FIRST DISTRICT COURT OF APPEALS HAMILTON COUNTY,OHIO

STATE,ex rel. THE CINCINNATI ENQUIRER, Petitioner, vs. HONORABLE TRACIE M.HUNTER, Respondent.

Case No. C 1300183

Original Action in Mandamus

MOTION FOR CONTEMPT The Cincinnati Enquirer( "The Enquirer") moves this court for an order finding The Honorable Judge Tracie Hunter in Contempt of this Court's Entry Granting Alternative Writ of Prohibition( "the Writ"). Judge Hunter has placed restrictions on the right of The Cincinnati Enquirer to attend certain proceedings before Judge Hunter in a manner that violates the Writ. The Enquirer asks that this Court vacate that portion of Judge Hunter's order that prohibits The Enquirer from publishing the names of the Defendants and their parents.

MEMORANDUM IN SUPPORT FACTS Pending before this Court is The Enquirer's Complaint for Writ of Prohibition, seeking to vacate certain orders issued by Judge Hunter prohibiting The Enquirer from attending proceedings in Hamilton County Juvenile Court. The proceedings at issue are docketed as:
In Re: T.M., Case Nos. 12-7285; 12-7305; In Re: T.M., Case Nos. 12-7288, 127306; In Re: M.J., Case Nos. 12-7279, 12-7308; In Re: A.H., Case Nos. 12-7366, 12-7367; In Re: L.C., Case Nos. 12-7278, 12-7307; In Re: D.C., Case Nos. 127304, 12-7303.

( "The Proceedings"). (A copy ofthe Complaint is attached hereto as Exhibit A). On March 29, 2013, this Court issued the Writ ordering Judge Hunter to admit representatives of The Enquirer to the Proceedings.(A Copy of the Writ is attached hereto as Exhibit B). On June 24, the disposition hearing in Case No. 12-7366, took place in Hamilton County Ohio Juvenile Court. This case is covered by this Court's Entry Granting Alternative Writ of Prohibition issued March 29, 2013 At the beginning of the hearing, Judge Hunter announced that she had signed an entry granting the application of The Cincinnati Enquirer to attend the hearing( "the Entry"). A copy ofthe Entry is attached hereto as Exhibit C. Judge Hunter read the content of the Entry in open court in rapid fashion. Part of the Entry prohibited The Enquirer from publishing the names of Defendants and their parents "for all current and future proceedings regarding this matter." Counsel for The Enquirer attempted to object to this portion of the Entry, but Judge Hunter refused to hear the objection and threatened to expel counsel from the courtroom if he did not immediately sit down. (See Affidavit of John C. Greiner). ARGUMENT This Court unequivocally stated in the Writ that "representatives of The Enquirer shall be permitted in the courtroom." This Court issued no conditions or restrictions on its order. Judge Hunter's Entry, however, permits The Enquirer to attend only if it refrains from publishing the names of the Juvenile Defendants and their parents. Although The Ohio Rules of Superintendence 12 and Local Juvenile Rule 14 address restrictions on photographing and videotaping in Juvenile Court, neither purports to limit the ability of a newspaper or any member

of the public from publishing the name of a Juvenile Defendant. Thus, by placing restrictions on the right of The Enquirer to attend the proceedings that are not provided for in the Ohio or Local Rules, Judge Hunter is in contempt of this Court's Writ. In addition, the Entry constitutes an unconstitutional prior restraint on The Enquirer's right to publish truthful information. Prior restraints on speech are presumptively

unconstitutional, particularly restraints on reporting criminal proceedings. See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559, 96 S. Ct. 2791 (1976) ( "the protection against prior restraint should have particular force as applied to reporting of criminal proceedings"). Consequently, on multiple occasions, the United States Supreme Court has held prior restraints on publication like the one here to violate the First Amendment, even in cases involving juveniles. See, e.g., Smith v. Daily Mail Publ'g Co., 443 U.S. 97, 99 S.Ct. 2667 (1979)(West Virginia statute imposing criminal sanctions for publication of juveniles' names held to be a violation of the First Amendment); Oklahoma Publ'g Co., 443 U.S. 97, 99 S. Ct. 2667 (1979)(holding that court order enjoining press from "publishing, broadcasting, or disseminating" the name or picture of a juvenile was unconstitutional prior restraint on speech). The cited decisions of the United States Supreme Court make clear that Respondent's conduct would be unlawful, even if the names of the juveniles were not a matter of public record. In this case, however, The Enquirer lawfully obtained the names of the involved juveniles from a police report pursuant to a public records request. The fact that any interested member of the general public (not just the press) could obtain the juveniles' names is, on its own, sufficient to make Respondent's order prohibiting publication of those names unconstitutional. See Craig v. Harney, 331 U.S. 367, 374, 67 S. Ct. 1249(1947)(holding that those who see and observe a public trial "can report it with impunity" and that "[t]here is no special perquisite of

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the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it"). Thus, the fact that the information was of public record before publication is a separate and independently sufficient ground for finding Respondent's actions unconstitutional. This Court should issue an order that Judge Hunter is in contempt of this Court's Writ and vacate that portion of her Entry that prohibits The Enquirer from publishing the names ofthe Defendants and their parents. Respectfully submitted,

OfCounsel:

/s /John C. Greiner John C. Greiner (0005551) Counselfor The Cincinnati Enquirer
GRAYDON HEAD BL RITCHEY LLP

GRAYDON HEAD c~ RITCHEY LLP

1900 Fifth Third Center 511 Walnut Street Cincinnati, OH 45202-3157 Phone: (513)621-6464 Fax: (513)651-3836

1900 Fifth Third Center 511 Walnut Street Cincinnati, OH 45202-3157 Phone: (513)629-2734 Fax: (513)651-3836 E-mail: jgreiner@graydon.com

CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Motionfor Contempt was sent by electronic mail and regular U.S. Mail, postage prepaid, this 24th day of Tune 2013, upon the following: Christian J. Schaefer, Esq. Assistant Prosecuting Attorney 230 East Ninth Street, Suite 4000 Cincinnati, OH 45202 Chris.Schaefer@hcpros.org Attorneyfor Respondent

/s /John C. Greiner John C. Greiner(0005551)
4287254.1

0

FIRST DISTRICT COURT OF APPEALS HAMILTON COUNTY,OHIO

STATE,EX REL. THE CINCINNATI ENQUIRER,a division of Gannett Satellite

Case No.

Information Network,I~.c.
312 Elm Street Cincinnati, OH 45202, Petitioner, vs. HONORABLE TRACIE HUNTER Hamilton County Court of Common Pleas

Judge

COMPLAINT FOR WRIT OF PROHIBITION

Juvenile Division
800 Broadway Cincinnati, OH 45202, Respondent.

Petitioner The Cincinnati Enquirer, a division of Gannett Satellite Information Network, Inc. ( "Petitioner"), for its Complaint for Writ of Prohibikion, states as follows: The Parties 1. Petitioner operates and does business as The Cincinnati Enquirer, a newspaper of

general circulafion in Cincinnati, Hamilton County,Ohio. 2. Respondent Tracie Hunter is a judge in the Common Pleas Court for Hamilton

County, Ohio, Juvenile Division who presides over several cases involving the alleged felonious assault and aggravated rioting by the six Defendants on a man in North College Hill who was seriously beaten and injured.

EXHIBIT A

3.

The cases are docketed as follows: In Re; T,M., Case Nos. 12 -7285, 12-7305; In Re:

T.M., Case Nos. 12-7288, 12-7306; In Re: M.J., Case Nos. 12-7279, 12 -7308; Tn Re: A.H., Case Nos. 12-7366, 12-7367; In Re: L.C., Case Nos. 72-7278, 12 -7307;In Re: D.C., Case Nos. 12-7304,12-7303. Back r~ aund 4. On August 16, 2012, Petitionex ran a story in The Cincinnati Enquirer, captioned

"Six 'bored' teens attack man." In the story, Petitioner disclosed the names of five of the six Defendants in the Case, which Petitioner had received via a public records request to law enforcement officials. (See Affidavit of Jennifer Baker). 5. On August 22, 2012, Petioner ran afollow-up story in The Cincinnati Enquirer,

captioned "Account started to help rnan attacked by teens." This story also disclosed the name of, and contained a quote from, the mother of two of the Defendants. The story also reported that the 45-year old victim "suffered so many internal injuries That doctors had to insert a tube down his throat to remove all blood from his stomach." (See Affidavit of Jennifer Baker). 6. On August 24, 2012, legal counsel for Petitioner appeared before Magistrate

Judge Kelly in this Case, along with counsel for other media outlets and defense counsel, to respond to efforts by some of the defendants counsel to close proceeditngs in the Case. (See Affidavit of Kent Wellington). 7. As a result, the parties and Magistrate Kelly came to an agreement as to how the

proceedi~lgs would be covered.- In particular, the parties agreed not to film or photograph the faces or identifying characteristics of the De#endants in the courtroom along with their parents. The parties also agreed and articulated on the record before Magistrate Kelly that Petitioner could continue to print the names of the Defendants (as Petitioner had done previously upon

receiving the names of t11e alleged felons from a police report pursuant to a public record xequest to law enforcement authorities, which disclosed the names). (See Affidavit of Kent Wellington). 8. On August 25, 2012, Petitioner ran a story in The Cincinnati Enquirer, captioned

"NCH beating spawns protests -Boys face unusual court process." Tn the story, and consistent with the proceedings on August 24, Petitioner disclosed the names of the six Defendants in the Cases again. (See Affidavit of Jennifer Baker). 9. On August 31, 2012, Petioner named the svc Defendants again in a story

captioned,"Teens indicted in beating case." (See Affidavit of Jennifer Baker). 10. Unbeknownst to Petitioner until the week of March 18, on September 17, 2012,

Judge Txacy Hunter apparently altered the agreement reached by the parties and entered of record before Magistrate Kelly. Judge Hunter's order, which was not served on Petitioner or i.ts legal counsel, states that the media is no longer allowed to print the names of the defendants that had already been publically disclosed by law enforcement officials and printed in various, earlier media reports(some of which are identified above). (See Affidavits of Jennifer Baker and Kent Wellington). 11. On March 15, 2013, Judge Hunter entered an order restricting Petitioner from

broadcasting, recording, televising or photographing the proceedings in the Cases and attached a copy of a September 17, 2012 order that Petitioner had not seen before. (A copy of the entry and order is attached as E~ibit A-6 to Affidavit of Jennifer Baker), 12. On March 18, 2013, Jennifer Baker attempted to covex the proceedings in the

Case, but was denred access to the proceedings by Judge Hunter's clerk. At first, she was [e?

ordered to wait in the lobby outside the sixth floor courtroom during proceedings in the Cases. But then. she was told by Judge Hunter's bailiff that she needed to vacate the sixth floor altogether and waif in the lobby nn the first floor, even though the March 15, 2013 order only revokes permission of The Cincinnati Enquirer to "broadcast, record, televise or photograph" proceedings in the Case. 13. Upon information and belief, Jennifer Baker was the only representative of the

media that was restricted access to the proceedings in the Case on March 18, 2013. 14. On March 25, Ms. Baker attempted to cover a proceeding in the Case, but was

barred from doing so. 15. Upon information and belref, there are guilty pleas of the three remaining alleged

co-Defendants on March 25, April 1 aid Apri122, 2013. There are also sentencing hearings on April 2, Apri123 and May 13,2013. 16. The Court's restrictions on accessing and reporting about the Cases are contrary

to Ohio law,and the Ohio and United States Constitution. Resfirictions on Disclosing Names 17. A court may prohibit access to a Juvenile Court record only if the court finds

after hearing evidence and argument on the issue, that "(1) there exists a reasonable and substantial basis for believing that public access could harm the child or enda~lger the fairness of the adjudication,(2) the potenfial for harm outweighs the benefits of public access, and (3) there are no reasonable alternatives to closure." State ex rel. Plain Dealer Publ'g Co. ro. Flnyd, 111 Ohio St. 3d 56, 61-62, 2006-Ohio~437(internal quotations omitted). No such hearing has been held here. 4

18.

Judge Hunter's orders restricting publication of the juveniles' names and

restricting Ms. Baker's access to the proceedings constitutes an unconstitutional prior restraint on speech. Nebraska Press Assn v. Stuart(1976),427 U.S. 539. Prohibition is A~~ro~riate Here 19. Prohibition is the appropriate remedy to prevent a court from improperly

excluding the pixblic and press from pretrial proceedings in criminal matters. 20. Prohibition is a writ issued by a highex court to a lower court to restrain the

wlauthorized exercise of judicial power. State ex rel. Daily Reporter v. CouYt of Common Pleas, Franklin Co. (7990), 56 Ohio St.3d 145, 145. Prohibition is the proper action to dispute a trial court orc~ex, which impedes a public access to court proceedings. State ex rel. Plain Dealer Publishing Co. v. Geauga Co. Court of Common Pleas, Juvenile Div., 90 Ohio St.3d 79, 82, 2000Ohio-35. In fact, "prohibition is the Drily remedy available to nonparties who wish to challenge an order. which restricts fhe rights of free speech and press of such nonparties." State ex rel. Toledo Blade Co. v. Henry Co. Count of Common Pleas, 125 Ohio St.3d 149, 2010-Ohio-1533, ~[ 19 (quoting State ex rei. News Herald v. Ottawa Co. Court of Common Pleas, Juvenile Div., 77 Ohio St. 3d 40,43-44, 1996 -Ohio-354.) 21. To warrant a writ of prohibition, the moving party must establish (1)the court or

officer against whom the writ is sought is about to exercise judicial or quasijudicial power,(2) fhe exercise of such power is clearly unauthorized by law, and (3) denial of the writ will cause injwy for which there is no adequate remedy in the ordinary course of law. McAuley v. Smith, 82 Ohio St.3d 393, 395, 1998-Ohio~02. All three elements are met here.

5

22.

Petitioner has a clear legal right to attend these public proceedings and

Respondent has a clear legal duty to permit the public and press to attend. 23. 24. Respondent has refused to comply with her legal duty. Petitioner has no adequate alteznative remedy in the ordinary course of the law.

Moreover, Petitioner intends to cover the expected guilty pleas of the remaining three alleged felon Defendants on April 1 and Apri122,in addition to sentencing hearings on Apri12, Apri123 and May 13. However, Respondent has denied Petitioner access to the proceedings in the Cases. 25. Respondent has no valid excuse for refusing to permit Petitioner, the media and

the public to access to these proceedings. 26. Respondent has taken the restrictive actions above unlawfully and without

conducting a closure hearing as required by law and without prior notice to Petitioner as required by law. WHEREFORE, Petitioner seeks a Writ of Prohibition preventing Respondent from: (a) denying Petitioner and the public access to the courtroom and proceedings in the Cases, (b) denying Petitioner the ability to photograph and report on these Cases, and (c) prohibiting Petitioner from printing the names of the alleged felon Defendants.

D

Respectfully submitted,

Of Coitinsel: Kent Wellington (0055540)
GRAYDON HEAD & RITCHEY LLP

Jo ~C. Greiner'~0005551) A to neyfor Petitioner
G DON HEAD & RITCHEY LLP

1900 Fifth Third Center 511 Walnut Street Cincinnati, OH 45202-3157 Phone: (513)629-2812 Fax: (513)333-4387 E-mail: kwellington@graydon.com

1900 Fifth Third Center 511 Walnut Street Cincinnati, OH 45202-3157 Phone: (513)629-2734 (513)651-3836 Fax: E-mail: jgreiner@graydon.com

PRAECIPE FOR SERVICE TO THE CLERK: Please issue a Summons along with a copy of this COMPLAINT to the Respondent identified in the caption on page one via Certified Mail, return receipt requested.

4130725.1

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IN THE COURT OF APPEALS F1RST APPELLATE DISTRICT OF OHIO
i D101494777

HAMILTON COUNTY,OHIO

STATE ex rel. THE CINCINNATI ENQUIRER, Petitioner, vs.

APPEAL N0. C-130183

ENTRY GRANTING ALTERNATIVE WRIT OF PROHIBITION AND ESTABLISHING TIME

THE HGNORABLE TRACIE HUNTER, Respondent.

ENTERED MAR 29 2013

This came to be considered upon the complaint for writ of prohibition, the motion for preliminary injunction, and the memorandum in opposition to the motion, The court construes the motion for preliminary injunction as a request for an alternative writ. The court grants an alternative writ of prohibition ordering the respondent to stay the enforcement of the documents dated March 15,2013 and March 2S,2013, revoking The Cincinnati Enquirer's permission to broadcast, televise, photograph, or record courtroom proceedings. Representatives ofthe Enquirer shall be permitted in the courtroom. The court orders that a stipulated record be filed in this case on or before April 12, 2013. The respondent shall have until April 26, 2013, to file a response to the complaint far writ of prohibition. The petitioner shall have until MaytO, 2Q13, to file any motion or memorandum in reply. ENTER UPON THE JOURNAL OF THE COURT
PER ORDER OF THE COURT.BY: Judge

~1AR 2 9 2013
f

. s

HAMILTON COUNTY, OHIO JUVENILE COURT

§ ANTONIO HENDRIX §

CASE NO. 12-7366 JUDGE TRACIE M. HUNTER ENTRY GRANTING RESTRICTED ACCESSTO BROADCAST,TELEVISE, RECORD OR PHOTOGRAPH COURTROOM PROCEEDINGS

The persons) below requested permission to broa dcast,televise, photograph, or otherwise record proceedings in the above captione d case. Cincinnati Enquirer, Applicant This applicant was previously barred from attending all future proceedings in this matter after violating this Court's conditions in a previous hearing, whereby this Court granted permission to broadcast. This Entry neither alters nor amends this Court 's previous Orders or this Court's pending or future Orders, which shall be decided upon proper Motion to this Court on a case by case basis. The Court, upon consideration of the above request, pursuant only to the First District Court's Order, while a lawsuit litigating these issues, is pending, hereby grants its authorization to broadcast, televise, photograph, or otherwise reco rd judicial proceedings in the above captioned matter, subject to the following conditions: All persons approved to broadcast, televise, photogra ph,or record courtroom proceedings must comply with Ohio Rules of Superintendence, Rule 12; and Rule 14 of the Rules of Practice of the Hamilton County Juvenile Court. Broadcasts, videotapes, photographs and reco rdings may include full images and sound of the judge and all courtroom staff. In accordance with Superintendence Rule 12 and Rule 14 of the Rules of Practice, all victims and witnesses may object to being filmed, videotaped, recorded, or photographed. If they do object, they MAY NOT be filmed, videotap ed, recorded, or photographed. Juvenile Defendants may only be videotaped below the waist. Names of the Defendants and their parents are barred from publication or broadcas t for all current and future proceedings regarding this matter. Photographing the Defendants' parents is prohibited, as it may compromise the safety of the juveniles. If Defendants object at any time, a clos ure hearing shall be conducted. If media applicant violates this order, the Judge may revoke violators) permission to broadcast, videotape, photograph, or record all futur e courtroom proc edings; and additionally may take any other actions available under law. D~~ ~6 Date

Judge Tracie M. Hunter

EXHIBIT C

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