On October 22, 2024, in State ex rel. Cincinnati Enquirer v. Bloom, 2024-Ohio-5029 (2024), the Ohio Supreme Court rejected the “lockstepping” method of approaching the Ohio Constitution and limited t stare decisis in cases interpreting the Ohio Constitution. The “lockstepping” approach, which has been subjected to a devastating critique by Sixth Circuit Chief Judge Jeffrey S. Sutton in his first book on state constitutional law, 51 Imperfect Solutions(Oxford Univ. Press 2018), had been followed by some members of the court who viewed the federal interpretation as presumptively applicable to the Ohio Constitution. See, e.g., State v. Robinette, 1997-Ohio-343 (1997) (holding that in search and seizure cases the court “should harmonize our interpretation of Section 14, Article I of the Ohio Constitution with the Fourth Amendment, unless there are persuasive reasons to find otherwise”).
In Cincinnati Enquirer, a case involving press access to the transcript of a juvenile delinquency proceeding, the court by a 4-3 vote in an opinion written by Justice R. Patrick DeWine broadly declared that the “open courts” provision of Ohio Const. Art. I, sec. 16, provides a presumption of public access to juvenile delinquency proceedings and that such proceeding “cannot be closed to the public without an individualized determination balancing the interests at stake.” See ¶ 60; In concluding that the state constitution provides a stronger right of public access to juvenile delinquency proceedings than is available under the U.S Supreme Court’s interpretation of the First Amendment, the court had to address the inconvenient fact that it had previously followed the federal approach to this issue. In taking this step and overruling two of its precedents, the court not only rejected the “lockstep” approach but also announced that the normal principles of stare decisis, which are generally less demanding in constitutional litigation, are not applicable in cases raising state constitution arguments that the court had “previously, and without analysis, interpreted in lockstep with the United States Constitution.” (¶ 31). Finally, the court declared that “[i]n construing our state Constitution, we look first to the text of the document as understood in light of our history and traditions” (¶ 35) (quoting State v. Smith, 2020-Ohio-4441, at ¶ 29, thus setting the stage for a reexamination of many of its earlier decisions.
There is a concurring opinion that agrees with the judgment but questions its rationale (Donnelly, J. concurring in judgment only) (¶ 61–104), and there is a dissenting opinion that disagres with the judgment and the majority’s analysis (Stewart, J. dissenting (¶ 105–33) (joined by Brunner, J.). Docket (2022-1457).