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Chief Justice lobbies for Supreme Court reform

Moyer is co-sponsor of a forum intended to find a new way to fill Ohio’s top court.

Chief Justice Thomas J. Moyer and Justice Paul E. Pfeifer listen and ask questions as students from throughout Clark County observe the appellate process in 2006. File photo.

Teesha McClam Chief Justice Thomas J. Moyer and Justice Paul E. Pfeifer listen and ask questions as students from throughout Clark County observe the appellate process in 2006. File photo.

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By William Hershey, Staff Writer Updated 10:21 PM Saturday, October 10, 2009

COLUMBUS — The seven black-robed justices of the Ohio Supreme Court pass their judgments in the 18-story Ohio Judicial Center, a block removed from the political hustle and bustle at the Statehouse where Gov. Ted Strickland and the legislature command state government’s center stage.

In many ways, it’s a very short block.

“Everyone is eventually affected by the (Ohio) Supreme Court,” Chief Justice Thomas Moyer said.

A recent flurry of high-profile decisions makes the point.

Although none packed the wallop of the court’s 1997 ruling that Ohio’s school funding system was unconstitutional, each made headlines and reinforced how dramatically the court can influence policy.

In a 7-0 decision last week, the Supreme Court removed a cloud from the political aspirations of Republican state Sen. Jon Husted, ruling he is a Kettering resident and should be allowed to vote in Montgomery County.

Husted, a former House speaker, is running for secretary of state.

Another recent decision blew a $851 million hole in the state budget by ruling that the plan to put video slot machines at Ohio’s seven racetracks is subject to a vote of the people in November 2010.

A third forced grocers to pay the commercial activity tax — or CAT — on their gross receipts, which was part of a major overhaul of the tax code approved by Republicans in 2005.

But while the court’s rulings often affect state government, the decisions are supposed to be based on the law and state Constitution, not politics and fundraising.

Some court observers say bias is inevitable when justices are elected by popular vote and receive campaign contributions that can run into the millions.

Moyer, 70, a Republican who will retire next year, defends the integrity of the court and stands behind its rulings.

“The funding of our campaigns is not what controls our decisions or the politics of the political party,” he said. “I want to make that distinction,”

But Moyer, who took office in 1987 and is the nation’s longest-serving state chief justice, acknowledges a perception that justice is for sale and thinks something should be done about it.

Striking at the heart

Next month Moyer is bringing in a heavy hitter to help make his case: retired U.S. Supreme Court Justice Sandra Day O’Connor.

She’ll be at a two-day conference on Nov. 19-20 in Columbus titled “A Forum on Judicial Selection: A Time for Action.”

Moyer is co-sponsoring the conference along with the Ohio State Bar Association and the League of Women Voters of Ohio Education Fund.

Moyer wants to develop a system that removes the perception that money determines the outcome of cases, but he isn’t prescribing a solution. He wants participants at the forum to work on that.

The perception is hard to deny. A 2008 American Bar Association poll found 79 percent of adults believed judges should not be allowed to accept money from “special interests.”

A 2002 poll sponsored by the Ohio League of Women Voters was even more definitive. The poll found 83 percent of Ohio registered voters believe campaign contributions influence judges either to a great extent or somewhat.

“That obviously strikes at the very heart of the system,” Moyer said.

Ohio is one of just eight states in which Supreme Court justices are elected in partisan elections.

High court candidates in Ohio are nominated in partisan primaries, but run in the general election without party identification.

West Virginia also has partisan Supreme Court elections, and in a case earlier this year the U.S. Supreme Court ruled 5-4 that it was unconstitutional for a supreme court justice from that state to hear a case involving the financial interests of a donor who contributed $3 million to the judge’s campaign.

Ohio made its own national headlines in 2000 as Citizens for a Strong Ohio, an arm of the Ohio Chamber of Commerce, mounted a high-priced but unsuccessful effort to “educate” the public about Democratic Justice Alice Robie Resnick’s supposed “anti-business” record.

Big money, big role

Money plays a big role in Ohio judicial campaigns. From 1999-2008, candidates for the Ohio Supreme Court raised $21.2 million, second nationally only to the $40.9 million raised by high court candidates in Alabama, according to Justice At Stake, a national nonpartisan partnership whose goal of keeping courts fair and impartial.

Nationally, the amount of money raised for state supreme court races soared to $201.2 million from 1999-2008, more than double the $85.7 million raised from 1989-1998, Justice At Stake reported.

Ohio led all states in spending for TV ads in supreme court races: $20.1 million from 2000-2008, according to Justice at Stake.

In recent years, Republicans have been more successful than Democrats at Ohio Supreme Court fundraising. Republicans have controlled the court 7-0 since 2005.

Court critics, including Ohio Democratic Chairman Chris Redfern, have said politics drives the court’s rulings in cases such as Husted’s residency. But Moyer said that is not the case as evidenced by split decisions in many cases.

Party labels, he said, don’t affect how justices “read the Constitution and how they apply the statutes.”

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Recent Supreme Court rulings

Oct. 6: In a 7-0 decision, the court rules Republican state Sen. Jon Husted is a Kettering resident and should be allowed to vote there.

Oct. 1: By a 5-2 vote, court upholds $250,000 cap on non-economic damages an injured party may recover from a city or other political subdivision in a civil lawsuit.

Sept. 30: In a 4-3 decision, the court upholds a state law that imposes 10 extra days of mandatory jail time on a driver with a previous DUI conviction if the person refuses to take a chemical test after being arrested on a subsequent DUI  violation.

Sept. 21: In a 6-1 ruling the court declares that provisions in the 2010-2011 bill authorizing video lottery terminals at Ohio’s seven racetracks are subject to a statewide voter referendum. Gov. Ted Strickland suspends the VLT plan after the ruling.

Sept. 17: By a 6-1 vote, the court rules that collecting the Commercial Activity Tax from grocers based on their gross receipts is not an unconstitutional excise tax on the sale or purchase of food.

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