face eighteen days three two six two seven and associates l p a inc at all versus richard de wine at all or argument fifteen minutes per side mr  and pat walsh the appellants are asking the court to reverse the district court's decision and find that the ban on solicitation of authority to represents claimants or employers found in ohio revised code section forty one twenty three eighty eight as unconstitutional in the decision below the district court rewrote the statute to essentially include two provisions the most important one being a provision saying that the ban on solicitation is limited only to solicitation using information found in claims files where which access to that information is restricted do you maintain that we're supposed to just consider part or you think we should consider the whole that should i think i submit that you consider just part a for this reason part a inactive at almost seven decades before the rest of the statute so that to the extent that there's this really had it was enacted but it was also blessed again well it was recently yes yes it was but here's here's the point that if there was this connection between the ban on solicitation in the new provisions limiting access to claims files and the new provisions that remove the claims files from being public records the legislature could have said so the legislature could have said the ban on solicitation only applies to using information obtained in violation of the limitation on access that would have been a lot of words do we not get that from the context obviously that's the argument right and art that this is all about privacy and the property right and right and argu in the argument on the other side counsel and address it if you would please is that in in essence this is a case about property not speech well you know states the states property that is to be private because it's the claimants information so it's long as we established that i would love you to address it in those terms so please correct me if i wander off and i'm not addressing it exactly as you you framed it but this case isn't only about or the issue here isn't restriction of access to the states property the issue here is  is it partly about it you said it's not is it partly about that no i would say not now the district court disagreed of course yes but here is here's here's you can solicit or you it's possible to solicit and do a targeted solicitation without using the information obtained it's lawful well it's it would right now that's the question you're saying as of under your theory under my theory it is unlawful and what we have here is that the state is saying we're restrict we're restricting solicitation in order to protect this these claims files but if you read the district court's opinion solicitation targeted solicitation is prohibited whether you're using information from claims files or not also that you've ever been used to go after solicitation that was not using information not to not to my knowledge indeed this this case may be the first time that this statute has come up ok and now it was discovered under the old statute you're not aware of any prosecution under the old statute you know i'm not now i will say though that if you look at the few cases by the ohio courts common pleas courts decisions you've got the claimants council case where the court determined that there was no access to the records and said if we had determine this is paraphrasing but if we had determined that there was access to the records then we would have to decide in other words if it were legitimate that these records were public records and you could have access to them then we would have to determine whether using those records to solicit violated the ban on solicitation in other words the first step would be say yes you can have legitimately have access to those records and then the second step is oh we're not going to let you have those records if you're going to use them to solicit and that is exactly what happened in the dem eco case which was in front of the franklin county common pleas court initially the franklin county common pleas court said that it the plaintiff in that case could have access to the records pursuant to the journalist exception it later came out that the plaintiff in that case was going to use those records for targeted solicitation and the franklin county court of appeal or common pleas court then at that point said no you can't have access to the records because you're going to use them to violate the prohibition on solicitation this is just the flip of what the district court held the district court said well this ban on solicitation is designed to protect the records what the franklin county common pleas court said is the restriction on the records is used in furtherance of the ban on solicitation or about what's a situation that a person has a worker's compensation claim is that ordinarily just by the by the climate or the claimant bring a lawyer into the case only joe well that's that that's to the point of what's the public interest here and ohio's regulations require that the bureau of workers compensation put the claimant on notice that they have the right to counsel and the right to representation it's and then realistically most are represented by counsel that i don't know there are there are most most i would guess are represented by counsel or represented because ohio has this curious system where you don't have to be a lawyer to represent someone in front of the industrial commission or the bureau of workers compensation social security on the federal level you're saying i'm not very familiar with social security but yes public right your client was doing very well in the business using the benefit of the public when the when the general assembly in ohio changed that then it's true isn't it that your client then circumvented the new law using that but the argument is using an intermediary in order to get the same records someone the attorney general would say posing as a reporter a member of the press and and got the same records that little true or not bruce will call it at the time it wasn't a direct the same benefit he this firm enjoyed before and i may disagree with your characterization yes i fear you might the argument then is why would they why did they need to use that intermediary they did they got somebody to get them the records is do you disagree with the characterization that this statute actually is awash with references to privacy that privacy is throughout the throughout the statute the various parts target privacy privacy privacy they'll shout not but you can because we've in the public interest over and over it speaks of that interest there's there is language that said info the statute shields right isn't that privacy language the statute is shielding this information is that i would disagree ok and the reason i respectfully disagree course of it i would disagree  the stand that and the reason is if you look at the statute yes they they talk about privacy and confidentiality is that but ok first of all they are saying that the journalists can have access to information but not all the information so the journalist only gets addresses and telephone numbers i'm not sure what the purpose of that is but it would seem to me that that is almost inviting the journalist to follow up and contact the people to find out who they are if all you have is an address and phone number and you know nothing more that to me does not seem to be protecting the privacy the other so if you're a chiropractor and you get this information you could solicit arguably and not violate the ban on solicitation because you're not soliciting for authority to represent this is directed only at representatives and lawyers thank you judge cook judge siler judge push me please the court everything throughout this litigation and my friend here has taken aim at a statute that we would say does not exist is all of this first amendment arguments are tied to this being a complete unqualified ban on solicitation for three categories of reasons that's not the statute that you have before you judge bush as your question highlighted has ever been used in the way that my friend says you about that point so as i understand it before the new statute was it acted it was a public record the names and addresses and telephone numbers were public records at the bureau is that correct but i think what happened i think the most active way to characterize that was a change in two thousand and six pro two thousand and six some records were the bureau was releasing them i think the most accurate thing to say is that before that there was an internal dispute about whether they were subject to the public records law and with the general somebody in two thousand and six was clarify that they should not be public records and that's in part b of the statute now part c really puts a bookend to that by saying these are for the exclusive use of the bureau in the industrial commission ok my understanding was the beavan firm was getting information from the bureaus to solicit clients prior to two thousand and six is that because that's absolutely right i want to i guess what i want to say is that a result of this supports your point i think the fact that they were getting the information and there was no prosecution of them for so as solicitation in that era is that is that correct yes that's absolutely right and there was a are you aware of any prosecution or solicitation prior to this current case no i'm not aware of any and certainly none that would have been targeted at as my friend interprets it sort of any solicitation using union contacts past client list anything besides the information that is the bureau's the only thing this reaches  have a thousand dollar a month relationship for someone who holds herself out as a journalist to extract information from the bureau to use it to solicit and the current prosecution is just that the journalist you're not trying to prosecute the bevan for per se will make sure that we understand south side the record out an ongoing prosecution all there's an investigation that was started that's what tripped off as i understand it what caused the bevin from the filed a federal lawsuit there was an investigation into several things one of which touched on this that this extracting the private information from the bureau ok there's a low prohibit attorneys from soliciting claimants period no prohibited it looks like know the person is a claim and so that's why to skip ahead to the middle part of the ellipses there it talks about a claimant and any claim that has been or an appeal that may be filed and so that shows is that just a court's this entire statute focuses on privacy so that language a claim and or a claim that has been on appeal that may be filed shows that we're talking about targeting those that have an active claim so you are targeting your neighbor of someone who is a claimant you're having a lawyer and you go across you go to their house and you say oh i'm so sorry that you've had this workers this is this problem in your work i'd like to i'd like to represent you in front of the bureau would that be in violation of subsection i if you found that out from your neighbor saying to you first i was hurt at work and then you start the conversation no it's only what if you just found out maybe maybe you just saw your neighbor limping into their hats and you went over to their house and said oh well you have you should file with a worker's top people because you have a claim you might have a claim and i would be happy to help you with that violate no it is only solicitations that use information extracted bureau the pro protected state information where in that sentence does it say that the sub in subsection a that that that i'm looking at the the second sentence i don't see anything about using information from the bureau it just simply says no person shall directly or indirectly solicit authority or pay goes on to solicit authority from a claimant or employer to take charge ever soliciting authority that's a personal request expecting a person response to a person that you know to be a claimant the word claimant in the statute is a textual hook to using the bureau's information and then it's a listing about a claim or appeal that has been or an very otherwise very broad public records law and some part c says this information is for the exclusive use of the bureau and the industrial commission and this is something not in the record but when the bureau gives this information out under the very limited exception for journalists it tells the journalist this is not public information this is not to be used for solicitation and a question did arise about what is the point of that exception to the point of it is to allow journalists to contact claimants or employers to do public interest reporting about say workplace safety there is a but your best language and part a that shows that that that joe smith ca is that covered in part they already have to consider all the parts of the statute and certainly under ohio principles of such reconstruction you should consider the entire thing as it exists now is there language in part a that you would see row in o someone in the system and if you look what it says may be filed in that suggest there not a claim on the under the distributive canon we read that portion to be a claim that has been filed on appeal that may be filed so it's all something active into support that look at parts b and b when it talks again about a claim and it talks about the claimant who has a claim whether it is active or closed it's not talking about a potential claim it's all talking about a claim that exists or maybe has already been closed that information would still be in there but all of that is around protecting the information in the hands of the bureau or the industrial commission but let's take all of that off the table for a moment and turn to principles of constitutional avoidance under those principles and here it exists twice over if there is any fairly possible reading of the statute that supports what we have said here then you should read it that way to avoid those constitutional problems so first under the federal constitution if this were in my friend's words a complete on unvarnished ban  only prohibits solicitation using the confidential information there's also reports of what's a penalty for oh you're violating subsection a this it is a misdemeanor so if you look at forty one concluded that using this information it was undisputedly a journalist in that case using the information to solicit is not in the public interest why isn't disarming offering your services to represent someone in the public interest  the first of all the bureau makes it known that you can hire counsel and and so there's really this is just a limited protection of the privacy of the information in the hands of the bureau and industrial commission so the public interest in the context of this journalist exception is being contacted by a journalist and that's made plain when the bureau turns over this very limited information on occasion to journalists what is a journalist a journalist someone who is their regular occupation  disseminate information to the general public if a law firm has a blog would they be considered a journalist i think if a law firm ran a blog that that blog was meeting that definition and it was regularly publishing disseminating information to the public they might meet that but the key point is they would not be acting the public interest by you to extract information from the bureau and then using it to solicit clients and in ohio court has already said that but if a lawyer picks up  other ways union list passed client list and so forth using information with no knowledge that had been wrongly extracted from the bureau and our view would not violate the statute i do want to go back to one other point is there is there  that i want to circle back around to certain into the federal constitution there is a reason to read the statute merely because of the first amendment there's also a problem under the state constitution because the ohio constitution commits to the hospital court the exclusive authority to regulate the practice of law if this were a complete and total ban on solicitation it would run headlong into that power of the ohio supreme court in fact under a rule the fact is written rule seven point three it permits solicitations with certain restrictions if this would prohibit all solicitation it would run square into that so that again is a reason if there is a fairly possible reading and again the district court read it as what it called an enforcement mechanism and a higher court has read it as the solicitation having unnecessary link back to information in the hands of the bureau or the industrial commission and those principles of avoidance mean reading it narrowly so again the only attack that my friend here makes on this statute is to say it violates the first amendment if it is a complete and total ban is not a complete and total ban and no court has read it that way has not been enforced that way the text and structure don't support that and also only principles of constitutional avoidance twice over show why it should not be read in that way so all you need to conclude to affirm is the statute is not a total ban on solicitation for the questions we would ask you a firm  you i have one more question if you would return the there's a requirement that any journalists offer a certification that there that their intent is using the info in the public interest that's in part d some part of the statute right and so in you probably don't know the answer was there a certification submitted in the underlying effort so you say it is i read that the the person who's making the certification makes the determination whether it's in the public interest and they identify what the public interest is and the statute doesn't allow the agency to question that is that that's right to the right of the executive power of the state to question but certainly the judicial power of the state can interpret that and that's what i know higher court has done and said it's not in the public interest to do the exact thing the statute contra point which is to keep this information private and to avoid solicitation based on it so which court and what cases that that's the democrat decision is from the frankly that's the one that my friend mentioned earlier as well his presentation thank you thank you return thank you regarding the effect of the language and the ban on solicitation the state has argued that this is not a total ban but we are left confused by the district court's decision in the district court of page seven of its decisions says here the claimant in from it mation cannot be found anywhere other than the list maintained by the state as a result without protected claim information there can be no targeted communication and no solicitation now this is first of all not consistent with the record and this is why we're left confused because of pardon what is inconsistent and that's what's what's inconsistent is that the nature of ohio's workers comp system is that you may have the initial claim there could be follow on claims there could be other issues arise down the road so bevan could have claims information in their own files that originally came from the bureau's files but they particular claimant or any particular claimant that they formerly represented yes ok and they use that information for targeted solicitation that's in the record that was testimony that was in the record they also have of course the files that they obtained prior under the public records requests when they were still able to obtain that information and again the nature of worker's comp work is that that information could still be relevant many years later and so they use that information in their targeted solicitation of an avid they know that former quiet as now to claim for they they wouldn't know and that's that would be one reason for the solicitation i mean they just send out a letter to all former clients it ever first of january or something like that well i think it's a little more targeted than that but but yes  what they would be doing they also pull information from other sources whether it's could be looking at zip codes in you know claims volume of claims filed in certain zip codes so the point is even if you're not using information obtained through this journalist exception you should still be allowed to do targeted solicitation and the district court's opinion leaves us a little confused on that point the next thing it was in the train of thought here is that the ban on solicitation is broadly drawn or at least the plain language is broad and it is not necessary to protect the privacy of the statute and here's where i disagree with the reading of the dam to mico case by a police council the dim eco case as as i read it and again the procedural history of the case is that yes you can have access to to this information but if you're going to use this information to violate the prohibition on solicitation then we're not going to let you have access to the information in other words they're saying that we limit access to the information as a further and forstmann mechanism to effect the ban on solicitation that is the opposite of what the state has suggested here the  oh the ban on solicitations serves protecting the privacy of the records and that is not how the franklin county common pleas court read the case or read the statute i don't get the  the difference is on one hand you're saying we're not going to let you solicit because we're protecting the privacy of these records is about the somebodies reading of the policy behind the statute ok it's that court's reading of it as of the policy and isn't the policy consistent no because i'll shout not i would i would just say that info because what the franklin county common pleas court saying is that we have this ok ok you can't solicit and one of the reasons we're not letting you have access to these records is that you're going to use them to solicit it's not saying we are we are we are banning solicitation because we don't want to have this as incentive to extract the information from the claims files which is really what the state is arguing here they're saying that this ban on solicitation over the act of solicitation creates an incentive unearned inducement to try and go after this information and what the franklin county common pleas court said is no we have a ban on solicitation you can't solicit and we're not going to let you have access to this information because you're going to use it to violate that ban and that's that's how it was worded in the  a common police case yes franklin county come in play out ok there as has been discussed there's very little case law under this right under the statu so with that i will rest and thank ask that you overturn the district court thank you thank you counsel we have your arguments appreciate it the court will consider them carefully and issue an opinion in due course thank and we will have the next case please