access restriction was necessary to protect the identity of the minor victim and other information protected by Marsy’s Law or other state, federal or common law. However, this information would be protected from disclosure even without the amended order.
We do not need to address Shubert’s case because we have concluded that he is entitled to relief on other grounds. [First Amendment] arguement….
We order …[] Judge Broe vacated the sealing order and ordered that a proper review of the documents requested to be restricted under Sup.R. 44 and 45 be conducted.
Kurt C. Hartman represents Schubert.
