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Appeals Court Dismisses Media Attempt To Get Gibson’s Bakery Clerk’s Facebook Records in Oberlin College Case (UPDATE)

Appeals Court Dismisses Media Attempt To Get Gibson’s Bakery Clerk’s Facebook Records in Oberlin College Case (UPDATE)

So for the moment, the ploy by media entities aligned with Oberlin College to smear the Gibsons via confidential Facebook records is over. The main appeal over the massive judgment still has not been decided. (UPDATE – Media files Complaint for Writ of Mandamus in Ohio Supreme Court)


We are still waiting for the Ohio 9th District Court of Appeals to rule on the main appeal in the Gibson’s Bakery v. Oberlin College case.

On November 10, 2020, the Court heard oral argument on (1) the appeal byOberlin College and Dean of Students Meredith Raimando seeking to overturn the compensatory and punitive damage awards totalling, after reduction under Ohio tort reform law, $25 million, plus over $6 million in attorney’s fees, bringing the judgment to over $32 million, and (2) the cross-appeal by Gibson’s Bakery and two members of the Gibson family (including the widow of the late David Gibson) seeking to restore the full $33 million punitive damages award, arguing the tort reform reduction was unconstitutional, which would add back about $15 million to the judgment.

For the latest on the travel of this main appeal, see our May 18, 2021, post, Gibson’s Bakery v. Oberlin College – New Panel Assigned To Appeal. That decision could come tomorrow or in weeks or months. I don’t know about you, but the mere delay gets me nervous.

There has been a side issue on appeal invovlving the attempt by by certain Cleveland media entities aligned with the college trying to unseal confidential Facebook records of Allyn Gibson, the store clerk who stopped the shoplifter that gave rise to the student protests, the false accusations of racial profiling, and the lawsuit. It was a particularly vindictive move that left little doubt is was part of Oberlin College’s post-trial public relations campaign claiming the Gibsons really were racist after all.

For full background on this sordid sideshow, see these posts:

I just found out that the media appeal was dismissed on procedural grounds on June 17, 2021. I only found out now when I looked at the docket in that appeal — it’s not something I normally check.

The short version is that the media entities used the wrong procedure to contest the trial judge’s refusal to unseal the records. The appeal court held that because the media entities were not parties, they could not file a normal appeal, they had to seek mandamus, that is, an order from the appeals court instructing the trial court to take an act.

Fallowing the trial in this case, WEWS and others filed a motion to unseal one of the exhibits that had been submitted to the court in connection with a motion for summary judgment. The trial court denied the motion, concluding that continued restriction of public access is warranted under Superintendence Rule 45. The court also found that there was no less restrictive alternative than to completely restrict access to the exhibit. WEWS filed a timely notice of appeal of the trial court’s journal entry.

The preliminary issue is whether a non-party may seek direct appellate review if it is denied access to a case document under Rule 45. Rule 47(B) provides that “[a] person aggrieved by the failure of a court • * * to comply with the requirements of Sup. R. 44 through 4 7 may pursue an action in mandamus pursuant to Chapter 2731. of the Revised Code.” Interpreting that rule, the Ohio Supreme Court has stated that “[m]andamus is the appropriate remedy • • • to enforce the provisions of the Superintendence Rules granting public access to court records, Sup.R. 47(B).” State ex rel. Cincinnati Enquirer v. Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354, ,r 11. It also identified mandamus as the “specific remedy” for “[a] person who is denied access to court records” in Lyons. Id. at ,r 13; State ex rel. Harris v. Pureval, 155 Ohio St.3d 343, 2018-Ohio-4718, ,r 11 (“[M]andamus is the only remedy provided by Sup.R. 47(B).”).

In S.C. v. T.H, 9th Dist. Summit No. 29594, 2020-Ohio-2698, this Court allowed a party to the action to bring a direct appeal challenging the denial of her request for an order restricting access to certain case records. Id. at ,r 8. Unlike S. C., however, this case involves a non-party to a civil action that has been denied access to court records, as in Lyons. Upon review of the record and in accordance with the decisions of the Ohio Supreme Court, we conclude that mandamus is WEWS’s exclusive remedy for the trial court’s continued restriction of a discovery exhibit. Accordingly, WEWS’s appeal is not properly before this Court. Appeal dismissed.

As of today, the court docket does not reflect any mandamus petition having been files. So for the moment, the ploy to smear the Gibson’s via confidential Facebook records is over.

UPDATE 7-22-2021

At the time of this post, I was unaware that on July 15, 2021, the Cleveland Media entities aligned with the college had filed a Complaint for a Writ of Mandamus in the Ohio Supreme Court seeking to force the trial judge to unseal the records. It seemed strange to me at the time that they had not done so, since they are so obsessed with attacking the Gibson family, but I didn’t check the OH Supreme Court docket. That Complaint, a response to which is temporarily stayed under a standard Ohio Supreme Court referral to mediation, will be the subject of a separate post.

[Featured Image: Allyn D. Gibson. Oberlin Town Police Body Cam]


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Off topic but Tom Brady is a coward and just stabbed Trump and all of us in the back.
Haven’t watched in 3 – 4 years and now, solidified.
And I thought he was one of the good guys

I’m surprised there hasn’t been a mysterious leak of those records.

Are the media entities going to sue their legal representation for being utterly incompetent?

Unrelated, but important:

Swalwell spent thousands of campaign dollars on booze and limo services, $20K at hotel where his wife worked:

    henrybowman in reply to | July 21, 2021 at 2:32 am

    I had no idea Swalwell was married. I read a number of articles about how he was caught sleeping with his own personal Mata Hari, and none of them saw fit to mention this tiny factoid.

Off- topic: the alleged plot to kidnap Whitmer was planned to a large extent by FBI “informers”:

The FBI seems to be channeling Lavrentiy Beria these days, but with a twist. “Show me the man, and I’ll FORCE him to commit the crime” seems to be the FBI’s motto.

Publius_2020 | July 20, 2021 at 10:20 pm

So we are ten (10) months from oral argument for the original two judges, but only two (2) months for the third member of the panel. That’s a rather bizarre decision posture.

If the two original judges disagreed, then we might assume that the third vote will control — but the opinion should be far along. (It would be perverse to wait for the third vote, and then say ‘hey, you should write the opinion.)

If the first two judges agreed, then the third vote is a formality, but I suppose they would graciously wait out the time for evaluation and a potential dissent. In which case, we could be here for several more months.

    Milhouse in reply to Publius_2020. | July 21, 2021 at 12:10 am

    The third vote isn’t a formality, because the third judge could make an argument that persuades one or both of the first two. That’s why when a judge dies before the judges vote, then even if she’d made her opinion clear they can’t just consider her to have voted that way; how can they know she wouldn’t have changed her mind?

      Joe-dallas in reply to Milhouse. | July 21, 2021 at 7:26 am

      Never understood why you get so many downvotes for stating the correct legal standard. There was a very definitive case that went to USSC regarding CA9 Stephen Reinhart regarding an opinion that was issued after his death.

        Dathurtz in reply to Joe-dallas. | July 21, 2021 at 7:49 am

        I’ve often wondered the same.

        SuddenlyHappyToBeHere in reply to Joe-dallas. | July 21, 2021 at 9:38 am

        Because this site unfortunately is a gathering place for a lot of ideologically impaired reactionaries. You can see that in the tone and verbiage. Milhouse usually lays out a coherent basis, often by citing to the law, for something that just gets under the craw of several folks who comment here.

      Publius_2020 in reply to Milhouse. | July 21, 2021 at 3:42 pm

      It’s not a ‘formality’ from the perspective of technical legal standards of review, but that’s not what I meant. Of course, the third judge “might” persuade the other two to change their votes, but statistically that is going to happen a tiny number of times after this many months have passed.

      I’m thinking in terms of predicting the result and the likely length of time we will wait. And when we’re trying to engage in prediction, it’s the statistics that matter. Yes, technically, when someone files a Supreme Court petition trying to overturn a Court of Appeals opinion, the case is not “final” and there is a possibility of reversal at SCOTUS. But if we’re trying to predict the result, it would be insane to ignore the long-shot odds of a grant of cert. The same applies here. If the first two judges agreed, the odds that the newly elected (Democrat) is going to persuade the first two to reverse their vote are very low.

smalltownoklahoman | July 21, 2021 at 7:11 am

Well I’m glad to see that’s been shot down. The Gibson family has been through enough without the media sleazing things up, assuming there’s actually anything there for them to use.

    Lucifer Morningstar in reply to smalltownoklahoman. | July 21, 2021 at 7:31 am

    But it’s not over. All the media has to do is refile for mandamus order from the court and then the Gibson family lawyers will have to argue why it should not be issued. So this isn’t even close to being over yet.

      As I understand it they’ve already made the argument for why it should not be released. The court just decided that it didn’t even have to consider the arguments, since there was no valid motion in the first place. If there is a valid motion then it will consider the arguments for and against it. Meanwhile this delays it and costs the movants money.

2smartforlibs | July 21, 2021 at 7:48 am

This fight is coming to every one of us.

freespeechfanatic | July 21, 2021 at 9:07 am

Just more confirmation that the entire mission and self-identification of the modern media is propaganda and character assassination on behalf of their Democrat/Left masters.