Justice Speeches

Chief Justice Thomas J. Moyer

Reform Ohio\'s Judicial Selection System

Oct. 11, 2005

Recent news stories and commentary have wrongfully suggested that the justices of the Supreme Court of Ohio are influenced by campaign contributions. This is a damaging assertion that is not supported by the facts and undermines the foundation of our judicial system, which is built on the principle that judges are impartial and independent.

Though the perception that campaign contributions influence judicial decisions is false, it nonetheless persists, and that is why I believe we must change our system. I am calling on all Ohioans to support reforms, including a constitutional amendment to create an appointive-elective system for selecting our justices.

Ohio is one of only 20 states that elect all their judges at every level from the trial courts to the Supreme Court. Calls to change this system have ebbed and flowed through the years, arising on newspaper editorial pages after particularly nasty court races or high profile cases, and then subsiding.

The latest coverage suggesting that the Court is influenced by big contributors was generated by a series of news releases by a special interest group. The group demanded that five justices of the Supreme Court not participate in a case that will determine whether to affirm an order of the Public Utilities Commission approving a rate structure submitted by First Energy. The special interest group was not even a party to the case, and no motion for disqualification was filed by any of the actual parties, including the Ohio Consumer Counsel.

Campaign contributions will play no role in this case or any other case before this Court.

In fact, I have no idea of the total amount contributed to our campaigns by First Energy and their associates because I have neither the inclination nor do I take the time to pour through the lists of several thousand contributions to my four election campaigns and tally amounts contributed by any group or individual.

Had the interest group taken the time to provide comprehensive information to the news media, they would have found that at the proceedings at the Public Utilities Commission that produced the case before us, a number of entities opposed to First Energy\'s application appeared, and many of them were represented by lawyers or law firms that I understand have contributed to my four campaigns for election to the Supreme Court. I have no idea what the total amount of those contributions is, but I am reasonably certain that they total at least as much as the contributions from First Energy. That fact brings to mind the adage, "Some of my friends are for it; some of my friends are against it. I will vote for my friends."

The justices of the Court are frequently required to apply the law in a manner that requires them to vote against those who have supported them. Here are just a few examples:

In my 1992 campaign for re-election, I received contributions from PIE insurance interests. In 1993 and 1994, with no one seeking my recusal, I voted in two cases against the interests of PIE. In one of them, I authored the opinion.

In 1991, a unanimous Supreme Court with six justices voting, decided an election contest case that determined who would be Attorney General of Ohio. The Court applied the law and declared the Democrat to be the winner. Three justices of the Court were Republicans.

More recently, The Plain Dealer and The Columbus Dispatch endorsed the election or re-election of most of the five justices whose participation in the First Energy case has been questioned. These justices likely will seek the endorsement of those and other newspapers if they seek re-election. The endorsement of a major newspaper in a statewide campaign far exceeds the value of the purported contributions that have been made an issue by the interest group and some newspapers in the First Energy case. In two public records cases, one filed by The Cleveland Plain Dealer, the other by The Columbus Dispatch, a unanimous court applied the plain words of the Ohio open records statute that produced a result in both cases that was unfavorable to the newspapers. No party to the cases sought our recusal.

All of these points are offered to dismantle the false perception that this Court is anything but impartial. All that being said, the critics are right about one thing: Campaign contributions to judges are bad. They are bad not because they influence our decisions but because they lead people to believe that they do.

That is why Ohio should join the other states that select judges of their highest court in a manner that eliminates, or at least substantially diminishes, the perception of influence created by costly political campaigns. I have urged for years that Ohio amend its Constitution to select judges in an appointive-elective system. There are a number of options available, but some variation of what is often called the "Missouri Plan" should be considered. Under the system that I have proposed, justices would be appointed by the governor, who would choose from among three candidates proposed by a diverse, independent, and nonpartisan selection panel, a majority of whom would be nonlawyers. The justices would then stand for election after serving one or two years and, if retained, would complete the balance of a fixed term of 10 or 12 years. Interestingly, the Missouri Plan would have been called the Ohio Plan had it not been defeated on the statewide ballot here in 1938 and again in 1987.

The current system requires candidates for election to the Supreme Court to participate in raising substantial funds to be elected, and then they are subjected to criticism or urged to remove themselves from hearing cases involving contributors.

Short of a constitutional amendment, we have made progress and there is more we can do. The Supreme Court of Ohio has taken steps to reduce or eliminate the effect of campaign contributions, adopting strict contribution limits and reporting requirements for judicial candidates. Judicial candidates must also complete course work in campaign practices, finances and ethics.

Other proposals are now pending before the General Assembly that would reduce the need for costly campaigns by lengthening the term of most judicial positions. But more needs to be done if we are to eliminate the misguided perception that judges\' decisions are influenced by the need to raise campaign contributions.

There is a new glimmer of hope. Some legislative leaders and others who have not favored removing judges from political elections are now reassessing their positions on the issue. We must remove the money from the selection of justices of our highest court if we are to remove the perception that campaign contributions influence judicial decisions.

Thomas J. Moyer is the Chief Justice of the Supreme Court of Ohio.