Ducking Duties: Pseudonymous Plaintiffs and the Supreme Court of Ohio

Author: Ryan Shiverdecker, Associate Member, University of Cincinnati Law Review
On March 19, 2013, in Doe v. Bruner, an Ohio appeals court denied the plaintiff, an alleged victim of sexual assault and molestation, his request to proceed anonymously.[i] After initially accepting the plaintiff’s appeal, the Supreme Court of Ohio dismissed the case as being improvidently granted, balking on an opportunity to provide clarity in an area of law that is murky and unsettled.[ii] Jurisdictions are split on the requirements that an individual must satisfy in order to proceed anonymously. The Supreme Court’s failure to take this case and create a legal standard will result in more disparate holdings in Ohio cases dealing with pseudonymous plaintiffs. The court should have adopted a factor-based test that effectively balances the plaintiff’s privacy rights with the presumption of open judicial proceedings.

Legal Posture

Both Ohio and Federal law mandate that all complaints list the names of the plaintiffs and defendants.[iii] In the early 1970’s, the Supreme Court of the United States heard the first wave of cases with pseudonymous plaintiffs.[iv] In those cases, the Supreme Court did not express any disapproval of pseudonymous plaintiffs; therefore, since the Court’s implicit approval of plaintiff anonymity, there has been a significant increase in cases brought by pseudonymous plaintiffs.[v] Unfortunately, few courts have issued decisions concerning the propriety of pseudonymous plaintiffs.[vi]

When courts have explicated on the issue, the analysis is often riddled with constitutional analysis.[vii] Courts balance the plaintiff’s privacy interests, the defendant’s right to exoneration, and the public’s First Amendment right of assembly and right of access to trial.[viii] At the core, the court’s job is to decide whether “the plaintiff has a substantial privacy right which outweighs the ‘customary and constitutionally-embedded presumption of openness in judicial proceedings.”[ix]

Federal and State Positions

In the void left by the Supreme Court of the United States, federal and state courts have resorted to developing their own tests for determining the propriety of pseudonymous plaintiffs. Some courts have placed blanket restrictions on plaintiff anonymity.[x]  A larger number of courts have adopted balancing tests.[xi] These courts attempt to balance the privacy rights of the plaintiff against the rights of the public to openness in judicial proceedings.[xii] Other courts have used content-based tests, but these are generally disfavored for their rigidity and potential to automatically trump the presumption of openness in courts.[xiii] Another common test is the factor-based test.[xiv] Under this test, the court provides a list of factors that, when satisfied, allow the plaintiff to proceed with a pseudonym.[xv] These incongruent tests applied by courts illustrate not only the difficulty of deciding when a pseudonymous plaintiff should be allowed, but also the need for workable, uniform standards.

Doe v. Bruner

In Doe v. Bruner, the plaintiff, Doe, filed a civil action under a pseudonym, alleging sexual assault, battery, and intentional infliction of emotional distress.[xvi] The magistrate denied Doe’s request to proceed pseudonymously and the trial court affirmed that decision.[xvii] Doe appealed to the 12th District Court of Appeals, arguing that common law and public policy “support the right of a sexual abuse victim to proceed under a pseudonym.”[xviii] Doe argued the content-based approach, which presumes that a plaintiff should be permitted to proceed pseudonymously merely because previous pseudonym cases had similar backgrounds.

The court acknowledged that “neither the Ohio Supreme Court nor any Ohio appellate court has yet addressed a challenge to this practice.”[xix] Therefore, the court looked to other jurisdictions for guidance. The court adopted the Sixth Circuit’s approach, combining the balancing test with the factor-based test[xx] that weighed the plaintiff’s privacy interest against the presumption of open judicial proceedings. After weighing the plaintiff’s privacy interest and considering a non-exhaustive list of determinative factors, the court found that the plaintiff could not proceed with a pseudonym.[xxi]

The Supreme Court of Ohio accepted the plaintiff’s appeal, but then dismissed the case as being “improvidently accepted.”[xxii]

Shirked Duty

Unfortunately, by changing its mind, the Supreme Court of Ohio missed an opportunity to mandate a test that would provide guidance to lower courts that are charged with the vital task of deciding plaintiff anonymity. Ironically, the Supreme Court previously has decided a plethora of cases involving pseudonymous plaintiffs.[xxiii] Based upon Ohio precedent and precedents from other jurisdictions, the Supreme Court possessed the information necessary to develop a workable test.[xxiv] Specifically, the factor-based test, used by a substantial number of federal and state courts, is optimal because it provides courts with a list of definite criteria from which to determine plaintiff anonymity.

Federal and state policies clearly support open judicial proceedings; however, courts should acknowledge that there are circumstances in which denying plaintiff public anonymity would severely inhibit the plaintiff’s right to privacy.[xxv] In other words, courts need to recognize that the state and federal policies merely suggest a rebuttable presumption in favor of plaintiff disclosure. A blanket restriction on plaintiff public anonymity, although easily applied, is too inflexible.

While a blanket restriction is inflexible, a pure balancing test is too malleable and it would result in unguided ad hoc determinations. Courts should look to precedent, as well as the current state of society to determine what factors should be considered in deciding plaintiff anonymity. Factors that are pervasive throughout anonymity caselaw include: (1) whether the plaintiff is bringing a suit against governmental action;[xxvi] (2) whether the lack of anonymity burdens a plaintiff’s ability to file suit;[xxvii] (3) whether the plaintiff could suffer mental or physical retaliation;[xxviii] (4) whether the plaintiff will be forced to provide information of the “utmost intimacy”; (5) whether the plaintiff is a child; (6) and whether the defendant’s rights would be significantly subordinated.

These factors, individually and collectively, operate to provide relief for plaintiffs that face seemingly insurmountable impediments to otherwise plausible causes of actions. When analyzing these factors, courts should consider the quality of present factors over the quantity. Having a fair trial is more important than having an open trial.[xxix] The recommended factors were extracted from similar cases, but they are not meant to be mandatory or exhaustive. There is no suggestion that the Supreme Court is prevented from rejecting some or all of these factors, or in the alternative, from creating new ones that similarly implicate substantial impediments to pseudonymous plaintiffs.

By providing a non-exhaustive list of factors, the Supreme Court could have supplied lower courts with guidance in the form of a roadmap or checklist for determining plaintiff anonymity issues. Without that guidance, a plaintiff’s fate is subject to the whims of judges making almost entirely subjective determinations.

Conclusion

The Supreme Court of Ohio was presented with an opportunity to quell confusion on a legal issue that is arising more regularly.[xxx] By relinquishing this opportunity, the Supreme Court forces judges to determine plaintiff anonymity without any guidance. Failure to create a uniform rule will result in incongruous rulings across the state, thereby leaving plaintiffs weary of brining cases because of the uncertainty of keeping their identity private.[xxxi] Likewise, “this lack of consistent procedural and substantive law creates judicial inefficiency.”[xxxii] One scholar wrote that “the inefficiency and ineffectiveness inherent in the federal courts’ methods for evaluating plaintiff pseudonymity requests is only magnified at the state level, because state courts are left with conflicting and inconsistent federal court rulings for guidance in making their own decisions regarding plaintiff pseudonymity.”[xxxiii] Furthermore, this persistent lack of continuity will diminish public confidence in the legal system.[xxxiv]

This nonfeasance by the Supreme Court has the potential to have a chilling effect on plaintiffs that desire to bring claims.[xxxv] Plaintiffs with legitimate claims may refrain from bringing an action for fear of the possibility that their name will be disclosed to the public. Rule of law works most efficiently when those subject to the laws can understand them. Fearful plaintiffs in Ohio will remain timid until the Supreme Court provides clarity on this issue.

For more information on Doe v. Bruner, please visit: Legally Speaking Ohio


[i] Doe v. Bruner, No. CA2011-07-013, 2012 Ohio App. LEXIS 664, 2012 WL 626202 (12th Dist. 2012).

[ii] Doe v. Bruner, 135 Ohio St.3d 277, 985 N.E.2d 1288, 2013 Ohio LEXIS 778 (2013).

[iii] Fed. R. Civ. P. 10(a). The Federal Rule states, “the title of the complaint must name all the parties.” The Ohio rule has almost identical language. Ohio Civ. R. 10(a). Both rules function to notify the parties of their adversary and to keep the public informed on the details of judicial proceedings.

[iv] Adam A. Milani, Doe v. Roe: An Argument for Defendant Anonymity When a Pseudonymous Plaintiff Alleges a Stigmatizing Intentional Tort, 41 Wayne L.J. 1659 (1995). Roe v. Wade and Doe v. Bolton were among the first cases brought by anonymous plaintiffs. Prior to those cases, anonymous plaintiffs were virtually nonexistent.

[v] See Id. (Following Roe v. Wade, there was “a virtual explosion not only in the number of cases brought by anonymous plaintiffs but also in the types of actions using the procedure.”).

[vi] See Id. at 1665. “Despite the cascade of cases brought by anonymous plaintiffs, very few decisions and even fewer articles discuss when and why courts should allow the practice.”

[vii] See Id. at 1678.

[viii] See Id. at 1666, 1678.  See also Richmond Newspapers, Inc. v. Virginia, 100 S.Ct. 2814 (1980) (The Supreme Court of the United States stated that the primary role of the First Amendment is to assure “freedom on communication on matters relating to the functioning of government.” Through the Supreme Court’s analysis, the First Amendment can be read as providing everyone the right to attend trials.

[ix] See Doe v. Diocese Corp., 647 A.2d 1067, 1071 (Conn. Super. Ct. 1994) (quoting Doe v. Frank, 951 F.2d 320, 323 (11th Cir. 1992)).  Doe v. Diocese Corp. involved a plaintiff that was repeatedly molested and sexually abused when he was a child. He wanted to remain anonymous to protect his reputation, his job, and his family’s reputation. The court held that plaintiff anonymity should be permitted only where there is a substantial privacy interest involved. Embarrassment and economic problems was not sufficient.

[x] See Roe v. New York, 49 F.R.D. 279 (S.D.N.Y. 1970). A New York court dismissed a group of anonymous plaintiffs’ claims against the state school system for insufficient treatment because the plaintiffs failed to identify themselves on the complaint.

[xi] Babak A. Rastgoufard, Pay Attention to That Green Curtain: Anonymity and the Courts, 53 Case Western L.J. 1009, 1024-1034 (2003) (discussing plaintiff anonymity and possible solutions to the lack of clarity on the issue).

[xii] Id. at 1032.

[xiii] Id. at 1030. Courts that use the content-based test will allow pseudonymous plaintiffs when that plaintiff falls under previously accepted fact patterns. Rastgoufard writes that “content-based tests fail to consider fully a litigant’s right of anonymity or the inherent openness of the courts.”

[xiv] Id. at 1032-1033.

[xv] Robert E. Price, Civil Procedure Sealed Plaintiff v. Sealed Defendant: Setting Forth a Standard for Proceeding Anonymously, Am. J. Trial Advoc. 435, 437 (2008). Price discusses the Second Circuit’s decision to adopt a factor test that considers, “(1) whether the litigation involves matters that are “highly sensitive and [of a] personal nature”; (2) “whether identification poses a risk of retaliatory physical or mental harm to the party seeking to proceed anonymously] or even more critically, to innocent non-parties”; and (3) whether identification presents other harms and the likely severity of those harms, including whether “the injury litigated against would be incurred as a result of the disclosure of the plaintiff’s identity.”

[xvi] Bruner, 2012 Ohio App. LEXIS 664 (2012).

[xvii] Id. at 2.

[xviii] Id. at 3.

[xix] Id. at 4.

[xx] Id. at 6.

[xxi] Id. at 7-10. The list of factors that the court considered included; (1) whether the plaintiff is suing based on governmental activity; (2) whether the prosecution will cause the plaintiff to disclose information of the ‘utmost intimacy’; (3) whether the litigation compels the plaintiff to disclose an intention to violate the law and thereby risk criminal prosecution; and (4) whether the plaintiffs are children.

[xxii] Doe v. Bruner, 135 Ohio St.3d 277 (2013).

[xxiii] See Doe v. Shaffer, 90 Ohio St.3d 388, 389 (2000), (names of AIDS victims were changed). Doe v. First United Methodist Church, 68 Ohio St. 3d 531 (adult plaintiff bringing claims that he was sexually abused as a child). In Re Application of John Doe II, 96 Ohio St.3d 158 (2002) (The plaintiff was a bi-polar applicant for the Ohio Bar Examination that was denied). Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491 (adult plaintiff bringing claims that he was sexually abused as a child). Doe v. Archdiocese, 116 Ohio St.3d 538 (adult plaintiff bringing claims that he was sexually abused as a child). Doe v. Marlington Local School District, 122 Ohio St.3d 12 (2009) (plaintiffs and defendant were permitted to proceed anonymously in order to protect their privacy in a civil case involving a sexual assault).

[xxiv] Va. Code Ann. 8.01-15.1 (2003). The Virginia legislature codified the methods that were created by federal circuits. The law lists a number of factors that the courts must consider.

[xxv] See Doe v. Porter, 370 F.3d 558, 560-561 (6th Cir. 2004) (The 6th Circuit upheld a the grant of a protective order allowing the use of pseudonyms in a case involving religious instructions in schools).

[xxvi] Jayne S. Ressler, Privacy, Plaintiffs, and Pseudonyms: The Anonymous Doe Plaintiff and the Information Age, 53 U. Kan. L. Rev. 195, 227 (2004). Her general argument is that courts should expand the use of plaintiff anonymity and amend the current test that most federal circuits employ. Ressler cites to cases that employed the factor of whether the plaintiff’s action is challenging governmental activity.

[xxvii] Colleen E. Michuda, Defendant Doe’s Quest for Anonymity: Is the Hurdle Insourmountable?, 29 Loy. U. Chi. L.J. 141, 146 (1997). Many of the cases brought by anonymous plaintiffs involve “abortion rights, homosexuality, sexual harassment or abuse, transsexuality, mental illness, welfare rights, drug testing, HIV status, medical mistreatment, challenges to governmental action, and cases where plaintiffs feared retaliation if their personal beliefs were to become known.” These issues go to the core of personal privacy. Forcing an individual to decide between bringing a legitimate cause of action thereby exposing himself/herself and refusing to bring an action for fear of embarrassment is a serious problem.

[xxviii] Doe v. Stegall, 653 F.2d 180 (5th Cir. Aug. 1981). A mother filed a complaint against a local school board, challenging the constitutionality of the school’s Bible reading exercises. Threats of violence were made to the plaintiff, thus the 5th Circuit decided that anonymity was appropriate.

[xxix] Rastgoufard, supra note 11, at 1033.

[xxx]  Adam A. Milani, Doe v. Roe: An Argument for Defendant Anonymity When a Pseudonymous Plaintiff Alleges a Stigmatizing Intentional Tort, 41 Wayne L.J. 1659 (1995). The author states that following Roe v. Wade, there was “a virtual explosion not only in the number of cases brought by anonymous plaintiffs but also in the types of actions using the procedure.”

[xxxi] Ressler, supra note 26, 236-237. Ressler details several instances in which lack of concrete guidance from superior courts has led to disparate holdings and general confusion in this specific area of law.

[xxxii]  Id.

[xxxiii] Jayne S. Ressler, Privacy, Plaintiffs, and Pseudonyms: The Anonymous Doe Plaintiff and the Information Age, 53 U. Kan. L. Rev. 195, 216 (2004).

[xxxiv] Id. at 235. Ressler writes that the lack of continuity results in lawyers that are “left guessing as how to properly advise their clients, and court decisions appear inconsistent and unpredictable.”

[xxxv] Rastgoufard, supra note 11, at 1035-1036.