A divided Ohio Supreme Court has ruled a local judge improperly sealed the records of a Miami University student who posted a controversial flier about rape, but did not require him to unseal a flood of other cases.
Judge Rob Lyons was sued by a local newspaper in 2012 after he sealed the files of a former Miami University student who admitted posting a “How to get away with rape” flier on campus. The newspaper wanted the file unsealed and also a host of other court records where Lyons used the wrong Ohio Revised Code section to seal them.
The high court on Thursday ruled that Lyons must unseal the Miami student’s record but the other cases are still safely sealed, because there wasn’t sufficient evidence to prove they were incorrectly sealed. Two judges on the high court concluded that the newspaper should lose in both cases because the cases that are “minor misdemeanors” can be immediately sealed.
Lyons says he has always sealed minor misdemeanor cases immediately, and the practice went on in the Area I Court long before he got there. Lyons attorney in the second case George Jonson said in his opinion state law allows this practice because the statute is “silent” on the issue of minor misdemeanors.
The majority opinion, written by Justice Judith Lanzinger, states that there is no distinction between misdemeanors and minor misdemeanors.
“Even though there may be some distinctions between the different degrees of misdemeanor, this does not mean that they are not still all misdemeanors, just as a Labrador retriever, although different from other dogs, is still a dog…,” she wrote. “A minor misdemeanor remains a misdemeanor.”
Court records show Lyons originally accepted a guilty plea by the student to a minor misdemeanor and the parties agreed to seal the records. After the newspaper filed suit, it came to light Lyons has been using the wrong Ohio Revised Code number to seal thousands of records for years. When Lyons realized his error, he allowed the student to withdraw his disorderly conduct plea, the assistant prosecutor decided not to pursue the case further and Lyons sealed the records.
The newspaper alleged the court records should be unsealed because the plea reversal was improper and Lyons didn’t follow the proper procedures for sealing the records. The first lawsuit spawned a second lawsuit by the newspaper asking that all of Lyons’ sealed cases be revealed.
Under the law, convicted felons must wait three years before they can apply to have their records sealed. People convicted of misdemeanor crimes must wait a year, and people who have been acquitted, or otherwise had their case dismissed, can apply immediately.
Lanzinger noted in her opinion that the General Assembly might want to make minor misdemeanors immediately sealable, but until they do, a one-year waiting period is required and a hearing on the matter must set by the judge.
In the rape flier case, Lyons was represented by Assistant Prosecutor Dan Ferguson. Prosecutor Mike Gmoser asked to be removed from the other case because he has a conflict of interest. Gmoser said the high court got it right.
“Judge Lyons was of the opinion that a minor misdemeanor was not a crime and therefore did not fall under the expungement protocols,” he said. “I supported just the opposite position, which was a minor misdemeanor is a crime, even though it’s a very low level crime, those require that the rules be followed for expungements. The supreme court validated that opinion.”
Defense attorney David Washington said Lyons was really an exception rather than the rule, so the ruling will mainly affect people under the jurisdiction of the Oxford court, who are mainly Miami students.
“It’s not new law, it’s what the law is…,” he said. “That’s the way it’s always been most other places. It’s not really a change. Most other courts have waited the year, I think Oxford was a unique situation.”
Neither Lyons or his private attorney could be reached for comment.
Thank you for reading the Dayton Daily News and for supporting local journalism. Subscribers: log in for access to your daily ePaper and premium newsletters.
Thank you for supporting in-depth local journalism with your subscription to the Dayton Daily News. Get more news when you want it with email newsletters just for subscribers. Sign up here.