Tuesday, March 20, 2007

The Clermont County "Who's a Journalist" Complaint, Deconstructed.

Word is the Plain Dealer is working on a story about the Clermont County case and the implications for bloggers. In any event, bloggers have been chattering offline and on about the case.

The complaint is now up on the Clermont County court website. For a law geek, it makes for interesting reading and kibitzing. If you want to fully understand the Clermont case an it's implications for non-traditional journalists like bloggers, understanding the complaint is a necessary first step.

Best you go to the docket page rather than I try to link you directly to the complaint which appears in web-based Adobe window. So go here and click on complaint if you want to follow along.


The complaint seeks a Declaratory Judgment. Generally, courts are not in the business of issuing advisory opinions – courts decide disputes. But when one party realizes that it has a dispute with another party and that acting or refusing to act could put it in legal jeopardy, the party may seek a declaratory judgment.

In other words, you don’t have to make the wrong guess and get sued to get into court. If you can see the problem coming, you can ask the court to declare what your rights and obligations are ahead of time.

The law of declaratory judgments in Ohio starts in Chapter 2721 of the Ohio Revised Code. It doesn’t end there, and I’m not tracking it down to the end, no matter how much I love you all.

The Parties.

The parties are the Sheriff on one side and Ted Strickland, Marc Dann, Jeff Garvas from Ohio Concealed Carry and Greg Korte from the Cincinnati Enquirer. This last is interesting. The complaint alleges that, in addition to Garvas, Korte from the Enquirer also requested information on concealed carry permit holders.

As to Strickland and Dann, it’s standard procedure to sue executive officers when seeking to challenge a state law, since both Strickland and Dann have the duty to enforce the law. It may well be that only one is a proper party, but I’m not doing the research to figure it out. We may well see a Motion to Dismiss one or both of the government officers on the grounds they are improper parties. We’ll hang back and let the court figure that one out.

By the way, I’ve seen dec. actions like this name the local prosecuting attorney as well, but since the prosecutor is statutory counsel for the sheriff, that would be a problem in this case.

The Counts. 1 & 2 for Declaratory Judgement

As you first read them, it looks like the two sections labeled Count 1 and Count 2 are don’t actually ask the Court to declare anything, they are just more allegations. They explain that the Sheriff can get in trouble for refusing to give info on CC permit holders to journalists but get into worse trouble for giving the information to non-journalists.

If you fast forward to the last section of the complaint – the Prayer for Relief – you see that the plaintiff asks the court to declare whether or not Garvas is a journalist, and the same for Korte. Not the most graceful complaint drafting I’ve ever seen, but it’ll do.

Count 3: Equal Protection

After all those preliminaries, we get into the fun stuff. Count 3 sets out an allegation of violation of due process. Plaintiff is going to get grief for the following:

    Sheriff Rodenberg alleges that Ohio Revised Code §2923.129(B)(2) violates both the United States Constitution and the Ohio Constitution’s right to equal protection under the law as the statute permits journalists to be treated differently from non-journalists with respect to the requesting and receiving records relative to the issuance, renewal, suspension or revocation of a license to carry a concealed handgun.

Problem is that Sheriff Rodenberg isn’t either a journalist nor a non-journalist trying to access the information. Therefore, he doesn’t suffer the equal protection injury he’s alleging. In legal parlance, he lacks standing.

All of which is a shame because this is the part of the complaint that bloggers would find most appealing – rather than differentiate between Journalists and Non-Journalists, let anyone see the information. This is the essence of Bill Sloat’s argument.

I mention this because of the blog-friendliness of the claim. Unfortunately, as a legal claim by itself, it’s a non-starter. The state needs only have a rational basis for this kind of classification which is not a suspect classification nor does it implicate a fundamental right. When a court always finds that the state has a rational basis. No, I mean always. If you are in rational basis land, you’re lost.

Count 4 – Violation of First Amendment.

He gets onto firmer ground here. The basic claim is that he is proscribed from speaking when the subject of his speech is concealed carry records.

Not only is this a decent claim, if he reworks his complaint, he can bring in the Equal Protection claim as well. The essence of an Equal Protection claim is that the state is treating different groups differently without a sufficient basis to do so. The differentiation Sheriff Rodenberg is going for here is people who disclose to journalists versus people who disclose to nonjournalists. Since this time we are dealing with freedom of speech – a fundamental right – you have an argument that the court should apply a stricter standard than rational basis.

Count 5 – Substantive Due Process

The essence of this claim is that the law if void for vagueness. The conservative judge is fond of saying that the Dormant Commerce Clause and the Substantive Due Process Clause have in common the fact that they don’t really exist. That should give you some idea of how difficult it is to make a Substantive Due Process claim understandable. It means that the law is bad and violates rights. In this case because it invites arbitrary


So that’s the complaint. The court can go a couple of ways here. He can decide who’s a journalist and who not and declare that the rest of the counts are moot. Or he can decide the whole thing and say the law is good as is, deal with it.

Or the judge could invalidate part of the law. If the court is amenable to any of the plaintiff’s arguments, he could well void the confidentiality provision of the concealed carry law. So the concealed carry folks could end up catalyzing a legal dispute that ends in wiping out the entire confidentiality provision rather than closing the loophole they despise. That would be a bit of amusing irony.


Bill Sloat said...

Pho --

Re: the equal protection claim. Is that not what a federal judge just hung on the mayor of Toledo when he excluded a radio station from his press conferences, but invited all other reporters? Finkeiner is under an injunction obtained by Clear Channel earlier this year. I have not seen the pleadings, but recall the judgement though not in any detail. And as you know, a rational basis test must be based on something rational. Was the legislature's action creating an "official" (my word) class of journalists rational?

Pho said...

I have somehow managed to miss the Toledo case -- and I know that's my bad because Carty Finkbeiner is the best show in town.

My guess is that the radio station argued that its exclusion was an infringement on freedom of the press. Freedom of the press is a fundamental right, so classifications that impinge on that freedom are subject to strict scrutiny.

Rational basis is a legal term of art. It doesn't mean what you and I mean by rational. It just means you gotta have a reason, even if it's one you've basically made up.