Judge creating his own clerk of court may be illegal

SANDUSKY — A Sandusky County judge's decision to avoid using the elected local court clerk to handle court records appears to be against the law, says a Cleveland attorney who specializes in public records law.Common Pleas Judge John Dewey named his court administrator, Brock Kimmet, a deputy court clerk on June 25 to handle court records related to the Tim Braun case, but didn't notify the county's elected court clerk, Tracy Overmyer.Taking the action secretly without informing the court clerk also appears to be dubious legally, said Brian Bardwell, a Cleveland attorney who specializes in First Amendment and government records law. Doing something in secret is "presumptively illegal," Bardwell said.Dewey's appointment of Kimmet as a deputy clerk also is unusual. Other county court clerks said they have never heard of such an order.Dewey did not return telephone calls placed to his office Friday and Monday asking for comment. He also has not responded to previous written inquiries. In his order appointing Kimmet, Dewey wrote, "All filings in this matter are to be filed with him and are to be kept under seal until further advised by the court."Overmyer said she did not get a copy of Dewey's order until after Braun pleaded guilty on Dec. 6 to a misdemeanor negligent assault charge. Normally, orders by judges are filed by the court clerk, Overmyer said."I was surprised that I wasn't notified, for one, and did not understand why I would not be involved in it, since that is the duty of the clerk of courts," Overmyer said.She said she had nowhere to go to obtain a legal opinion on whether Dewey's action followed the law. Providing legal advice to county agencies is the responsibility of the county prosecutor."It was kind of an awkward situation to get an opinion on something involving his case," she said.On Tuesday Overmyer asked county commissioners to allow her to hire legal counsel to review Dewey's order and Kimmet's role in circumventing her authority. Bardwell said that by Ohio law, dealing with court records is the duty of the clerk of courts, and he knows of no law allowing the court to transfer that responsibility to someone else.Bardwell said he also doesn't see how it could be permissible "to do this off the record" and not inform Overmyer."Ohio law says that the voters get to decide who's in charge of court records, and they make that decision by electing a clerk of courts. Every judge in the state is familiar with the rules making it mandatory that case records be filed with the elected clerk," Bardwell said."As far as the First Amendment goes, the whole point of having a clerk of courts elected separately from the judges themselves is to make records available to the public so they can be confident the courts are administering impartial justice instead of protecting their friends," he said.Kimmet, the deputy court clerk Dewey appointed, is a friend of Braun."The courts have a lot of power to decide how to manage their cases, but putting court employees in charge of their friends' criminal records makes the elected clerk pointless. Even if it's legal, it doesn't inspire much more confidence than appointing a secret sheriff and saying he's the only one who can pull his friends over for a DUI, or naming a secret auditor and saying he's the only one who can review what happens to all the tax money we pay into the courts," Bardwell said."People are particularly skeptical these days of all the neutral institutions that keep our government functioning, so it doesn't really matter whether the court has a good reason to do something like this — everyone's going to think it's fishy. If the courts want to retain their legitimacy, they have to work even harder to avoid anything that might make the public wonder whether they're playing favorites," he said.Seeking other examples of a judge naming a "special deputy clerk," the Register spoke with Luvada Wilson, clerk of courts in Erie County for eight years, with Susan Hazel, court clerk in Huron County for 16 years, and with Laurie Endly, clerk of court for Cambridge Municipal Court. All said they had never dealt with such a situation.Endly is president of the Ohio Association of Municipal/County Court Clerks. She's been a clerk of court for 15 years and was a deputy clerk for nine years."In my years as clerk and deputy clerk, I have never heard of this practice and have never experienced it," she wrote in an email to the Register. "The topic has never been formally discussed by the Association so I am unable to comment on behalf of the (association)."Court rules that require judges to file documents with the clerk of courts come from the Ohio Supreme Court.The criminal rules state, "The filing of documents with the court, as required by these rules, shall be made by filing them with the clerk of court, except that the judge may permit the documents to be filed with the judge, in which event the judge shall note the filing date on the documents and transmit them to the clerk."So did Dewey follow the high court's rules? The Register tried to ask, but the court has no comment.The "About" section of the court's website says, "The Constitution also gives the Supreme Court authority to prescribe rules governing practice and procedure in all courts of the state and to exercise general superintendence over all state courts."Court spokesman Edward Miller said no comment is available."The Court can answer these kinds of questions if they are asked to do so through a motion or an appeal, and they choose to answer. 'The Court' is a group of seven justices. They have not been asked these questions. At the point that they are presented questions, they can decide whether to answer. In the meantime, the justices cannot comment on open cases," he wrote.Another legal mystery involving Dewey is why the judge waited until Sept. 27 to ask to get off the case because of his possible conflict of interest.His Sept. 27 note to the Ohio Supreme Court says, "Sandusky County Judges have a conflict in this matter as it may involve a Sandusky County elected official." The Supreme Court responded by immediately naming retired judge Janet Burnside to the Braun case.Dewey apparently had control of the cast involving Braun for months, although there's no court record of exactly when he got it."We do not have any filing that assigned Judge Dewey," Overmyer told the Register.Sandusky County Judge John Dewey Tracy Overmyer, Sandusky County's clerk of courts.