In Ohio, opinions often differ on when a judge becomes a ‘candidate’


Associated Press

COLUMBUS

Then-Ohio Supreme Court Justice Bill O’Neill’s decision last year to remain on the court well after announcing his bid for the Democratic gubernatorial nomination prompted a storm of controversy. Response to the court’s proposed fix was less enthusiastic.

Only six people submitted comments in response to a proposal to clarify Ohio’s rules governing the legal profession to make clear that sitting judges who launch campaigns for non-judicial office must step down from the bench immediately.

Court spokesman Ed Miller said justices are weighing all the comments and haven’t yet set a date for released revisions.

The feedback, obtained by The Associated Press through a public records request, ranged from praise to constructive input to derision.

“There is absolutely no reason to change the current application,” wrote commenter Kim Beem. “Justice O’Neill used the rule as it was designed. Changing it now would simply serve to create unnecessary questions about O’Neill’s approach. This change is clearly political in an effort to discredit a liberal justice who happens to be a Democrat. It’s a shamefully childish approach.”

O’Neill, who lost his bid in the May primary, had announced his candidacy last Oct. 29 and set a retirement date for months later, Jan. 26.

Suggestions that he should step down began immediately, as lawyers around the state – including Chief Justice Maureen O’Connor – pointed to the prohibition against campaigning for nonjudicial office while acting as a judge.

O’Neill insisted that he wasn’t yet a “candidate” under Ohio’s rules of judicial conduct because he hadn’t yet filed the necessary paperwork. Opponents of O’Neill’s approach – including lawmakers and some other statewide candidates – argued he was clearly engaging in campaigning and the paperwork shouldn’t be the bar for candidacy.

State Rep. Niraj Antani, a Miamisburg Republican, started formal removal proceedings against O’Neill for violating the rule, though O’Neill had retired by the time the ball got rolling.

The proposed rule change makes explicit that a judge becomes a “candidate” when the judge has made a public announcement of candidacy, declared or filed as a candidate, or begun soliciting contributions.

In his public comment, David Gormley, of Delaware County, said perhaps justices could use the gathering of signatures on candidacy forms as the trigger for leaving the bench. He said some county party leaders have remained on the central committee while gathering signatures for a judicial seat.

“Some persons take the view that those folks are not in fact running for a judicial office until the petition is filed with the county board of elections,” he wrote. “But I think that the very act of gathering petition signatures indicates that the person is acting as a judicial candidate” and so should resign.

Eric Brewer of Cleveland told justices in his comments that changing the definition of a candidate is a job for the General Assembly.

“The idea that the court would try to redefine ‘candidacy’ as a ‘rule’ to fit the whims of the judiciary is constitutionally offensive,” he wrote.

In her comments, Ohio State Bar Association CEO and Executive Director Mary Amos Augsburger said it would be good to spell out, for example, that having a campaign logo, website and policy platform “constitute public actions taken in furtherance of a candidacy,” while establishing an exploratory committee or talking with potential supporters, donors or political party leaders about a run do not.

But she urged justices not to define “candidate” too narrowly in the final rule. “[I]t should be made clear that these just that – examples – and should not be interpreted to be a complete list of all public actions that could impact whether someone is deemed a candidate.”

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