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