BuckeyeBlog

Yesterday, the Wall Street Journal ran this opinion piece regarding state court issues on election ballots across the country. The editorial specifically discusses  the Ohio Supreme Court by stating:

High-stakes court races are also playing out in Ohio, where Republican state Supreme Court Judges Maureen O’Connor and Evelyn Stratton are running against two trial lawyer-backed Democrats, Joseph Russo and Peter Sikora. Thanks to Republican additions in recent years, the Ohio court has become much more restrained and deferential to the state Legislature.”

Case Western Reserve law professor Jonathan Adler was a guest on a recent Buckeye Voices discussing the Ohio Supreme Court. He now has this excellent article on National Review Online discussing many of the same issues related to Ohio’s highest court.  Adler points out that the court currently has a majority of justices who exercise modesty and restraint on the bench.  Unlike a decade ago, the court now decides cases pursuant to the dictates of Ohio’s statutes and Constitution, as opposed to deciding cases on the basis of their own personal policy preferences. Two of the justices making up this new majority are up for reelection in 2008.

Adler writes:

In choosing between two incumbent justices and their challengers, Ohioans will decide whether they like the Supreme Court’s turn toward judicial modesty. At stake is whether the current trends on the Ohio supreme court are likely to continue. However Ohioans decide, it could affect Ohio’s legal system for years to come.”

I recorded a Buckeye Voices podcast with Case Western Reserve University Law Professor Jonathan Adler today. He and his wife, Christina, provide an in-depth analysis of the Ohio Supreme Court’s recent evolution in this new paper recently published by the Federalist Society.

The Adlers make a persuasive case that the Ohio Supreme Court has dramatically improved over the last decade, due in large part to activist justices retiring and voters replacing them with justices who exercise restraint from the bench.

Today, the Ohio Supreme Court issued an opinion unanimously overturning a directive from Ohio Secretary of State Jennifer Brunner instructing county boards of elections to reject absentee ballot applications that have an unmarked check box next to the applicant’s statement that the person is a qualified elector. One of the people bringing the case (the relator) had her absentee ballot rejected because she did not mark the box on the McCain application form next to the statement that she is a qualified elector. Apparently, many registered Ohio voters did not check the box when filling out the absentee ballot applications distributed by the McCain campaign. The applications were otherwise accurate, complete and signed by the applicant. According to the Ohio Supreme Court, more than 3,500 absentee-ballot applications have been rejected by certain boards of elections because of the applicants’ failure to check the box next to their qualified-elector statements. Justices Evelyn Lundberg Stratton and Maureen O’Connor did not participate in the case as they are both up for reelection in the November 4 election. Two appellate court judges participated in their place.

The court held:

No vital purpose or public interest is served by rejecting electors’ applications for absentee ballots because of an unmarked check box next to a qualified-elector statement. There is no evidence of fraud. As relators persuasively assert, the ‘only reason to complete the form was to obtain an absentee ballot for the November 4, 2008 election,’ and signing it necessarily indicated that the applicant represented, ‘I am a qualified elector and would like to receive an Absentee Ballot for the November 4, 2008 General Election,’ regardless of whether the box next to the statement was marked.”

It is interesting that Secretary Brunner favored a liberal interpretation of Ohio law to permit early voting but chose to direct boards of elections to reject absentee ballot applications for not having a box checked even though there is no evidence of fraud involved. Could it be because the applications were from likely McCain voters?

The recent Ohio Supreme Court decision, finding that the City of Clyde’s ordinance prohibiting licensed handgun owners from carrying concealed handguns in Clyde city parks conflicted with an existing general law and was therefore unconstitutional, exemplifies the importance of this year’s Supreme Court elections. The court’s 4-3 decision found that Clyde’s ordinance conflicted with Ohio’s concealed carry law, which was enacted by the General Assembly and signed by then-Governor Bob Taft in 2004. The majority noted that the state law provides that licensed handgun owners “may carry a concealed handgun anywhere in this state,” with specific exceptions. Those exceptions include police stations, school safety zones, courthouses, child day-care centers, aircraft, and a few other places. The law does not provide for an exception for city parks. The 4-3 majority made clear that cities could not now make their own exceptions to Ohio’s concealed carry law. Two of the justices in the majority – Justices Maureen O’Connor and Evelyn Lundberg Stratton - are up for reelection this November. Many gun owners are concerned that Ohio cities will continue to attempt to create exceptions that severely undermine the intent of the state’s concealed carry law. Right now, the Ohio Supreme Court is the backstop against such actions. Without O’Connor and Stratton on the court, that could change.

Gongwer Ohio News Service reports that Ohio’s Chief Justice Thomas Moyer has again argued for changing Ohio’s process for choosing judges.

Currently, the Ohio Constitution provides for the election of judges. Moyer prefers a merit selection plan. Merit selection usually involves a system where the governor (or some other appointing authority) must appoint judges from a small list of candidates selected by a commission made up of lawyers and others. The idea behind merit selection is to remove politics from the judicial selection process but oftentimes the result is that the politics occur behind closed doors. Accordingly, states with merit selection are not immune from controversy over the judicial selection process. For example, in Missouri… (more…)

A couple weeks ago, I posted here regarding the Manhattan Institute’s recent report on the improvement Ohio has made in reforming its civil liability laws. The report briefly mentions two cases in which the Ohio Supreme Court upheld recently enacted reforms of Ohio’s tort system. I discuss those two cases in more detail in the just released summer issue of the Federalist Society’s State Court Docket Watch (the article on the Ohio cases begins on page 2 under “Case in Focus”). As the Manhattan Institute’s report indicates, the recently enacted tort reforms, including placing caps on pain and suffering damages and time limits on liability, are critical if Ohio is going to be successful in making the state attractive again for investment and business activity. Interestingly, in one of the recent cases, Arbino v. Johnson v. Johnson, the portion of the decision upholding the cap on pain and suffering damages was by a 5-2 majority. Two of the justices in the majority, Justice Evelyn Lundberg Stratton and Maureen O’Connor, are up for reelection in 2008. If they are defeated and replaced by more activist justices, the court might then have a majority that would be willing to strike down the caps on damages enacted by the General Assembly. That would be a major step backward for Ohio.

The Center for Legal Policy at the Manhattan Institute manages Trial Lawyers Inc., which does excellent work documenting the crisis in America’s tort system. Its most recent report Judging Ohio: Legal Reforms are Steering Ohio’s Struggling Economy in the Right Direction documents Ohio’s checkered past in trying to reform the personal injury lawsuit system. On numerous occasions, the General Assembly enacted significant reform of the system only to see its efforts invalidated by an activist majority on the Ohio Supreme Court. In recent elections, however, justices who take a less activist role toward public policy matters have been elected to the court. As I wrote in this Buckeye Institute commentary this past spring, the court now has a majority that recognizes the Ohio Constitution authorizes the General Assembly to enact legislation through its lawmaking function, including enacting reforms to the civil liability system. In two recent cases, the Ohio Supreme Court upheld statutory caps on pain and suffering and punitive damages and a 10-year statute of repose for products liability actions.

Two of the justices who make up the new majority committed to judicial restraint are up for reelection in November. The Manhattan Institute’s report raises the ugly possibility of the personal injury trial lawyers  (a.k.a. “Trial Lawyers, Inc.”) regaining the upper hand on the court:

[S]hould Trial Lawyers, Inc. recapture the state supreme court, the legislature’s hard-earned reforms could be reversed in short order. With incumbent justices Maureen O’Connor and Evelyn Lundberg Stratton up for reelection this year, all eyes will be on what promises to be another hotly contested battle. The Buckeye State faces a daunting task in restructuring its industrial economy. Fortunately, it has already embarked on that task by making improvements in its legal climate. The people of the state, having finally been exposed to both sides of the issue in heavily publicized races, have reclaimed their justice system; they can ill afford to let it return to the days when it was a paradise for Trial Lawyers, Inc.”