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Published: Friday, 10/29/2004

O'Donnell, O'Neill spar over judicial rules


COLUMBUS - Ohio Supreme Court Justice Terrence O'Donnell and his Democrat challenger, appellate Judge William O'Neill, sparred yesterday in their only public debate over how far they can push the envelope in discussing issues that may come before the high court.

Eleventh District Court of Appeals Judge O'Neill chastised the court for letting the General Assembly off the hook after it failed to come up with a school-funding system the court deemed constitutional. Then he took aim at lawmakers for passing limits on medical malpractice jury awards after the court had ruled such caps unconstitutional.

"[Caps] are basically unfair. They are unconstitutional," he said before the City Club of Cleveland.

"I defy anyone in this room to tell me why, therefore, the out-of-control Ohio General Assembly imposed a new law effective April of 2003, which has caps on noneconomic suffering.

"They are in defiance of the Ohio Supreme Court," he said. "They need to do their job, which would be to define the medical malpractice crisis and a find a real solution that gives real relief to the doctors. They have not done that, because they would rather talk about God, guns, and gays."

Justice O'Donnell repeatedly refused to state opinions on such issues, citing judicial rules that have been set aside at least for this campaign as a result of a federal lawsuit filed by his Democratic opponent.

"The proper decorum for a member of the Ohio Supreme Court is not to have an advocacy position, especially with respect to the legislature," he said. "It is the duty of the court of the last resort to review matters that are presented to us. Many of these will involve enactments of the General Assembly, and we are to do so on a case-by-case basis without having any preconceived ideas about outcomes."

Justice O'Donnell and Judge O'Neill are on Tuesday's ballot seeking to complete the two years left in the term to which Justice O'Donnell was appointed last year. The court currently has a 5-2 Republican majority, but it sometimes aligns 4-3 philosophically with Justice Paul Pfeifer siding with the two Democrats in the minority.

Justice O'Donnell, who unsuccessfully ran for the high court in 2000, was questioned by an audience member about his failure at the time to publicly condemn independently produced ads attacking his then opponent, Justice Alice Robie Resnick, an Ottawa Hills Democrat.

He said he was precluded by judicial rules at the time from speaking out.

"The fact is that ad was run by the [Ohio] Chamber of Commerce and was not my ad," he said. "It was done by an independent group. Independent groups ought to be held accountable for their behavior, and I ought to be held accountable for mine."

Judge O'Neill, however, did speak out at the time.

"There was no prohibition against judges coming to the rescue of our profession," he said. "I called that ad a public mugging."

Justice O'Donnell countered: "The message of 2000 was about selling seats on the court. That's the precise message that my opponent has in this race. And he's been chastised for it by the Ohio State Bar Association candidate messaging committee."

Contact Jim Provance at:


or 614-221-0496.

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