# State ex rel. Dispatch Printing Co. v. Solove

> Ohio Supreme Court · June 13, 1990 · 52 Ohio St. 3d 6

URL: https://www.frixlaw.com/law-library/cases/6762465

## Case

- **Full name:** In re T.R., a Juvenile. The State, ex rel. Dispatch Printing Company v. Solove, Judge
- **Court:** Ohio Supreme Court
- **Decided:** June 13, 1990
- **Citations:** 52 Ohio St. 3d 6; 556 N.E.2d 439; 17 Media L. Rep. (BNA) 2241; 1990 Ohio LEXIS 248
- **Precedential status:** Published
- **Opinion:** Concurring in part by Douglas
- **Judges:** Brown, Douglas, Holmes, Moyer, Resnick, Sweeney, Wright
- **Cited by:** 95 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6762465

## How later opinions describe it (automated extraction)

- finding that the trial court must determine that there is a reasonable and substantial belief that the child will be harmed, and that the harm outweighs the benefits of public access before closing a juvenile proceeding
- recognizing that gag orders imposed upon parties and their counsel “are considered a less restrictive alternative to restrictions imposed directly on the media”
- noting the function of the sentencing court is to acquire a thorough grasp of the character and history of the defendant before it and allowing consideration of an arrest that occurred just days prior to sentencing
- noting that “‘[t]he mission of the juvenile court is to act as an insurer of the welfare of children and a provider of social and rehabilitative services’”
- holding Ohio Constitution open courts provision provides no greater protection than First Amendment of federal constitution

## Opinion text

Douglas, J.,
concurring in part and dissenting in part. I concur in paragraph one of the syllabus of the majority and the discussion supporting paragraph one as found in Part I of the majority opinion. However, because I believe that it is our responsibility to apply the law to each citizen in each case and arrive at an appropriate decision, and, because I believe the majority has not done so in this case, I must vigorously, but respectfully, dissent.
It is my judgment that today this court commences a dangerous journey down a murky road when it sanctions the closing of courtrooms in Ohio and the issuing and enforcing of gag orders. While my distaste, given the applicable constitutional provisions, as I interpret them, for any courtroom closure or gag order continues unabated, I am particularly alarmed by the majority’s assertion that it has “followed” Press-Enterprise Co. v. Superior Court (1986), 478 U.S. 1 , and has “explained” State, ex rel. The Repository, v. Unger (1986), 28 Ohio St. 3d 418 , 28 OBR 472, 504 N.E. 2d 37 . My guess is that those persons involved in those cases would not recognize what today the majority says the cases stand for.
It is my view that those cases have interpreted the First Amendment to the United States Constitution (Press- Enterprise) and Section 16, Article I of the Ohio Constitution (Unger). They stand for principles that have been well-established and recognized, to wit: that any party seeking to close a courtroom (or secure a gag order) must, as an initial step, demonstrate a “substantial probability" that a “higher value” will suffer prejudice “by publicity that closure would prevent.” Further, the cases stand for the proposition that there must also be a showing that there are no reasonable alternatives to closure that can adequately protect the higher value.
A unanimous court of appeals found these principles to be in full force and effect and further found that the extensive closure and gag orders of the trial court did not meet the applicable standards. The judgment of the court of appeals should be affirmed and the writ of prohibition should issue.
A majority of this court has, in the past, made salutary advances in protecting First Amendment freedoms and has taken a steadfast course of ensuring that the public has access to government records and that meetings of public bodies be open to the public. As such, I once believed that this court would be recognized for our achievements in these areas for some time to come. However, rather than continuing to take strides forward in protecting these precious rights, this court has recently taken significant steps backward in these areas by eroding First Amendment freedoms and the public’s right to know. See, e.g., State, ex rel. Polovischak, v. Mayfield (1990), 50 Ohio St. 3d 51 , 552 N.E. 2d 635 ; Tasin v. SIFCO Industries, Inc. (1990), 50 Ohio St. 3d 102 , 553 N.E. 2d 257 ; State, ex rel. Hastings Mut. Ins. Co., v. Merillat (1990), 50 Ohio St. 3d 152 , 553 N.E. 2d 646 ; State, ex rel. McGee, v. Ohio State Bd. of Psychology (1990), 49 Ohio St. 3d *25 59 , 550 N.E. 2d 945 ; and State, ex rel. Scanlon, v. Deters (1989), 45 Ohio St. 3d 376 , 544 N.E. 2d 680 . See, also, State, ex rel. Mazarro, v. Ferguson (1990), 49 Ohio St. 3d 37 , 550 N.E. 2d 464 . By today’s decision, those seemingly modest backward steps have matured into a giant step backward in the never-ending battle to assure that the rights of all people guaranteed by the First Amendment to the Constitution of the United States and Sections 11 and 16, Article I of the Ohio Constitution are preserved.
In upholding the constitutionality of the closure order, the majority sanctions restrictions on the liberty of the press by restricting the rights of the public (including the press) to attend trials. Further, by directing Judge Solove to issue a new gag order, the majority sanctions restrictions on the liberty of speech, and of the press.
Section 16, Article I of the Ohio Constitution provides in relevant 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.” (Emphasis added.)
The comma which follows the word “open” clearly demonstrates that Section 16, Article I requires all courts to be open to everyone regardless of whether or not the person seeking access to the courts has been injured. By interpreting Section 16, Article I differently, the majority has obviously chosen to ignore its clear and unambiguous language. In my judgment, Section 16, Article I is an absolute command that all courts are to be open in all circumstances and to all people (including the press).
The majority says that interpreting Section 16, Article I to mean what it says is “simplistic.” I agree! “Simplistic” is defined as: “* * * of, relating to, or characterized by simplism * * *,” and “simplism” is defined as: “* * * the tendency to concentrate on a single aspect (as of a problem) to the exclusion of all complicating factors * * *[.]” Webster’s Third New International Dictionary (1986) 2122. The language and intent of Section 16, Article I is clear and there is nothing complicated about it. In Ohio, the courts must remain open. On one point, the majority is correct. The original open courts provision (Section 7, Article VIII, Constitution of 1802) was enacted without amendment or discussion. Likewise, the provision was not debated or changed at the 1850-1851 convention where it was placed into the current Bill of Rights. Further, at neither the 1873-1874 nor the 1912 convention were the original words of the drafters altered. I suggest that there was nothing about the open courts provision to discuss because the provision means exactly what it says. Section 16, Article I is a simplistic provision of our Constitution (concentrating on one problem — the tendency to close courthouse doors) and it is entitled to a simplistic interpretation.
Section 11, Article I of the Ohio Constitution provides in relevant part:
“Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press. * * *” (Emphasis added.)
It is difficult to imagine anything more clear than the language of Section 11, Article I (except, perhaps, the language of Section 16, Article I).
In my judgment, the closure order issued by Judge Solove is violative of Section 16, Article I and Section 11, Article I of the Ohio Constitution. Not *26 only does the order abrogate the public’s right to access the courtroom, but also effectively takes away the media’s ability to gather the news. Thus, it can hardly be said that the closure order does not restrain or abridge the liberty of the press.
Similarly, the gag order issued by Judge Solove abridges the rights of consenting adults to speak freely to one another (as in Tasin, supra) and not only seals the lips of the parties and their lawyers, but effectively seals the lips of the media by taking away its ability to gather the news. As such, the gag order restrains and abridges the liberty of speech, and of the press, in violation of Section 11, Article I. While I agree with the majority that the gag order is overbroad, I do not agree that Judge Solove should be directed to issue another order which, in my judgment, will just as certainly restrict the liberties guaranteed by Section 11, Article I as does the gag order presently before us.
In promulgating its “guidelines,” the majority sanctions the sealing of the records in the case at bar for today (and every avenue of public access to any information concerning the proceedings in this case) and, in doing so, the majority has indicated a willingness to forever prohibit all information regarding the proceedings in the case at bar from entering the public realm (see majority opinion, Section II[C]). The next logical step for the majority to take (given today’s decision) will be to deny a writ of mandamus sometime in the future which seeks to compel disclosure of the court records in this case. This mandamus action may ensue long after Tessa is beyond the threat of harm that the majority uses to justify today’s decision. In addition, what if it is Tessa who seeks to know? Would the majority “protect” her against herself? This is “Big Brother” operating at its best!
Further, in paragraph three of the syllabus, the majority holds that a juvenile court may restrict public access to- certain proceedings if the juvenile court finds, inter alia, that the potential for harm if the public is allowed access outweighs the benefits of public access. Even if I were to accept such a proposition (which I do not), in my judgment, the benefits of public access outweigh any potential for harm in the case sub judice.
The problems associated with surrogate parenting and the custody and dependency actions which may accompany agreements such as the one in the case at bar are of significant public interest. Access to the courts can promote informed public discussion on these matters. Others who are parties (or are considering being parties) to such an agreement should be made aware of the legal and emotional consequences attending certain parenting arrangements. On the other hand, I believe that Tessa can be shielded from those perceived threats associated with allowing the public to access the courtroom and that the case will be decided fairly by Judge Solove regardless of whether the public is allowed access to the proceedings.
Finally, even though there are many other issues and much law on the subject that can be discussed, I confine myself to the majority’s argument that not all court proceedings are open and, thus, it follows for the majority, that it is proper to close juvenile courts. As an example, the majority cites grand jury proceedings. Again, the majority misses the mark.
I- concede that the “open courts” provision does not apply to certain portions or steps of a judicial proceeding. These would include grand jury and petit jury deliberations and even our conferences as we discuss and decide cases. But these steps do not involve actual trials. The grand jury in *27 vestigates. It does not adjudicate — and there is a world of difference!
Further, appellants argue that adoption proceedings are closed. With regard to adoptions, we have a specific statute, R.C. 3107.17, providing for such hearings to be closed. In contrast, and to me it is a major difference that the drafters of the rule obviously-recognized, Juv. R. 27 does not mandate closure but, in fact, presumes that court proceedings will be open to the public. The difference should be obvious.
Concerning the majority’s argument that the juvenile courts are somehow different from other courts, I submit that such may be the case but Section 16, Article I of the Ohio Constitution does not read, “All courts shall be open — except juvenile courts.”
In a concurring opinion in State, ex rel. Dayton Newspapers, v. Phillips (1976), 46 Ohio St. 2d 457, 471 , 75 O.O. 2d 511, 518, 351 N.E. 2d 127, 136 , Justice Stern said: “The correction of judicial abuses and the approval of judicial wisdom and integrity depend alike upon the accessibility of the courts to public scrutiny.” In a concurring opinion in E.W. Scripps Co. v. Fulton (1955), 100 Ohio App. 157, 178 , 60 O.O. 147, 158 , 125 N.E. 2d 896, 909 , Judge Hurd said: “* * * Crime and corruption grow and thrive in darkness and secrecy. Justice thrives in the open sunlight of day. If 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.”
In the case at bar, we have a unique opportunity to reaffirm these principles for Ohio. I regret we have let the opportunity slip by and, in fact, have seriously diminished, once again, the public’s constitutional right to know.
I must respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6762465. Public record. Not legal advice.