# State ex rel. Cincinnati Enquirer v. Bloom

> Ohio Supreme Court · October 22, 2024 · 177 Ohio St. 3d 174

URL: https://www.frixlaw.com/law-library/cases/11080355

## Case

- **Court:** Ohio Supreme Court
- **Decided:** October 22, 2024
- **Citations:** 177 Ohio St. 3d 174; 251 N.E.3d 79; 2024 Ohio 5029
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** DeWine, J.
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

[This opinion has been published in Ohio Official Reports at 177 Ohio St.3d 174.]

THE STATE EX REL. CINCINNATI ENQUIRER v. BLOOM, JUDGE.
[Cite as State ex rel. Cincinnati Enquirer v. Bloom, 2024-Ohio-5029.]
Mandamus—Prohibition—Open-courts provision of Ohio Constitution prohibits
closing a juvenile-delinquency proceeding to public without making an
individualized determination balancing the interests at stake—Mandatory
sealing of juvenile-delinquency records under R.C. 2151.356
unconstitutional—Writs granted.
(No. 2022-1457—Submitted August 22, 2023—Decided October 22, 2024.)
IN MANDAMUS and PROHIBITION.
__________________
DEWINE, J., authored the opinion of the court, which KENNEDY, C.J., and
FISCHER and WALDICK, JJ., joined. DONNELLY, J., concurred in judgment only,
with an opinion. STEWART, J., dissented, with an opinion joined by BRUNNER, J.
JUERGEN A. WALDICK, J., of the Third District Court of Appeals, sitting for
DETERS, J.

DEWINE, J.
{¶ 1} The Ohio Constitution commands that “[a]ll courts shall be open.”
Ohio Const., art. I, § 16. We have long understood this “open courts provision” to
encompass a right of the public not only to attend court proceedings but also to
access the records of such proceedings. But, notwithstanding this constitutional
command, the Ohio legislature has passed a statute that requires juvenile court
judges to seal the records in delinquency cases when a juvenile has been found not
to be delinquent. The statute imposes a blanket requirement—it does not allow for
any individualized balancing of the juvenile’s interest in keeping the proceedings
secret against the public’s interest in access to the proceedings.
SUPREME COURT OF OHIO

{¶ 2} Relying on the statute, a juvenile court judge sealed the records of the
trial of a juvenile who was alleged to have committed felonious assault by firing
multiple shots at a victim. The Cincinnati Enquirer challenges the judge’s order,
arguing that the Ohio Constitution forbids the sealing of court records unless the
judge makes an individualized determination that the harm to the juvenile from
disclosure outweighs the potential benefits of public access. We agree. The plain
text of the open courts provision and our traditional understanding of that provision
demonstrate that the Enquirer’s reading is correct. The statute violates the Ohio
Constitution by requiring a blanket closure of the juvenile court proceedings. We
grant a writ of mandamus ordering the juvenile court judge to provide access to the
court records in question and a writ of prohibition precluding her from enforcing
the order sealing the records.
I. BACKGROUND
{¶ 3} In early 2022, Hamilton County Juvenile Court Judge Kari L. Bloom
presided over the juvenile delinquency trial of 13-year-old J.L. According to a
sworn affidavit prepared by an assistant prosecutor, a Cincinnati police officer said
he had witnessed J.L. stand over the victim and fire a gun continuously into his
face-down body. Judge Bloom found J.L. not to be delinquent, dismissed the
charge of felonious assault, and immediately sealed the case record pursuant to R.C.
2151.356(B)(1)(d). After J.L. was killed in a shooting a few months later, the
Enquirer requested the transcript of J.L.’s earlier juvenile delinquency trial. Citing
R.C. 2151.356, Judge Bloom denied the request without a hearing and refused to
confirm whether the trial had even occurred.
{¶ 4} R.C. 2151.356(B)(1)(d) provides:

The juvenile court shall promptly order the immediate
sealing of records pertaining to a juvenile . . . [i]f a complaint was
filed against a person alleging that the person was a delinquent child

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. . . and the court dismisses the complaint after a trial on the merits
of the case or finds the person not to be a delinquent child . . .

{¶ 5} The Enquirer now challenges the constitutionality of R.C. 2151.356,
relying on the open courts provision of the Ohio Constitution. The Enquirer argues
that the statute violates this provision by mandating the sealing of court records
without balancing the interests of the public against those of the juvenile. Judge
Bloom argues that under this court’s precedent, the public access protections of the
open courts provision do not apply to juvenile delinquency proceedings and that
the Ohio Constitution provides no greater right of public access to juvenile court
proceedings than the Free Speech and Free Press guarantees of the First
Amendment to the United States Constitution.
II. ANALYSIS
A. The Open Courts Provision Has Traditionally Been Understood to Provide
Citizens a Right to Observe the Administration of Justice
{¶ 6} The open courts provision has been part of the Ohio Constitution since
the State’s founding. See 5 Thorpe, The Federal and State Constitutions, Colonial
Charters, and Other Organic Laws 2910 (1909).1 Ohio’s provision can be traced
directly to the 1682 Frame of Government of the Colony of Pennsylvania and Laws
Agreed Upon in England, signed by William Penn,2 which is the “historical origin
of the concept of ‘open court’ in the United States.” E.W. Scripps Co. v. Fulton,
100 Ohio App. 157, 170-178 (8th Dist. 1955) (Hurd, J., concurring). That
document provided, “That all courts shall be open, and justice shall neither be sold,

1. Article VIII, Section 7 of the Ohio Constitution of 1802 provided, “That all courts shall be open,
and every person for an injury done him in his lands, goods, person, or reputation shall have remedy
by the due course of law, and right and justice administered without denial or delay.”

2. Penn himself derived this provision from “the traditions of Magna Carta.” Howard, The Road
from Runnymede 88, 293 (1968).

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denied nor delayed.” 5 Thorpe at 3060. A similar open courts provision was then
included in the Pennsylvania Constitutions of 1776 and 1790, before being adopted
in modified form into the Kentucky Constitution of 1792 and remaining unchanged
in the Kentucky Constitution of 1799.3 As with many other provisions of Ohio’s
first Constitution, the open courts provision was copied almost verbatim from
Kentucky’s Constitution. See Barnhart, Valley of Democracy 158 (1953);
Steinglass & Scarselli, The Ohio Constitution 23-24 (2d Ed. 2022). The 1802 open
courts provision was incorporated almost unchanged into the 1851 Ohio
Constitution. See Ohio Const., art. I, § 16. (There is no mention in the records of
either the 1802 or the 1851 Constitution of any discussion or debate about the
provision.) As a result of the 1912 constitutional convention, a provision was added
to Article I, Section 16 to allow suits to be brought against the State, but the
requirement that “[a]ll courts shall be open” was unaltered.4

3. See Pennsylvania Const. of 1776, Frame, § 26, in 5 Thorpe at 3088 (“All courts shall be open,
and justice shall be impartially administered without corruption or unnecessary delay”);
Pennsylvania Const. of 1790, art. IX, § 11, in 5 Thorpe at 3101 (“That all courts shall be open, and
every man, for an injury done him in his lands, goods, person, or reputation, shall have remedy by
the due course of law”); Kentucky Const. of 1792, art. XII, § 13, in 3 Thorpe at 1275 (“That all
courts shall be open, and every person for an injury done him in his lands, goods, person, or
reputation, shall have remedy by the due course of law; and right and justice administered, without
sale, denial, or delay”); Kentucky Const. of 1799, art. X, § 13, in 3 Thorpe at 1290.

4. Ohio’s open courts provision is one of the oldest open courts provisions in the country. Howard
at 484-485. Including Ohio, 18 States provide that all “courts shall be open.” See Alabama Const.,
art. I, § 13; Connecticut Const., art. I, § 10; Delaware Const., art. I, § 9; Florida Const., art. I, § 21;
Indiana Const., art. I, § 12; Kentucky Const., art. I, § 14; Louisiana Const., art. I, § 22; Mississippi
Const., art. III, § 24; Nebraska Const., art. I, § 13; North Carolina Const., art. I, § 18; North Dakota
Const., art. I, § 9; Pennsylvania Const., art. I, § 11; South Dakota Const., art. VI, § 20; Tennessee
Const., art. I, § 17; Utah Const., art. I, § 11; West Virginia Const., art. III, § 17; Wyoming Const.,
art. I, § 8. Five state constitutions provide that the courts shall be “open to every person.” See
Colorado Const., art. II, § 6; Idaho Const., art. I, § 18; Missouri Const., art. I, § 14; Montana Const.,
art. II, § 16; Oklahoma Const., art. II, § 6. Three provide that justice “shall be administered openly.”
See Arizona Const., art. II, § 11; Oregon Const., art. I, § 10; Washington Const., art. I, § 10. Finally,
one provides that “[a]ll courts shall be public,” South Carolina Const., art. I, § 9, and another
provides that “Courts of Justice shall be open for the trial of all causes proper for their cognizance,”
Vermont Const., Ch. II, § 28. That means that identical or “substantially similar” provisions may
be found in the majority of state constitutions. State ex rel. The Repository v. Unger, 28 Ohio St.3d
418, 423 (1986) (Celebrezze, C.J., concurring).

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{¶ 7} Historically, in construing the open courts provision, we have
recognized that it encompasses a right of the citizenry “to observe the
administration of justice.” State ex rel. The Repository v. Unger, 28 Ohio St.3d
418, 420 (1986). We have also traditionally understood that the provision grants a
“right of access,” which “includes both the live proceedings and the transcripts
which document those proceedings.” State ex rel. Scripps Howard Broadcasting
Co. v. Cuyahoga Cty. Court of Common Pleas, 73 Ohio St.3d 19, 21 (1995); see
also In re Disqualification of Celebrezze, 2023-Ohio-4383, ¶ 49. While the right
of access is not “absolute,” we have held that court proceedings are presumptively
open and that any attempt to close the courts by sealing records or limiting
attendance must be balanced against the public’s interest. Unger at 421; State ex
rel. Cincinnati Enquirer v. Winkler, 2004-Ohio-1581, ¶ 9-11, superseded by statute
on other grounds as stated in Celebrezze.
{¶ 8} But despite this understanding, a few decades ago we decided two
cases in which we concluded that the open courts provision did not apply to juvenile
court proceedings: In re T.R., 52 Ohio St.3d 6 (1990), and State ex rel. Plain Dealer
Publishing Co. v. Geauga Cty. Court of Common Pleas, Juvenile Div., 2000-Ohio-
35. Judge Bloom’s argument that R.C. 2151.356 does not conflict with the open
courts provision is rooted in this line of authority. In this view, because there is no
constitutional right of public access to juvenile court proceedings, the legislature
may enact legislation mandating the blanket closure of juvenile court proceedings.
So we now turn to this line of cases.
B. Our Recent Caselaw Has Improperly Concluded that the Open Courts
Provision’s Right of Public Access Does Not Apply to Juvenile Delinquency
Proceedings
{¶ 9} The open courts provision has been described as “a mandate in
unequivocal terms . . . the meaning of which cannot be misconstrued,” Fulton, 100
Ohio App. at 170 (Hurd, J., concurring), “clear and unambiguous” and “simplistic,”

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T.R. at 25 (Douglas, J., concurring in part), and “clear and blunt,” Groch v. Gen.
Motors Corp., 2008-Ohio-546, ¶ 229 (Pfeifer, J., concurring in judgment only).
Despite such textual clarity, this court departed from this understanding of the open
courts provision three decades ago by carving out an exception to the provision’s
application to juvenile court proceedings. See T.R.; Geauga, 2000-Ohio-35.
{¶ 10} In T.R., this court dealt with a newspaper’s challenge to a closure
order in a juvenile custody and dependency proceeding. In analyzing the claim, the
court announced that the open courts provision of the Ohio Constitution “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 and the analogous provisions of Section 11, Article I of the Ohio
Constitution.” T.R. at paragraph two of the syllabus. The court then noted that
under the Free Speech and Free Press Clauses of the First Amendment to the federal
Constitution, the United States Supreme Court has held that

there is a federal constitutional right of access to proceedings in a
criminal prosecution which have “historically been open to the press
and general public” and in which “public access plays a significant
positive role in the functioning of the particular process in question.”
Press-Enterprise [Co. v. Superior Court, 478 U.S. 1, 8 (1986)
(“Press-Enterprise II”)]. . . . “If the particular proceeding in question
passes these tests of experience and logic, a qualified First
Amendment right of public access attaches. . . .” Id. at 9. The
proceeding is presumed open to the press and public. “The
presumption of openness may be overcome only by an overriding
interest based on findings that closure is essential to preserve higher
values and is narrowly tailored to serve that interest. . . .” Press-

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Enterprise Co. v. Superior Court, 464 U.S. 501, 510, 104 S.Ct. 819,
824, 78 L.Ed.2d 629 (1984) (“Press-Enterprise I”).

T.R. at 12. The T.R. court then proceeded to adopt the United States Supreme
Court’s limitation on the public’s right to access court proceedings as its own,
holding that “the public’s qualified right of access attaches to those hearings and
proceedings in all courts which have historically been open to the public, and in
which public access plays a significant positive role.” Id. The court provided no
rationale for adopting the federal test, noting only: “After reviewing the relevant
authorities, we have concluded that the Press-Enterprise II test of ‘experience and
logic’ accurately defines the limits of constitutionally protected public access to all
court proceedings,” id. The court did not explain how the explicitly worded
guarantee of the Ohio Constitution that “[a]ll courts shall be open” had the same
meaning as the Free Speech and Free Press guarantees of the federal Constitution.
It just said that it did.
{¶ 11} Applying the United States Supreme Court’s test of experience and
logic, the T.R. court concluded that there was no constitutional right of public
access to juvenile court proceedings. T.R., 52 Ohio St.3d at 14-17. In doing so, the
court noted that juvenile courts did not exist at common law. Id. at 14-15. It also
explained that juvenile courts “differ significantly from courts of general
jurisdiction” because of their “mission” to “act as an insurer of the welfare of
children and a provider of social and rehabilitative services.” Id. at 15. And it said
that “[t]he United States Supreme Court has repeatedly recognized that juvenile
court proceedings have historically been closed to the public.” Id. Thus, based on
its conclusion that the Press Enterprise II test established “the limits of
constitutionally protected public access,” T.R. at 12, the court determined that
neither the court access protections of the First Amendment to the United States

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Constitution nor the open courts provision of the Ohio Constitution applied to
juvenile delinquency proceedings, id. at 17.
{¶ 12} After determining that neither state nor federal constitutional
protections were applicable, the T.R. court turned to statutory law and rules. The
court noted that there was no statute in that case which required the juvenile
proceeding to be closed to the public. Id. at 17. But it identified two relevant
provisions, R.C. 2151.35(A) and Juv.R. 27, which, it found, “authorize, but do not
require” the exclusion of the public from juvenile hearings. T.R. at 17. Based on
those provisions allowing—but not requiring—closure, the court held that juvenile
court abuse and neglect proceedings and custody proceedings “are neither
presumptively open nor presumptively closed to the press and public.” Id. at 18.
The court then established a rule that a court may restrict public access to such
proceedings only if it determines after a hearing and argument that “(1) there exists
a reasonable and substantial basis for believing that public access could harm the
child or endanger the fairness of the proceeding, and (2) the potential for harm
outweighs the benefits of public access.” Id. at 18-19. In announcing this balancing
test, the court declined to “decide the General Assembly’s constitutional authority
to enact a statute making juvenile court proceedings presumptively closed” but
noted that other state courts had upheld such statutes despite constitutional
challenges. Id. at 17.
{¶ 13} A decade later, this court applied the borrowed Press-Enterprise II
test to another type of juvenile court proceeding. Geauga, 2000-Ohio-35. At issue
in Geauga was the denial of media access to a juvenile delinquency proceeding.
Returning to the United States Supreme Court’s “tests of experience and logic,”
this court concluded that there was no constitutional right to access juvenile
delinquency proceedings. Id. at ¶ 17-18. It reasoned that juvenile court
proceedings “have historically been closed to the public, and public access to these
proceedings does not necessarily play a significant positive role in the juvenile

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court process.” Id. at ¶ 18. Thus, it held that “traditional interests of confidentiality
and rehabilitation prevent the public from having a qualified constitutional right of
access to juvenile delinquency proceedings.” Id. at ¶ 19. It added that its
determination that there was no constitutional presumption of access to juvenile
delinquency proceedings “is consistent with the holdings of other courts.” Id. (To
support this statement it cited cases from Georgia, Vermont and California, but
neglected to mention that neither Georgia nor California has an open courts
provision in its constitution and that Vermont’s provision, while similar, is textually
distinct from Ohio’s.)
{¶ 14} Concluding that there was no constitutional right of access, the court
explained that under R.C. 2151.35 and Juv.R. 27, a juvenile judge has discretion
whether to close a proceeding. Id. at ¶ 14. It then applied the balancing test
announced in T.R. to find that the trial court had abused its discretion in closing the
proceeding to the public. Id. at ¶ 34-43.
{¶ 15} The Enquirer and Judge Bloom have different takeaways from our
caselaw. The Enquirer would require that the balancing test employed in T.R. and
Geauga be applied to Judge Bloom’s sealing order. Judge Bloom argues that
because there is no constitutional right of access to juvenile proceedings, the
enactment of R.C. 2151.356 obviates the need for any type of weighing of interests.
1. We have a duty to respect the independent force of our state Constitution
{¶ 16} Judge Bloom’s contention that there is no constitutional right of
public access to juvenile proceedings is grounded in our previous determination
that the open courts provision means the same thing as the Free Speech and Free
Exercise Clauses of the First Amendment. So we now return to the T.R.-Geauga
line of precedent that tethered the meaning of the Ohio open courts provision to the
United States Supreme Court’s reading of the First Amendment’s Free Speech and
Free Press Clauses. We conclude that these cases were wrongly decided and should
not be deemed controlling.

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{¶ 17} The justice concurring in judgment only criticizes us for revisiting
this line of cases and says we should simply apply the balancing test that this court
applied in T.R. and Scripps Howard. But in T.R. and Geauga, we held that there is
no constitutional right of public access to juvenile court proceedings, T.R., 52 Ohio
St.3d at 17; Geauga, 2000-Ohio-35, and we applied the balancing test because the
statutory provisions at issue in those cases gave the juvenile court judge discretion
whether to close the proceeding. The justice concurring in judgment only
misunderstands the holding of these cases, saying that “[w]e created the weighing
test in Scripps and T.R. to ensure that the process of closing juvenile-court
proceedings remained above the floor of what might minimally be constitutionally
required,” opinion concurring in judgment only, ¶ 70. But this is not what those
cases said at all. In Scripps Howard, this court adopted the T.R. test, and T.R. made
clear that the test was not a constitutional requirement. See Scripps Howard, 73
Ohio St.3d at 21; T.R. at 17-18. Instead, in T.R., this court grounded the balancing
test in statutory language that provided that “‘the general public may be
excluded’” from juvenile court proceedings. (Emphasis added in T.R.) T.R. at 17,
quoting former R.C. 2151.35(A), Am.Sub.S.B. No. 89, 142 Ohio Laws, Part I, 198,
221. Moreover, the holdings in both T.R. and Geauga made clear that the open
courts provision provided no greater protection than the United States Supreme
Court’s construction of the First Amendment in Press-Enterprise II, a case in which
the Court concluded that there is “a First Amendment right of access,” Press-
Enterprise II, 478 U.S. at 3, only when its tests of experience and logic are satisfied,
id. at 8-9. See T.R. at 12; Geauga at ¶ 17-18.
{¶ 18} Before a statute can be said to infringe on the public’s right of access,
we have to identify a source for that right of access. And since this court has found
that a hearing and balancing test for court closures are only “required by precedent,
statute, and rule,” State ex rel. Plain Dealer Publishing Co. v. Floyd, 2006-Ohio-
4437, ¶ 34—but not by the Ohio Constitution—the Enquirer’s claim cannot survive

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unless we overturn the T.R.-Geauga line of precedent and conclude that the open
courts provision provides a stronger right of public access to juvenile delinquency
proceedings than the United States Supreme Court’s interpretation of the First
Amendment.
{¶ 19} Our federal system provides citizens a “double security” for their
liberties, which are guaranteed by two Constitutions, state and federal. Madison,
The Federalist No. 51, at 323 (Clinton Rossiter Ed. 1961). “The Ohio Constitution
is a document of independent force,” and—subject to the federal Supremacy
Clause—we are “unrestricted” in interpreting it independently from the United
States Constitution. Arnold v. Cleveland, 67 Ohio St.3d 35 (1993), paragraph one
of the syllabus.
{¶ 20} By interpreting our state Constitution independently, we ensure that
citizens are not deprived of rights guaranteed to them by that document. Indeed,
properly understood, the federal Constitution provides a “floor” for individual
rights, above which state constitutions may impose greater protections. Id.
{¶ 21} For a good portion of our nation’s history, state constitutions were
considered the primary protectors of individual rights. Brennan, State Constitutions
and the Protection of Individual Rights, 90 Harv.L.Rev. 489, 501-502 (1977). But,
unfortunately, a practice developed in many state courts—including our own—of
searching for “analogous” provisions in the United States Constitution and
declaring that the state Constitution meant the same thing as its purported federal
counterpart. See, e.g., Direct Plumbing Supply Co. v. Dayton, 138 Ohio St. 540,
544-545 (1941); see also Fouch, “A Document of Independent Force”: Towards a
Robust Ohio Constitutionalism, 49 U.Dayton L.Rev. 1, 21-26 (2023). This
“reflexive imitation of the federal courts’ interpretation of the Federal Constitution”
has been described as “lockstepping.” Sutton, 51 Imperfect Solutions: States and
the Making of American Constitutional Law 174 (2018). By lockstepping, this
court ignored the plain language of our state Constitution and its unique history and

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tradition and hooked our wagon to the United States Supreme Court, come what
may.5
{¶ 22} But Ohio remains a sovereign State, and “the fundamental guaranties
of the Ohio Bill of Rights have undiminished vitality.” Direct Plumbing Supply
Co. at 545. That means “we are not bound to walk in lockstep with the federal
courts when it comes to our interpretation of the Ohio Constitution.” State v. Smith,
2020-Ohio-4441, ¶ 28. Instead, “[i]t is our duty to keep within the light of our own
Constitution” and not to grasp at inapplicable authorities beyond it. Good’s Lessee
v. Zercher, 12 Ohio 364, 369 (1843).
{¶ 23} Our opinion in T.R. is lockstepping at its most ill-considered. There
is no textual similarity between the Ohio Constitution’s guarantee that all courts
shall be open and the federal Constitution’s guarantees of the rights to freedom of
speech and of the press. Indeed, the federal Constitution provides no explicit
guarantee of open court proceedings beyond a criminal defendant’s Sixth
Amendment right to a “speedy and public trial.”
{¶ 24} Further, the First Amendment’s Free Speech and Free Press Clauses
advance very different interests than Ohio’s open courts provision. The former are
concerned with protecting access to court proceedings insofar as such access is
necessary to protect the right of free expression. In contrast, the open courts
provision has been understood to protect a right of public access “on the belief that
justice would be administered with greater fairness if the proceedings were open to
the public.” Harrison, How Open is Open? The Development of the Public Access
Doctrine Under State Open Court Provisions, 60 U.Cin.L.Rev. 1307, 1331 (1992).
Nonetheless, the court in T.R. decided that when it comes to open courts, the

5. For a more in-depth critique of lockstepping, consider Sutton at 174-178; Linde, E Pluribus—
Constitutional Theory and State Courts, 18 Ga.L.Rev. 165, 186-188 (1984); Blocher, Reverse
Incorporation of State Constitutional Law, 84 S.Cal.L.Rev. 323, 332-341 (2011); and Williams &
Friedman, The Law of American State Constitutions 224-241 (2d Ed. 2023), among others.

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textually and historically distinct provisions of the two constitutions mean exactly
the same thing.
{¶ 25} The court in T.R. didn’t provide any analysis to support its
conclusion that our state Constitution’s open courts guarantee provides no greater
(or different) rights than the federal Constitution. It didn’t examine the history of
the Ohio provision. It didn’t analyze its text. It simply announced a result: a result
that effectively read the open courts provision out of the Ohio Constitution.6
2. The T.R. court’s unreasoned declaration should not receive precedential
effect
{¶ 26} There is no reasoned rationale to support the T.R. court’s
pronouncement that Ohio’s open courts provision means nothing more than
textually and historically dissimilar provisions in the federal Constitution. But the
question remains: Should we adhere to T.R.’s holding simply on the basis of stare
decisis? We conclude that the answer is no.
{¶ 27} While the doctrine of stare decisis is central to our judicial system,
it “does not apply with the same force and effect when constitutional interpretation
is at issue.” Rocky River v. State Emp. Relations Bd., 43 Ohio St.3d 1, 5 (1989);
see also State v. Bodyke, 2010-Ohio-2424, ¶ 37 (lead opinion) (stare decisis “is not
controlling in cases presenting a constitutional question”); Garner et al., The Law
of Judicial Precedent 352 (2016) (“The doctrine of stare decisis applies less rigidly
in constitutional cases than it does in statutory cases because the correction of an
erroneous constitutional decision by the legislature is well-nigh impossible.”). Put

6. The dissent contends that “the court in T.R. did examine the history and the text” (emphasis in
original), dissenting opinion, ¶ 115. It premises this claim on the fact that the T.R. court explained
that there was no recorded debate about the provision at the constitutional conventions and on the
T.R. court’s reference to territorial grand-jury proceedings, which were closed to the public. See
T.R., 52 Ohio St.3d at 13-14. What the dissent misses is that the T.R. court provided not a shred of
textual or historical evidence to suggest that Ohio’s open courts provision was intended to have
exactly the same meaning as the differently worded free-speech and debate provisions of the First
Amendment to the United States Constitution.

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another way, “stare decisis does not compel adherence to an incorrect interpretation
of the Constitution,” State ex rel. Ohioans for Secure and Fair Elections v. LaRose,
2020-Ohio-1459, ¶ 88 (Kennedy, J., concurring). “A supreme court not only has
the right, but is entrusted with the duty to examine its former decisions and, when
reconciliation is impossible, to discard its former errors.” Westfield Ins. Co. v.
Galatis, 2003-Ohio-5849, ¶ 43.
{¶ 28} This is particularly true when it comes to decisions like T.R. in which
this court adopted a lockstep reading of our state Constitution without any
independent analysis of the constitutional provision. See State v. Carter, 2024-
Ohio-1247, ¶ 58 (Fischer, J., concurring) (“parties should not hesitate to raise and
vigorously argue claims under the Ohio Constitution, especially if this court has not
analyzed the relevant constitutional provision in light of its plain text, history, and
tradition”); see also Garner et al. at 226 (“The precedential sway of a case is directly
related to the care and reasoning reflected in the court’s opinion.”); Bolick,
Principles of State Constitutional Interpretation, 53 Ariz.St.L.J. 771, 782 (2021)
(“Precedential effect [of lockstep-type opinions] is deserving only where the court
gave fulsome analysis of why the provisions are coextensive . . . .”).
{¶ 29} At its core, the kind of blind lockstepping represented by the T.R.
opinion is difficult to square with our obligations as judges. After all, we take an
oath to support not only the federal Constitution but also our state Constitution. See
Ohio Const., art. XV, § 7; R.C. 3.23. And our judicial duty is to say “‘what the law
is.’” TWISM Ents., L.L.C. v. State Bd. of Registration for Professional Engineers
& Surveyors, 2022-Ohio-4677, ¶ 43, quoting Marbury v. Madison, 5 U.S. 137, 177
(1803). But when we say that our state Constitution means whatever the United
States Supreme Court says that the federal Constitution means, we ignore our
obligation to the Ohio Constitution, and we delegate away our duty to say what the
law is.

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{¶ 30} There may, of course, be contexts in which it is appropriate to look
to United States Supreme Court precedent in interpreting our state Constitution.
When the drafters of our 1851 Constitution chose to use identical language to that
contained in the federal charter, one might reasonably argue that they intended for
the Ohio provision to have a similar meaning to the federal guarantee as it was
understood at the time of adoption by the State. Even in such cases, however, it
would still be inappropriate to “irreversibly tie” our state constitutional
jurisprudence to future United States Supreme Court decisions. See Simmons-
Harris v. Goff, 1999-Ohio-77, ¶ 30. But this case does not present such a scenario.
There is simply no parallel provision to Ohio’s open courts guarantee in the federal
charter.
{¶ 31} When a litigant has raised and preserved an argument under a
provision of the Ohio Constitution that this court has previously, and without
analysis, interpreted in lockstep with the United States Constitution, it is
appropriate to revisit unreasoned prior precedent. Notwithstanding principles of
stare decisis, when presented with the appropriate opportunity, we may reexamine
unreasoned pronouncements—like the one made in T.R.—that provisions of the
Ohio Constitution mean the exact same thing as provisions of the federal
Constitution. We will not do so lightly: “No one should assume that our decision
heralds a new era in which prior cases of this court will be routinely or arbitrarily
overruled,” Galatis, 2003-Ohio-5849, at ¶ 67 (Moyer, C.J., concurring). But in
cases like this one, it is appropriate.
{¶ 32} The dissent points to this court’s practice of declining to analyze
underdeveloped state constitutional claims to suggest that by analyzing the
Enquirer’s arguments we are abandoning principles of judicial restraint. Dissenting
opinion, ¶ 118. Yet in each of the cases cited by the dissent, the parties had cited a
state constitutional provision but had failed to adequately distinguish the state
provision from federal provisions or argue that the state Constitution offered greater

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protection. See Carter, 2024-Ohio-1247, at ¶ 32-34; State v. Jordan, 2021-Ohio-
3922, ¶ 14; Stolz v. J & B Steel Erectors, Inc., 2018-Ohio-5088, ¶ 12; State v.
Moore, 2018-Ohio-3237, ¶ 22; Cleveland v. Oles, 2017-Ohio-5834, ¶ 31, fn. 1.
Further, all but one of the cases relied on by the dissent involved federal
constitutional claims with only a brief, undeveloped reference to the Ohio
Constitution. See Carter at ¶ 34; Jordan at ¶ 14; Moore at ¶ 21; Oles at ¶ 5.
{¶ 33} Here, the Enquirer has raised and preserved an argument under the
open courts provision of the Ohio Constitution. Indeed, it rests its argument solely
on the Ohio Constitution, and it has not raised any claims under the federal
Constitution. So, of course, it is appropriate for us to consider the Ohio
constitutional claims that were raised, rather than decide this case based on unraised
federal constitutional grounds.
C. The Open Courts Provision Applies to Juvenile Delinquency Proceedings
{¶ 34} Now we turn to the proper understanding of Ohio’s open courts
provision and the question at the heart of this case: Does the open courts provision
apply to juvenile delinquency proceedings?
{¶ 35} “In construing our state Constitution, we look first to the text of the
document as understood in light of our history and traditions.” Smith, 2020-Ohio-
4441, at ¶ 29. Article I, Section 16 provides, in part, “All courts shall be open, and
every person, for an injury done him in his land, goods, person, or reputation, shall
have remedy by due course of law, and shall have justice administered without
denial or delay.” “[T]his one provision contains many important constitutional
principles—‘open courts,’ ‘right to remedy,’ and ‘due course of law.’” Ruther v.
Kaiser, 2012-Ohio-5686, ¶ 10.7

7. The dissent purports to title Article I, Section 16 as “Redress for injury; Due process,” but no such
title is included in the Constitution itself. (Indeed, the phrase “due process” is found nowhere in the
Constitution.) The dissent apparently takes the Ohio Legislative Service Commission’s editorially
added headings to be a part of the Ohio Constitution. See Legislative Service Commission, Ohio

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{¶ 36} In our caselaw, we have often interpreted Article I, Section 16
without distinguishing between the individual phrases contained within it as
providing a right to litigants to access the court system. See, e.g., Lafferty v. Shinn,
38 Ohio St. 46, 48 (1882); Baltimore & Ohio RR. Co. v. Stankard, 56 Ohio St. 224,
231-232 (1897); State ex rel. Christian v. Barry, 123 Ohio St. 458, 464 (1931). But
our precedent establishes that the phrase “all courts shall be open” retains its own
force. See Steele, Hopkins & Meredith Co. v. Miller, 92 Ohio St. 115, 120 (1915)
(“in the absence of a clear reason to the contrary no portion of a written Constitution
should be regarded as superfluous”).
{¶ 37} In rejecting the argument that the provision applies only to guarantee
litigants a right to court access, one jurist explained:

As the section now stands, there are three separate concepts, namely,
(1) that the courts shall remain open; (2) that all persons shall have
remedy for the redress of grievances; and (3) that suits may be
brought against the state. The use of a comma after the word ‘open,’
followed by the conjunction ‘and’ is important here as connoting a
separation of concepts. If the framers in convention assembled had
intended otherwise, it is reasonable to conclude that they would have
so said in plain, unambiguous and unmistakable terms. This idea is
supported by records of the Constitutional debates which indicate
great care on the part of the members of the Constitutional
Conventions in the use of language to express their intentions. A
review of the history of the Constitutional Conventions and the
debates in connection therewith serves to emphasize this fact and to

Laws & Administrative Rules, available at https://codes.ohio.gov/ohio-constitution/section-1.16
(accessed July 8, 2024) [https://perma.cc/2E38-34B8]. But these headings were never ratified by
the people of Ohio and were added more than a century later.

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point up the three separate concepts now contained in [Article I,
Section 16].

Fulton, 100 Ohio App. at 171 (Hurd, J., concurring). We agree. And we are not
alone: “Most state courts agree that the [open courts] clause provides the public
with an independent right of access to both civil and criminal judicial proceedings,”
Koch, Reopening Tennessee’s Open Courts Clause: A Historical Reconsideration
of Article I, Section 17 of the Tennessee Constitution, 27 U.Mem.L.Rev. 333, 446
(1997).
{¶ 38} Before this court conflated its interpretation of the open courts
provision with the United States Supreme Court’s First Amendment jurisprudence,
the provision was understood to provide independent protections of the right of the
public to access court proceedings. In a notable case decided in 1955, the Eighth
District Court of Appeals found that the open courts provision provided a right of
public access to criminal proceedings that was independent of the defendant’s right
to a public trial. See Fulton. We have held that the provision is violated by the
holding of a trial inside a prison. State v. Lane, 60 Ohio St.2d 112 (1979). We
have also held that the provision encompasses the right of the public to attend
pretrial proceedings in a criminal case. Unger, 28 Ohio St.3d at 421. And the
provision has been said to encompass civil proceedings as well as criminal. Id. at
424-425 (Celebrezze, C.J., concurring).
{¶ 39} There is no need here to endeavor to authoritatively interpret the full
scope of the open courts guarantee. The Enquirer does not argue for an unfettered
right to access under the open courts provision. Rather, the position advanced by
the Enquirer is that there is a constitutional presumption of public access to juvenile
delinquency proceedings and that this presumption cannot be overcome without an
individualized finding that the harm to the juvenile from disclosure outweighs the
potential benefits of public access. In short, the Enquirer simply asks that we apply

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the same constitutional presumption of public access to juvenile delinquency
proceedings that we apply to adult criminal proceedings. To resolve this case, we
need only to decide if the open courts provision extends at least as far as the
Enquirer suggests. We hold that it does. Upon independent interpretation, we
conclude that the open courts provision provides a presumption of public access to
juvenile delinquency proceedings.
{¶ 40} The 1851 Constitution was adopted directly by the voters of Ohio.
See Ohio Const., 1851 schedule. “In construing constitutional text that was ratified
by direct vote, we consider how the language would have been understood by the
voters” who adopted the text. Centerville v. Knab, 2020-Ohio-5219, ¶ 22. The
language of the open courts provision is straightforward and easily understandable:
“All courts shall be open.” Ohio Const., art. I, § 16. A citizen who voted to adopt
the provision would have understood it to refer to proceedings like those at issue
here.8
{¶ 41} In holding that the constitutional presumption of access does not
apply to juvenile courts, the Geauga and T.R. courts placed great weight on their
assumption that “[j]uvenile court proceedings have historically been closed to the
public,” Geauga, 2000-Ohio-35, at ¶ 18; see also T.R., 52 Ohio St.3d at 15 (“The
United States Supreme Court has repeatedly recognized that juvenile court
proceedings have historically been closed to the public.”). But the holdings in T.R.
and Geauga were premised on the United States Supreme Court’s caselaw
construing the First Amendment—caselaw that said that the presumption of

8. The justice concurring in judgment only criticizes us for relying on the plain text of the open
courts provision to conclude that juvenile delinquency proceedings fall within the scope of the
provision and also for looking to the historical evidence about court proceedings in 1851 to add
further support to our conclusion. But without providing any analysis of the provision, the justice
concurring in judgment only in granting the writ requested by the Enquirer necessarily determines
that the open courts provision applies in juvenile delinquency proceedings. See opinion concurring
in judgment only at ¶ 72.

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openness applied only in proceedings that have “historically been open to the press
and general public,” Press-Enterprise II, 478 U.S. at 8.
{¶ 42} Juvenile courts did not exist in Ohio at the time of the drafting of the
1802 or 1851 Ohio Constitutions. But under its plain terms, the open courts
provision does not apply only to courts that were in existence at the time of its
enactment. The provision speaks to “all courts”—a phrasing that a voter would
understand to apply to all courts in Ohio regardless of what future changes the
legislature might make in court structure or jurisdiction. Such a reading is
consistent with Article IV, Section 1 of the Ohio Constitution, which broadly vests
the judicial power in the “supreme court, courts of appeals, courts of common pleas
and divisions thereof, and such other courts . . . as may from time to time be
established by law.” Thus, once we strip from our jurisprudence the inappropriate
reliance on inapposite federal precedent, it becomes clear as a textual matter that
the presumption of public openness required by the open courts provision applies
to juvenile delinquency proceedings.
{¶ 43} But even if one does think that the open courts provision’s scope is
limited by the types of proceedings that existed at the time of its enactment, the
provision would still encompass juvenile delinquency proceedings. When the open
courts provision was adopted in 1802 and readopted as part of Ohio’s second
Constitution in 1851, juveniles accused of crimes were treated the same as adults
and tried before the same courts as adults. See 2 Marshall, A History of the Courts
and Lawyers of Ohio 439-440 (1934); see also In re Gault, 387 U.S. 1, 16 (1967)
(“At common law, children under seven were considered incapable of possessing
criminal intent. Beyond that age, they were subjected to arrest, trial, and in theory
to punishment like adult offenders.”). Juvenile courts were not established in Ohio
for another 50 years. See S.B. No. 142, 95 Ohio Laws 785, 785-786 (effective May
1, 1902) (establishing the first juvenile court in Cuyahoga County); S.B. No. 40, 97
Ohio Laws 561 (effective May 5, 1904) (establishing juvenile courts statewide).

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Even Ohio’s statutory experiment authorizing a city to establish a group home as
an alternative method for dealing with juvenile offenders was not passed into law
until at least six years after the Constitution was adopted. See 54 Ohio Laws 163
(effective Apr. 16, 1857) (allowing a city to establish a “House of Refuge” where
juveniles under the age of 16 who were charged with a crime could be committed
as an alternative to incarceration).
{¶ 44} Juvenile courts in Ohio have long been understood to be a part of the
common pleas court—a court that predates the founding of this state. See 1 Chase,
Statutes of Ohio and of the Northwestern Territory, Adopted or Enacted from 1788
to 1833 Inclusive: Together with the Ordinance of 1787; the Constitutions of Ohio
and of the United States, and Various Public Instruments and Acts of Congress 95
(1833); see also 2 Marshall at 365-366. Article III, Section 3 of the Ohio
Constitution of 1802 presupposes the existence of “[t]he several courts of common
pleas.” The statute establishing the juvenile court in Hamilton County specifically
provides that the jurisdiction and powers of the Hamilton County juvenile court are
to be exercised by a “judge of the court of common pleas.” R.C. 2151.08.
Similarly, in other Ohio counties, the juvenile court is statutorily defined as a
“division” of the court of common pleas, R.C. 2151.011(A)(1)(a) and 2153.01, or,
where no separate juvenile division exists, as part of the “probate division of the
court of common pleas,” R.C. 2151.011(A)(1)(c). Thus, the phrase “juvenile court”
is simply shorthand for the part of the common pleas court that handles juvenile
proceedings.
{¶ 45} The historical analogue to present-day juvenile delinquency
proceedings was a trial of the juvenile in adult court. There is no question that the
open courts provision applied to such proceedings. So there should be no question
that the open courts provision applies to juvenile delinquency proceedings.
{¶ 46} In reaching this conclusion, we do not “erase over a century of
history and tradition as well as decades of established jurisprudence,” dissenting

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opinion at ¶ 121. Rather, we hold simply that a statutory enactment cannot trump
a constitutional provision. As the Enquirer correctly notes, “R.C. 2151.356 cannot
overcome the constitutional right of access afforded under the Open Courts
provision.” Ultimately, “[t]he Constitution is the supreme law; it is the expression
of the will of the people, subject to amendment only by the people, and neither the
Legislature by legislative enactment, nor the courts by judicial interpretation, can
repeal or modify such expression or destroy the plain language and meaning of the
Constitution, otherwise there would be no purpose in having a Constitution.”
Hoffman v. Knollman, 135 Ohio St. 170, 181 (1939).
{¶ 47} In any event, the dissent misreads our prior jurisprudence. The idea
that a juvenile record could be automatically sealed without an individualized
determination is a novel one in our centuries-long history. Before the passage of
R.C. 2151.356, see Am.Sub.H.B. No. 137, 151 Ohio Laws, Part IV, 7622 (effective
Aug. 3, 2006), juveniles could apply to have their records sealed under certain
circumstances provided that the court had discretion to order the records sealed.
See Am.Sub.H.B. No. 320, 133 Ohio Laws, Part II, 2040, 2066-2067 (effective
Nov. 19, 1969). And for the first 65 years of Ohio’s juvenile court system, there
was no sealing mechanism whatsoever. R.C. 2151.356 is different in character
from earlier statutes restricting public access. It requires the court to forever seal a
record without any opportunity for judicial review or any individualized balancing
of the interests at stake. In short, it is a blanket courtroom-closure order, bereft of
any of the protections that have traditionally been afforded before the entry of such
orders.
{¶ 48} We are not alone in holding that our Constitution protects public
access to court proceedings that extends further than the United States Supreme
Court’s interpretation of the free-speech and press guarantees of the federal
Constitution. The Oregon Constitution contains a similar open courts guarantee to
Ohio’s, providing that “[n]o court shall be secret, but justice shall be administered,

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openly and without purchase,” Oregon Const., art. I, § 10. The Oregon Supreme
Court has held that this provision “does not recognize distinctions between various
kinds of judicial proceedings; it applies to all.” State ex rel. Oregonian Pub. Co. v.
Deiz, 289 Or. 277, 283 (1980). And it has applied this provision to require public
and press access to juvenile proceedings notwithstanding a state statute that
authorized a judge to exclude the public. Id.
{¶ 49} In a concurring opinion in Deiz, Justice Linde explained:

In modern times the impression probably has become
widespread that a question of constitutional law is not settled until
the United States Supreme Court settles it, and that it cannot be
settled differently from that Court’s decision. That is half true. It is
true only when a state denies someone a right guaranteed by the
United States Constitution. It is not true when a state’s constitution
provides more or stronger guarantees than the national minimum.
This is such a case.

Id. at 286 (Linde, J., concurring). Ours is also such a case.
D. Because the Open Courts Provision Applies to Juvenile Delinquency
Proceedings, Records Cannot Be Sealed Without Individualized Findings
{¶ 50} Having determined that the open courts provision applies to juvenile
delinquency proceedings, the rest of the analysis is straightforward. We have
consistently held that when there is a constitutional right of access, proceedings
may only be closed based on individualized findings “that closure was 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.” Unger, 28 Ohio St.3d at 422. We have applied this test in the context

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of access to court records involving juveniles. See State ex rel. Cincinnati Post v.
Second Dist. Court of Appeals, 65 Ohio St.3d 378 (1992).
{¶ 51} We have made clear that this requirement applies to court records.
In Cincinnati Post, we granted a writ of mandamus to a newspaper seeking to gather
information on the outcome of appeals brought under the statute permitting judicial
bypass of parental notification for a minor to procure an abortion. Those files were
sealed, but the court noted that “[a]s a general principle courts should be open, and
the public should have access to the proceedings. Indeed this is a requirement of
the Ohio Constitution.” Id. at 381, citing Ohio Const., art. I, § 16.
{¶ 52} The Cincinnati Post court further noted that court proceedings may
be closed “only when there is an overriding competing interest” and that any
“restriction should be narrowly tailored to serve the competing interest without
unduly burdening the public’s right of access.” Id., citing T.R., 52 Ohio St.3d 6.
The court explained that the United States Supreme Court had mandated that as a
constitutional matter, an abortion parental-consent law must contain a judicial-
bypass procedure that maintains the juvenile’s anonymity. Id. at 379. But under
the open courts provision, the public was entitled to access court records that did
not compromise the juvenile’s anonymity, specifically: “(1) the docket number, (2)
the name of the judge, and (3) the decision including, if appropriate, a properly
redacted opinion.” Id. at 381.
{¶ 53} In Winkler, we dealt with a statute that allowed a defendant who had
been found not guilty of an offense to apply to have the record of that proceeding
sealed. We explained that the constitutional presumption of openness applied to
the records at issue. 2004-Ohio-1581 at ¶ 8. But we upheld the constitutionality of
the statute based on its requirement that the trial judge conduct an individualized
balancing of the public’s right of access against the acquitted defendant’s interest
in privacy. We explained:

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January Term, 2024

The statute . . . requires that following a hearing, the court must
“[w]eigh the interests of the person in having the official records
pertaining to the case sealed against the legitimate needs, if any, of
the government to maintain those records.” R.C. 2953.52(B)(2)(d).
Thus, the court’s discretion to seal records is not unfettered. Instead,
the statute balances the public’s right of access and the acquitted
defendant’s constitutional right to privacy.

Id. at ¶ 10.
{¶ 54} The statute at issue in this case does not contain the feature that
allowed us to uphold the constitutionality of the statute in Winkler. R.C.
2151.356(B)(1)(d) does not require any individualized balancing of interests—and
Judge Bloom did not conduct any such balancing.
{¶ 55} We therefore grant the Enquirer the writ of mandamus that it seeks.
In another case, it might be appropriate to remand for a juvenile court judge to
conduct the balancing in the first instance. But in this case, J.L. is deceased and
thus can no longer assert an interest in shrouding the proceedings from the public.9
{¶ 56} Granting the writ in this case is required by the constitutional text.
But it bears mentioning that doing so comports with the values underlying that
text.10 The open courts provision is premised on the notion that “the people have
the right to know what is being done in their courts.” State v. Hensley, 75 Ohio St.

9. The dissent criticizes us for granting the writ “without consideration of whether names of
witnesses, victims, or family members might warrant protection,” dissenting opinion at ¶ 127. But
we have long recognized that the interests to be balanced in making such a decision are those of the
juvenile and the public. See, e.g., T.R., 52 Ohio St.3d at 16; State ex rel. Dispatch Printing Co. v.
Lias, 1994-Ohio-335, ¶ 26; Geauga, 2000-Ohio-35, at ¶ 41; Winkler, 2004-Ohio-1581, at ¶ 11.

10. The dissent claims this passage “suggest[s] a new interpretive principle” to be abused for
judicial-policymaking ends. Dissenting opinion at ¶ 113. But we do not rely on the values
underlying the text to find the statute unconstitutional. Rather, we rely on the text and history of the
open courts provision to find the statute unconstitutional and simply note that this conclusion is also
supported by the principles underlying the provision’s text.

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255, 266 (1906). After all, “[t]he courts belong to the people” and “[i]f we deny to
the public and press access to courts of justice, we foster a system of jurisprudence
heretofore unknown in the history of Ohio.” Fulton, 100 Ohio App. at 177-178
(Hurd, J., concurring).
{¶ 57} We recognize that there are strong interests in protecting the privacy
of juveniles—particularly when a juvenile has been judged not to be delinquent.
But there are also countervailing interests in ensuring that juvenile proceedings are
subject to public scrutiny. See Clark, Collateral Damage: How Closing Juvenile
Delinquency Proceedings Flouts the Constitution and Fails to Benefit the Child, 46
U.Louisville L.Rev. 199 (2007); Note, The Public Right of Access to Juvenile
Delinquency Hearings, 81 Mich.L.Rev. 1540 (1983). These interests include
“educating society about the juvenile court, promoting public confidence in the
judicial branch, deterring future acts of delinquency, deterring abuse of power by
judges and other public officials, and alerting parents to their responsibilities
regarding their minor children.” State ex rel. Plain Dealer Publishing Co. v. Floyd,
2006-Ohio-4437, ¶ 35. Indeed, history is rife with examples of abuse of juveniles
in our justice system—abuse that was often perpetuated by closing our juvenile
system from public scrutiny.11

11. See, e.g., Rubinkam, Pa. Judge Guilty of Racketeering in Kickback Case (Feb. 19, 2011),
https://apnews.com/article/pennsylvania-racketeering-scranton-
863f02b89f824c0296cdbbcf8a539bbf (accessed Mar. 19, 2024) [https://perma.cc/EFS8-8SPL];
Knight, Black Children Were Jailed for a Crime That Doesn’t Exist. Almost Nothing Happened to
the Adults in Charge (Oct. 8, 2021), https://www.propublica.org/article/black-children-were-jailed-
for-a-crime-that-doesnt-exist (accessed Mar. 19, 2024) [https://perma.cc/Q6XB-YNJA]; Satija,
Harris County juvenile judges and private attorneys accused of cronyism: “Everybody wins but the
kids” (Nov. 1, 2018), https://www.texastribune.org/2018/11/01/harris-county-texas-juvenile-
judges-private-attorneys/ (accessed Mar. 19, 2024) [https://perma.cc/XKQ5-255Q]; Montgomery &
Moore, They Went to the Dozier School for Boys Damaged. They Came Out Destroyed (Aug. 18,
2019), https://www.tampabay.com/investigations/2019/08/18/they-went-to-the-dozier-school-for-
boys-damaged-they-came-out-destroyed/ (accessed July 8, 2024) [https://perma.cc/T6R5-KWEE];
see also Whitehead, The Nickel Boys (2019), for a fictionalized account of the abuses detailed in the
above-referenced source.

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{¶ 58} This court has recognized the importance of public access to and
scrutiny of our juvenile court system. We have made clear that “‘“[t]he public has
a right to know how courts deal with children and families.”‘” Geauga, 2000-Ohio-
35, at ¶ 24, quoting Dienes, Levine & Lind, Newsgathering and the Law 139, fn.
443, (2d Ed. 1999), quoting National Council of Juvenile & Family Court Judges,
Children and Family First: A Mandate for America’s Courts 3 (1995). And we
have explained that “[a]llowing the public . . . into our courtrooms will enable
society as a whole to become better acquainted with the functioning of the judicial
process and the laws enacted by the General Assembly that directly impact our
minor children.” State ex rel. Dispatch Printing Co. v. Lias, 1994-Ohio-335, ¶ 26.
{¶ 59} But transparency and openness are not just policy values: in Ohio
they are a constitutional requirement. See Cincinnati Post, 65 Ohio St.3d at 381.
In adopting the open courts provision, the voters who enacted our Constitution
made the decision that the administration of justice is best done in the open. We
are obligated to honor their decision by holding true to the text of our Constitution.
III. CONCLUSION
{¶ 60} We hold 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.
We therefore find that under the open courts provision, R.C. 2151.356 may not be
constitutionally applied without such an individualized determination. And
because J.L. no longer has an interest in keeping the transcript of his delinquency
trial secret, we grant a writ of mandamus ordering that Judge Bloom produce a copy
of the trial transcript to the Enquirer and a writ of prohibition precluding her from
enforcing her order sealing the records.
Writs granted.
__________________

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DONNELLY, J., concurring in judgment only.
{¶ 61} Based on the facts presented when this action was filed, we should
prohibit respondent, Judge Kari L. Bloom, from continuing to enforce her decision
to seal the records of certain juvenile-court proceedings against J.L., and we should
order that the transcript of those proceedings be provided to relator, the Cincinnati
Enquirer.12 Because the majority eventually gets to the right disposition, albeit
through an analysis that no one asked for and with legal conclusions that are both
erroneous and far broader than necessary for the disposition, I concur in judgment
only.
I. ANALYSIS
{¶ 62} First, let’s look at the analysis that was actually requested. In its
merit brief, the Cincinnati Enquirer points to the first provision in Article I, Section
16 of the Ohio Constitution, which states that “[a]ll courts shall be open.” The
Cincinnati Enquirer asks us to declare R.C. 2151.356(B)(1)(d) to be
unconstitutional because it lacks any mechanism to allow a court to consider the
public’s interest in having access to juvenile records, such as the balancing test that
we employed in State ex rel. Scripps Howard Broadcasting Co. v. Cuyahoga Cty.
Court of Common Pleas, Juvenile Div., 73 Ohio St.3d 19 (1995)—a case in which
we applied the balancing test from In re T.R., 52 Ohio St.3d 6, 12 (1990). See
Scripps at 21.
A. Scripps
{¶ 63} The controversy in Scripps involved the application of Juv.R. 37(B),
which provides that “[n]o public use shall be made by any person, including a party,
of any juvenile court record, including the recording or a transcript of any juvenile

12. To the extent that certain procedures may be required at the juvenile-court level prior to
unsealing, such as the redaction of names of juveniles other than J.L. from the record, we should
remand this matter to the juvenile court with instructions that the court undertake such actions before
unsealing the record.

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court hearing, except in the course of an appeal or as authorized by order of the
court.” By its plain language, Juv.R. 37(B) does not require a trial judge to consider
any particular factors, perform any balancing of interests, or provide any reasoning
when declining to authorize the public release of a juvenile-court record. Based on
Juv.R. 37(B), the juvenile-court judge in Scripps summarily denied public access
to a transcript of contempt proceedings in a custody matter. Scripps at 20.
{¶ 64} In Scripps, this court held that juvenile-court proceedings have
historically been closed to the public and therefore the constitutional presumption
of openness was not applicable. Id. at 21. However, Ohio’s open-courts provision
and the First Amendment to the United States Constitution require that “‘any
restriction shielding [juvenile] court proceedings from public scrutiny should be
narrowly tailored to serve the competing interests of protecting the welfare of the
child or children and of not unduly burdening the public’s right of access.’”
(Emphasis in original.) Id., quoting State ex rel. Dispatch Printing Co. v. Lias,
1994-Ohio-335, ¶ 23 (discussing T.R.). We held that the juvenile-court judge’s
order under Juv.R. 37(B) summarily denying a request for public access to a
transcript “impinged on the public’s constitutional right of access.” Scripps at 21.
Thus, notwithstanding the language of Juv.R. 37(B), we held that a juvenile-court
judge must make the following findings before denying public release of a
transcript: “(1) that there exists a reasonable and substantial basis for believing that
public access could harm the child or endanger the fairness of the adjudication, and
(2) that the potential for harm outweighs the benefits of public access.” Id. at 20-
21, citing T.R. at paragraph three of the syllabus.
{¶ 65} The foregoing balancing test was borrowed from our holding in T.R.,
a case in which we applied the test to former R.C. 2151.35 and former Juv.R. 27,
both of which similarly lacked any standards for closing juvenile-court
proceedings. T.R., 52 Ohio St.3d at 17-18; see former R.C. 2151.35(A),
Am.Sub.S.B. No. 89, 142 Ohio Laws, Part I, 198, 221 (“In the hearing of any case,

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the general public may be excluded and only those persons admitted who have a
direct interest in the case.”); former Juv.R. 27(A), 69 Ohio St.3d CLXIX (“In the
hearing of any case the general public may be excluded and only persons admitted
who have a direct interest in the case.”).13 This balancing test, which is less
stringent than the standard generally applicable to adult-court proceedings, requires
that juvenile-court proceedings be closed only when the judge has made “findings
that closure is essential to preserve higher values and is narrowly tailored to serve
an overriding interest,” Scripps, 73 Ohio St.3d at 20, citing Press-Enterprise Co. v.
Superior Court of California for Riverside Cty., 478 U.S. 1, 9 (1986) (“Press-
Enterprise II”).
{¶ 66} At issue in Scripps was a request for a transcript that was limited to
contempt proceedings brought against nonparties to the underlying custody dispute
for their failure to timely produce subpoenaed records. Id. at 19. Because there
was no indication that the parties to the custody proceeding would be harmed by
public access to the collateral contempt proceedings, let alone harm that would
outweigh the benefits of public access, we simply ordered disclosure of the
transcript, rather than ordering the juvenile court to conduct its own weighing of
interests. Id. at 22.
{¶ 67} Scripps stands for the proposition that juvenile-court proceedings are
not subject to the same presumption of openness contemplated in the open-courts
provision that applies to adult-court proceedings. See Id. at 20. But juvenile-court
proceedings are also not conclusively presumed to be closed; a less stringent
standard does not mean no standard. See id. at 21, quoting Lias, 1994-Ohio-335,
at ¶ 23 (“even under the T.R. standard, we have stated that ‘any restriction shielding
court proceedings from public scrutiny should be narrowly tailored to serve the

13. Subsequent to this court’s decision in T.R., both R.C. 2151.35 and Juv.R. 27 were amended to
incorporate the balancing test articulated in T.R. See Am.Sub.S.B. No. 179, 148 Ohio Laws, Part
IV, 9447, 9515; 2001 Staff Notes to Juv.R. 27(A), 92 Ohio St.3d CVIII.

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competing interests of protecting the welfare of the child or children and of not
unduly burdening the public's right of access’ ” [emphasis in original]). And when
the justification for the confidentiality of juvenile-court proceedings—e.g.,
protecting sensitive information about children—becomes inapplicable, the failure
to provide the narrower cloak of confidentiality presents an undue burden on the
public’s right of access. See Scripps at 21-22.
B. The statutory scheme is unconstitutional under Scripps
{¶ 68} Let’s apply our analysis in Scripps to this case. Subject to exceptions
not applicable here, R.C. 2151.357(A) prohibits a juvenile-court judge from
entertaining a request for the release of juvenile-court records that were sealed
under R.C. 2151.356, including a juvenile’s records that were required to be
immediately sealed when the juvenile was found to be not delinquent, R.C.
2151.356(B)(1)(d). The statutory scheme creates an impenetrable rule regarding
juveniles found to be not delinquent. It provides no possibility for public access
under any circumstances, either at the time the record is initially closed off from
public access or at the time of a later request to release the record.
{¶ 69} Even presumptively closed grand-jury proceedings are subject to
exceptions when closure conflicts with other constitutional protections. See State
v. Laskey, 21 Ohio St.2d 187, 191 (1970), vacated in part on other grounds, Laskey
v. Ohio, 408 U.S. 936 (1972) (allowing disclosure of grand-jury proceedings only
if “the ends of justice require it,” which can be established by demonstrating “a
particularized need” that “outweighs the policy of secrecy”); In re Petition for
Disclosure of Evidence Presented to Franklin Cty. Grand Juries in 1970, 63 Ohio
St.2d 212, 215-216 (1980) (applying Laskey to a request for grand-jury records by
a civil litigant who was not a defendant in the underlying criminal prosecution); see
also Butterworth v. Smith, 494 U.S. 624, 630 (1990), quoting United States v.
Dionisio, 410 U.S. 1, 11 (1973) (“the invocation of grand jury interests is not ‘some
talisman that dissolves all constitutional protections’”). Accordingly, because the

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confidentiality required in R.C. 2151.356(B)(1)(d) and 2151.357(A) is conclusive
and provides no relevant exception to public access, the statutory scheme impinges
on “the public’s constitutional right of access,” Scripps, 73 Ohio St.3d at 21.
C. We cannot fix the statutory scheme on the General Assembly’s behalf
{¶ 70} While we had the freedom in T.R. and Scripps to add a weighing
requirement to the open-ended language in Juv.R. 27 and 37 and R.C. 2151.35 to
cure the potential for an undue burden on the public’s constitutional right of access,
we don’t have that same freedom in this case with R.C. 2151.356(B)(1)(d) and
2151.357(A). The statutory scheme’s mandatory language provides no room for
discretion and therefore no room to add a balancing test. We also cannot summarily
impose the weighing requirement from Scripps and T.R. to the statutory scheme,
because we would risk exceeding our judicial role of identifying the constitutional
floor below which a law may not fall and risk otherwise intruding into the
legislative function. See Fortner v. Thomas, 22 Ohio St.2d 13, 14 (1970) (the
judiciary must not make “premature declarations or advice upon potential
controversies . . . includ[ing] enactments of the General Assembly”). We created
the weighing test in Scripps and T.R. to ensure that the process of closing juvenile-
court proceedings remained above the floor of what might minimally be
constitutionally required. We acknowledged in T.R. that the actual floor might be
lower and hypothesized in dicta that a statutory presumption of closed juvenile-
court proceedings might pass constitutional muster. See T.R., 52 Ohio St.3d at 17.
{¶ 71} I have my doubts whether our hypothesis in T.R. was correct, but
regardless, dicta has no precedential value. See Cosgrove v. Williamsburg of
Cincinnati Mgt. Co., 1994-Ohio-295, ¶ 16 (dicta “has no binding effect”).
Moreover, we have already held that such a presumption cannot apply in the context
of juvenile-delinquency proceedings. See State ex rel. Plain Dealer Publishing Co.
v. Geauga Cty. Court of Common Pleas, Juv. Div., 2000-Ohio-35, ¶ 22. And even
if the dicta in T.R. were correct and applicable to juvenile-delinquency proceedings,

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we still may not give our blessing to R.C. 2151.356(B)(1)(d) and 2151.357(A),
because public access is not just presumptively closed under the statutory scheme,
public access is conclusively closed. Regardless of where the constitutional floor
might be for public access to juvenile-court proceedings, R.C. 2151.356(B)(1)(d)
and 2151.357(A) clearly fall below that floor. Thus, even without declaring a new
weighing test to cure the unconstitutional nature of the statutory scheme on behalf
of the General Assembly for future cases, we must still declare the statutory scheme
to be unconstitutional as requested in the Cincinnati Enquirer’s complaint.
D. The writs should issue under Scripps
{¶ 72} Although we should neither rewrite nor approve of the statutory
scheme in accordance with our holdings in Scripps and T.R., we must still grant the
Cincinnati Enquirer’s requested relief on the authority of those cases. Given the
circumstances at the time the Cincinnati Enquirer filed its complaints for writs of
mandamus and prohibition, Judge Bloom’s refusal to release the transcript of J.L.’s
juvenile-court proceedings unduly burdens the public’s right of access under any
standard. The confidentiality of juvenile-court proceedings is justified by the
policy of promoting the long-term rehabilitation of juveniles so that they may enter
society as adults who have been protected and nurtured as youths and so that they
are not permanently stigmatized by their youthful mistakes. See R.C. 2151.01;
Juv.R. 1(B)(3); T.R. at 16, citing In re Gault, 387 U.S. 1, 24 (1967); In re C.P.,
2012-Ohio-1446, ¶ 63 (“Ohio’s juvenile system is designed to shield children from
stigmatization based upon the bad acts of their youth . . . .”). It is undisputed that
J.L. was deceased when the Cincinnati Enquirer requested the transcript of his
juvenile-court proceedings from early 2022. It goes without saying that the loss of
a young life is tragic. But it remains true that there is no need to protect the future
of a life that has been cut short. Accordingly, the justification for the confidentiality
of juvenile-delinquency records for the sake of protecting the juvenile’s future is
not applicable here. Because there is no potential harm to J.L. or to the fairness of

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his proceedings, let alone harm that would outweigh the benefits of public access,
the transcript should be disclosed. Thus, under the specific facts of this case, the
writs of mandamus and prohibition requested by the Cincinnati Enquirer must
issue.
II. THE MAJORITY’S IMPROPER ANALYSIS
{¶ 73} In contrast to the straightforward analysis above, the majority’s
analysis reminds me of a scene from the rock-band mockumentary This is Spinal
Tap (Embassy Pictures Corp. 1984). In the scene, Spinal Tap’s lead guitarist, Nigel
Tufnel, brags to an interviewer that his band’s sound system is more powerful than
others’ because the knobs on his band’s amplifiers go up to 11 rather than the
standard 10. When pressed about whether there was any actual difference in the
amplifiers other than the numbers, he goes in circles with the interviewer and then
simply concludes, “These go to 11.” The majority thinks the open-courts provision
of the Ohio Constitution clearly goes to 11, but the majority offers no coherent
argument about what that actually means. One might think that the majority is
making more than a Nigel Tufnel argument given its copious references to storied
documents like the Magna Carta and other precursors to the origin of our glorious
State, but the majority fails to make the requisite connections between its lofty,
generic references and the specific conclusions it draws.
{¶ 74} The majority also fails to make connections between the controversy
presented by the parties and the issues that the majority claims it needs to resolve.
The majority does a lot of reframing to get where it wants to go. The majority
reframes Judge Bloom’s argument as centering on the meaning and import of T.R.,
despite the fact that Judge Bloom does not cite T.R. at any point, let alone discuss
it.14 It reframes T.R. as destroying the public’s right to access juvenile-court

14. To the extent that Judge Bloom provided any constitutional argument at all, she merely claimed
that the Cincinnati Enquirer could not rely on Scripps, because it related to family law rather than a

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proceedings, despite the fact that T.R. created a weighing test to ensure that
juvenile-court proceedings could not be closed without first considering the
public’s constitutional right to access. It reframes the question before us as whether
we should “adhere to T.R.’s holding simply on the basis of stare decisis,” majority
opinion, ¶ 26, or overrule T.R. despite precisely no one asking that question. It
reframes this court’s reliance on federal jurisprudence in T.R. as a historical
aberration that requires us to overrule T.R., despite the fact that the majority touts
other precedent from this court that relies on the very same federal jurisprudence.
It reframes the test of “experience and logic” from Press-Enterprise II as wholly
unique to the First Amendment, despite the fact that we have applied the same or
similar tests in other areas of Ohio law. And although it finds historical
considerations to be irrelevant, the majority goes ahead and reframes our history of
imposing adult-court criminal proceedings on juveniles as the history of juvenile
courts themselves, despite the fact that juvenile-court proceedings are unique from
adult-court proceedings and include everything from custody disputes to
delinquency adjudications.
{¶ 75} And what is the majority’s intended destination with all of this
reframing? Certainly not the result of granting the writs as requested—the writs
can be granted by applying rather than overruling T.R. and Geauga. Rather, the
majority’s goal is apparently to have the chance to hold forth about the evils of
“lockstepping” and the need for independent state constitutional analysis, also
known as judicial federalism. See Bergeron, A Tipping Point in Ohio: The Primacy
Model as a Path to a Consistent Application of Judicial Federalism, 90
U.Cin.L.Rev. 1061, 1062 (2022). While I think some of the majority’s generic
points are good ones, the majority’s decision to unnecessarily force those points

juvenile-justice case. It is the Cincinnati Enquirer that first mentioned T.R. in its reply brief to
support its argument that the right to public access is even stronger in the context of juvenile-justice
cases.

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onto this case is a bad one. The result is the gratuitous and selective overruling of
precedent, creating a new rule that is applicable to all juvenile-court proceedings
far beyond the scope of this controversy, which is contrary to our obligation to
exercise judicial restraint.
A. Misinterpretation of T.R.
{¶ 76} The majority creates an inroad to its analysis by claiming that we
held in T.R. that the public has no constitutional right of access whatsoever to
juvenile-court proceedings. This claim is founded on a materially incomplete
reading of T.R.
{¶ 77} The litigation underlying T.R. involved a custody battle that garnered
national attention, in response to which some parties moved to close proceedings
and seal the record. See T.R., 52 Ohio St.3d at 8-9. The applicable rule, Juv.R. 27,
and statute, R.C. 2151.35(A), both provided that “the general public may be
excluded,” T.R. at 17, essentially leaving the decision whether to close the
proceedings to the juvenile court’s broad discretion. The juvenile-court judge
granted the motion for closure, first stating that closure was warranted “‘[s]o long
as there is a scintilla of possibility of harm to the child,’” but later indicating in his
judgment entry that the proper standard included “‘a presumption in favor of the
openness of all judicial proceedings’ which could only be overcome ‘where a
competing, overriding interest is found to exist and the preservation of that
overriding interest necessitates invasion of the [F]irst [A]mendment rights.’” Id. at
11. The latter standard articulated by the juvenile court is the strict standard that
applies to adult-court proceedings and the former standard is incredibly lax, while
the rule and statute provided no standard at all.
{¶ 78} This court began the analysis of the foregoing competing standards
(and nonstandards) with the holding now criticized by the majority—that “juvenile
court proceedings have historically been closed to the public,” id. at 15, and that
the presumption of public access does not apply, id. at 17. But this did not end the

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analysis. This court stressed that although the public’s constitutional right to access
juvenile-court proceedings was not strong enough to require a presumption of
openness, the public’s right was nonetheless significant and must be adequately
weighed by the juvenile court before restricting access. Id. at 16-17. This court
rejected standards that focused on the “‘scintilla of possibility of harm’” or the
“‘best interests of the child’” because those standards did not adequately protect the
“public’s interest in access.” Id. at 18. To protect the public’s lesser-but-still-
significant constitutional right to access juvenile-court proceedings, this court
decided to require juvenile courts to make findings “(1) that there exists a
reasonable and substantial basis for believing that public access could harm the
child or endanger the fairness of the adjudication, and (2) that the potential for harm
outweighs the benefits of public access.” Id. at 18-19.
{¶ 79} The majority incorrectly claims that this court created the foregoing
standard by “turn[ing] to statutory law and rules,” majority opinion at ¶ 12. Not so.
To the contrary, this court added the standard—which was completely absent from
the statute and rule—to protect the public’s constitutional interests.15 Normally we
are forbidden from adding to the language of a statute, but ambiguous statutory
language does give us some ability to reframe the language to preserve the statute’s
constitutionality. See State v. Jeffries, 2020-Ohio-1539, ¶ 18, 27. Given the
neutrality of the language in the version of R.C. 2151.35(A) in effect at the time of
T.R., we apparently felt empowered to ask for forgiveness rather than permission
in imposing our own test to avoid potential violations of the public’s right to access
juvenile-court proceedings. Our dicta regarding the possible constitutionality of a

15. To support its contention that the balancing test in T.R. had a statutory rather than constitutional
source, the majority cites State ex rel. Plain Dealer Publishing Co. v. Floyd, 2006-Ohio-4437, ¶ 34,
which references the balancing test as “required by precedent, statute, and rule.” The majority fails
to acknowledge that by the time Floyd was decided, the statute and rule had been amended to adopt
the standard created in T.R. See Floyd at ¶ 33. Thus, the standard reflected in the statute and the
rule came from our constitutionally derived precedent, not the other way around.

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hypothetical statute with a presumption of closure of juvenile-court proceedings,
T.R. at 17, was essentially our request for forgiveness; the General Assembly was
free to add a different statutory standard for juvenile-court proceedings, the
constitutionality of which we could scrutinize at a later point.
{¶ 80} Although this court held in T.R. that juvenile-court proceedings do
not carry the same mandatory presumption of openness applicable to adult-court-
criminal proceedings, T.R., 52 Ohio St.3d at 21, we did not turn the First
Amendment or Ohio’s open-courts provision into an all-or-nothing dichotomy and
conclude, as the majority claims, that the public has no right whatsoever to access
juvenile-court proceedings. We held that the public’s interest in access to juvenile-
court proceedings must be weighed against any interest in closing juvenile-custody
and -dependency proceedings, and we also held that the public’s interest is owed
even more weight in juvenile-delinquency proceedings. T.R. at 16; see also
Geauga, 2000-Ohio-35, at ¶ 22-23. If it were true that the public had no
constitutional right to open proceedings to be weighed, there would have been no
reason to create a balancing test. And although this court suggested in T.R. that a
statutory presumption of closure might be constitutional in custody and dependency
proceedings, we never suggested that conclusively closed juvenile-court
proceedings would be constitutional.
B. Misunderstanding of T.R.’s Place in History
{¶ 81} The majority compounds its misinterpretation of our holding in T.R.
by misinterpreting its historical context. To justify overruling T.R., the majority
describes T.R. as a sudden departure from how we have “[h]istorically” and
“traditionally” held that “court proceedings are presumptively open” in cases such
as State ex rel. The Repository v. Unger, 28 Ohio St.3d 418 (1986); Scripps, 73
Ohio St.3d 19; and State ex rel. Cincinnati Enquirer v. Winkler, 2004-Ohio-1581,
superseded by statute on other grounds as stated in In re Disqualification of
Celebrezze, 2023-Ohio-4383. Majority opinion at ¶ 7. In the majority’s version of

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history, the “presumption of openness” was held to always apply under the open-
courts provision until T.R. injected a new exception based on federal
jurisprudence—particularly Press-Enterprise II, 478 U.S. 1—regarding the Free
Speech and Free Press Clauses of the First Amendment. See majority opinion at
¶ 9, 41. The majority fails to acknowledge that this court’s use of the “presumption
of openness” standard came from the same line of federal jurisprudence, including
Press-Enterprise II. See Unger at 421; Scripps at 20; T.R., 52 Ohio St.3d at 12;
Winkler at ¶ 8.
1. Federal jurisprudence in context
{¶ 82} The United States Supreme Court’s decision in Press-Enterprise II
arose out of a shift in discourse about the openness of court proceedings in the
1980s from demands by the press to access and report on significant aspects of the
criminal-justice system. Through the end of the 1970s, the constitutional right to
open proceedings was discussed as a right belonging to the litigants, whereas public
access to court proceedings was viewed as a right derived from the common law
and subject to limitation at a trial court’s discretion. See Nixon v. Warner
Communications, Inc., 435 U.S. 589, 597-599 (1978); Gannett Co., Inc. v.
DePasquale, 443 U.S. 368, 385 (1979). The American public’s ability to access
court records and transcripts was viewed as rather liberal compared to the
traditional English practice of allowing access only with proof of a proprietary
interest in the records or a specific need to use them in litigation. Nixon at 597.
Although there was a recognized right for the public to attend civil and criminal
trials, the right was not viewed as extending to anything before or after the trials,
nor to any proceedings that did not exist at common law. Gannett at 387-388 and
fns. 17 through 19.
{¶ 83} The United States Supreme Court first recognized that the public’s
interest in attending trials is a constitutional right in Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555 (1980), and Globe Newspaper Co. v. Superior Court for

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Norfolk Cty., 457 U.S. 596 (1982). In Richmond, the Court emphasized the
historical presumption of openness of trials to support the conclusion that the
presumption of openness was baked into the United States Constitution and
essential to the administration of justice as well as the public’s faith in the judicial
system. Richmond at 569-571. In Globe, the Court focused on the importance of
public access to trial proceedings as significant to “the functioning of the judicial
process and the government as a whole.” Globe at 606. The Court struck down a
state law requiring the closure of trial proceedings for sex offenses during the
testimony of a minor victim, notwithstanding the argument that the public had
historically been excluded from such proceedings. Id. at 605, fn. 13. The Court
further reasoned that “logic and common sense” did not support the claim that
closure was necessary to encourage minors to feel safe in providing accurate
testimony, given that the same rationale could be applied to any reluctant testifier
and given that the law did not otherwise protect the minor’s identity or restrict
subsequent access to transcripts of the same proceedings. Id. at 609-610. The “tests
of experience and logic,” Press-Enterprise II at 9, are thus based on the historical
and pragmatic concerns discussed in Richmond and Globe.
{¶ 84} The conclusions in Richmond and Globe were not a huge stretch
given that trials “‘had long been presumptively open’” under the common law of
England and early American law. Globe at 605, quoting Richmond at 569. But in
light of the Court’s previous indications in Gannett and Nixon that the public’s
historical right to access court proceedings extended no further than a traditional
criminal or civil trial, it was more of a stretch for the Court to extend Richmond and
Globe to voir dire proceedings in Press-Enterprise Co. v. Superior Court of
California, Riverside Cty., 464 U.S. 501 (1984) (“Press-Enterprise I”), and to
preliminary hearings in Press-Enterprise II. Although the Court maintained that
the historical openness of a particular proceeding was still relevant to a
determination whether the public had a First Amendment right to access, Press-

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Enterprise II, 478 U.S. at 8-9, the Court focused heavily on the logical connection
between openness of a pretrial hearing and the fairness of and public confidence in
the outcome, id. at 12-13.16
2. Ohio’s use of federal jurisprudence in context
{¶ 85} The history of this court’s application of the open-courts provision
to public access prior to Press-Enterprise II is sparce, which explains why the
majority so heavily relies on a single concurring opinion from the Eighth District
Court of Appeals: E.W. Scripps Co. v. Fulton, 100 Ohio App. 157, 170-178 (8th
Dist. 1955) (Hurd, J., concurring). This court first identified the public’s
constitutional right to access proceedings and a “presumption of openness” in
Unger, in which we quoted Press-Enterprise I and concluded that the constitutional
right of access applied to pretrial proceedings in accordance with Press-Enterprise
II. Unger, 28 Ohio St.3d at 421 and fn. 4. The second instance was in T.R.
{¶ 86} The majority fails to cite a single case prior to our decision in T.R.
that held that juvenile-court proceedings must presumptively be open to the public
under the open-courts provision. My review of our jurisprudence has revealed only
decisions that make passing references to the view that juvenile-court proceedings
have been considered nonpublic and confidential. See, e.g., Prescott v. State, 19
Ohio St. 184, 187-188 (1869) (describing Ohio’s juvenile-court proceedings as
“purely statutory” and not subject to the constitutional rights that apply to criminal
trials); Ex parte Januszewski, 196 F. 123, 129 (C.C.Ohio 1911); In re Agler, 19
Ohio St.2d 70, 73 (1969) (describing Ohio’s juvenile-court hearings and records as
“non-public”); see also Agler at 81 (“the privacy of juvenile proceedings in
themselves offers protection to a child from the adverse effect of groundless

16. Despite their initial emphasis on juvenile-court proceedings being historically closed, our
decisions in T.R. and Geauga seem to share the focus of Globe and Press-Enterprise II on the logic
and fairness of open proceedings, given that the decisions ultimately required that the public’s
interest in accessing the proceedings be weighed against the interest in closure. See T.R., 52 Ohio
St.3d at 18-19; Geauga, 2000-Ohio-35, at ¶ 29.

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charges upon his reputation”); Unger at 425 (Celebrezze, C.J., concurring)
(mentioning “certain juvenile hearings” as an example of proceedings that “do not
come within the realm of the constitutional guarantee of open courts”); State v.
Hanning, 2000-Ohio-436, ¶ 15 (“traditionally juveniles have been shielded from
the stigma of the proceedings by keeping hearings private and not publishing
juveniles’ names”); C.P., 2012-Ohio-1446, at ¶ 62 (“Confidentiality has always
been at the heart of the juvenile justice system.”).
{¶ 87} To the extent that our decision in T.R. departs from our so-called
traditional view of the public’s right to access juvenile-court proceedings, it appears
to have expanded rather than restricted that right by requiring trial courts to weigh
the public’s interest in accessing juvenile-court proceedings against the interest in
closure or confidentiality. If there are better examples of the intersection between
the open-courts provision and juvenile-court proceedings in Ohio history, neither
the majority nor I have found them. Of course, the Cincinnati Enquirer or Judge
Bloom might have provided us with a fuller historical picture if one of them, rather
than the majority, had raised the issue of T.R.’s continuing validity or the history of
juvenile-court proceedings in Ohio.
C. Bald Conclusions and Irrelevant History
{¶ 88} The majority sua sponte overturns T.R. and Geauga after spending a
great deal of time discussing lockstepping, judicial federalism, and the need to
independently interpret the Ohio Constitution. But after all this buildup, the
majority makes very little effort to undertake an independent interpretation of the
open-courts provision as it applies to juvenile-court proceedings.
{¶ 89} The majority takes pains to explain that there are three provisions in
Article I, Section 16 of the Ohio Constitution, that each of the three provisions has
an independent meaning (even though no one argues that the three provisions are
one and the same), and that the open-courts provision protects the public’s right to
access and not just the individual rights of the litigants themselves (again, no one

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argues otherwise). The majority then declares that its discussion of these irrelevant,
undisputed aspects of Article I, Section 16 constitutes an “independent
interpretation” of Ohio’s open-courts provision, majority opinion at ¶ 39, and
somehow supports the conclusion that juvenile-court proceedings require the same
presumption of openness that applies to adult-court proceedings. The majority also
declares that the meaning of the words “[a]ll courts shall be open,” Ohio Const.,
art. I, § 16, is easily understandable and therefore Ohioans in the 1800s would
understand that it “provide[d] a presumption of public access to juvenile
delinquency proceedings,” majority opinion at ¶ 39; see id. at ¶ 40.
{¶ 90} While the majority’s conclusions might potentially be true, the
majority does not prove their truth by merely declaring them to be so. The majority
has not conducted a substantive, independent interpretation of the open-courts
provision as applied to juvenile-court proceedings here with its generic citations
and non sequiturs. In fact, the majority’s ultimate analysis here leaves the
impression that it wants to explore judicial federalism in this case just for the sake
of it—as though it has a solution in search of a problem. See Howard, State Courts
and Constitutional Rights in the Day of the Burger Court, 62 Va.L.Rev. 873, 940-
941 (1976) (“The case for an independent role for state courts should not be read
as a case for unthinking activism. No judge, state or federal, is a knight errant,
whose only concern is to do good.”); see also Abraham Kaplan, The Conduct of
Inquiry: Methodology for Behavioral Science 28 (1964) (“Give a small boy a
hammer, and he will find that everything he encounters needs pounding.”).
{¶ 91} Despite already having declared what it believes to be the true
meaning of the open-courts provision, the majority returns to criticizing this court’s
holdings in T.R. and Geauga for relying on the statements in federal cases that
“‘juvenile court proceedings have historically been closed to the public,’” majority
opinion at ¶ 41, quoting T.R., 52 Ohio St.3d at 15, and Geauga, 2000-Ohio-35, at
¶ 18. The majority indicates that such a historical analysis is irrelevant outside the

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First Amendment, but it goes on to argue that our historical understanding of
juvenile-court proceedings in Ohio should be limited to whatever procedures were
used to govern juveniles prior to the 1802 or 1851 Ohio Constitutions and should
not be based on the proceedings specifically put in place when the juvenile-court
system began to form, starting around 1857. The majority then notes that juveniles
used to be tried as adults for crimes under the common law and concludes that
juvenile-court proceedings have historically been open to the public because they
were historically the same as adult-court proceedings.
{¶ 92} Because the majority’s historical account is limited to juvenile-
delinquency proceedings, it is not particularly relevant to T.R.—a decision
regarding custody and dependency proceedings. Moreover, this court already held
in Geauga that the public has a particularly strong interest in juvenile-delinquency
proceedings involving serious offenses, Geauga at ¶ 41, and that such proceedings
are analogous to adult-court proceedings, id. at ¶ 23. We held that the juvenile
court may not close such proceedings without first weighing the public’s interest in
the openness of the proceedings and that the burden to prove that closure is
warranted rests on the person seeking closure of the proceedings. Id. at ¶ 33.
Nothing about the majority’s historical account supports the notion that T.R. or
Geauga should be overturned.
{¶ 93} Irrespective of what the true meaning of the open-courts provision
might be, the majority’s generic analysis fails to support its specific claims. And
irrespective of the accuracy or appropriateness of the majority’s historical account
of juvenile courts in Ohio, it fails to justify the majority’s decision to sua sponte
overturn T.R. and Geauga.
III. JUDICIAL FEDERALISM MUST BE APPLIED WITH RESTRAINT
{¶ 94} I agree with the majority that when we apply the provisions of our
own state Constitution, blindly “lockstepping” with federal jurisprudence under the
United States Constitution is not a good default practice. But just as I should not

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dissent in this case merely because I disagree with the majority’s analysis, we
should not overturn T.R. and Geauga simply because our analysis in those cases
relied on First Amendment jurisprudence.
{¶ 95} As a general matter, I agree with United States Supreme Court
Justice Brennan that “[s]tate constitutions, too, are a font of individual liberties,
their protections often extending beyond those required by the Supreme Court’s
interpretation of federal law,” Brennan, State Constitutions and the Protection of
Individual Rights, 90 Harv.L.Rev. 489, 491 (1977). It is important to interpret our
state Constitution independently, particularly when failing to do so would cede the
extra protections our Constitution provides above the floor provided by the federal
Constitution. And the potential risk of ceding state constitutional protections is
certainly apparent, considering the difference between the text of the Ohio
Constitution’s open-courts provision and the text of the First Amendment.
{¶ 96} Article I, Section 16 of the Ohio Constitution provides:

All courts shall be open, and every person, for an injury done
him in his land, goods, person, or reputation, shall have remedy by
due course of law, and shall have justice administered without denial
or delay. Suits may be brought against the state, in such courts and
in such manner, as may be provided by law.

The First Amendment to the United States Constitution provides:

Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress
of grievances.

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Although there is some overlap among certain provisions in the above-quoted
language, the First Amendment does not contain the phrase “[a]ll courts shall be
open.”
{¶ 97} The First Amendment has been construed as the protector of the right
to open courts, but the right itself is derived from the common law and not explicitly
provided in the United States Constitution. See Richmond, 448 U.S. at 567 (1980)
(inferring that the public’s right to open trials is protected by the United States
Constitution because trials were presumed to be open under the English common
law); see also id. at 577 (the right of access to court proceedings “may be seen as
assured by the amalgam of the First Amendment guarantees of speech and press”).
We can hardly ensure the endurance of the protections provided by Ohio’s open-
courts provision by equating it to something that is only inferred from the United
States Constitution. So I agree with the majority when it states that we absolutely
should not “‘irreversibly tie’ our state constitutional jurisprudence to future United
States Supreme Court decisions” (emphasis in original), majority opinion at ¶ 30,
quoting Simmons-Harris v. Goff, 1999-Ohio-77, ¶ 30.
{¶ 98} It is perfectly fine for us to cut out the middleman—the analysis of
Ohio’s open-courts provision under the First Amendment—since our dedication to
open courts is explicitly provided for in our state Constitution. But that does not
mean that our previous decisions are dead to us for having dared to consort with
that middleman. It would be particularly inappropriate to overturn those previous
decisions when, as here, First Amendment principles and the open-courts provision
support the same outcome.
{¶ 99} The majority has failed to establish that First Amendment
jurisprudence does not adequately protect the Cincinnati Enquirer’s interest in
obtaining access to the juvenile-court proceedings at issue in this case, and it has
also failed to provide any substantive insight into the relationship between juvenile-

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court proceedings and the open-courts provision in Article I, Section 16 of the Ohio
Constitution. The majority’s lack of reasoned analysis is particularly problematic
because it does not stop at the point of its holding that the denial of the Cincinnati
Enquirer’s request for the previously sealed records of a deceased juvenile was
unconstitutional. Instead, it goes a step further and holds that the juvenile court’s
original decision to seal the records—when the juvenile was still alive—was
unconstitutional. The majority goes even further still and indicates that all juvenile-
court proceedings—not just juvenile-delinquency proceedings—must be open
unless there is first an individualized weighing of interests that overcomes the
presumption of openness. The majority provides no relevant history, apposite
caselaw, or sound reasoning to support its absolutist conclusions.
{¶ 100} A fundamental tenet of judicial restraint when determining the
constitutionality of statutes is “never to formulate a rule of constitutional law
broader than is required by the precise facts to which it is to be applied.” Liverpool,
N.Y. & P.S.S. Co. v. Emigration Commrs., 113 U.S. 33, 39 (1885). Constitutional
rulings that are broader than needed for the facts presented “would be an attempt to
settle questions of law involving the rights of persons without parties before it, or
a case to be decided in due course of law” in violation of the second and third
provisions of Article I, Section 16 of the Ohio Constitution. State v. Baughman, 38
Ohio St. 455, 459 (1882). Although the subject of this action involves only the first
provision of Article I, Section 16, the majority needs to respect its role regarding
the other two provisions when conducting its analysis.
{¶ 101} Because justice in our State and nation is achieved through the
adversarial process, a court must maintain “the role of neutral arbiter of matters the
parties present,” Greenlaw v. United States, 554 U.S. 237, 243 (2008). “‘[Courts]
do not, or should not, sally forth each day looking for wrongs to right. We wait for
cases to come to us, and when they do we normally decide only questions presented
by the parties.’” Id. at 244, quoting United States v. Samuels, 808 F.2d 1298, 1301

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(8th Cir. 1987) (Arnold, J., concurring). We must also adhere to “‘the cardinal
principle of judicial restraint,’” which is that “‘if it is not necessary to decide more,
it is necessary not to decide more.’” Meyer v. United Parcel Serv., Inc., 2009-Ohio-
2463, ¶ 53, quoting PDK Laboratories, Inc. v. United States Drug Enforcement
Administration, 362 F.3d 786, 799 (D.C.Cir. 2004) (Roberts, J., concurring in part
and concurring in the judgment).
{¶ 102} As noted above, to the extent that T.R. and Geauga were even
mentioned in the parties’ briefs, the Cincinnati Enquirer cited them as support for
its argument that the writs should issue and that the statutory scheme should be
declared unconstitutional. And as I have explained in my analysis above, the
Cincinnati Enquirer is correct. The weighing test in T.R. and Geauga may be
weaker than the weighing test promoted by the majority, but that difference in no
way affects the outcome of this particular case. For the majority to validly overturn
T.R. and Geauga, it needs to wait for a case in which the difference between the
tests actually matters to the outcome and in which the parties actually argue the
issue. We would also be well served by the majority’s waiting to decide on the
proper standard for weighing competing constitutional interests when a key party
whose individual interests are most at stake—the juvenile—is alive and able to
articulate those interests to the court.
{¶ 103} The majority is trying really hard to make judicial federalism
happen. But if the majority wants to convince the legal profession and the general
public that judicial federalism is anything other than a vehicle for historical cherry-
picking on the road to results-oriented jurisprudence, then it needs to do better than
this. If we want to succeed in making judicial federalism a preferred method of
analysis, not to mention respect the rule of law, we have to be patient, methodical,
and, above all, principled. If we make it look like a choice between a lockstep
approach and judicial activism, lockstep will more likely be the choice of future
generations.

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January Term, 2024

{¶ 104} In light of my disagreement with the majority’s reasoning but my
agreement with its ultimate disposition, I concur in judgment only.
__________________
STEWART, J., joined by BRUNNER, J., dissenting.
{¶ 105} Relator, the Cincinnati Enquirer, a division of Gannett GP Media,
Inc. (“the Enquirer”), filed this original action under Sup.R. 47(B) seeking a writ
of mandamus to obtain a copy of a trial transcript sealed by respondent, Judge Kari
L. Bloom of the Hamilton County Court of Common Pleas, Juvenile Division. To
be entitled to the writ of mandamus it has requested, the Enquirer must show that it
has a clear right to the record it seeks and that Judge Bloom has a clear legal duty
to unseal the record. State ex rel. Cincinnati Enquirer v. Lyons, 2014-Ohio-2354,
¶ 11. The Enquirer has shown neither.
{¶ 106} In 2022, Judge Bloom presided over a juvenile-delinquency
proceeding in which J.L. was accused of conduct that would constitute the crime of
felonious assault if committed by an adult. J.L. was 13 years old at the time. Judge
Bloom found J.L. not delinquent, which is analogous to a not-guilty finding in adult
court.17
{¶ 107} Thereafter, Judge Bloom sealed the records of J.L.’s juvenile-
delinquency proceeding under R.C. 2151.356(B)(1)(d), which states:

The juvenile court shall promptly order the immediate
sealing of records pertaining to a juvenile in any of the following
circumstances:

17. A delinquent child includes any child who violates a state law that would be an offense if
committed by an adult. R.C. 2152.02(E)(1). If the juvenile court, at an adjudicatory hearing, finds
beyond a reasonable doubt that the child is delinquent for having committed a certain offense, it can
procced to a disposition of the child. R.C. 2151.35. A disposition may include any number of
restrictions imposed by the court, including placement of the child in a detention facility. See
generally R.C. 2152.19.

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...
If a complaint was filed against a person alleging that the
person was a delinquent child, an unruly child, or a juvenile traffic
offender and the court dismisses the complaint after a trial on the
merits of the case or finds the person not to be a delinquent child, an
unruly child, or a juvenile traffic offender.

(Emphasis added.) There is no dispute that the relevant statute requires the juvenile
court to “promptly order the immediate sealing of the records” in the circumstances
of J.L.’s case.
{¶ 108} In fact, the Enquirer conceded in its amended complaint that Judge
Bloom sealed the records in accordance with R.C. 2151.356 and that “R.C.
2151.356 mandates that a juvenile court seal court records in a juvenile delinquency
proceeding upon a finding that the juvenile is not delinquent.” In other words, the
Enquirer has alleged that Judge Bloom complied with her legal duty. Therefore,
the Enquirer cannot show that it is entitled to relief in the form of an extraordinary
writ.
{¶ 109} But the Enquirer argues that R.C. 2151.356 is unconstitutional
under the open-courts provision of Article I, Section 16 of the Ohio Constitution
because the statute “does not require a court to apply the requirements of the Open
Courts provision, as construed by this Court.” As construed by this court, however,
the open-courts provision does not grant the Enquirer a constitutional right to
access the sealed transcript. See State ex rel. Dispatch Printing Co. v. Geer, 2007-
Ohio-4643; State ex rel. Plain Dealer Publishing Co. v. Floyd, 2006-Ohio-4437;
State ex rel. Plain Dealer Publishing Co. v. Geauga Cty. Court of Common Pleas,
Juvenile Div., 2000-Ohio-35 (“Geauga”).

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{¶ 110} When a juvenile court has discretion to restrict public access to
juvenile-delinquency proceedings in the absence of a presumption that such
proceedings are either open or closed, this court has applied the following standard:

[U]nder the applicable standard, a juvenile court may restrict public
access to delinquency proceedings if, after hearing evidence and
argument on the issue, the court finds that (1) there exists a
reasonable and substantial basis for believing that public access
could harm the child or endanger the fairness of the adjudication, (2)
the potential for harm outweighs the benefits of public access, and
(3) there are no reasonable alternatives to closure.

Geauga at ¶ 27, citing In re T.R., 52 Ohio St.3d 6 (1990), paragraph three of the
syllabus, and State ex rel. Dispatch Printing Co. v. Lias, 1994-Ohio-335, paragraph
one of the syllabus. And even though we have granted extraordinary relief allowing
access to juvenile-delinquency proceedings when the juvenile court did not hold a
hearing or make the required findings before closing the proceedings—see, e.g.,
Geauga at ¶ 43; Floyd at ¶ 40; Geer at ¶ 19—those cases involved circumstances
in which the juvenile court had discretion to close the proceedings. Here, the
juvenile court’s sealing of J.L.’s record is in accordance with R.C. 2151.356, which
leaves the juvenile court with no discretion about whether to seal the trial transcript.
Even if the statute did grant the juvenile court discretion to seal the record, we have
not found in the relevant constitutional provisions an absolute right of public access
by the media, and, in the circumstances of this case, the General Assembly has
made a policy determination to protect the case records of a child who has been
determined not to be delinquent. “[I]t is a proper role of the General Assembly to
balance competing private and public rights.” State ex rel. Cincinnati Enquirer v.
Winkler, 2004-Ohio-1581, ¶ 9, superseded by statute on other grounds as stated in

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In re Disqualification of Celebrezze, 2023-Ohio-4383. Therefore, the Enquirer
cannot show, even under its constitutional argument, that it is entitled to
extraordinary relief in the form of a writ of mandamus that would allow it to obtain
a copy of the transcript from the juvenile-court proceedings in J.L.’s case.18
{¶ 111} This should have been the end of the majority’s analysis. But
instead, the majority has independently decided to announce a novel interpretation
and application of the open-courts provision of the Ohio Constitution to juvenile-
court proceedings. Because the majority’s analysis is flawed, I dissent.
{¶ 112} The majority begins its opinion by presenting out of context the
limited phrase comprising the open-courts provision, noting that the Ohio
Constitution “commands that ‘[a]ll courts shall be open,’” majority opinion, ¶ 1.
The phrase appears in the Ohio Constitution, Article I, Section 16, which is titled
“Redress for injury; Due process” and states:

All courts shall be open, and every person, for an injury done
him in his land, goods, person, or reputation, shall have remedy by
due course of law, and shall have justice administered without denial
or delay. Suits may be brought against the state, in such courts and
in such manner, as may be provided by law.

{¶ 113} We have recognized that “[t]his one provision contains many
important constitutional principles—‘open courts,’ ‘right to remedy,’ and ‘due
course of law.’” Ruther v. Kaiser, 2012-Ohio-5686, ¶ 10. Despite the different
ways one could interpret that phrase (for example, that the courthouse be open to
all litigants who wish to file suit), the majority concludes that the plain text and

18. The Enquirer can likewise show no entitlement to a writ of prohibition, which it also seeks. See
Lyons, 2014-Ohio-2354, at ¶ 38 (denying writ of prohibition when the relator did not establish a
clear legal right to records it requested).

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January Term, 2024

“our traditional understanding” of the phrase “[a]ll courts shall be open”
demonstrate that “the Ohio Constitution forbids the sealing of court records unless
the judge makes an individualized determination that the harm to the juvenile from
disclosure outweighs the potential benefits of public access,” majority opinion at
¶ 2. This conclusion displays the type of mental gymnastics that even the Enquirer
did not perform. The Enquirer never argued this. The Enquirer also did not argue,
as the majority concludes, that our case law—a few decades of case law, in fact—
was wrongly decided and should not be controlling. See id. at ¶ 16. Yet, despite
the absence of these arguments from the parties, the majority finds on its
“independent interpretation” that the phrase “[a]ll courts shall be open” requires
that we grant the writ requested by the Enquirer. The majority even announces that
its interpretation “comports with the values underlying” the text of that provision,
id. at ¶ 56, suggesting a new interpretive principle that dangerously depends on an
individual jurist’s subjective view of what “values” certain words might express.19
{¶ 114} The majority’s ability to divine such clarity from what it asserts is
the text, history, and tradition (and, somehow, the values) of the open-courts
provision is puzzling, because this court has already concluded that history offered
us little help interpreting the provision. In T.R., 52 Ohio St.3d at 13-14, this court
explained:

Though the open courts provision has been a part of our
Constitution since Ohio was admitted to the Union, we cannot
resolve this issue by reference to the debates and comments of the
drafters. The records of the 1802 convention indicate that the

19. Suggesting there are “values underlying” the text of constitutional or statutory law implies that
the majority is making a policy determination, and policy determinations are within the province of
the legislative, not the judicial, branch of the government. See Gabbard v. Madison Local School
Dist. Bd. of Edn., 2021-Ohio-2067, ¶ 80 (Fischer, J., dissenting) (“We are not to invade the role of
the legislature to write laws and make policy determinations.”)

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original open courts provision, Section 7, Article VIII, Constitution
of 1802, was enacted without amendment or discussion. See E.W.
Scripps Co. v. Fulton (1955), 100 Ohio App. 157, 171-172, 60 O.O.
147, 155, 125 N.E.2d 896, 908 (Hurd, J., concurring). At the 1850-
1851 convention, this section was carried into the current Bill of
Rights unchanged, id. at 172, 60 O.O. at 155, 125 N.E.2d at 906,
and without discussion relating to the question of public access. The
1873-1874 constitutional convention made no changes in this
section, and the 1912 convention also left the words of the 1802
drafters unaltered, though it added a sentence not at issue in the
instant case. Id.
We also cannot resolve this issue by simplistically viewing
the phrase “[a]ll courts shall be open” as an absolute command
applicable in all courts in all situations. It is a hallmark of American
constitutional jurisprudence that many provisions of our
Constitutions, though phrased in absolute terms, do not create
absolute rights. For example, though the First Amendment’s
guarantee of freedom of speech is phrased in absolute terms, it
“would not protect a man in falsely shouting fire in a theatre and
causing a panic.” Schenck v. United States (1919), 249 U.S. 47, 52,
39 S.Ct. 247, 249, 63 L.Ed. 470. Nor would it protect a seller of
obscene material, Roth v. United States (1957), 354 U.S. 476, 77
S.Ct. 1304, 1 L.Ed.2d 1498, or one who defames another with actual
malice, New York Times Co. v. Sullivan (1964), 376 U.S. 254, 84
S.Ct. 710, 11 L.Ed.2d 686.
Certain phases of Ohio court proceedings—such as grand
jury hearings, petit jury deliberations, conferences in chambers, the
issuance of search warrants, and the conferences of collegial courts

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January Term, 2024

such as ours—have been closed to the public both before and after
the adoption of our Constitution.
For example, the grand jury has been used in Ohio criminal
jurisprudence since the first Court of General Quarter Sessions was
held in Marietta in 1788. A History of the Courts and Lawyers of
Ohio (1934) 51-52. Grand jury hearings were closed to public access
in the days of the English common law, 1 LaFave & Israel, Criminal
Procedure (1984) 602-603, Section 8.2(a), and have remained
presumptively closed to this day, see Petition for Disclosure of
Evidence (1980), 63 Ohio St. 2d 212, 17 O.O.3d 131, 407 N.E.2d
513. If the drafters had intended the open courts provision to create
an absolute right of public access, these grand jury proceedings
could not be closed to the public.

{¶ 115} Despite the lack of documented history to shed light on the
meaning of the open-courts provision as described in T.R., the majority in this case
declares that the court in T.R. “didn’t examine the history of the Ohio provision”
and “didn’t analyze its text” but “simply announced” that the right of public access
to court proceedings under the open-courts provision is the same as that provided
under the First Amendment to the United States Constitution, majority opinion at
¶ 25. But the court in T.R. did examine the history and the text; the majority here
simply chooses not to agree with it.
{¶ 116} In fact, this court in T.R. determined, based on its analysis of the
text and history of the open-courts provision, that “the open courts provision of the
Ohio Constitution creates no greater right of public access to court proceedings than
that accorded by the Free Speech and Free Press Rights Clauses of the First
Amendment to the United States Constitution and the analogous provisions of
Section 11, Article I of the Ohio Constitution.” T.R. at 14. The Enquirer has not

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asked us to revisit this precedent. Nevertheless, the majority has decided that its
ideological disagreement with this court’s interpretation of the open-courts
provision in T.R. allows it to ignore the lack of argument and advocacy from the
parties, ignore the principles of stare decisis,20 and contort the spirit of judicial
restraint to announce its independent view of what the open-courts provision
means: this is the very definition of judicial activism.
{¶ 117} Interestingly, the justices comprising today’s majority have
determined in other cases that when a party fails to raise an argument that a
particular provision of the Ohio Constitution provides greater constitutional
protection than that offered in an analogous provision of the federal Constitution,
we are prevented from resolving the question on our own. See State v. Carter,
2024-Ohio-1247, ¶ 67 (Fischer, J., concurring, joined by Donnelly and Deters, JJ.)
(“Because Carter did not develop a confrontation claim under the Ohio
Constitution, the majority opinion appropriately limits its analysis of Carter’s
proposition of law to the Confrontation Clause of the Sixth Amendment to the
United States Constitution.”); State v. Jordan, 2021-Ohio-3922, ¶ 14 (O’Connor,
C.J., joined by Kennedy, Fischer, and DeWine, JJ.) (because appellant offered no
basis for treating the Fourth Amendment to the United States Constitution
differently from the Ohio Constitution, Article 1, Section 14, the court addressed
only the Fourth Amendment); Stolz v. J & B Steel Erectors, 2018-Ohio-5088, ¶ 29
(Fischer, J., concurring) (“Because the parties in this case did not challenge this
court’s traditional understanding of [Ohio’s Equal Protection Clause and the Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution]
as functionally equivalent, the majority properly follows that precedent.”); State v.

20. Stare decisis is a “long revered” doctrine “designed to provide continuity and predictability in
our legal system” and is a “means of thwarting the arbitrary administration of justice as well as
providing a clear rule of law by which the citizenry can organize their affairs.” Westfield Ins. Co. v.
Galatis, 2003-Ohio-5849, ¶ 43.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11080355. Public record. Not legal advice.