In Inside Courts, retired judge Tom Hodson explains the complexities of the law and how it effects you.
I have two topics this week for some clarification. First is the whole Nelsonville governmental soap opera. Secondly, some people inquired why Ohio University football coach’s divorce records have been sealed from public view.
I’ll try to explain both situations so we can all keep up with what is happening in our local legal world.
Nelsonville legal quagmire
We are pressing up against the holiday break between Christmas and New Year’s Day and Nelsonville still does not “officially” know what kind of government it will have Jan. 1.
Remember late this summer the Ohio Supreme Court twice refused to decide whether Issue 23, a referendum eliminating the charter government and imposing a statutory form of rule, prevailed over Ord. 54-25 repealed the referendum Aug. 11.
Then all eyes turned toward Athens County Common Pleas Judge Patrick Lang.
Statutory auditor candidate Andrea Nicole Thompson Hashman filed a lawsuit Sept. 29 asking Judge Lang to issue a preliminary injunction (temporary court order) “holding that Issue #23 is a lawful initiative exercising the Constitutional right of the people of Nelsonville to abolish their City Charter and is not subject to repeal pursuant to Article X §10.06 of the Nelsonville City Charter enabling Ordinance 54-25 or any other act of repeal or invalidation pursuant to the Nelsonville City Charter until further order of the Court.”
Hashman wanted this decision prior to the November election.
Judge Lang denied the motion for the preliminary injunction Oct. 23, thereby allowing the election to go forward. Candidates were on the ballot for both the charter form of government and the statutory form.
Meanwhile, on Oct. 22 the Nelsonville defendants filed a motion for “Judgment on the Pleadings” enumerating several legal arguments why Judge Lang should dismiss Hashman’s case before it proceeded any further.
The primary argument was that Hashman did not have “standing” to bring the lawsuit. Standing means one has a right to bring a lawsuit. Certain criteria must be met before one has standing.
The Nelsonville defendants argued, “To establish standing, Ms. Hashman must demonstrate that she “(1) suffered an injury that is (2) fairly traceable to the defendant’s allegedly unlawful conduct, and (3) likely to be redressed by the requested relief.”
After receiving written legal arguments from both sides, Judge Lang, in a five-page decision released Dec. 10, found Hashman did not have the proper standing to bring her lawsuit and that she received no injury that would allow her to bring the action.
The result of all of this is that the form of Nelsonville government is still up in the air.
But wait! There’s more.
On Dec. 8, 25 citizens from Nelsonville filed a motion “to Strike the Statutory Govt. Candidates Slated For Office In the City of Nelsonville, Ohio, Effective January 1, 2026.”
The lawsuit, filed by Nelsonville City Council member Cory Taylor, includes a petition signed by 25 Nelsonville residents who purportedly voted in the last election. They ask that the court strike the statutory candidates slated for office on Jan. 1 and uphold Ordinance54-25, which repealed the Issue 23 initiative.
In short, the lawsuit is asking for a final ruling on which prevails — charter or statutory.
This lawsuit names as defendants all the candidates who ran in November for positions in the statutory form of government. Notice of the lawsuit has now been mailed to all 25 statutory candidates.
The court awaits their responses before taking further action.
I am sure written legal arguments will be filed by both sides of this lawsuit plus possibly other groups. With the holiday break approaching, I doubt there will be a decision from Judge Lang prior to Jan. 1.
The Nelsonville saga continues.
Coach’s divorce case sealed
On Dec. 17, Brian Smith was terminated as head coach of Ohio University football. The brief statement said in relevant part:
“Today, Ohio University terminated the contract of Head Football Coach Brian Smith for cause. The termination follows an administrative review of allegations that Smith violated the terms of his employment agreement by engaging in serious professional misconduct and participating in activities that reflect unfavorably on the University.”
We still don’t know what happened and what the university found that he did to violate his terms of employment. I’d say NO transparency.
However, this lack of transparency saga started back on Dec. 1, when Ohio university issued this terse announcement:
“John Hauser has been named Interim Head Coach of OHIO Football. Hauser has served as associate head coach and defensive coordinator for the Ohio University Bobcats since December 2024 and has been with the team since 2022.
Head Coach Brian Smith will be on leave for an undetermined period of time beginning December 1.”
This vague and obtuse announcement wording sparked rampant speculation among the public and news media about the reasons for the leave: health issues, bad conduct, bad coaching, NCAA violations, criminal conduct…
Or did the leave have something to do with Brian Smith’s divorce case that was pending in the Athens County Common Pleas Court?
People (including me) started combing through the online divorce records to see if any reasons for the leave could be found.
Liane Smith filed for divorce on July 29. On Sept. 3, the court ordered a Zoom status conference for Sept. 11.
Nothing was filed in the case after that until Dec. 2, the day after Coach Smith was put on leave. On that date, Coach Smith filed a “Motion to Seal Aspects of the Record.”
He asked the Court to seal: “Defendant’s Answer and Counterclaim, Parenting Proceeding Affidavit, Health Insurance Disclosure Affidavit; Motion of Defendant, Brian Smith, for Partial Release of the Standard Mutual Temporary Restraining Order and Request for Expedited Hearing; and Order Granting Motion of Defendant, Brian Smith, Partial Release of Standard Mutual Temporary Restraining Order filed in the above-captioned matter.”
On Dec. 3, the Court ordered those records sealed.
Five days later, Coach Smith filed another motion to seal. This time he asked that the Notice of Hearing filed Dec. 4 be sealed.
His motion said, “Defendant wishes to have this matter sealed to protect the personal security of the parties, and to prevent unrelated third parties from attending the hearing or harassing Plaintiff or Defendant, which could result in detriments to the parties if these aspects of the matter are not sealed.”
Translated: He asked the court to keep the date and time of his divorce hearing private to keep the public and media out of the hearing.
On Dec. 9, both Liane Smith and Brian Smith, through their attorneys, presented the court with another agreed upon court entry (court order) sealing certain aspects of the record.
This court order sealed “specifically their Shared Parenting Decree, Shared Parenting Plan, and Agreed Judgment Entry — Decree of Divorce.”
How can a court do this?
Well, there is a Rule of Superintendence (rules by which a court in Ohio operates) Rule 45 (E) that allows sealing under certain circumstances and a 2022 Ohio Supreme Court case that upholds Rule.
The court must find by clear and convincing evidence that the presumption of allowing the public access to the documents is outweighed by a higher interest.
The rule doesn’t specifically define what a “higher interest” is, but it outlines three considerations the court must make:
a) Whether public policy is served by restricting public access;
(b) Whether any state, federal, or common law exempts the document or information from public access;
(c) Whether factors that support restriction of public access exist, including risk of injury to persons, individual privacy rights and interests, proprietary business information, public safety, and fairness of the adjudicatory process.
Instead of sealing entire documents, courts can redact certain privileged information. However, in the Smith case, the court found that redaction does not “adequately address the parties’ underlying concerns.”
Documents may be unsealed by the court upon motion of any person if the court finds “by clear and convincing evidence that the presumption of allowing public access is no longer outweighed by a higher interest.”
Such a motion may eventually be filed in Coach Smith’s case if facts are not more forthcoming from Ohio University. This is especially true now that his employment at the university has been mysteriously terminated.
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