Since Ohio joined the Union in 1803, its state constitution has provided that “All courts shall be open.”[1] In a pair of cases at the turn of the century though, the Ohio Supreme Court declared that this “open courts provision” did not apply in juvenile proceedings.[2] In October, however, the court released a decision overruling these cases and holding that “the open courts provision of the Ohio Constitution requires, at a minimum, that a juvenile delinquency proceeding cannot be closed to the public without an individualized determination balancing the interests at stake.”[3] In resolving this case, the court also laid down important principles for how it interprets the state constitution and when it will reconsider precedent, particularly “lockstepping” precedent in which the court previously asserted, without analysis, that a provision of the Ohio Constitution means the same thing as a textually or historically distinct provision of the United States Constitution.[4]

In 2022, a juvenile court judge found a thirteen-year-old boy “not delinquent” despite testimony from a police officer who witnessed him firing repeatedly into a victim’s face-down body.[5] Pursuant to statute, the judge immediately sealed the record of his trial.[6] When the child was himself killed in a separate shooting a few months later, the Cincinnati Enquirer requested the transcript of his earlier juvenile delinquency trial.[7] The judge—again pursuant to statute—denied the request and refused to admit that such a trial had even occurred.[8] In response, the newspaper challenged the constitutionality of these sealing statutes under the open courts provision and sought a writ of mandamus compelling the judge to release the transcript and a writ of prohibition precluding her from enforcing her sealing order.[9]

Writing for the majority, Justice R. Patrick DeWine traced Ohio’s open courts provision all the way back to Pennsylvania’s colonial founding documents, drafted by William Penn in 1682.[10] He explained that the Ohio Supreme Court had historically interpreted Ohio’s open courts provision to guarantee a right of the citizenry to observe the administration of justice—which included access to both live proceedings and transcripts—and to require that attempts to close the courts must be balanced against the public’s interest.[11] In the 1990s, however, in a case called In re T.R., the court had departed from this understanding and found that the provision “creates no greater right of public access to court proceedings than that accorded by the Free Speech and Free Press Clauses of the First Amendment to the United States Constitution.”[12] Using a test copied from federal First Amendment jurisprudence, Justice DeWine said, the court “effectively read the open courts provision out of the Ohio Constitution.”[13]

The majority found that cases like T.R., in which the court said “that our state Constitution means whatever the United States Supreme Court says that the federal Constitution means,” were not well-reasoned.[14] Recognizing the court had long interpreted the Ohio Constitution in lockstep with the United States Supreme Court’s interpretations of analogous federal provisions—the majority sought to pave a path forward. The majority declared that when a litigant has raised and preserved an argument under a provision of the Ohio Constitution that the court had “previously, and without analysis, interpreted in lockstep with the United States Constitution,” “it is appropriate to revisit unreasoned prior precedent.”[15] That is, “[n]otwithstanding principles of stare decisis, when presented the appropriate opportunity,” the court “may reexamine unreasoned pronouncements . . . that provisions of the Ohio Constitution mean the exact same thing as provisions of the federal Constitution.”[16]

Because the Enquirer had raised and preserved its claim under the open courts provision, the majority set about independently interpreting the provision without “inappropriate reliance on inapposite federal precedent.”[17] Noting that a voter in 1851 would have understood “all courts” to include courts (like juvenile courts) which had not yet been established, the majority concluded that the open courts provision applied to juvenile proceedings.[18] The majority noted that its understanding was even stronger because the “historical analogue to present-day juvenile delinquency proceedings was a trial of the juvenile in adult court”—a proceeding to which the open courts provision unquestionably applied.[19] It further highlighted the relative novelty of the statute at issue (adopted in 2006), which, unlike all earlier sealing statutes, “require[d] the court to forever seal a record without any opportunity for judicial review or any individualized balancing of the interests at stake,” effectively operating as a “blanket courtroom-closure order.”[20]

Reviewing its other relevant precedent, the majority concluded that the open courts provision requires individualized findings that closure is “‘essential to protect an overriding interest, that the closure was drawn as narrowly as possible to protect only that overriding interest, or that no viable alternatives to closure were available.’”[21] Because the juvenile in this case was deceased, he could “no longer assert an interest in shrouding the proceedings from the public.”[22] Accordingly, the court granted the writs the newspaper sought and ordered the juvenile court to release the transcripts.[23]

Justice Michael P. Donnelly concurred in judgment only. Rather than overrule the earlier cases concerning the open courts provision, he would have applied the court’s precedent to find that, because the statutes at issue “create[d] an impenetrable rule” that “provide[d] no possibility for public access under any circumstances,” they unconstitutionally impinged on the public’s right of constitutional access.[24] He concluded that “[b]ecause there is no potential harm to [the child] or to the fairness of his proceedings, let alone harm that would outweigh the benefits of public access, the transcript should be disclosed”—and that this holding would not require overruling precedent.[25] Justice Donnelly criticized the majority for independently interpreting the open courts provision and would have retained the lockstepping precedent, since in his view it “support[s] the same outcome.”[26]

Justice Melody J. Stewart dissented. She too would have applied the court’s precedent, but to deny the writs.[27] She accused the majority of “judicial activism”[28] for independently interpreting the open courts provision and wrote that the court’s holding that the provision’s presumption of openness applies to juvenile courts “erase[s] over a century of history and tradition as well as decades of established jurisprudence.”[29] She posited that it was the role of the legislature, not the courts, to balance competing private and public rights, and that the legislature had made that determination when it enacted the statutes at issue.[30]

In the end, the Ohio Supreme Court determined that the open courts provision of the Ohio Constitution—like the state constitution itself—“retains its own force.”[31] It found that the open courts provision applies with equal force in juvenile court proceedings. And it established that the provision requires a balancing of the interests before courts can be “closed.” Yet it also reasoned that there was “no need here to endeavor to authoritatively interpret the full scope of the open courts guarantee.”[32] As a result, future litigants may argue over the outer bounds of the rule. Likewise, future litigants may now, with less trepidation, argue for overruling other precedent interpreting the Ohio Constitution in lockstep with the United States Supreme Court’s interpretation of the federal Constitution.

[1] Ohio Const., art. I, § 16.

[2] In re T.R., 52 Ohio St.3d 6 (1990); State ex rel. Plain Dealer Publishing Co. v. Geauga Cty. Court of Common Pleas, Juvenile Div., 2000-Ohio-35 (2000).

[3] State ex rel. Cincinnati Enquirer v. Bloom, 2024-Ohio-5029, ¶ 60 (2024).

[4] Id. at ¶ 26–33.

[5] Id. at ¶ 3.

[6] R.C. 2151.356(B)(1)(d).

[7] Bloom, 2024-Ohio-5029 at ¶ 3.

[8] R.C. 2151.357(A).

[9] Bloom, 2024-Ohio-5029 at ¶ 5.

[10] Id. at ¶ 6.

[11] Id. at ¶ 7.

[12] In re T.R., 52 Ohio St.3d at 6 (paragraph two of the syllabus).

[13] Bloom, 2024-Ohio-5029 at ¶ 25.

[14] Id. at ¶ 29.

[15] Id. at ¶ 31.

[16] Id.

[17] Id. at ¶ 42.

[18] Id.

[19] Id. at ¶ 45.

[20] Id. at ¶ 47.

[21] Id. at ¶ 50 (quoting State ex rel. The Repository v. Unger, 28 Ohio St.3d 418, 422 (1986)).

[22] Id. at ¶ 55.

[23] Id.

[24] Id. at ¶ 68–69 (Donnelly, J., concurring in judgment only).

[25] Id. at ¶ 72.

[26] Id. at ¶ 98.

[27] Id. at ¶ 109–110 (Stewart, J. dissenting).

[28] Id. at ¶ 116.

[29] Id. at ¶ 121.

[30] Id. at ¶ 126.

[31] Id. at ¶ 36.

[32] Id. at ¶ 39.

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