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Judge will not be removed after comments in ECOT case

Judge made critical comments from the bench about founder of an on-line school

COLUMBUS — An appellate judge who made critical comments from the bench about the founder of an on-line school will not be removed from a case that could determine whether Ohio can claw back millions in the school’s aid.

Ohio Supreme Court Justice Maureen O’Connor today agreed that comments made by 10th District Court of Appeals Judge G. Gary Tyack were out of line, but determined that the Electronic Classroom of Tomorrow failed to show that the comments showed a negative predisposition to ECOT’s case.

“Even if the judge’s questioning conveyed a negative impression of the eschool model, judicial bias against a party will not be presumed because a judge has developed views about matters of public policy,” Chief Justice O’Connor wrote.

“Thus, although Judge Tyack’s editorializing about lobbyists and the legislative process was unnecessary, these comments do not establish that he is biased against ECOT of warrant his removal from this case,” she wrote.

She wrote that Judge Tyack’s reference to ECOT founder William Lager as an “oligarch” was unacceptable and said they “have no place on the appellate bench and only serve to diminish the public confidence in the judiciary.”

But that alone does not demonstrate bias, she wrote. She noted that Judge Tyack’s comments focused on lobbying and the legislative process, not the case at hand.

She indicated that Judge Tyack aggressively questioned both sides in the case.

“It cannot be said that he showed favoritism toward the department,” she wrote.

ECOT is fighting the state Department of Education’s attempt to pay the school based on proof of how many hours students spend on-line taking its courses, rather than on upfront enrollment.

ECOT’s attorney, Marion H. Little, Jr., had urged the chief justice to remove Judge Tyack from the school’s appeal. He argued that the judge’s comments about the founder and the eschool model reflected an inherent bias against ECOT and “an appearance that he is likely to allow his personal beliefs to impact his judicial decision-making.”

Judge Tyack, in turn, insisted he could decide the case fairly.

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