My Motion Opposing Pseudonymity and Asking to Unseal Affidavit in Cincinnati Police Officer Case

My excellent pro bono local counsel Jeffrey M. Nye and I have put together an updated motion in this case, which is now captioned M.R., a Cincinnati Police Officer v. Niesen. (Our original motion was filed when, because of an apparent error on the Clerk's Office part, the entire case seemed to have been sealed.) I thought I'd pass the heart of it along below:

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This brief is a supplement to Professor Volokh's Motion to Unseal. Public access to most of the case documents was restored on August 10. Only two public-access issues now remain: the plaintiff has been permitted to file an affidavit under seal, and has been permitted to proceed under a pseudonym. Because public access to the case file (including the order permitting the affidavit to be sealed and allowing the plaintiff to proceed under a pseudonym) was restricted when Professor Volokh filed his motion on August 5, that motion was not able to address those two issues specifically. This brief does….

[1.] The affidavit should be unsealed.

The plaintiff is a public official who is not only trying to silence a critic—he has gotten a prior restraint against the further publication of his name, and he is seeking a broader prior restraint as well. ("The United States Supreme Court has repeatedly recognized that police officers are public officials," Soke v. The Plain Dealer (1994), 69 Ohio St.3d 395, 397, and the public has an interest in "anything which might touch on a[ public] official's fitness for office." Id., quoting Garrison v. Louisiana (1964), 379 U.S. 64, 77. This extends to an interest in monitoring a police officer's conduct at trial, including the officer's sworn statements. Id.)

But even if Ohio citizens' free speech about public officials can be restricted this way, the decision should not be made based on secret evidence. "The open courtroom is a bedrock principle of the American judicial system," and the Ohio Bill of Rights includes "a constitutional requirement that 'all courts shall be open ….'" Woyt v. Woyt, 8th Dist. Cuyahoga no. 107312, 2019-Ohio-3758, ¶ 59. "It should only be in the rarest of circumstances that a court seals a case from public scrutiny. When a litigant brings his or her grievance before a court, that person must recognize that our system generally demands the record of its resolution be available for review." Id. at ¶ 67. See Sup.R. 45(A) ("Court records are presumed open to public access."); In re T.R. (1990), 52 Ohio St.3d 6, 16 n.9 (observing that "adult civil actions, are presumptively open to the public"); State ex rel. The Repository v. Unger, 28 Ohio St.3d 418, 421 (1986) (while most public-access cases discuss the right to access "trials," "we hold that the right to a public trial pursuant to the United States and Ohio Constitutions extends to pretrial proceedings.").

The reason that public access is so important is that the right of access gives the public "confidence that standards of fairness are being observed" and "that established procedures are being followed." State ex rel. Beacon Journal Publishing Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio- 7117, at ¶¶ 15-16 (discussing historical roots and significance of "the right of public access . . . in the administration of justice").

The constitutional guarantees of open courts "were inspired by a profound distrust of secret judicial proceedings. Indeed, it is often said that justice cannot survive behind walls of silence. The notorious excesses of the Spanish Inquisition, the abuses of the English Court of Star Chamber and the French monarchy's perverse lettre de cachet stand as historical testimony to the fact that justice perishes when clandestine methods flourish. Democracy blooms where the public is informed and stagnates where secrecy prevails." State ex rel. The Repository, 28 Ohio St.3d at 423-24 (Celebrezze, J., concurring) (internal markup and citations omitted).

The public has a right, and indeed a small-d democratic obligation, to supervise the courts; the officers of the courts, including the attorneys appearing before the courts; and the parties—especially public officials like the plaintiff—who seek to harness the tremendous coercive power (both formal and informal) of the public's state judicial system. It is inappropriate for the plaintiff to seek and obtain a remedy—especially an apparently unconstitutional remedy like a prior restraint on the publication of the plaintiff's name, or an order requiring the defendants to remove published statements—based on secret evidence. The affidavit must be made public.

If there are any highly confidential passages in the affidavit, they should (at most) be redacted rather than having the affidavit be sealed altogether. A court must "use the least restrictive means available [to restrict public access] as required by Sup.R. 45(E)(3)." Woyt, 2019-Ohio-3758, ¶ 62.

[2.] The plaintiff must proceed under his real name.

The plaintiff's name should also be unsealed, and this case should proceed using the parties' full names, as nearly all libel cases in Ohio do.

Both the Ohio and Federal Rules of Civil Procedure require that every complaint list the names and addresses of all parties involved in the suit. Civ.R. 10(A) and Fed.R.Civ.P. 10(A)…. [T]his rule demonstrates "the principle that judicial proceedings, civil as well as criminal, are to be conducted in public." … "Identifying the parties to the proceeding is an important dimension of publicness." The public has a "legitimate interest in knowing which disputes involving which parties are before the federal courts that are supported with tax payments and exist ultimately to serve the American public."

Doe v. Bruner, 2012-Ohio-761, No. CA2011-07-013, 2012 WL 626202, ¶ 5 (Ohio Ct. App. Feb. 27, 2012) (citations to federal circuit precedents omitted), appeal dismissed as improvidently accepted, 985 N.E.2d 1288 (Ohio 2013). "Plaintiffs' use of fictitious names runs afoul of the public's common law right of access to judicial proceedings." Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058 (9th Cir. 2000); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185 (2d Cir. 2008); Doe v. Megless, 654 F.3d 404 (3d Cir. 2011); Doe v. Blue Cross & Blue Shield United of Wisconsin, 112 F.3d 869 (7th Cir. 1997); Doe v. Moreland, No. CV 18-800 (TJK), 2019 WL 2336435, *2-*3 (D.D.C. Feb. 21, 2019) (rejecting plaintiff's attempt to litigate a libel claim pseudonymously); Doe v. F.B.I., 218 F.R.D. 256, 259 (D. Colo. 2003) (likewise).

To be sure, pseudonymity is sometimes allowed, but only in rare cases.  Doe v. Bruner set forth four factors, based on federal circuit precedents, for evaluating pseudonymity requests: "(1) whether the plaintiffs seeking anonymity are suing to challenge governmental activity; (2) whether prosecution of the suit will compel the plaintiffs to disclose information 'of the utmost intimacy'; (3) whether the litigation compels plaintiffs to disclose an intention to violate the law, thereby risking criminal prosecution; and (4) whether the plaintiffs are children." 2012-Ohio-761, ¶ 7 (quoting Doe v. Porter, 370 F.3d 558, 560 (6th Cir. 2004), which in turn was citing Doe v. Stegall, 653 F.2d 180, 185–186 (5th Cir. 1981)).  And none of these factors is present here.

Nor can pseudonymity be justified simply on the grounds that revealing a party's name might conceivably put the party at risk of retaliation, whether professional, social, or even criminal. Regrettably, that risk is present in every case where a defendant is accused of sufficiently serious misconduct, or where a plaintiff sues over allegations of such misconduct. If plaintiff is allowed to proceed a pseudonym, then any police officer who is sued for allegedly unconstitutional searches and seizures would have the same claim to pseudonymity. So would civil defendants who are sued for alleged sexual assault or child molestation, or even theft or embezzlement. So would criminal defendants who are accused of serious crimes, of the sort that could lead some members of the public to want to retaliate against him.

Yet our legal system does not operate this way—instead, every day courts handle such cases with the parties' names fully included. As a federal court held in a case where a judge accused of misconduct sought to sue pseudonymously,

Plaintiff's main concern in his own right regards damage to his personal and professional reputation, should these proceedings become public. Although a valid concern, it does not outweigh the public's interest in having the case open. If it did, then any defamation plaintiff could successfully move to seal a case and proceed by pseudonym, in order to avoid "spreading" or "republishing" the defamatory statement to the public. However, this is not the customary practice. It is only in rare instances that courts allow closed and anonymous proceedings, and these usually involve matter such as "abortion, birth control, and welfare prosecutions involving abandoned or illegitimate children." This case is not in the same category of "exceptional cases involving matters of a highly sensitive and personal nature." …

"[L]awsuits are public events and the public has a legitimate interest in knowing the facts involved in them. Among the facts is the identity of the parties. We think that as a matter of policy the identity of the parties to a lawsuit should not be concealed except in the unusual case." … And if the Court were to give greater weight to the reputational interests of a judge than those of an "ordinary" plaintiff, such a decision would create the appearance of favoritism within the judiciary.

Doe v. F.B.I., 218 F.R.D. 256, 259 (D. Colo. 2003) (citations omitted). The same logic applies to concerns about retaliation of the sort that could be present for many other plaintiffs and defendants, as well as to concerns about reputation.

Finally, the cases the plaintiff cited in his motion for leave to seal the affidavit and proceed under a pseudonym do not establish a right to do either. Those cases—State ex rel. Keller v. Doe and Kallstrom v. City of Columbus—are about what portions of a police officer's personnel or HR file are "public records" under Ohio's Public Records Act, and whether a defendant can obtain them either under the Public Records Act or Criminal Rule 16, to use in the defense of their criminal trials. Keller held, for example, that "the names of the officers' children, spouses, parents, home addresses, telephone numbers, beneficiaries, medical information and the like should not be available to criminal defendants." State ex rel. Keller v. Doe (1998), 85 Ohio St. 3d 279, 282.

There are no criminal defendants here, and this case isn't about what portion of an HR file is a public record. This case is about whether a police officer can obtain preliminary injunctive relief, enforced by the judicial branch of the State of Ohio, without revealing either his name or his sworn statements that he's offering as evidence. Neither Keller nor Kallstrom hold that he can….