Yesterday, October 29, 2017, Ohio Supreme Court Justice Bill O’Neill announced his intent to run in the Democratic gubernatorial primary May 8, 2018. Already in the race on the Democratic side are Dayton Mayor Nan Whaley, State Senator Joseph Schiavoni, Former State Representative Connie Pillich, and Former U.S. Representative Betty Sutton. O’Neill, who is the lone Democrat on the Ohio high court, cannot run for another term because of his age. His present term ends January 1, 2019.
In Ohio, judges must resign their judgeships when they become candidates for political branch offices. O’Neill said he will wait until the February 7, 2018 filing deadline to officially declare his candidacy, presumably to stay on the bench as long as ethically permitted. Chief Justice Maureen O’Connor issued a statement shortly after O’Neill’s announcement in which she stated O’Neill’s decision could implicate a number of rules under Ohio’s conduct of judicial conduct.
“ I encourage Justice O’Neill to consider his future course of conduct in light of his oath of judicial office and the ethical obligations imposed upon all judges of this state, which are designed to protect the interests of litigants, the public’s trust and confidence in the fair administration of justice, and the institution of the judiciary as a separate branch of government,” O’Connor wrote. She also said that there is no way to force O’Neill to recuse himself from pending cases. Under existing rules, recusal of a Supreme Court justice is left up to that justice.
O’Neill has said in the past that he would step aside if former Ohio Attorney General Richard Cordray, now head of the Consumer Finance Protection Bureau in Washington, D.C. enters the race. So, does this mean that if Cordray does get into the race before the filing deadline, O’Neill will stay on the court?
If O’Neill does resign, Governor Kasich, a Republican, would appoint his successor, undoubtedly another Republican, which would make an all-Republican court. Still, the Court is far from unified on many issues, as the blog regularly reports. Despite the Chief’s carefully-worded statement about O’Neill’s announcement, he has been her ally in a some areas in which she now finds herself in the minority, especially in the field of juvenile justice, about which she cares greatly. See, e.g., State v. Aalim, Slip Opinion No. 2017-Ohio-2956, (Aalim II) and State v. Morgan, Slip Opinion No. 2017-Ohio-7565.
Another interesting issue is if O’Neill does step down early, must all the cases he has participated in be decided before he goes? Or just ones where his vote is outcome- determinative? When Justices Lanzinger and Pfeifer retired at the end of 2016 because of age, the Court worked like mad to decide and release all the cases they had sat on, and did not hear any new cases for the last few months of 2016. But the state filed for reconsideration in a couple of those cases after Lanzinger and Pfeifer had left the court. Justice DeWine decided to participate in deciding those motions, even though he wasn’t on the Court when they were initially decided, while Justice Fischer decided not to, unless a majority voted for reconsideration, in which case he would participate in ruling on the merits. See, e.g. State v. Gonzales, 2017-Ohio-777 (Gonzales II) and Aalim II.
One thing is certain. O’Neill’s leaving would be disruptive to the court’s work. But so are age-mandated retirements and judicial elections.