In next year’s Ohio Supreme Court races, Ohioans need to vote, and vote knowledgeably: Thomas Suddes

By Thomas Suddes, cleveland.com

If Democrats win two Ohio Supreme Court seats in November 2020, it would be the first time in 34 years the GOP wouldn’t be calling the shots at the state’s highest court.
The state high court is now 5-2 Republican. If Democrats unseat two Republicans expected to run for re-election – Justices Judith L. French, of suburban Columbus, and Sharon L. Kennedy, of Butler County – the court would become 4-3 Democratic.

Two Democrats are running for the Supreme Court: Former Secretary of State Jennifer Brunner, a judge on the Columbus-based Ohio 10th District Court of Appeals, and Cuyahoga County Common Pleas Judge John P. O’Donnell. O’Donnell also ran for the high court in 2014 and 2016. In 2014, French bested O’Donnell. In 2016, Justice Patrick Fischer, a Cincinnati Republican, edged O’Donnell by just 22,470 votes statewide.

A third Democrat, Judge John J. Russo, Cuyahoga County Common Pleas Court’s administrative and presiding judge, said this week that he’s “seriously considering” a 2020 Supreme Court run.
The Supreme Court oversees Ohio’s other courts and Ohio lawyers, and – in what seems to be the high court’s main task – upholds the status quo. What scholars G. Alan Tarr and Mary Cornelia Aldis Porter wrote in 1988still seems to apply: “The Ohio high court was dominated from the close of the Civil War to 1978 [when the late Frank D. Celebrezze, a Cleveland Democrat, was elected chief justice] by conservative, ‘old stock’ Republicans who fashioned the law to conform to the values and interests they shared with small town and rural Ohioans, with business and industry.”

Summarizing Celebrezze’s Supreme Court era, which ended in 1986, when Columbus Republican Thomas J. Moyer unseated him, would require several columns. Arguably, Celebrezze’s personality caused him as many problems as the pro-consumer and pro-injured-worker rulings during that tenure that irked fat cats. And Celebrezze did himself no favors naming the late Louis C. Damiani, later a central figure in Cuyahoga County’s corruption scandals, the high court’s administrative director.

But since January 1987, with a Republican majority, Ohio’s Supreme Court has seemingly liked utilities more than ratepayers, insurers more than policyholders. The court follows a musty doctrine called the Rule Against Retroactive Ratemaking. The gist is that, even if the Supreme Court overturns a public utility rate increase, customers are not – repeat, not – entitled to refunds: The utility keeps the extra money. A spokeswoman for Consumers’ Counsel Bruce Weston said Thursday that “(Ohio) electric consumers have lost more than a billion dollars in denied refunds just since 2009.”

And although Ohio’s Bill of Rights promises that “every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law,” the court has upheld “tort reforms,” notably one rammed through the legislature’s 2004 lame-duck session, that cheat injured Ohioans.

Example: The Supreme Court’s 2016 Simpkins v. Grace Brethren Church of Delaware decision. Justice French wrote in the lead opinion that “the senior pastor at Sunbury Grace … forced oral and vaginal intercourse [on] … a 15-year-old [female] parishioner, in his office.” A jury awarded her $3,651,379; of that, $3.5 million represented noneconomic damages – “pain and suffering … mental anguish, and any other intangible loss.”

But thanks to 2004’s “reform” (lead sponsor: then-state Sen. Steve Stivers, an Upper Arlington Republican now in Congress), the Common Pleas judge cut – to $500,000 – the victim’s damages, despite the jury’s decision.

Albeit narrowly, the Supreme Court, in 2016’s plurality decision, was OK with that. French wrote the lead opinion; Kennedy concurred in it. And a third Republican, then-Justice Judith Ann Lanzinger, concurred in the judgment but filed a separate opinion because she disagreed with French’s constitutional analysis. Dissenting, here’s what then-Justice Paul E. Pfeifer, a Bucyrus Republican, wrote: “ ‘Tort reform,’ however misguided and unconstitutional, was designed to protect doctors and corporate interests …. It turns out that ‘tort reform’ … also ensured that rapists and those who enable them will not have to pay in full for the damage they cause – even if they rape a child.”

Many Ohioans skip judgeship contests because ballots don’t list candidates’ parties – a crucial voter cue – and because judgeship candidates can’t say much. Elections are supposed to have consequences. But Ohio judicial elections can’t – if voters ignore them.
Thomas Suddes, a member of the editorial board, writes from Athens.

To reach Thomas Suddes: tsuddes@cleveland.com, 216-999-4689