Wednesday, May 23, 2018
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Justice and money

Ohio needs to toughen its judicial ethics rules in an era of big-money elections and campaign contributions

Two of the seven seats on the Ohio Supreme Court are up for election this November. Each candidate for these positions needs to have a credible answer for voters to this question: Under what circumstances will you disqualify yourself from taking part in a case that involves litigants or lawyers who have contributed to your campaign?

The current Supreme Court justices haven’t provided a very satisfactory answer. A new study finds that Ohio has some of the weakest ethics rules in the country to police the link between campaign cash and judicial conduct.

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The Center for American Progress, a nonpartisan, left-leaning Washington think tank, evaluated each of the 39 states that elect their judges on how well it addresses the conflicts of interest — real or potential — that accompany high-dollar judicial elections. Its conclusion: Only Idaho, Indiana, and Maryland have done a worse job than Ohio of strengthening judicial ethics rules as the cost of court campaigns has soared.

The report offers several unsettling examples: In August, 2010, the Ohio Supreme Court denied an appeal by FirstEnergy Corp. in a case of alleged negligence brought by a woman who was badly hurt by a falling tree limb near power lines. In the next two months, the report says, FirstEnergy, its affiliates, and its employees made large donations to the campaigns of Chief Justice Maureen O’Connor and Justice Judith Ann Lanzinger, who were seeking new court terms in 2010.

That October, the court agreed to reconsider FirstEnergy’s appeal; it subsequently ruled unanimously for the utility. Both justices won their elections.

The Center for American Progress study cites a 2006 report in the New York Times that concluded that Justice Terrence O’Donnell voted in favor of campaign donors 91 percent of the time, compared with an average of 70 percent for all Ohio high-court justices. These cases included class-action suits involving toxic substances and defective autos.

The study notes that the Ohio Code of Judicial Conduct requires judges to recuse themselves from any case “in which the judge’s impartiality might reasonably be questioned” — not just actual bias, but also its perception. But the rules also say that a judge’s awareness of campaign donations from a lawyer or litigant “does not, in and of itself, disqualify the judge.” These positions are hard to reconcile.

Why does this matter? Even the U.S. Supreme Court, which has largely deregulated political money, has ruled that “extraordinary” corporate campaign contributions to judicial candidates can violate the due-process rights of plaintiffs, who often can’t make equally big donations. When lawyers, litigants, and other interest groups have financial stakes in how courts rule, it’s unreasonable to think they would not expect a return on the investments they make in the form of campaign aid.

Judges argue that they are elected to hear cases, not sit them out. But striking a reasonable balance is possible.

Not long ago, Michigan was notorious for the dreadful reputation of its supreme court. But it was one of only eight states to earn a passing grade in the Center for American Progress study, because the court has adopted reforms that toughen its recusal rules. Fears that these policies would split the court haven’t been realized, the report says.

There are other options. The Ohio Supreme Court could define a dollar amount of campaign contributions from a litigant that would require a justice’s recusal. It could strengthen its disclosure rules for donations.

This page has long believed that Ohio would be better served by a system of merit selection of state judges than by continued popular election. That isn’t going to happen anytime soon.

Meanwhile, the state Supreme Court needs to do all it can to persuade voters of its impartiality. That includes a clearer showing that campaign money isn’t influencing justices’ decisions.

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