Observations on Justice O’Neill’s Intent to Recuse From Future Cases.

On October 29, 2017, Justice Bill O’Neill announced his intent to run in the Democratic gubernatorial primary May 8, 2018. He also announced a platform which includes “legalization of recreational marijuana, a higher minimum wage, a decrease in in-state tuition, and the funding of mental health institutions across the state.”

Initially, O’Neill said he would remain on the Court until the February 7, 2018 primary filing deadline, but his announcement raised a cacophony of concerns. The Ohio Code of Judicial Conduct mandates that “upon becoming a candidate in a primary or general election for a nonjudicial elective office, a judge shall resign from judicial office.” Although that provision doesn’t say when a person becomes a candidate, it does include a comment explaining the reason for needing to resign if pursuing a political office:

“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.”

And yet, since the landmark decision in 2002 in Republican Party of Minnesota v. White,  the line between what is or is not permissible for judges and judicial candidates to say while campaigning has undeniably grown fuzzier.

In light of the stated concerns of many, on November 2, 2017, O’Neill announced, by letter to the Clerk of the Supreme Court of Ohio, that he would recuse himself from all cases until the primary filing deadline, but he would not quit the Court. Here is what he said, exactly:

“I will not be participating in any new matters submitted to the Court from this date forward until February 7, 2018. I will continue to vote on and participate in the resolution of the approximately 99 cases which have been submitted and not yet released.”

The letter continued: “Should the Justice terminate his campaign for governor at any time or for any reason, he will resume participating in all matters before the Court from that date through the end of his duly elected term, which ends on January 1, 2019.”

That last sentence suggests that if former Attorney General Richard Cordray does enter the race, O’Neill will not become a candidate and will stay on the Court. He has previously said that if Cordray became a candidate he would not run, but time grows short.

Should O’Neill remain on the Court, how having announced a platform affects his participation in past and future cases is unclear.  Also unclear is what happens if O’Neill becomes a candidate and leaves, but not all of those 99 matters in which O’Neill has already participated are decided by February 7, 2018. My best guess is that they will be released without his vote. That means any tie votes would uphold the appellate decision below, or such a case could be re-argued.  That’s why there are an odd, rather than an even number of justices on high courts.  Remember the long, recent Merrick Garland interlude when the U.S. Supreme Court went with only 8 justices?

Interestingly, the Supreme Court of Ohio has a very light docket from now until the end of this year. It is hearing oral argument on only one day in November, and two days in December. This calendar was set and made public well before O’Neill’s announcements.

Normally, when a justice recuses from a case, Chief Justice O’Connor selects an appellate judge to sit in that person’s stead.  That has already happened a number of times this year, and is not uncommon, but to recuse on all cases from now until February 7, 2018 is uncommon.  It is exciting for appellate judges to get a call to sit on the state high court (I got to do it one time when I was an appellate judge), but I suspect this is going to be an unusual work-out for appellate judges.  One other problem is that if a particularly controversial case is argued, and the decision is 4-3, having an appellate sub on that case could put an asterisk by any precedent established in that case.

In any event, these are the issues being argued in the cases remaining in 2017:

  • Whether a court can appoint a guardian ad litem for an adult party in a divorce proceeding without a finding of incompetency or an evidentiary hearing.
  • Whether the probate court can proceed with an adoption petition if any parenting matter is proceeding in another court.
  • When appellate counsel also served as trial counsel and moves to withdraw pursuant to Anders v. California, must the court permit counsel to withdraw and appoint new appellate counsel to review the record and raise any non-frivolous appealable issue.
  • May a trial court impose a prison term for one offense and a term of community control sanctions for a separate offense on the same offender without violating the “spilt sentence” doctrine.
  • Does R.C. 2929.14(B)(1)(b), which precludes jail time credit from being applied to a mandatory firearm specification sentence violate equal protection, and was the issue properly raised below.

The Court is also hearing an appeal from the Public Utilities Commission, a couple of disciplinary cases, and one death penalty appeal. The death penalty appellant will lose one automatic vote—from the time he first joined the court, Justice O’Neill announced his per se opposition to the death penalty.  He has not voted to uphold a single death sentence, nor signed on to a single order of execution.  I was surprised that ridding Ohio of the death penalty wasn’t a major plank in his gubernatorial platform. That’s a position he has already publicly taken.

The court’s calendar for January 2018 has not yet been posted.


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