ProgressOhio

Believe it or not, only ten times in the past six months, the Ohio House voted on laws – and only 12 times in the Ohio Senate, the Columbus Dispatch reported last week.

Thirty-year conservative legislative leader Bill Batchelder said that this lack of legislative action is a good thing. “When you have divided government, it’s probably good news for the taxpayers, because you don’t have as much activity,” Batchelder told the Dispatch. “I’ve seen some bad legislation made when people defer to each other instead of fighting it out.”

Ohioans seem to agree – providing Ohio Governor Ted Strickland with favorability ratings in the high 60’s despite the do-nothing legislative activity and a unanimous vote in the House and Senate on the Ohio budget.

But if divided government creates well-thought policy in the legislature, the lack of division on Ohio’s Supreme Court seems to increasingly lead to some very unbalanced rule of law.

These are active times for Ohio’s one-party rule on the Supreme Court. And with a month to go for Democrats to file and break the Supreme Court’s party and ideological dominance, it is alarming that there are no – 0 -- formally announced progressive or Democratic candidates willing to challenge the conservative balance of the Court.

FAILURE OF PROGRESSIVE JUDICIAL CANDIDATE IN ‘08 WILL MEAN AT LEAST FIVE MORE YEARS OF A CONSERVATIVE OHIO COURT

It is the silence of us lambs that speaks loudest regarding an Ohio Supreme Court known nationally for its pay-to-play atmosphere and conservative anti-consumer bent. As the Ohio Association for Justice points out that failure to win one seat on the Court this cycle will mean at least five more years before a balanced Court can be restored – two seats are up this year and three including the retiring Chief Justice’s seat in 2010.

That makes the lack of announced candidates in 2008 even more troubling whether they get a pass, or candidates emerge playing catch-up in fundraising and organization.

And what this means for all of Ohioans, conservative or liberal, is a Court much maligned nationally for the way in which rulings reflect donations could continue unabated for five more years if progressive’s don’t find fire in the belly to reverse this trend.

In a New York Times article on October 1, 2006, ironically one month before the GOP took over all seven Ohio Supreme Court seats, the Times national audience got a glimpse of pay-to-play decision-making Ohio style.

“An examination of the Ohio Supreme Court by The New York Times found that its justices routinely sat on cases after receiving campaign contributions from the parties involved or from groups that filed supporting briefs. On average, they voted in favor of contributors 70 percent of the time. Justice O’Donnell voted for his contributors 91 percent of the time, the highest rate of any justice on the court.”

“In the 12 years that were studied, the justices almost never disqualified themselves from hearing their contributors’ cases. In the 215 cases with the most direct potential conflicts of interest, justices recused themselves just 9 times. “

New York Times, October 1, 2006

Recently, Justice Maureen O’Connor, a former Lt. Governor under Bob Taft who spent $1.8 million in her 2002 election, told the Plain Dealer, "I'm stuck with the system that is there," said O'Connor, a former Summit County prosecutor who now lives in Cleveland Heights. "So please tell me how I can run statewide and get my message out without scrutiny?

"Quite frankly, I think the candidates are a victim of the system."

But Justice O’Connor and her benchmate and running mate, Justice Evelyn Lundberg Stratton, seem to have short memories of their 2002 race and how they got elected.

Outside groups attacked their Democratic opponents in 2002 when a business-backed group, Informed Citizens of Ohio, ran ads of empty doctors’ offices implying that medical malpractice from frivolous lawsuits was at stake in the race between Stratton and Cleveland Common Pleas Judge Janet Burnside.

Even more troubling from the New York Times piece is the number of potential conflicts that justices confront:

“The court’s decisions, the study found, were rife with potential conflicts. In more than 200 of the 1,500 cases, at least one justice cast a vote after receiving a significant campaign contribution. On scores of occasions, the justices’ campaigns took contributions after a case involving the contributor was argued and before it was decided — just when conflicts are most visible and pointed. “

“Contributors did well with those whose campaigns they had financed. Of the 10 justices in the Times study, six sided with contributors more than 70 percent of the time. Justice O’Donnell, who has been on the court for only three years and had participated in fewer decisions than most of the justices studied, had the highest rate — 91 percent.”

And the article pointed out that much of the recent spending in Ohio, where money spent on races went from $100,000 in the 1980s to $2 million in current races, came from business sources – particularly the Ohio insurance industry.

The Times wrote: “Much of the recent spending came from business groups furious with what they called a liberal “Gang of Four” on the court after a pair of 1999 decisions. One of the decisions struck down a law revising the treatment of injury cases. The other interpreted employers’ insurance policies broadly to cover some off-the-job injuries.”

ISOLATED IDEOLOGY ON COURT CAN BE AT ODDS WITH CONSUMERS

What this means is a Court increasingly at odds with consumers whether it be striking down Governor Ted Strickland’s veto of an anti-consumer lead-paint law over procedural issues, or ruling on a multitude of Worker’s Compensation and Insurance claim cases that side with the Insurance industry.

Take, for example, a decision last August in which your insurance company does not have to cover you if you are injured through the negligence of a government worker including police and firefighter accidents.

In this case, a police officer named Jennifer Snyder was chasing a suspect on foot when she was hit by another officer in a police cruiser.

Snyder could not sue either the city or the other officer civilly because of a shield law that protects police, so she filed her claim with her insurance company, American Family Insurance.

In a 5-2 decision, Justice Robert Cupp ruled that Officer Snyder could not recover $90,000 in damages because the government is not the same as an uninsured motorist – even though she could not sue the City of Columbus because she was barred from doing so as a City of Columbus police officer.

Snyder’s lawyer, Timothy Van Eman, summarized the decision for the Columbus Dispatch as meaning that “anyone in Ohio injured by a police or other emergency vehicle can get no recovery, since the government is civilly immune and your uninsured-motorist policy doesn’t cover it, either.”

So there you have it – if you see an emergency vehicle careening out of control – reach for your wallet folks.

COURT UNDERMINES PUBLIC ACCESS TO RECORDS

Further troubling, is a court which increasingly seems to be isolating itself from Ohio public records laws.

A commission appointed by the court to draw up its own public record rules separate from the rest of government, has proposed a series of rules that have open records advocates worried.

Especially troubling is a provision that says that a court record is not public if there is another way for a person to find the information. Practically speaking, it would mean that if you were reading a case docket the information would not be in the file and you would have to know or take the time to find the missing information from other sources.

In a Dec. 6 Plain Dealer editorial, the newspaper lamented, “Unfortunately, the reputations the seven justices had as friends of open government – and thus friends of the taxpayers – have been eroding.”

The Plain Dealer’s attorney, David Marburger, pointed out in the editorial that the proposed rules would let an Ohio court “conceal the very existence of certain information.”

Attorney and open government advocate Fred Gittes told the Dispatch, “I’m concerned about it. It seems to be pretty far-reaching. The language could justify [closing records on] almost anything.”

[Note: The Supreme Court is accepting written public comment about the proposed rules until December 19. Information should be sent to Jo Ellen Cline, legislative counsel, Supreme Court of Ohio, 65 S. Front St., 7th Floor, Columbus, OH 43215 or clinej@sconet.stat.oh.us.]

FAIRNESS REQUIRES BALANCED VIEWS

So here we are in what is supposed to be a state trending blue, where everybody imaginable is lauding the fundamental soundness of bi-partisan rule.

And yet with all the infrastructure balance and even headquarter balance of both major political parties, we are one month away from filing deadline with little word on a Supreme Court whose balance makes the Leaning Tower of Pisa look vertical.

This court has captured the nation’s attention for the relationship of donations and voting patterns. This court is known for its lack of decorum in dealing with conflicts of interest on cases. And increasingly, this court seems tilted against consumers, especially as it relates to the insurance industry, and now this court has a reputation for eroding access to public records.

Surely there is a progressive lawyer somewhere whose blood is boiling for balance. And surely there is a donor somewhere who understands that five more years of these decisions can block a whole lot of good coming from a more moderate, more ideologically balanced Governor and legislature.

Silence in these Supreme Court races, will lead progressive values to slaughter for at least another five long grueling years.