Speaker 1: And Ukraine in the market every day.
Speaker 2: Every day happens here on fifty five KR see the
Speaker 2: talk station A six fifty five R see the talk
Speaker 2: station A very happy Friday to pivoting over from broader
Speaker 2: issues of national and global concern. Welcome back to the
Speaker 2: fifty five KRSUE Morning Show. Hamilton County Administrative and presiding
Speaker 2: Judge from the Municipal Court, Judge Josh Berkowitz. It's great
Speaker 2: having you on today, Judge, and congratulations on your victory
Speaker 2: that shouldn't have had to go through the process. We're
Speaker 2: going to talk about that right now.
Speaker 1: Well, thanks Brian, thanks for having me, good morning.
Speaker 2: And I appreciate you giving me the heads up on
Speaker 2: this with the text the other day. We have a
Speaker 2: problem here with Hamilton County Clerk Court Pavon Peri. He
Speaker 2: decided unilaterally that he was going to pull certain records
Speaker 2: from the online access I suppose, specifically records relating to
Speaker 2: eviction cases that were older than three years. But he
Speaker 2: didn't remove them. I mean, you would still be able
Speaker 2: to go to the Clerk's office in person to see
Speaker 2: these records. Have I got that correctly? The setup for
Speaker 2: this litigation that ensued.
Speaker 1: Yeah, so this was middle of twenty twenty two and
Speaker 1: he took I mean, this is tens of thousands of
Speaker 1: records that he just took off his website without any
Speaker 1: notice or authorization from the court. We actually learned of
Speaker 1: it from a Cincinnati Enquirer article. And if you looked
Speaker 1: at the website when he did this, you would have
Speaker 1: no idea that these records were missing, that they that
Speaker 1: they ever existed. And so, you know, this was a
Speaker 1: big concern for the judges when we learned of it.
Speaker 1: First of all, you know, open records and public access
Speaker 1: to court records is a it's in Ohio's constitution. It's
Speaker 1: a big deal. It's a big responsibility of the court.
Speaker 1: And second, this obviously had a tremendous potential to mislead
Speaker 1: the public. Anybody who looked at that website would have
Speaker 1: no idea that these records weren't there, and so it
Speaker 1: was obviously misleading. And our first response, of course, our
Speaker 1: reaction was to reach out to him to voice these concerns,
Speaker 1: to try to rectify the situation in a kind of
Speaker 1: you know, a reasonable manner. You know, look, this is
Speaker 1: a problem, we think it should be fixed. Here are
Speaker 1: our concerns, and you know, that went on for quite
Speaker 1: a while where we tried to resolve this this situation
Speaker 1: in a in a agreeable manner, and it just it
Speaker 1: didn't happen. It was very clear that he was pretty
Speaker 1: dug in on it. He viewed his office as having
Speaker 1: this authority to unilaterally determine what records should be available
Speaker 1: to the public online and what records shouldn't. And ultimately,
Speaker 1: in twenty twenty three, our court fourteen judges agreed and
Speaker 1: we ordered him to rescind this policy to restore these
Speaker 1: records to public access, and he acknowledged receiving this order.
Speaker 1: He said he was going to confer with his staff
Speaker 1: or counsel or something like that, and he never complied.
Speaker 1: And so in January twenty twenty four, I became this
Speaker 1: position of administrative judge, and I felt like this was
Speaker 1: going in a bad direction. It was going to get expensive.
Speaker 1: You know, none of the judges were picking a fight.
Speaker 1: We did not, We were not looking to to have
Speaker 1: a public display of this conflict. And so I reached
Speaker 1: out to him personally and tried to set up a meeting,
Speaker 1: thinking there's you know, we've got to find a way
Speaker 1: to resolve this thing. And he refused to meet with me.
Speaker 1: He demanded that, or I should say, he wouldn't meet
Speaker 1: with me unless council was present, unless he had an
Speaker 1: attorney present on his behalf. And ordinarily the Hamilton County
Speaker 1: Prosecutor would represent the Clerk of Courts in litigation like
Speaker 1: this or in a civil dispute, right and ordinarily the
Speaker 1: Hamilton County Prosecutor would represent the court in a civil dispute.
Speaker 1: And so obviously the County prosecutor could not represent both parties,
Speaker 1: and so they couldn't represent either party. So what that
Speaker 1: meant was that private council, a taxpayer expense, had to
Speaker 1: be appointed to represent the Clerk, and then they had
Speaker 1: to appoint private council to represent the court. And so
Speaker 1: that's what happened. And ultimately, you know, he never met
Speaker 1: with me. We never it never happened, and he never complied,
Speaker 1: and so we sent him a letter, this was March
Speaker 1: of twenty twenty four and said, look, you haven't complied
Speaker 1: with this valid court order. You've got ten days to
Speaker 1: restore these records or you need to be able to
Speaker 1: show cause why you shouldn't be held in contempt of court.
Speaker 1: Rather than comply with that, he filed this lawsuit, and
Speaker 1: he sued the judges of the municipal court, and earlier
Speaker 1: this week, the High Supreme Court unanimously ruled in our
Speaker 1: favor that he completely overreached. He had no such authority
Speaker 1: to unilaterally determine to remove these records from his website.
Speaker 1: That we were that we were correct.
Speaker 2: Like I guess, the whole idea, the going back to
Speaker 2: him insisting that counsel be president. You asked to sit
Speaker 2: down and meet with him. You didn't really need lawyers
Speaker 2: there to have a civil discourse over the propriety of
Speaker 2: his actions and removing these records, did you.
Speaker 1: I certainly didn't think so. He's an attorney, you know,
Speaker 1: colurk of course of court don't necessarily need to be attorneys,
Speaker 1: but he is. And I really felt like he and
Speaker 1: I could have a discussion and that we could reach
Speaker 1: some uh, some resolution to this situation that did not
Speaker 1: involve litigation in court.
Speaker 2: Right like, for example, pulling out a copy of Ohio's
Speaker 2: Constitution which says these court records must be open to
Speaker 2: the public.
Speaker 1: That's right, I mean, people, you know, open courts are
Speaker 1: part of Ohio's Constitution from its founding, and that's also included,
Speaker 1: you know, not just in the Supreme Court noted this.
Speaker 1: The Court of Appeals that first ruled on this decision
Speaker 1: noted the same thing. That you know, open courts doesn't
Speaker 1: just mean that people have a right to come to court.
Speaker 1: Of course they do. But you know, there's twelve twelve
Speaker 1: million people or so in Ohio, and lord knows how
Speaker 1: many one hundred thousand million cases in courts throughout Ohio.
Speaker 1: So open courts doesn't just mean that you can come
Speaker 1: to court. It means that you have access to court
Speaker 1: records and in the most accessible manner reasonably possible. And
Speaker 1: for the last thirty or forty years in this community,
Speaker 1: clerks of Court have touted their website that is easy,
Speaker 1: it's accessible that the public can use to see what
Speaker 1: happens in court. I mean, it's records are really really important.
Speaker 1: And that's how you know, that's how the public can
Speaker 1: keep tabs on their government. That's how you can determine
Speaker 1: what's going on in your community. That's how you can
Speaker 1: determine whether your elected officials are effective, whether they're efficient,
Speaker 1: whether they're trustworthy stewards of tax money, and so you know,
Speaker 1: records are really important and on the same hand are
Speaker 1: on the other hand, records are an easy target. They're
Speaker 1: a favorite target of politicians in my opinion, who can
Speaker 1: use data and if you let them, they can manipulate
Speaker 1: records to advance just about and if any policy or
Speaker 1: agenda that they'd like.
Speaker 2: Well, and that's what he was trying to do in
Speaker 2: this particular case because apparently, according to the appellate court
Speaker 2: pleatings from the clerk courts, he did this to prevent
Speaker 2: certain members and this is in quote certain members of
Speaker 2: the public being primarily employers and landlords, were potentially relying
Speaker 2: upon court documents and considering fulfilling employment, housing, and other
Speaker 2: potential opportunities to individuals. Well, I mean that's done all
Speaker 2: the time. It's like an actuarial analysis of your record
Speaker 2: and whether what your insurance premium should be rated at
Speaker 2: are you a good risk in terms of renting properties
Speaker 2: or employment. I mean that's vital and critical information for
Speaker 2: the public to have. And the other layer on that
Speaker 2: is just because he removed them from the website didn't
Speaker 2: mean they weren't still available to all these different entities
Speaker 2: to go down and in person request them from the clerk.
Speaker 2: The problem is, as you pointed out, he didn't let
Speaker 2: anybody else know out there in the world who went
Speaker 2: to do a search that the records were not online
Speaker 2: yet they were still available for dates older than three years.
Speaker 1: That's right. And there was a lot of kind of
Speaker 1: moving goalposts there as to what he was trying to accomplish.
Speaker 1: At times it was, you know, I'm trying to help
Speaker 1: people who have prior evictions. They shouldn't be they shouldn't
Speaker 1: face difficulties because they had an eviction older than three years.
Speaker 1: And then in court that kind of evolved to this
Speaker 1: argument that, well, these recor reords lead to misidentification, and
Speaker 1: he argued in the Court of Appeals that you know
Speaker 1: that names on court records could lead the misidentification and
Speaker 1: the denial of housing and or employment based on race
Speaker 1: or religion. And one of the things that the Court
Speaker 1: of Appeals noted and we argued was that he never
Speaker 1: presented any evidence whatsoever to support any of this. In fact,
Speaker 1: he never support He never presented an aggrieved party, a
Speaker 1: litigant that asked for this remedy, nothing of the sort.
Speaker 1: This was all, you know, his policy, his belief that
Speaker 1: this was happening, and you know, really sadly, he seems
Speaker 1: to maintain this to this day that he was in
Speaker 1: the right and that he was justified in doing.
Speaker 2: This in the face of a unanimous Supreme Court in
Speaker 2: the state of Ohio that is of mixed political philosophy.
Speaker 2: Is in backgrounds, that's right. Well, it's an amazing display
Speaker 2: of arrogance, Judge.
Speaker 1: It really is. One of the saddest aspects of it
Speaker 1: is of course, the taxpayers on the hook for the
Speaker 1: whole thing, and so far legal fees in this between
Speaker 1: this in this case amount to more than eighty thousand dollars,
Speaker 1: and I think, you know that's that's a big deal,
Speaker 1: and it's disappointing. You know, even in the statement that
Speaker 1: he that he that his office provided just the other day,
Speaker 1: again he maintains that he continues to double down, that
Speaker 1: he can decide that a certain aspect of the system
Speaker 1: is broken and therefore he can take this action as
Speaker 1: clerk of courts to manipulate records or to conceal records
Speaker 1: from the public. And what he ought to be doing
Speaker 1: right now, in my opinion, is paying the taxpayer back.
Speaker 1: Pay the taxpayer back through the right thing. The taxpayer
Speaker 1: should not be on the hook for what is essentially
Speaker 1: this was a political stunt. Yes, and at great taxpayer expense.
Speaker 1: I mean that's somebody's salary. That's a significant amount of money.
Speaker 1: And it's just disappointing that still there's no recognition that
Speaker 1: this was an error. It continues to double down, continues
Speaker 1: to kind of pretend that he was in the right,
Speaker 1: and it's very unfortunate that is.
Speaker 2: And as the Court of the kils I guess said, clerks,
Speaker 2: only the courts, not the clerks, have the authoritied way
Speaker 2: if when individual right to privacy outweighs the strong presumption
Speaker 2: of public access to court records. Now, there have been
Speaker 2: instances when the courts have denied public access online to
Speaker 2: certain public records. I think like for example, divorce cases.
Speaker 1: Absolutely, there are many instances where courts are making that
Speaker 1: determination whether records should be sealed, whether they should be
Speaker 1: removed from online access. But as the Supreme Court noted
Speaker 1: and the Court of Appeals, that's a judicial determination and
Speaker 1: it's got to be based on evidence. It's got to
Speaker 1: be based on the record, and that happens in a
Speaker 1: variety of circumstances. Child victims for example, juvenile court proceedings
Speaker 1: are often sealed from online access or in other form.
Speaker 1: So it's a judicial process that happens all the time.
Speaker 1: But it's got to be based on evidence. It's got
Speaker 1: to be based on this judicial determination, and it's just
Speaker 1: one of our responsibilities as judges throughout Ohio. And he
Speaker 1: just asserted this authority for himself as a clerk of courts,
Speaker 1: and no nothing supported it whatsoever.
Speaker 2: Well, now, to the extent he comes up with an
Speaker 2: actual justicabal controversy, a specific case where someone who was
Speaker 2: misidentified by virtue of online access to the records or
Speaker 2: someone who claims individual harm that these records are available.
Speaker 2: Could this be re reviewed at a subsequent time to
Speaker 2: have a full determination along the lines what we're talking about, like,
Speaker 2: for example, the juvenile record should not be disclosed to
Speaker 2: the public for privacy reasons or whatever. So is this
Speaker 2: the end of it in terms of a discussion about
Speaker 2: the availability of these records or is this just put
Speaker 2: a nail on the coffin We're just not going down
Speaker 2: that road.
Speaker 1: Well, I think this puts an end to his assertion
Speaker 1: of this authority, clearly. But people have the right to
Speaker 1: request a stealing of records in a particular case. That
Speaker 1: happens all the time, including in eviction cases. People can
Speaker 1: apply to have information removed from the website or case
Speaker 1: records removed from the website, and our municipal court holds
Speaker 1: these hearings all the time and they are frequently granted.
Speaker 1: This is not this was all a solution in search
Speaker 1: of a problem. Is the reality. We have those hearings
Speaker 1: all the time. Oftentimes such motions are granted without any objection,
Speaker 1: but there's got to be noticed to the parties. There's
Speaker 1: got to be a hearing, there's got to be evidence.
Speaker 1: And what he did was was just a blanket removal
Speaker 1: of thousands of cases worth of records. And again, the
Speaker 1: bigger or a big part of the problem was anybody
Speaker 1: looking at that website for professional reasons or otherwise would
Speaker 1: have no idea that these records weren't there. So when
Speaker 1: he claimed, well, all you have to do is come
Speaker 1: down to the courthouse and look for them, how would
Speaker 1: you know that they were even there to look for?
Speaker 2: Yeah, it sets the process back to the old days
Speaker 2: when that was the only way to search records, and
Speaker 2: certainly we don't live in those times. Anymore and for
Speaker 2: a lot of reasons. Thankfully so, Judge Josh Burkerwit's a
Speaker 2: real pleasure having you on. Congratulations on the victory, even
Speaker 2: though it came at the expense of the Hamilton County taxpayers.
Speaker 2: A fight worth fighting and at least we get to
Speaker 2: talk about this demonstrable arrogance on the part of the
Speaker 2: Clerk of Courts. Thank you, sir for your time today
Speaker 2: and spending time with my listeners and me and talking
Speaker 2: about this extremely important issue.
Speaker 1: Judge Burker Woods, Thanks Brian, I appreciate it.
Speaker 2: My pleasure. A twenty two. Don't go away. We're gonna
Speaker 2: hear for the Cincinni Print and Type Museum. They got
Speaker 2: an event coming up this week. It's a cool place
Speaker 2: and the history of Cincinnati and connection with printing is
Speaker 2: just it's amazing. And again, props for my wife, arm
Speaker 2: I'm sorry my mom foreseeing the sinceinna print musim and
Speaker 2: tell me all about it. The return of Gary Walton
Speaker 2: coming up next fifty five KRC.