A Legal, Political, and Ethical Analysis of Judicial Selection in Ohio: A Proposal for Reform
| Author | Hon. Joseph D. Russo - Richard G. Johnson - Jack DeSario |
| Position | Has served as a judge on the Cuyahoga County, Ohio, Common Pleas Court for over eight years-from 2001 to the present - Attorney and counselor at law, Richard G. Johnson Co., L.P.A., Cleveland, Ohio - Professor of Political Science at Mount Union College |
| Pages | 825-857 |
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A LEGAL, POLITICAL, AND ETHICAL ANALYSIS OF JUDICIAL SELECTION IN OHIO:
A PROPOSAL FOR REFORM
HON. JOSEPH D. RUSSO,* RICHARD G. JOHNSON,** AND JACK DESARIO***
I. INTRODUCTION: THE IMPORTANCE OF JUDICIAL SELECTION ISSUES
The issue of judicial selection is a controversial topic within our legal system. Many analysts suggest that the method of judicial selection used, and the rules adopted to direct it, have important implications for the promotion of general political values and the application of substantive
Copyright © 2010, Judge Joseph D. Russo, Richard G. Johnson, and Jack DeSario
*Judge Joseph D. Russo has served as a judge on the Cuyahoga County, Ohio, Common Pleas Court for over eight years—from 2001 to the present. He received his Juris Doctorate and Bachelor of Arts degrees from Case Western Reserve University. As a member of the Ohio Judicial Conference, Judge Russo serves on the Court Technology and Judicial Ethics and Professionalism Committees. Judge Russo is an adjunct professor at the Case Western Reserve School of Law. In 2008, Judge Russo was one of the Democratic Party’s nominees for the Ohio Supreme Court.
**Attorney and counselor at law, Richard G. Johnson Co., L.P.A., Cleveland, Ohio. B.A. (1986), M.B.A. (1987), J.D. (1990), Case Western Reserve University. Mr. Johnson concentrates his practice in legal ethics and professional responsibility issues, and he served as the judicial ethics advisor to Judge Joseph D. Russo in his Ohio Supreme Court Justice campaign in 2008, where he drafted, along with Judge Russo, the Judge’s “Plan to Restore Public Confidence in our Judiciary,” which forms the basis for this article. Mr. Johnson previously served as petitioner’s counsel in the disqualification case of Jones v. Burnside, cert. denied, 549 U.S. 883, reh’g denied, 549 U.S. 1027 (2006), which laid the groundwork not only for the aforementioned position paper, but also for the disqualification cases later considered by the United States Supreme Court that are discussed below, and which was cited in the recent disqualification and recusal literature—a rare event for a petition for certiorari.
***Dr. Jack DeSario is a Professor of Political Science at Mount Union College. He has a Ph.D. from S.U.N.Y. Binghamton and a J.D. from Case Western Reserve University. He has published a number of books and articles in the areas of law and government. Dr. DeSario served as the Chairman of the Ohio Ethics Commission and was appointed by Governor Strickland to the Governor’s Judicial Appointment Committee.
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law.1There seems to be a growing belief that current laws related to the selection of judges influence the administration of justice. For example, a recent article in Parade Magazine noted that “from 2000 to 2007, some $167 million was spent on judicial campaigns,” a figure which is “more than twice as much as in the entire previous decade.”2Charles W. Hall of Justice at Stake, a nonpartisan group for judicial reform, suggested that this influx of special interest contributions may compromise a citizen’s right to a fair trial.3Whether these concerns are real, the perception that the contributions can influence our courts is a matter of great concern for the legal profession and society in general. Efforts must be made to ensure the integrity of our legal system. This article reviews the general methods of judicial selection, Ohio’s choice of judicial selection, the implications of that choice, and specific reforms that will ensure jurists cannot possibly be influenced by their contributors.
II. METHODS OF JUDICIAL SELECTION
A. The Evolution of Judicial Selection
At the state level, there are five major methods of judicial selection: partisan election, nonpartisan election, gubernatorial appointment, legislative appointment, and the Missouri Plan.4At least two states have adopted each of these strategies, with the majority of states relying upon some type of election process.5As Lawrence Baum noted, the judicial selection system adopted by a state
has a strong historical element. Different systems have been popular in different periods, reflecting changes in people’s views about goals and the best means to achieve them. Until the 1840s, the federal government and most states gave power over judicial selection to the other
1See, e.g., DAVID W. NEUBAUER & STEPHEN S. MEINHOLD, JUDICIAL PROCESS: LAW, COURTS, AND POLITICS IN THE UNITED STATES 192 (4th ed. 2007); LAWRENCE BAUM,
AMERICAN COURTS: PROCESS AND POLICY 93–94 (6th ed. 2008).
2Sharon Male, Can Judges be Bought?, PARADE MAG., Mar. 8, 2009, available at http://www.parade.com/news/intelligence-report/archive/can-judges-be-bought.html.
3Id.
4See ROBERT A. CARP ET AL., JUDICIAL PROCESS IN AMERICA 101–07 (7th ed. 2007) (providing an in-depth analysis of each method); see also NEUBAUER & MEINHOLD, supra
note 1, at 184–92; BAUM, supra note 1, at 105–17.
5See BAUM, supra note 1, at 107 ex. 4.3.
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branches of government—the chief executive, the legislature, or both.6
These approaches were intended to minimize the role of popular democracy.7Prior to the 1840s, the majority of Americans were not legally entitled to vote, and there were concerns about peoples’ capability to cast informed ballots.8
The prominence of elected judges at the state level emerged during the mid-1800s as part of the populist movement during the Jacksonian era.9A major objective of the movement during this era was to democratize the political process.10“At the time of the Civil War, twenty-four of the thirty-four states had an elected judiciary.”11
The twentieth century marked the advent of another method of judicial selection. A group of reformers disenchanted with the influence of party bosses promoted the concept of merit selection. Former President William Howard Taft and other prominent lawyers expressed dissatisfaction with existing methods of judicial selection because they provided too little judicial independence and gave legal confidence insufficient weight.12The reform agenda of the American Judicature Society (AJS) also reflected this feeling. Its leaders sought a new method of judicial selection and helped devise a system in which a state governor chose a new judge from a list of
6Id. at 94.
7Id.
8See, e.g., ALEXANDER KEYSSAR, THE RIGHT TO VOTE: THE CONTESTED HISTORY OF
DEMOCRACY IN THE UNITED STATES 49–52 (2000).
9See NEUBAUER & MEINHOLD, supra note 1, at 184.
10Id.
11Id.
12BAUM, supra note 1, at 94.
Early in the twentieth century, former president William Howard Taft and other prominent lawyers expressed dissatisfaction with all other existing methods of judicial selection, arguing they provided for two little judicial independence and gave insufficient weight to legal competence. This feeling was reflected in the reform agenda of the American Judicature Society (AJS), founded in 1913, whose leaders sought a new method of judicial selection. The AJS helped devise a system in which a state governor would choose a new judge from a list of nominees provided by an independent commission, with the voters having the chance to approve or disapprove the governor’s choice.
Id.
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nominees provided by an independent commission.13The voters then had the chance to approve or disapprove the governor’s choice.14This system of selection, which relies upon a commission and a retention-only election, is generally referred to as the Missouri Plan because Missouri was the first state to fully adopt this strategy in 1940.15
B. Ohio’s Methods
The State of Ohio relies upon a combined system of partisan and nonpartisan elections to select its judges.16In nonpartisan elections, a party’s political affiliation is omitted from the ballot.17Ohio uses “a strange combination of partisan and nonpartisan elections” for seats on its supreme court.18Political parties nominate the candidates, but the general election ballots do not list “candidates’ party affiliations.”19
III. MONEY COMBINES WITH JUDICIAL POLITICS
Complicating an already untidy process is the influx of money in judicial elections. “In 1980, candidates for the chief justice position spent $100,000; six years later, they spent $2.7 million.”20In 2004, Ohio judicial candidates raised a record-breaking $6.3 million.21In addition to these expenditures, the AJS noted that special interest groups have become increasingly prominent in judicial elections.22
In 2000, the U.S. Chamber of Commerce “spent between $1 and $2 million” on advertisements to oppose “the re-election of a sitting Supreme
13Id.
14 Id.
15See id. at 94–95.
16See MICHAEL J. STREB, RUNNING FOR JUDGE: THE RISING POLITICAL, FINANCIAL, AND
LEGAL STAKES OF JUDICIAL ELECTIONS 7 (2007).
17Id.
18 Id.
19Id.
20 AM. JUDICATURE SOC’Y, The Amount of Money Spent in Ohio and Other States on Supreme Court Cases, in A FORUM ON JUDICIAL SELECTION: A TIME FOR ACTION 12 (2009),
http://www.judicialselection.net/resources/Forumbriefbook.pdf.
21 Rachel Paine Caufield, Hunter Center Is Nationally Recognized Resource on Judicial Selection, JUDICATORIES (Am. Judicature Soc’y, Des Moines, Iowa), Apr. 2007,
http://www.ajs.org/ajs/publications/Judicatories/2007/April/Hunter%20Center.asp.
22AM. JUDICATURE SOC’Y, JUDICIAL SELECTION IN THE STATES: OHIO, http://www. judicialselection.us/judicial_selection/index.cfm?state=OH (last visited Mar. 8, 2010).
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Court justice.”23It also supported Citizens for a Strong Ohio, which spent approximately $4 million on similar advertisements.24“Citizens for an Independent Court, a group supported by trial lawyers and labor unions, [also] spent approximately $1.5 million . . . .”25In 2002...
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