Mimesis Law
20 February 2020

The Unconstitutional Restraint On Ohio Justice O’Neill

January 10, 2017 (Fault Lines) – Every four years when the Presidential election rolls around, Ohio gets pegged as a swing state, which for the Presidential election it often is. But that disguises the difficulty that Democrats have had winning statewide office since 1992. Except for a brief period in the twilight of the Bush Presidency and the beginning of Obama’s term, the Republicans have commonly held the General Assembly, statewide offices, and the Supreme Court.

In 2006, Democrats won all the statewide offices except Auditor and took the Ohio House of Representatives two years later. But it was short lived. Governor Strickland lost to John Kasich and recently lost to Senator Rob Portman. The former Attorney General Marc Dann was forced from office and had his law license suspended for six months. The former State Treasurer ran an office accused of corruption, with a former employee convicted of kickbacks. The one bright spot was former Jeopardy! champ Richard Cordray, who was first Treasurer then Attorney General. Nowadays he runs the Consumer Financial Protection Bureau in D.C.

This political wreckage has left the Democrats with just two statewide officeholders, Senator Sherrod Brown and Justice William O’Neill. Why does all this matter to a place like Fault Lines, as opposed to the Politico? O’Neill is considering a run for Governor.

O’Neill was first a court of appeals judge, then Supreme Court Justice. Before that he worked for the Attorney General’s Office and was a nurse. He also served in Vietnam and retired as a Lt. Colonel. Before winning a Supreme Court seat on his third try, he ran unsuccessfully for Congress twice. While maybe not demonstrating the best success at the ballot box, he has a decent resume.

What are the issues that Justice O’Neill would focus on as candidate for Governor:

The justice said he plans a statewide listening tour to discuss nine key policy planks he hopes to see embraced by the party. Those include legalizing marijuana, halving college tuitions within five years, building a high-speed rail line between Cleveland and Cincinnati, and eliminating for-profit charter schools. He also wants to promote solar development, reopen state mental hospitals to help address the heroin epidemic, reinstitute taxes on trust funds and boost the minimum wage to $15.

While on the Supreme Court, O’Neill has consistently voted against upholding the death penalty. He ran a successful self-funded campaign in 2012 and has spoken out against the influence of money in politics. Last year, O’Neill urged his supporters to leave the Democratic Party, after it endorsed Ted Strickland. So, his campaign for Governor could be interesting in a state that went Trump and re-elected Kasich in a landslide.

Besides the hurdles that every person wanting to run for state office faces, O’Neill has an addition problem. The ABA model rules, governing the behavior of judges, prohibit him from holding a judicial office and running for Governor. Ohio’s version of the ABA rule follows rather close:

Upon becoming a candidate in a primary or general election for a nonjudicial elective office, a judge shall resign from judicial office. A judge may continue to hold judicial office while he or she is a candidate for election to or serving as a delegate in a state constitutional convention, if the judge is otherwise permitted by law to do so.

In instances where judges are elected, there are essentially two factions. The first views the judge as apolitical instead a virtuous Platonic guardian serving society dispassionately. The other sees judges as political actors, mostly the same as other political actors. Judge Posner has argued that at least some classes of judges are indeed politicians. The Supreme Court of the United States has been closely split between these two factions.

In Ohio, the justices can seek and receive partisan endorsements, appear on political slate cards, and refer to their affiliations. But the offices are considered non-partisan because the party affiliation does not appear on the ballot. Uh huh, and I have ocean-front property to sell you in Cleveland.

Like most other offices, the Ohio Constitution prohibits a judge from holding two elected offices at the same time. But a judge is not prohibited for running for another office. It’s the ABA rule, rather than a statute or constitutional provision, that would prohibit O’Neill from running for office. While the Supreme Court is obligated to submit rules of practice and procedure to the General Assembly, it promulgates the rules of judicial conduct without involvement of the General Assembly. Presumably the Supreme Court relies on the following provision of the Ohio Constitution:

The Supreme court shall prescribe rules governing practice and procedure in all courts of the state, which rules shall not abridge, enlarge, or modify any substantive right.

Forbidding a person from running for elective office is arguably an abridgment of a substantive right. Yet, it does not appear that anyone has challenged this aspect of the judicial rules. If the Ohio Governor forbade all employees for seeking any judicial office, most would probably see it as an abridgement of a substantive right.[i] Indeed, some states affirmatively protect the rights of employees to run for office.

Moreover, the Supreme Court of the United States has cast doubt generally on this sort of restriction (internal citations omitted):

First, we emphasized the egalitarian concept that the opportunity to be elected was open to all. We noted in particular Madison’s statement in The Federalist that “`[u]nder these reasonable limitations [enumerated in the Constitution], the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith.'” * * *

Second, we recognized the critical postulate that sovereignty is vested in the people, and that sovereignty confers on the people the right to choose freely their representatives to the National Government. For example, we noted that “Robert Livingston . . . endorsed this same fundamental principle: `The people are the best judges who ought to represent them. To dictate and control them, to tell them whom they shall not elect, is to abridge their natural rights.'”

Besides this rule being possibly unconstitutional, its justification is tenuous:

In campaigns for nonjudicial elective public office, candidates may make pledges, promises, or commitments related to positions they would take and ways they would act if elected to office. Although appropriate in nonjudicial campaigns, this manner of campaigning is inconsistent with the role of a judge, who must remain fair and impartial to all who come before him or her. The potential for misuse of the judicial office, and the political promises that the judge would be compelled to make in the course of campaigning for nonjudicial elective office, together dictate that a judge who wishes to run for such an office must resign upon becoming a candidate.

The Supreme Court has chipped away at this by striking down other rules that restrict how a judge campaigns. While a judge, unlike a legislator, cannot promise to vote a certain way, a candidate can campaign in substantially similar ways. Moreover, the ABA did not have this absolute restriction in place when the rules were first promulgated. Further, the first Chief Justice of the Supreme Court twice stood for election as the Governor of New York while on the bench. So, for at least 150 years, this restriction was seen as neither vital nor appropriate for members of the judiciary.

More recently, the fears of partisanship drove Congress to restrict the political activities of federal employee and the Supreme Court to uphold the restrictions. While no one seriously contends that people don’t act according to biases, including a partisan bias, there is evidence suggesting that judges do better ignoring the bias than do non-lawyers. This is true in at least in their professional roles. Thus, judges can be more trusted not to let partisan or political issues influence how they rule. If anyone can run for political office and remain professionally independent, it is a judge.

While it is unlikely that O’Neill will challenge the rule, he seems like the sort of person that would do so.

[i] Ohio law does restrict partisan activity for employees in civil service, but it’s not strongly policed. Similarly, the Hatch Act restricts partisan activity for federal employees.

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