Judge Berkowitz - Clerk of Courts Overstepped His Reach

Episode Transcript

Speaker 1 (00:00):
And Ukraine in the market every day.

Speaker 2 (00:03):
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

(00:25):
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.

Speaker 1 (00:35):
Well, thanks Brian, thanks for having me, good morning.

Speaker 2 (00:38):
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

(01:02):
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.

Speaker 1 (01:13):
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

(01:36):
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

(01:59):
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

(02:23):
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

(02:46):
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

(03:09):
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.

(03:31):
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.

(03:54):
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.

(04:17):
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

(04:39):
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

(05:01):
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

(05:22):
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

(05:47):
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.

Speaker 2 (06:05):
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.

Speaker 1 (06:20):
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.

Speaker 2 (06:40):
Right like, for example, pulling out a copy of Ohio's
Constitution which says these court records must be open to
the public.

Speaker 1 (06:48):
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.

(07:10):
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

(07:32):
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

(07:54):
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

(08:14):
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.

Speaker 2 (08:34):
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

(08:57):
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

(09:17):
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.

Speaker 1 (09:34):
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.

(09:55):
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

(10:18):
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.

(10:41):
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.

Speaker 2 (10:56):
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.

Speaker 1 (11:14):
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,

(11:36):
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

(11:57):
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.

(12:21):
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,

(12:41):
and it's very unfortunate that is.

Speaker 2 (12:45):
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.

Speaker 1 (13:07):
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

(13:28):
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.

(13:49):
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.

Speaker 2 (14:10):
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,

(14:33):
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.

Speaker 1 (14:47):
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

(15:08):
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,

(15:29):
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

(15:52):
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?

Speaker 2 (16:03):
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

(16:24):
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.

Speaker 1 (16:30):
Judge Burker Woods, Thanks Brian, I appreciate it.

Speaker 2 (16:33):
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.