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Do IT this week: Layering
By Dennis J. Willard
Beacon Journal staff writer
POSTED: 07:38 p.m. EDT, Jun 13, 2009
COLUMBUS: Have you heard this one?
Dapper Jeopardy host Alex Trebek reads the following answer: ''The seven highest-ranking justices in the Buckeye State.''
The current champion buzzes in and confidently asks, ''What is the Ohio Supreme Court?''
Alex grimaces and states, ''Oh, I'm sorry. That's not right. The correct response is, 'What is the Republican Ohio Supreme Court?' ''
Yes, all seven justices on this state's highest court are Republican, and they got there either by raising piles of cash themselves or with assistance from their party, or in recent years with more than a little help from their third-party independent-expenditure friends.
In this era of government reform, a U.S. Supreme Court decision last week out of Washington, D.C., regarding a West Virginia case once again raises significant and enduring questions about the process Ohio uses to elect its justices.
In Caperton v. A.T. Massey Coal Co., the U.S. Supreme Court ruled 5-4 that a West Virginian judge should have recused himself from presiding over a case in which he eventually voted in favor of a fat-cat campaign contributor.
After a West Virginia jury ordered Massey to pay $50 million to the people suing the firm, the coal company's top dog, Don Blankenship, went shopping. He spent $3 million to remove one West Virginia Supreme Court justice while helping another get elected.
Justice Brent Benjamin, the beneficiary of Blankenship's largesse, refused to recuse himself when the Massey case came before the high court and instead cast the deciding vote in a 3-2 decision in favor of the coal company.
Brings a whole new meaning to that's state's slogan, ''West Virginia: Open for business.''
This was an easy one for the U.S. Supreme Court; a case a blind-folded, half-dozing ninth-grade civics student would get right. Note to self: What the heck were the four dissenting justices smoking?
Before you think, ''That's West Virginia. It could never happen in Ohio,'' stop.
Three years ago, the New York Times looked at the relationship between money and Ohio Supreme Court rulings and found ''justices routinely sat on cases after receiving campaign contributions from the parties involved or from groups that filed supporting briefs.''
The Times found justices voted in favor of contributors 70 percent of the time over a 12-year period. They rarely recused themselves — only nine times in 215 highlighted cases.
Chief Justice Thomas Moyer told the Times that ''various interests see voting patterns.''
OK, so Moyer and his six fellow justices aren't Manchurian Candidates hypnotized by waving money in front of their faces.
They are men and women with a known philosophy and ideology when they run for office. The money doesn't change the mind; it puts the right — sometimes left — minds on the bench.
By the way, the code for collecting business contributions is to assert that one believes in ''judicial restraint.''
Candidates, usually Democrats, seeking money from unions and personal-injury lawyers, are called ''judicial activists.''
Now, no one is suggesting, and the New York Times did not demonstrate, that a single dollar changed a single vote on the Ohio Supreme Court.
The problem with our court system is that dollars determine who sits on the court.
Friday, Chief Justice Moyer told the Beacon Journal that ''we shouldn't be spending money as we do to elect Supreme Court justices.''
Moyer was part of a movement in the 1980s to change the makeup of the court because it had seven Democrats, including scandal-plagued Chief Justice Frank Celebrezze.
In 1986, Moyer defeated Celebrezze, and the court was balanced and unpredictable to a degree until the late 1990s, when businessmen, particularly Akron charter school magnate David Brennan and the Ohio Chamber of Commerce, started to follow a model that worked in Texas in previous years to systematically change the face of the court by outspending Democrats.
Angered by rulings that overturned a law limiting damages in personal injury suits and that the state's funding system for schools was unconstitutional, the chamber and Brennan went to work. After the 2006 elections, Moyer was surrounded only by Republicans on the court.
Need for judicial review
Ohio Citizen Action asked Moyer on Friday to put together a study committee to examine third-party campaign funds, their influence on judicial campaigns and recusal standards.
In her letter, Catherine Turcer, with Citizen Action, quoted some staggering figures from the Brennan Center for Justice (not associated with David Brennan) and Justice at Stake in New York.
Since 2000, Ohio has aired more Supreme Court television ads than any other state.
We're No. 1!
Third-party groups, like those supported by the Ohio Chamber of Commerce and David Brennan, spent $2.7 million in 2000; $1.6 million in 2002; more than $2 million in 2004; $1.3 million in 2006; and $1 million last year.
Even blind Lady Justice could sense the scales tilting with that kind of cash pouring into the campaigns.
To his credit, Moyer clearly takes pride in being the longest-serving chief justice in Ohio history. He believes strongly that his decisions are his own and he is bothered when 70 percent of the public surveys routinely indicate voters maintain money influences court rulings.
He notes he has twice voted against FirstEnergy in rate cases, although the utility is a contributor, and he backed Democratic Secretary of State Jennifer Brunner in two decisions during the 2008 campaign, much to the chagrin of the Ohio Republican Party.
Moyer said the justices will look at adopting a formal process this summer for recusing themselves from cases. None currently exists.
Five justices, including Moyer, stepped aside during a case involving coin dealer Thomas Noe, the convicted Republican fundraiser, although no one requested the recusal.
But justices recusing themselves from cases for perceived or real conflicts of interest doesn't build trust in the system. The opposite is true.
When a justice stands up to leave the room for any other reason than a restroom break, everyone gets suspicious.
Recusals aren't the answer because the problem is money determining the court's makeup.
No quick fixes
Moyer said there are three potential solutions:
-- The Ohio Constitution could be changed to allow the governor to appoint members to the court. These appointees would then have to be elected to retain their seat.
-- Ohio could move to a form of public financing. North Carolina has been somewhat successful, and two other states, New Mexico and Wisconsin, are following suit.
-- A third option would be to allow just one long term for a justice of 12 or 14 years, Moyer said.
All these ideas are tough sells because voters defeated a ''merit selection,'' or appointment process in 1987. The only thing the public hates more than fat-cat contributors is using, in essence, tax dollars for campaigns, and a single, long term would give contributors time to pile up money to bet on their candidate for office.
I'll offer a fourth option.
Give the governor the power to appoint three Democrats and three Republicans to the court. Elect only the chief justice.
This would be modeled after our local boards of elections, where two Democrats and two Republicans preside and the secretary of state casts a deciding vote in the case of deadlocks.
Grant the chief justice the same luxury.
Then let him or her run on the record of casting tiebreaking votes on the Supreme Court. Remove the gag rule that bans the candidates from talking about previous decisions, philosophy and ideology. They should have to defend their decisions if they want to be re-elected chief justice, and voters should have a clear idea of whom they are electing.
The fat-cat contributors know whom they are selecting.
Also, identify the chief justice candidates by party on the November ballot. Currently, justices run with the party label in primaries and then appear to be unaffiliated in the general election.
This is a disservice to voters.
Do you think fat-cat contributors know whether Justice Maureen O'Connor is a Republican or Democrat?
Voters should have the same information.
The best court would be a balanced court, and the current system is not getting the job done.
Dennis J. Willard can be reached at 614-224-1613 or dwillard@thebeaconjournal.com.
COLUMBUS: Have you heard this one?
Dapper Jeopardy host Alex Trebek reads the following answer: ''The seven highest-ranking justices in the Buckeye State.''
The current champion buzzes in and confidently asks, ''What is the Ohio Supreme Court?''
Alex grimaces and states, ''Oh, I'm sorry. That's not right. The correct response is, 'What is the Republican Ohio Supreme Court?' ''
Yes, all seven justices on this state's highest court are Republican, and they got there either by raising piles of cash themselves or with assistance from their party, or in recent years with more than a little help from their third-party independent-expenditure friends.
In this era of government reform, a U.S. Supreme Court decision last week out of Washington, D.C., regarding a West Virginia case once again raises significant and enduring questions about the process Ohio uses to elect its justices.
In Caperton v. A.T. Massey Coal Co., the U.S. Supreme Court ruled 5-4 that a West Virginian judge should have recused himself from presiding over a case in which he eventually voted in favor of a fat-cat campaign contributor.
After a West Virginia jury ordered Massey to pay $50 million to the people suing the firm, the coal company's top dog, Don Blankenship, went shopping. He spent $3 million to remove one West Virginia Supreme Court justice while helping another get elected.
Justice Brent Benjamin, the beneficiary of Blankenship's largesse, refused to recuse himself when the Massey case came before the high court and instead cast the deciding vote in a 3-2 decision in favor of the coal company.
Brings a whole new meaning to that's state's slogan, ''West Virginia: Open for business.''
This was an easy one for the U.S. Supreme Court; a case a blind-folded, half-dozing ninth-grade civics student would get right. Note to self: What the heck were the four dissenting justices smoking?
Before you think, ''That's West Virginia. It could never happen in Ohio,'' stop.
Three years ago, the New York Times looked at the relationship between money and Ohio Supreme Court rulings and found ''justices routinely sat on cases after receiving campaign contributions from the parties involved or from groups that filed supporting briefs.''
The Times found justices voted in favor of contributors 70 percent of the time over a 12-year period. They rarely recused themselves — only nine times in 215 highlighted cases.
Chief Justice Thomas Moyer told the Times that ''various interests see voting patterns.''
OK, so Moyer and his six fellow justices aren't Manchurian Candidates hypnotized by waving money in front of their faces.
They are men and women with a known philosophy and ideology when they run for office. The money doesn't change the mind; it puts the right — sometimes left — minds on the bench.
By the way, the code for collecting business contributions is to assert that one believes in ''judicial restraint.''
Candidates, usually Democrats, seeking money from unions and personal-injury lawyers, are called ''judicial activists.''
Now, no one is suggesting, and the New York Times did not demonstrate, that a single dollar changed a single vote on the Ohio Supreme Court.
The problem with our court system is that dollars determine who sits on the court.
Friday, Chief Justice Moyer told the Beacon Journal that ''we shouldn't be spending money as we do to elect Supreme Court justices.''
Moyer was part of a movement in the 1980s to change the makeup of the court because it had seven Democrats, including scandal-plagued Chief Justice Frank Celebrezze.
In 1986, Moyer defeated Celebrezze, and the court was balanced and unpredictable to a degree until the late 1990s, when businessmen, particularly Akron charter school magnate David Brennan and the Ohio Chamber of Commerce, started to follow a model that worked in Texas in previous years to systematically change the face of the court by outspending Democrats.
Angered by rulings that overturned a law limiting damages in personal injury suits and that the state's funding system for schools was unconstitutional, the chamber and Brennan went to work. After the 2006 elections, Moyer was surrounded only by Republicans on the court.
Need for judicial review
Ohio Citizen Action asked Moyer on Friday to put together a study committee to examine third-party campaign funds, their influence on judicial campaigns and recusal standards.
In her letter, Catherine Turcer, with Citizen Action, quoted some staggering figures from the Brennan Center for Justice (not associated with David Brennan) and Justice at Stake in New York.
Since 2000, Ohio has aired more Supreme Court television ads than any other state.
We're No. 1!
Third-party groups, like those supported by the Ohio Chamber of Commerce and David Brennan, spent $2.7 million in 2000; $1.6 million in 2002; more than $2 million in 2004; $1.3 million in 2006; and $1 million last year.
Even blind Lady Justice could sense the scales tilting with that kind of cash pouring into the campaigns.
To his credit, Moyer clearly takes pride in being the longest-serving chief justice in Ohio history. He believes strongly that his decisions are his own and he is bothered when 70 percent of the public surveys routinely indicate voters maintain money influences court rulings.
He notes he has twice voted against FirstEnergy in rate cases, although the utility is a contributor, and he backed Democratic Secretary of State Jennifer Brunner in two decisions during the 2008 campaign, much to the chagrin of the Ohio Republican Party.
Moyer said the justices will look at adopting a formal process this summer for recusing themselves from cases. None currently exists.
Five justices, including Moyer, stepped aside during a case involving coin dealer Thomas Noe, the convicted Republican fundraiser, although no one requested the recusal.
But justices recusing themselves from cases for perceived or real conflicts of interest doesn't build trust in the system. The opposite is true.
When a justice stands up to leave the room for any other reason than a restroom break, everyone gets suspicious.
Recusals aren't the answer because the problem is money determining the court's makeup.
No quick fixes
Moyer said there are three potential solutions:
-- The Ohio Constitution could be changed to allow the governor to appoint members to the court. These appointees would then have to be elected to retain their seat.
-- Ohio could move to a form of public financing. North Carolina has been somewhat successful, and two other states, New Mexico and Wisconsin, are following suit.
-- A third option would be to allow just one long term for a justice of 12 or 14 years, Moyer said.
All these ideas are tough sells because voters defeated a ''merit selection,'' or appointment process in 1987. The only thing the public hates more than fat-cat contributors is using, in essence, tax dollars for campaigns, and a single, long term would give contributors time to pile up money to bet on their candidate for office.
I'll offer a fourth option.
Give the governor the power to appoint three Democrats and three Republicans to the court. Elect only the chief justice.
This would be modeled after our local boards of elections, where two Democrats and two Republicans preside and the secretary of state casts a deciding vote in the case of deadlocks.
Grant the chief justice the same luxury.
Then let him or her run on the record of casting tiebreaking votes on the Supreme Court. Remove the gag rule that bans the candidates from talking about previous decisions, philosophy and ideology. They should have to defend their decisions if they want to be re-elected chief justice, and voters should have a clear idea of whom they are electing.
The fat-cat contributors know whom they are selecting.
Also, identify the chief justice candidates by party on the November ballot. Currently, justices run with the party label in primaries and then appear to be unaffiliated in the general election.
This is a disservice to voters.
Do you think fat-cat contributors know whether Justice Maureen O'Connor is a Republican or Democrat?
Voters should have the same information.
The best court would be a balanced court, and the current system is not getting the job done.
Dennis J. Willard can be reached at 614-224-1613 or dwillard@thebeaconjournal.com.
Comments
Click here to post your comments
Akron, OH
Posted 08:19 AM, 06/14/2009
Not a bad suggestion, Dennis, but I still think term limits ought to be in there somewhere. 12-16 years. Just because someone is Repub. or Dem. doesn't mean their views on the world will change in a decade. Lord knows mine have. Term limits would lessen the impact of a Justice going "off the reservation".
Good article.
West Palm Beach, FL
Posted 08:35 AM, 06/14/2009
Dennis, Bravo -- as always.
Thanks for noting this supreme article:
Campaign Cash Mirrors a High Court’s Rulings
NYTimes, 10/1/2006
http://nytimes.com/2006/10/01/us/01judges.html?pagewanted=all
The issue of justice is beyond campaign contributions. I was part of this case in which the presiding U.S. District Court Judge (now deceased) had a past law practice with the plaintiff's father and had the plaintiff's son as his past law clerk.
Shawnee Coal Co. v. Andrus, 661 F.2d 1083 (6th Cir. 1981) http://vlex.com/vid/36981267
To me, the problem is the state bars do not fulfill its responsibilities to the legal professional.
Akron, Oh
Posted 08:43 AM, 06/14/2009
Good article....I disagree with the term limits suggestion of Bergermeister however. Justices do face term limits.. they face re-election. If you think term limits are productive..look at the Ohio General Assembly! YIKES! Enough said!
Dennis has put forth a viable suggestion that would begin to address the problem.
Posted 10:24 PM, 06/14/2009
I also oppose term limits in principle, but the reality (unfortunately) is that incumbents generally enjoy a huge advantage, and are almost always re-elected. It's very hard to argue against "merit selection", similar to the way U.S. Supreme Court justices are nominated and then confirmed by the Senate. Voters are woefully ill-equipped to weigh the real merits of those who run for election as judge at ANY level, and it's unlikely this situation will ever change. The California-style system where the governor appoints justices, who then run for outright election sometime later seems to offer good balance -- any justice who abuses his/her office isn't likely to escape voter wrath if the transgression is serious enough!
Posted 03:39 PM, 06/15/2009
Of course Willard wants to change the makeup of the Ohio Supreme Court. What else would a left wing liberal Democrat want? The statehouse, with the exception of Mary Taylor, are all of one party, why isn't he pushing for equal bipartisan officeholders? "The people elected them" you say? Well so were the Supreme Court justices elected!
He raises the issue that the justices run without party affiliation. Well, hooray! Let's have informed voters who are responsible for finding out about the candidates instead of pandering to the stupid people who don't know the alphabet past the letter (D)! But then that's what the Democrat party wants, to feed the ignorance of the electorate.
Hudson, OH
Posted 07:27 AM, 06/16/2009
I see Maureen O'Connor is going to have difficulty with the United States Supreme Court decision holding that a judge must recuse him or her self if he or she received political contributions and the contributing party has an issue before the court.
Posted 09:28 PM, 06/16/2009
It would be interesting to have important public issues like appointment vs. election of judges and Supreme Court justices debated without tiresome, predictable and irrelevant slams about partisanship. But then again, I'm a dreamer sometimes...
Tallmadge, OH
Posted 03:37 PM, 06/17/2009
So, prior to 2006, and therefore throughout the entire time period looked at by the New York Times, the Court was not in fact one-party. How does a review of decisions made during a period when the court was mixed support the contention that a court which now has all Republicans needs to be changed?
I also note that there are no actual figures as to how much was spent by any group or person in support of any candidate. It is just as easy to point out that unions and other interest groups spend tons of money in these elections. So the "third-party" spending is certainly not all in support of Republican candidates, and the article is careful not to make that claim, although slyly worded to create that inference. Instead of "third-party groups, like those supported by the Ohio Chamber of Commerce and David Brennan" the author could have said "third party groups like the AFL-CIO and those supported by George Soros".
The elimination of party designations from judicial races in Ohio was considered a "reform" at the time, and we need only look at the antics of the Summit County Board of Elections to see how much sense the "appoint 3 of each" suggestion makes. Furthermore, simply picking justices by party affiliation doesn't seem like a basis for expecting to get a "better" court than by open election.
So, a review of cases done during a period of a bi-partisan court, which had, previously, been an all-Democrat court, together with the fact that a lot of money is being spent by groups in support of candidates of both parties, makes a case for changing the selection of justices because, at the moment, all of the justices are from the same party?
Please also note, the one and only case the author cites in support of any suggested impropriety does not even involve the Ohio court.
