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Sunday, March 23, 2008
Courts - Who has authority over Ohio court records?
On March 12th the ILB had an entry about the Oklahoma Supreme Court cutting off on-line access to public court records.
Today the Cleveland Plain Dealer has this story by Reginald Fields. Some quotes:
Columbus- A leading open- government advocate says the Ohio Supreme Court is exceeding its powers by trying to take control of state court records.Cleveland lawyer David Marburger, of the Ohio Coalition for Open Government, said a court- appointed commission drawing up rules on what court records the public should have access to does not have the constitutional authority to do so.
"When you give a small group of people, seven people, the power to decide what everyone should have access to, you have automatic mischief, maybe not intended mischief," said Marburger, an open-records attorney who represents The Plain Dealer and other Ohio newspapers.
"The court doesn't have this kind of power," he said. "The court is not a little legislature."
But Justice Judith Ann Lanzinger, who chairs the Commission on the Rules of Superintendence for Ohio Courts, said Marburger is wrong.
She points to the Ohio Constitution, which states that the high court is to oversee all state courts and set rules and procedures for how those courts operate.
"The Supreme Court has the authority to make sure the courts are operating in a just fashion," she said this month following a commission meeting. "So I don't know where this constitutional argument is coming from." * * *
For more than a century, if access to Ohio court records became a debatable issue, judges tended to lean on the state's legislatively authored open-records law or case law, the body of prior judicial decisions.
But two years ago, the Ohio legislature tinkered with the public-records law and considered slipping in a provision to exempt all court records, which led to an argument over separation of powers.
At that point, Chief Justice Thomas Moyer decided to move court records under the judicial branch of government, as he says the constitution allows him to do, and appointed Lanzinger's commission to draft the rules.
The rules essentially try to define what is a court record, which records are public, how they can be disseminated and what remedies are available when access is denied.
So far, the drafted rules are similar to the public-records law, but red flags have been raised by provisions allowing some litigants to hide their identities in court records or allowing some records to be closed without a public hearing.
Lanzinger said she was surprised that the general feedback from the public was that the commission was trying to close off access rather than keep it open. Nothing could be further from the truth, she said, and the commission is considering revisions before meeting again in June.
Those access concerns are at the heart of Marburger's complaint. He suspects the commission will pass rather benign rules now to appease the public, but he says that does not stop future justices from later changing the guidelines on a whim.
"I don't know how often, but I promise you that there will be a point when one group will say 'Dismissed complaints against certain kinds of people should be closed' or 'Divorce records should be closed,' " he said.
Posted by Marcia Oddi on March 23, 2008 01:51 PM
Posted to Courts in general