Ohio Supreme Court Chief Justice Sharon Kennedy Thursday assigned Matthew Byrne, a Twelfth District Court of Appeals judge, to serve as a fill-in justice to preside over a state appeal of the preliminary injunction on Ohio’s abortion law.
Byrne, a Warren County Republican who is described as a conservative constitutional originalist, replaces newly appointed Ohio Justice Joe Deters, who recused himself because his former prosecutor’s office is a defendant in the case.
The appeals case stems from a lawsuit filed in September in Hamilton County Common Pleas Court in which Planned Parenthood and Ohio abortion clinics challenged Ohio’s Heartbeat Law (Senate Bill 23, signed in 2019) after it took effect when Roe V. Wade was overturned. In October, Hamilton County Judge Christian Jenkins issued that preliminary injunction, temporarily halting the Heartbeat Law pending a trial.
The state, through Ohio Attorney General Dave Yost, appealed the preliminary injunction to Ohio’s First District Court of Appeals. That appellate court raised the question of whether it had the jurisdiction to rule on the injunction because the injunction was a preliminary one and not permanent.
The appellate court’s ruling found that the injunction had been appealed prematurely because the trial court has not yet finished its case.
The appellate court’s ruling would have pushed the case back to the trial court, but Yost then filed an appeal of the appellate court’s decision to the Ohio Supreme Court.
“If allowed to stand, the First District’s ruling will leave the state with no way to protect legislation from egregiously wrong preliminary injunctions,” Yost’s brief says. “Trial courts that issue such injunctions have every incentive to drag out lower-court proceedings, ensuring their orders remain in effect —and that state laws with which they disagree remain unenforceable — for as long as possible.”
Byrne was elected in 2020 and his term began Jan. 1, 2021, on the five-judge Ohio Twelfth District Court of Appeals in Middletown that includes Brown, Butler, Clermont, Clinton, Fayette, Madison, Preble and Warren counties.
Byrne only recently began his career as a judge as the Ohio Twelfth District Court of Appeals was his first elected post. Prior to being elected to the appellate court, Byrne was a practicing attorney for over 10 years.
His short term on the bench still meets the Ohio Supreme Court’s judicial assignment program’s guideline that the chief justice “shall not ordinarily assign a sitting judge who has not completed at least one full year of judicial service as a judge on the level of court on which the judge currently serves.”
Other factors to be taken into consideration include the status of the docket of the judge, the competence of the judge, and the proximity of the judge to court making the request, the latter being in reference to reducing travel time and costs.
The judicial assignment program’s guidelines also state that only a sitting court of appeals judge may sit on the Supreme Court.
Byrne’s campaign website says he was a member of an advisory board at a pro-life pregnancy resource center. According to the Warren County Republican Party, Byrne’s wife, Julie Byrne, is chairman of Warren County GOP.
The political leanings of the Ohio Supreme Court has changed in the new year. Former Chief Justice Maureen O’Connor, a Republican who sometimes would cast a swing vote with Democrats, left the court on Dec. 31. Kennedy was elected her replacement. Within the new court, the split is four Republican judges and three Democrats.
The ACLU of Ohio, in its brief in the appeal before the Ohio Supreme Court, asked the court to reject the state’s appeal and send the court challenge over Ohio’s abortion law back to the trial court in Hamilton County. The brief, submitted by B. Jessie Hill of the ACLU of Ohio, says if the Ohio Supreme Court were to accept this appeal, “the lone issue” before the court would be whether the First District court had correctly determined whether it had jurisdiction to the state’s desired appeal of the trial court’s preliminary injunction order, not the injunction or the Heartbeat Law itself.