From the Ohio Supreme Court's decision Friday in State ex rel. Shubert v. Breaux:
In February 2024, Jeremiah Stoehr was indicted in the Summit County Court of Common Pleas on one count of rape, two counts of kidnapping, one count of gross sexual imposition, and one count of disseminating matter harmful to juveniles. The record contains some ambiguity regarding how many alleged victims there were, but at least one alleged victim was under the age of ten. Stoehr was a high school student when the complaint in this action was filed, and the criminal case against him has received media attention. Judge [Alison] Breaux is presiding over Stoehr's pending criminal case….
On May 9, Stoehr filed a motion in the trial court to seal the docket and remove public access to case filings during the pendency of Stoehr's case. Stoehr's motion to seal states that after media began reporting on his case, Stoehr was assaulted and threatened, his parents were followed, and his address was published online. The motion was not supported by any affidavits. The same day the motion was filed, Judge Breaux issued an order granting it.
On May 16, Judge Breaux sua sponte issued an amended sealing order. The amended order states that before Stoehr filed his motion to seal, the trial court held a meeting in chambers with the prosecution and defense counsel. During the meeting, "it was brought to the attention of the Court" that Stoehr, his family, and his counsel had been threatened, intimidated, and confronted. The prosecution also expressed a concern about the minor victim being identified. The trial court "weigh[ed] the risk of injury to persons, public safety and fairness of the adjudicatory process against the presumption of allowing public access to the docket and [found], by clear and convincing evidence, that the restricting [of] access to information in this case is warranted to protect the parties and counsel."
The amended order directs the Summit County Clerk of Courts to remove any online public access to the docket or images in Stoehr's case and to remove any public access to the docket or images "regarding subpoenas, summons returns, search warrants, service returns, any court filing containing information protected under Marsy's Law, and any court filing containing private information of the Defendant or other records as provided by state, federal, or common law." …
"[Craig] Shubert, a former journalist and a member of the public interested in" the case sought review of the sealing order, and the Ohio Supreme Court agreed that the order had been improperly issued:
[Under the Rules of Superintendence for Courts of Ohio, a] court shall restrict public access to a case document
if it finds by clear and convincing evidence that the presumption of allowing public access is outweighed by a higher interest after considering each of the following:
(a) Whether public policy is served by restricting public access;
(b) Whether any state, federal, or common law exempts the document or information from public access; [and]
(c) Whether factors that support restriction of public access exist, including risk of injury to persons, individual privacy rights and interests, proprietary business information, public safety, and fairness of the adjudicatory process.
Additionally, when restricting public access, the court must use the least restrictive means available….
[Stoehr's motion to seal] was not supported by an affidavit or any other evidence. In addition, the amended order states that "it was brought to the attention of the Court" at an in-chambers meeting with counsel that Stoehr, his family, and his counsel had been threatened and intimidated. But the information provided by counsel at this meeting was not supported by evidence. As "[w]e have long held … 'statements of counsel are not evidence.'"
Finally, as evidence in this action, Judge Breaux has submitted affidavits from Stoehr's parents that detail threats Stoehr received online and in-person, and state that they reported to the police that a suspicious vehicle had followed Stoehr's mother. But these affidavits postdate the amended order and thus Judge Breaux could not have relied on them when she issued the amended order. In sum, the amended order's statement that restricting access to the court documents was necessary to protect Stoehr and his counsel was not supported by any evidence….
Shubert also argues that Judge Breaux did not adequately consider whether the amended order was the least restrictive means available to restrict public access. We agree. When restricting public access to case documents a court must use the "least restrictive means available." Means less restrictive than limiting access to an entire document include redacting certain information within a document, restricting remote access but maintaining direct access, and using initials or other identifiers in place of parties' proper names.
Here, the amended order does distinguish between documents that are restricted in their entirety and documents that are accessible directly but not remotely. But the amended order does not address how Judge Breaux decided which documents should be placed in which category. And it fails to disclose whether she considered less restrictive means, such as only redacting certain information within each document.
Judge Breaux stresses that the amended order also states that restricting access is necessary to protect the identity of the minor victim and other information protected by Marsy's Law, or by other state, federal, or common law. But this information is protected from disclosure even absent the amended order….
Because we conclude that Shubert is entitled to relief on other grounds, we do not need to address his [First Amendment] argument….
We … order[] Judge Breaux to vacate her sealing orders and to conduct a proper review of the documents sought to be restricted under Sup.R. 44 and 45.
Curt C. Hartman represents Shubert.
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