O'Neill's candidacy blurs lines between judiciary and executive

COLUMBUS — Ohio Supreme Court Justice William O’Neill announced his candidacy for governor on Sunday, but he doesn’t yet consider himself to be a candidate.

Ohio Supreme Court Justice William O'Neill.

The sole Democrat on the high court bench does not plan to step down from the court until Feb. 7, the deadline for filing candidate petitions.

“That’s the date everyone officially becomes a candidate,” he said Tuesday. “Everything before that date is constitutionally guaranteed freedom of speech.”

In the meantime, he will talk about legalizing marijuana, raising the minimum wage to $15 an hour, and reopening closed state mental hospitals — all issues not currently before the court. But he won’t talk about school funding.

“Everybody knows the ECOT [Electronic Classroom of Tomorrow] case on school funding is pending before the Supreme Court,” Justice O’Neill said. “I will not discuss school funding with anyone as long as I am a justice on the Ohio Supreme Court — other than with my fellow justices.

“There are several justices on the Ohio Supreme Court sitting on that case who have accepted contributions from ECOT,” he said. “I don’t question for a moment they are incapable of sitting on that case in spite of receiving those contributions. We all monitor our individual ethics and are very good at it.”

He does not plan to raise campaign funds between now and Feb. 7.

The Code of Judicial Conduct specifically states, “A judge shall resign from office when he or she becomes a candidate in a primary or general election for a nonjudicial office.” It does not define at what point someone becomes a candidate.

Dan Tokaji, law professor and voting expert at the Ohio State University Moritz College of Law, said he’s unsure when Justice O’Neill must step down under the court’s rules.

“I do, however, have a view of when he should step down: immediately,” he said, offering his personal opinion and not speaking for the university.

“One of the basic precepts of our system of justice is that our system and our judges must be independent,” he said. “That means independence from politics and especially the executive and legislative branches. If someone is planning to run as a candidate for executive or legislative office, It compromises their impartiality, or at the very least, the appearance of impartiality.””

Chief Justice Maureen O’Connor noted there is no mechanism to force Justice O’Neill to recuse himself from pending cases. But she cautioned him to “consider his future course of conduct in light of his oath of judicial office and the ethical obligations imposed upon all judges of this state ...”

Ohio Auditor Dave Yost, a Republican running for attorney general in 2018, has called on Justice O’Neill to immediately resign.

"The judiciary is designed to be non-political and independent and is one of the few remaining institutions in our society that is generally accepted to be fair and impartial," he said. "Mr. O'Neill owes it to Ohio to step down now that he has announced his candidacy and begun making promises a judge is not allowed to make."

A former judge on the Warren-based 11th District Court of Appeals, Justice O’Neill won his seat on the high court in 2012 on his third try. Each time he defeated the Ohio Democratic Party’s endorsed candidate in the primary to go on to the general election.

At 70, he is barred from seeking a second six-year term. He will eventually leave with almost a year left in his term, likely handing the seat to a Republican given that Gov. John Kasich will select his replacement.

He joins four other already announced candidates for governor on the Democratic side — state Sen. Joe Schiavoni of Boardman, former Akron area U.S. Rep. Betty Sutton, former Cincinnati state Rep. Connie Pillich, and Dayton Mayor Nan Whaley.

Contact Jim Provance at jprovance@theblade.com or 614-221-0496.