That is the question I address in my latest guest post at the IAALS Blog. Check it out!
That is the question I address in my latest guest post at the IAALS Blog. Check it out!
First in an occasional series on how organizational interdependence affects the judiciary
Two recent stories illustrate how the structural interdependence of courts within a constitutional system can drive judicial choices and behaviors.
We start in Sandusky, Ohio, where Common Pleas Judge John Dewey appointed his personal court administrator as a deputy court clerk, a position that would allow the administrator to handle all filings in a sensitive case involving allegations of sexual assault. Judge Dewey further decreed that the case filings should remain sealed, meaning that the newly appointed deputy court clerk would be the sole gatekeeper of the records.
The decision angered the local media, which asserted a First Amendment right of access to the filings. This was not an ordinary case of sexual assault: the defendant was the local district attorney, and the public had an interest in the proceedings. To complicate matters further, under Ohio law court records are supposed to be handled by an elected official. Judge Dewey’s administrator was not elected, and Judge Dewey apparently did not inform the elected court clerk about his preferred arrangement. This decision caused enormous confusion in the clerk’s office, both as to why he did not tell the elected clerk what he was doing, and as to whether Dewey’s decision to appoint a deputy court clerk was even legal.
It is also unclear why Judge Dewey had been given the case, given that the defendant was a regular–indeed, institutional–participant in the Sandusky County court system. Typically, when a local attorney or judge is involved as a party in litigation, the case is assigned to a judge unaffiliated with that jurisdiction to prevent a judicial conflict of interest. Somehow, though, Dewey held on to the case for months even though it created a visible conflict with other cases on his docket that had been brought by the prosecutor’s office.
Judge Dewey finally recused himself in late September, noting that “Sandusky County Judges have a conflict in this matter as it may involve a Sandusky County elected official.” A retired judge was appointed to take over the case, and in early December the defendant took a plea deal that will keep him out of jail but require him to resign from his elected position.
So what was going on here? It’s hard to know whether Judge Dewey’s series of odd choices–not recusing himself from the outset, holding on to the case for months, and quietly appointing his administrator to have sole control over the court papers–was driven by ignorance or some sort of malfeasance. But whatever Dewey’s motivation, the situation was made possible by the tight institutional connection between elected officials within the local Ohio court system. Prosecutors, court clerks, and judges are all elected on partisan platforms. Prosecutors often seek judicial office. And the internal community is likely very tight-knit. In many localities the judge, court staff, and criminal attorneys spend so much time together on the job that they come to think of themselves as a team of sorts–what Professor Herbert Jacob called a “courtroom work group” — even though each participant has very different roles and responsibilities. (If you are familiar with the chumminess of the characters on the old “Night Court” series, you get the idea.)
The most benign view of Judge Dewey’s actions, then, is that he sought to protect the court system and its established courtroom work groups from external interference by a curious media. He assigned a trusted assistant to manage and seal records so that a sensitive matter could be handled without undue political pressure. And he overlooked a legal requirement to share that information with the elected clerk. If so, Dewey made a series of mistakes, but in service to the larger institutional scheme. This suggests that there is, perhaps, too much interdependence between the local institutions, such that it is impossible to truly separate them even when doing so would be in the interest of justice.
Of course, it may well be that the benign view is not the correct one, and that Dewey was protecting a prosecutor friend by knowingly, and improperly, taking over his case, and then hiding the details from the media. That certainly seems to be the view of the local paper, which has called for a deeper investigation. But even in this scenario, the situation was exacerbated by the interrelationship of the courts, the prosecutor’s office, and the voting public.
The only clear corrective to this type of problem is vigilance. Those inside the court system need to recognize when their interdependencies can erode the judiciary’s legitimacy or moral authority, and take proactive steps to address them. Those outside the system need to use their powers–formal or informal–to identify potential abuses and call for change. That process is playing out now in Ohio, hopefully with positive results for the future.
This story out of Toledo suggests that the answer is yes.
This trend is not entirely surprising, given the high-profile, violent attacks on judges in recent months. But it’s not at all clear whether–and how–concealed carry by judges would affect the regular work of courthouse security staff.
An interesting, and somewhat sad, development.
Ohio Supreme Court Justice William O’Neill, who is serving on the court while simultaneously running for the governorship as a Democrat, made news again this past weekend with a Facebook post in which he claimed to have 50 lovers over the past century, and described two trysts in detail. The since-deleted post read in part:
“Now that the dogs of war are calling for the head of Senator Al Franken I believe it is time to speak up on behalf of all heterosexual males…. In the last fifty years I was sexually intimate with approximately 50 very attractive females. It ranged from a gorgeous personal secretary to Senator Bob Taft (Senior) who was my first true love and we made passionate love in the hayloft of her parents barn in Gallipolis and ended with a drop dead gorgeous red head who was a senior advisor to Peter Lewis at Progressive Insurance in Cleveland.”
As the kids today like to say, OMG.
Everyone is rightly horrified by this post, with some of the harshest criticism coming from those within O’Neill’s own party, and from the court itself. Chief Justice Maureen O’Connor said in a statement, “I condemn in no uncertain terms Justice O’Neill’s Facebook post. No words can convey my shock. This gross disrespect for women shakes the public’s confidence in the integrity of the judiciary.”
O’Neill issued an apology on Facebook on Sunday morning, stating: “There comes a time in everyone’s life when you have to admit you were wrong. It is Sunday morning and i [sic] am preparing to go to church and get right with God.”
Notwithstanding the apology, O’Neill faces calls for him to resign from the court and end his gubernatorial campaign. His campaign manager has already resigned. But O’Neill insists that he will stay on the court, and will only leave the governor’s race if former Consumer Financial Protection Bureau chief Richard Cordray jumps in.
The people of Ohio deserve much, much better than this.
Ohio Supreme Court Justice William O’Neill, who last week publicly announced his intent to run for governor, has now announced that he will recuse himself from all new cases coming before the Court. O’Neill previously indicated that he would continue to hear new cases, a position which drew considerable criticism from the state auditor.
O’Neill is currently the sole Democrat holding statewide office in Ohio. He has said that he will remain on the Court until he formally enters the race in February. In the meantime, he will campaign and raise money for his gubernatorial run.
Justice O’Neill may be legally permitted to campaign for governor while still on the bench. In a series of cases over the past decade, the Supreme Court has affirmed the First Amendment rights of judges to solicit campaign funds and publicly state their general positions on policy issues. But First Amendment rights do not parallel professional responsibilities, and running a political campaign from the bench can do untold damage to the judiciary’s legitimacy. Justice O’Neill is free to seek another elected job, but he should resign from his current one first.
In the wake of the shooting of state judge Joseph Bruzzese on the steps of the Steubenville courthouse in August, the Ohio legislature has introduced a bipartisan bill to shield judges’ personal information from the public. The bill is still in its very early stages.
It is not hard to see why a bill like this might be necessary, but that realization is tinged with sadness. Judges are most effective when they are full members of the community, enjoying the same pleasures (and suffering the same indignities) as ordinary citizens. Grocery shopping, attending community events, waiting in line at the DMV, and similar activities foster an appreciation for everyday life that a judge needs to be an effective mediator, problem-solver, and voice for the community. When our judges are too cut off from the public, or exist in elite bubbles, they cannot have that effectiveness.
The benefits here of keeping a judge’s personal information from the public may well outweigh the costs. But we should be careful not to create a slippery slope in which the public and its judges lose critical opportunities for normal, everyday interaction.
More reaction today to the shooting of Judge Joseph Bruzzese on the steps of a Steubenville, Ohio courthouse on Monday morning:
Fox News: Under Siege, More Judges Choose to Arm Themselves for Protection. This article contains some useful discussion from the outstanding researcher Bill Raftery of the National Center for State Courts.
And semi-relatedly, a 36-year-old Tennessee man has been charged with sending a letter to a local judge, threatening to kill him.