The appeal moves forward and will be briefed. It’s possible the result would be that the appeal is dismissed on procedural grounds when the panel rules on the merits, but the process is the punishment for Allyn D. and the rest of the Gibson family.
Oberlin College and its allies continue to fight to overturn the Gibson’s Bakery verdict, and to wage war on the Gibson family by unsealing confidential Facebook records of non-party Allyn D. Gibson.
The Facebook records technically are not being litigated by the College anymore — the College lost that issue in the trial court and did not appeal. Rather. it’s certain Cleveland Media entities, includinge a news station where the College’s lead trial attorney was a consultant, who are fighting to unseal the records.
For those of you new to this issue, Allyn D. was not a party in the case, did not testify at the trial, and the Facebook records were not offered as evidence at the trial. Oberlin College and the media entities want the records released as part of Oberlin College’s post-trial public relations effort to paint the Gibson family as racist. We don’t know what the records consist of, but the College seems to think it’s hot stuff, but not hot enough to offer at trial. This post-trial litigation of the issue is really sleazy.
Here are all our posts on the motion to unseal:
- Cleveland Media Seek Access To Gibson’s Bakery Store Clerk’s Sealed Facebook Records in Oberlin College Case, But Why?
- Gibson’s Bakery alleges Cleveland media collaborating with Oberlin College to unseal store clerk’s Facebook records
- Cleveland media fail to deny allegations of collusion with Oberlin College to unseal Gibson’s Bakery store clerk’s Facebook records
- To Dox The Store Clerk or Not, That Remains The Question In Gibson’s Bakery v. Oberlin College
- We interrupt this pandemic to update you on Gibson’s Bakery v. Oberlin College case
- Gibson’s Bakery v. Oberlin College – Court rejects attempt to unseal store clerk’s private Facebook records
- Cleveland Media appeal denial of access to Gibson’s Bakery store clerk Facebook records
Our most recent post on that issue noted that the Magistrate Judge ordered the parties to address whether the appeals court had jurisdiction:
(MAGISTRATE’S ORDER) UPON REVIEW OF THE FILINGS, THIS COURT QUESTIONS ITS JURISDICTION TO CONSIDER THE ATTEMPTED APPEAL. SPECIFICALLY, IT IS UNCLEAR WHETHER THE ORDER APPEALED IS A FINAL ORDER THAT MAY BE APPEALED TO THIS COURT. THE PARTIES WILL HAVE 20 DAYS FROM JOURNALIZATION OF THIS ORDER IN WHICH TO FILE A RESPONSE ADDRESSING THIS ISSUE. IF APPELLALNTS DO NOT COMPLY WITH THIS ORDER, THE APPEAL WILL BE DENIED. SEE JOURNAL.
The parties briefed the issue, with some estoteric argument about Ohio appellate law.
The Gibsons argued (pdf.) that the media litigants did not have a right of appeal, they needed to seek a writ of mandamus, which they did not do:
“A person who is denied access to court records has a specific remedy” …. That specific remedy, identified by the Ohio Supreme Court is to pursue an action in mandamus, not a direct appeal…. This rule has been consistently upheld by courts across Ohio….
WEWS has not filed a writ of mandamus here. As such, because a direct appeal is not the appropriate remedy, WEWS’s appeal should be denied and dismissed….
The media litigants argued (pdf.) that they could use either direct appeal or mandamus:
Here, WEWS-TV also has an adequate remedy at law: appeal of the Order denying its motion to unseal Exhibit G, which WEWS-TV now pursues before this Court. “Through decisional law, the Supreme Court has indicated that the Rules of Superintendence are not designed to alter basic substantive rights.” … Where, as here, WEWSTV’s presumptive rights of access to Exhibit G stems from the First Amendment and the Ohio Constitution, the Rules of Superintendence do not alter WEWS-TV’s substantive right to appeal a decision denying those rights…. And, through this direct appeal, an adequate remedy exists in the ordinary course of law.
The media litigants also filed a subsequent brief (pdf.) reiterating their assertions.
The Magistrate issued his Order, essentially punting the issue to the panel that will review the appeal:
On July 20, 2020, this Court questioned whether an appeal is the appropriate
remedy to challenge the order at issue. The parties have now responded. Upon review,
· the Court defers the issue to the panel for determination during the final disposition of
Appellants’ brief will now be due 20 days from journalization of this order.
So the net result is that the appeal moves forward and will be briefed. It’s possible the result would be that the appeal is dismissed on procedural grounds when the panel rules on the merits, but the process is the punishment for Allyn D. and the rest of the Gibson family.
[Featured Image: Allyn D. Gibson. Oberlin Town Police Body Cam]
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