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Published: Monday, 2/2/2004

4 of 7 seats are up for grabs this election year

BY JIM PROVANCE
BLADE COLUMBUS BUREAU

COLUMBUS - For the first time in 24 years, Ohio voters could, with a single election, turn over a majority of the seats on the state Supreme Court.

In the modern age of hard-fought elections in which special interests ranging from big business to labor try to stack the court to their liking, November s election provides a rare opportunity to set the course of court rulings for years to come.

At stake could be decisions on legislation capping jury awards in medical malpractice and product liability cases, the constitutionality of Ohio s school-funding system, the legality of gay marriage, and the interpretation of labor contracts, insurance policies, and state regulations.

Ohio has four of its seven high court seats on the ballot, more than any other state this year. After highly contentious court elections in 2000 and 2002 in which special interests spent millions, this year s elections will be on the national radar screen.

“With the added attention of a general [presidential] election, and with the huge number of issues we re dealing with now, such as the Massachusetts ruling on gay marriages, a lot of monetary, social, and constitutional issues are in flux right now,” said Barbara Reed, director of court initiatives for the Washington D.C.-based Constitution Project.

“I expect a very contentious year across the country,” she said.

The Nov. 2 vote provides the potential for one side, if everything goes its way, to stack the bench to the extreme of 6-1 in terms of the court s judicial philosophy.

“It will be a very hard-fought election,” said John Green, political science professor at the University of Akron. “But I think it is unlikely that the Ohio electorate” will wholly overturn the court.

“What will happen is people s attention will be focused on one or two seats,” he said. “That s where the money and the strongest campaigns will be directed.”

Currently, the Supreme Court, usually the final arbiter on the state constitution and state law, consists of five Republicans and two Democrats. But despite the partisan makeup, the court has split 4-3 along philosophical lines.

The 2002 election of Justice Maureen O Connor, the former lieutenant governor from Akron, reversed the long-standing 4-3 majority that struck down repeated legislative attempts to cap lawsuit jury awards and declared the state s method of funding schools unconstitutional.

In addition to Justice O Connor, the new, all-Republican majority, seen most recently in insurance cases, includes Chief Justice Thomas Moyer and Justice Evelyn Stratton, both of Columbus, and recently appointed Justice Terrence O Donnell, of Rocky River.

The minority consists of Republican Justice Paul Pfeifer, of Bucyrus, and Democrat Justices Alice Robie Resnick, of Ottawa Hills, and Francis Sweeney, of Cleveland.

Two seats on each side of that divide will be on this year s ballot, those held by Chief Justice Moyer and Justice O Donnell on the majority side and Justices Pfeifer and Sweeney on the minority.

All are seeking re-election with the exception of Justice Sweeney, who is barred from seeking a third six-year term because of his age.

Democrats have taken a pass on challenging Justice Pfeifer, virtually guaranteeing his re-election. Barring an unlikely independent or write-in upset, the best either side could muster on Nov. 2 would be a 5-2 court.

“What s more surprising is that Justice Pfeifer didn t draw a Republican challenger in the primary,” said Dr. Green. “Those who ve been most irritated by Pfeifer have been on the Republican side. Pfeifer has been on the Democrats side on a number of issues. If there was one race that was expendable [for Democrats], that was it.”

Few suggest Chief Justice Moyer, the state s top judge for more than 17 years, will be toppled by Cleveland Municipal Judge C. Ellen Connally, the first Democratic woman to run for the position.

That leaves the seats to be vacated by Justice Sweeney and to which Justice O Donnell was appointed nine months ago as the battlegrounds for control of the court. Democrats and their traditional constituents of labor, teachers, and trial lawyers must win both if their constituents hope to recover a 4-3 majority that has favored their issues.

For the alliance of Republicans, corporate Ohio, and insurance companies, it s a chance to expand its newfound majority by replacing Justice Sweeney with Sixth District Court of Appeals Judge Judith Lanzinger of Toledo.

Justice O Donnell is considered vulnerable because of his short tenure on the high bench. He was appointed to a vacancy nine months ago and is seeking election to complete the last two years of that term.

The first clear sign of a new majority came in November when the court voted 4-3 to reverse a decision rendered in 1999 by the former majority, a rare reversal of court precedent.

The 1999 Scott-Pontzer ruling, blasted by the business community, had opened the door for those injured in auto accidents involving uninsured or underinsured drivers to exploit a flaw in insurance contracts and seek damages under their employers policies. This could occur even if the accident did not occur in a company car or on company time.

Justice O Donnell was not on the court when the case was argued, but he appeared to have joined the new majority in a more recent insurance ruling.

Chief Justice Moyer insisted the new majority will not “willy-nilly” go back and reverse decisions made by the prior majority.

“I will not be a part of a wholesale overturning of opinions with which I disagree, and I don t know of anyone on the court today who thinks we should do it,” he said. “There are some situations in which the court is just dead wrong, and that was Scott-Pontzer.”



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