In a strange twist, Judge John R. Miraldi’s counsel confirms “Judge Miraldi has agreed to release the Exhibit in exchange for the dismissal of the writ” of mandamus filed against the judge by WEWS-TV in the Ohio Supreme Court. It’s not clear to me that in this current case posture, Judge Miraldi any longer has jurisdiction.
We have been covering the saga of the attempt by Cleveland WEWS-TV to unseal the confidential Facebook records of Allyn D. Gibson, the Gibson’s Bakery store clerk whose stop of a black Oberlin College student shoplifter led to protests, boycotts, false accusations of racial profiling, and ultimately, the lawsuit that resulted in massive compensatory and punitive damage jury verdicts.
This legal fight is separate from the main ring, which is the appeal by (1) Oberlin College challenging 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.
The Facebook records were sealed pursuant to court order of trial court Judge John R. Miraldi, who denied the respective and successive motions of Oberlin College and certain Cleveland media interests (including WEWS-TV) to unseal the records. The litigation over the Facebook records now is in the Ohio Supreme Court, on the Complaint for a Writ of Mandamus filed by WEWS-TV ordering Judge Miraldi to unseal the resords. For a full discussion, see my September 17, 2021, post, Gibson’s Bakery Store Clerk Intervenes Against Attempt By Oberlin College-aligned Media to Unseal His Facebook Records.
The short version is that Allyn D. was not a party in the case, was not called as a witness, and the Facebook records — produced during discovery under a court ordered confidentiality agreement — were not even the subject of questioning at Allyn D.’s pretrial deposition and were not even offerred as exhibits at the trial The Facebook records played zero role in the trial and verdicts, but first Oberlin College then its Cleveland media friends tried unsuccessfully to get the records unsealed as part of a post-trial attempt to smear the Gibsons as racists.
On September 16, 2021, the day Judge Miraldi was due to Answer in the Ohio Supreme Court, Allyn D. filed a Motion to Intervene (pdf.) attaching an Answer (starting at page 9 of the linked pdf.) and Motion for Judgment on the Pleadings (starting at page 39 of the pdf.). Allyn D. argued, among other things, that he should be allowed to intervene because his interest differed from Judge Miraldi. He argued that while Judge Miraldi had an interest in defending his decision, Allyn D. has an interest in the records themselves remaining private.
But it appears that Judge Miraldi does not have an interest in defending his decision. Based on the electronic court docket, he never filed an Answer.
I recently received information that Judge Miraldi had agreed to release the Facebook records (effectively unsealing them) in exchange for WEWS-TV dismissing the request for a writ. That has been confirmed in an email to me from Judge Miraldi’s counsel of record in the Ohio Supreme Court mandamus proceeding:
Judge Miraldi has agreed to release the Exhibit in exchange for the dismissal of the writ. As far as what mechanism is required to accomplish that, we are looking into that now. Under Ohio law, it somewhat depends on the physical location of the file. I do not at this moment know if the file is in our courthouse or with the 9th Circuit in Akron. Once that is determined, we will be able to decide how to accomplish the exhibit’s release.
(added) In a follow up, counsel indicated they were still looking into Judge Miraldi’s jurisdiction now that the main case in on appeal in the Ohio 9th Circuit and the mandamus issue is in the Ohio Supreme Court: “In some respects, under Ohio law, that depends on the physical location of the file.”
This is all very unexpected and strange. Having twice held to his decision, why agree to release the records while the matter is in the Ohio Supreme Court? It would not have been hard to file an Answer to the Complaint, particularly since Judge Miraldi is represented (presumably for free) by the Lorain County Prosecutors Office. If Allyn D.’s motion to intervene is granted, then the issue still is before the Ohio Supreme Court regardless of whether Judge Miraldi defends.
It’s not even clear to me that as the case stands now, Judge Miraldi has jurisdiction over the Facebook records dispute, that now is before the Ohio Supreme Court. In my view, the only way Judge Miraldi gets the issue back is if the Ohio Supreme Court remands it to him on this issue. Or if the 9th Circuit Court of Appeals reverses in whole or in part on the main appeal and the whole case heads back to Judge Miraldi. That appeals court generally releases opinions on Mondays, so the decision could come tomorrow, or not for weeks.
It certainly is an unexpected development that we will continue to follow.
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