Ohio Supreme Court for sale to highest bidder


Richard Moore

Original source URL:

October 1, 2006

Campaign Cash Mirrors a High Court¹s Rulings

COLUMBUS, Ohio ‹ In the fall of 2004, Terrence O¹Donnell, an affable judge with 
the placid good looks of a small-market news anchor, was running hard to keep 
his seat on the Ohio Supreme Court. He was also considering two important 
class-action lawsuits that had been argued many months before.

In the weeks before the election, Justice O¹Donnell¹s campaign accepted 
thousands of dollars from the political action committees of three companies 
that were defendants in the suits. Two of the cases dealt with defective cars, 
and one involved a toxic substance. Weeks after winning his race, Justice 
O¹Donnell joined majorities that handed the three companies significant 

Justice O¹Donnell¹s conduct was unexceptional. In one of the cases, every 
justice in the 4-to-3 majority had taken money from affiliates of the companies.
None of the dissenters had done so, but they had accepted contributions from 
lawyers for the plaintiffs.

Thirty-nine states elect judges, and 30 states are holding elections for seats 
on their highest courts this year. Spending in these races is skyrocketing, with
some judges raising $2 million or more for a single campaign. As the amounts 
rise, questions about whether money is polluting the independence of the 
judiciary are being fiercely debated across the nation. And nowhere is the 
battle for judicial seats more ferocious than in Ohio.

An examination of the Ohio Supreme Court by The New York Times found that its 
justices routinely sat on cases after receiving campaign contributions from the 
parties involved or from groups that filed supporting briefs. On average, they 
voted in favor of contributors 70 percent of the time. Justice O¹Donnell voted 
for his contributors 91 percent of the time, the highest rate of any justice on 
the court.

In the 12 years that were studied, the justices almost never disqualified 
themselves from hearing their contributors¹ cases. In the 215 cases with the 
most direct potential conflicts of interest, justices recused themselves just 9 

Even sitting justices have started to question the current system. ³I never felt
so much like a hooker down by the bus station in any race I¹ve ever been in as I
did in a judicial race,² said Justice Paul E. Pfeifer, a Republican member of 
the Ohio Supreme Court. ³Everyone interested in contributing has very specific 

³They mean to be buying a vote,² Justice Pfeifer added. ³Whether they succeed or
not, it¹s hard to say.²

Three recent cases, two in Illinois and one in West Virginia, have put the 
complaints in sharp focus. Elected justices there recently refused to disqualify
themselves from hearing suits in which tens or hundreds of millions of dollars 
were at stake. The defendants were insurance, tobacco and coal companies whose 
supporters had spent millions of dollars to help elect the justices.

After a series of big-money judicial contests around the nation, the balance of 
power in several state high courts has tipped in recent years in favor of 
corporations and insurance companies.

In the 2002 Ohio judicial election, for example, two candidates won seats that 
year on the seven-member court after each raised more money than one of the 
candidates for governor that year.

Corporate Giving Increases

Judges are required by codes of judicial ethics to disqualify themselves 
whenever their impartiality might reasonably be questioned over financial or 
other conflicts. Even owning a few shares of stock in a defendant¹s company or 
seeing a relative¹s name on a brief generally requires automatic 

But there is an exception to this strict rule: campaign contributions. Very few 
judges in the states that elect the members of their highest court view 
contributions as a reason for disqualification when those contributors appear 
before them.

Many judges said contributions were so common that recusal would wreak havoc on 
the system. The standard in the Ohio Supreme Court, its chief justice, Thomas J.
Moyer, said, is to recuse only if ³sitting on the case is going to be perceived 
as just totally unfair.²

Duane J. Adams, a plaintiff in one of the class-action suits heard by Justice 
O¹Donnell, concerning defective cars, said he questioned the impartiality of the
justices who ruled against him. Mr. Adams had sued DaimlerChrysler under the 
state¹s lemon law, and he grew angry when told that the company¹s political 
action committee had given money to justices in the majority.

³At the very least, it¹s a conflict of interest,² Mr. Adams said. ³These 
gentlemen, they should be prosecuted for what I consider is taking a bribe.² He 
and the other plaintiffs did not contribute, but their lawyers gave to the 
campaigns of five of the justices.

Precisely what contributors want or get for their money is unclear. Some 
contributors say they have no agenda beyond ensuring that able and independent 
judges are elected. Others surely hope to influence the justices¹ votes in 
particular cases.

The middle ground, advanced by groups representing business, labor and 
plaintiffs¹ lawyers, is to support justices who hold views similar to their own.
³Various interests see voting patterns,² Chief Justice Moyer said. The alignment
between contributions and votes, he said, is a matter of shared judicial 

If that is right, contributors are not trying to buy votes in particular cases. 
But they are trying to buy seats on the court.

And they are succeeding. Not long ago, the Ohio Supreme Court was controlled by 
liberal justices whose campaigns had been financed in large part by plaintiffs¹ 
lawyers and unions. Now that business groups are outspending their adversaries, 
the court has become dominated by more conservative justices. And the court¹s 
decisions are no longer markedly sympathetic to people claiming injuries.

Justice O¹Donnell, a Republican, won his seat with the help of big contributions
from the insurance, finance and medical industries. He is running for 
re-election this year, and his opponent, Judge William O¹Neill, is making 
contributions an issue.

³We have to stop selling seats on the Ohio Supreme Court like we sell seats on 
the New York Stock Exchange,² said Judge O¹Neill, a Democrat on the 11th 
District Court of Appeals in Warren, in northeast Ohio. He says he will not 
accept contributions.

Justice O¹Donnell, who has raised more than $3 million since 2000, refused to be
interviewed for this article despite more than a half-dozen requests to his 
campaign, his chambers and the court. In a statement, he said, ³Any effort to 
link judicial campaign contributions received by a judicial campaign committee 
for major media advertising to case outcomes is misleading and erodes public 
confidence in the judiciary.²

³A judge,² the statement said, ³may fairly and impartially consider matters 
despite receipt of the campaign contribution by the campaign committee.²

Interest groups play a powerful and generally accepted role in races for 
legislative and executive positions. But their increasing role in identifying 
and supporting judicial candidates is at odds with the traditional concept of 
what judges do.

³The role of the judge and the role of the legislator are completely different,²
said William K. Weisenberg, an Ohio State Bar Association official. ³You want a 
legislator to vote the way you would vote. When you go into court, you want 
someone to listen to the facts and decide the case on the facts and the law. We 
don¹t want the umpire calling balls and strikes before the game has begun.²

Influencing the Bench

Many judges concede that sitting on their contributors¹ cases creates the 
perception that their votes can be bought. But in public, at least, most insist 
the perception is wrong.

³All the surveys I¹ve seen indicate that generally 75 percent of the people 
believe that contributions influence decisions,² said Chief Justice Moyer, a 
Republican. But when asked if contributions played a role in courts¹ decisions, 
he said: ³I don¹t believe they do. I know they don¹t for me.²

That view is not universally held.

³It¹s pretty hard in big-money races not to take care of your friends,² said 
Richard Neely, a retired chief justice of the West Virginia Supreme Court of 
Appeals. ³It¹s very hard not to dance with the one who brung you.²

Indeed, according to a survey of 2,428 state court judges conducted in 2002 by 
Justice at Stake, a judicial reform organization, almost half said campaign 
contributions influenced decisions. And more than half agreed that ³judges 
should be prohibited from presiding over and ruling in cases where one of the 
sides has given money to their campaign.²

The Times study explored the influence of money on judicial decision-making by 
asking two basic questions about the Ohio Supreme Court. How often did it hear 
cases involving major contributors? And how did justices vote in those cases?

The study considered only cases that were both significant and difficult. It 
excluded procedural decisions, including whether to hear or reconsider a case. 
And only divided cases ‹ those in which there was at least one dissent ‹ were 
considered, because those presented the most contentious legal issues. In the 12
years ended this spring, there were about 1,500 such decisions.

The study looked at contributors who gave $1,000 or more in the six years 
preceding the decision, the term length for justices.

It also considered, for the most part, only the contributors most directly 
affected by a ruling: the parties themselves and groups that filed supporting 
briefs urging the court to rule a certain way.

Contributions from lawyers were excluded from the study¹s main findings. Lawyers
are far more likely than other contributors to give to judges across the 
ideological spectrum, and ‹ because their firms often handle a wide variety of 
cases ‹ they generally do not have the intensely focused interest in the outcome
of a particular case that their clients do. More than 200 times, moreover, 
justices sat on cases after receiving contributions from lawyers on both sides.

The court¹s decisions, the study found, were rife with potential conflicts. In 
more than 200 of the 1,500 cases, at least one justice cast a vote after 
receiving a significant campaign contribution. On scores of occasions, the 
justices¹ campaigns took contributions after a case involving the contributor 
was argued and before it was decided ‹ just when conflicts are most visible and 

Contributors did well with those whose campaigns they had financed. Of the 10 
justices in the Times study, 6 sided with contributors more than 70 percent of 
the time. Justice O¹Donnell, who has been on the court for only three years and 
has participated in fewer decisions than most of the justices studied, had the 
highest rate ‹ 91 percent.

Lawyers who gave money were not nearly as successful. Five justices voted for 
the positions represented by these contributors half of the time, and the 
average rate was 55 percent. Recusals in cases involving contributors were all 
but unheard of.

Six of the seven sitting justices ‹ all except Justice O¹Donnell ‹ agreed to 
interviews for this article, and all said contributions had not affected their 

³There is a lot more to the story than the cold numbers suggest,² said Justice 
Maureen O¹Connor, a Republican who voted for her contributors 74 percent of the 
time. Some cases are more significant than others, she said. Similarly, she and 
other justices criticized the decision to omit from the study the court¹s terse 
rulings on whether to hear a case at all. Many of these decisions are routine or
trivial, however, and the rulings themselves do not contain sufficient 
information to be readily categorized.

In his statement, Justice O¹Donnell said that ³selectively screening a limited 
number of case decisions results in a skewed outcome.² He did not elaborate.

But Justice Pfeifer, who voted for his contributors 69 percent of the time, 
backed the study¹s methodology. ³I quite frankly can¹t think of another way,² he
said. ³You¹re using the only yardstick that I¹d know of that you can use.²

Several justices said they found Ohio¹s money-fueled judicial elections 
distasteful and troubling. They pointed out, though, that Ohio law has 
mechanisms to limit contributions and to insulate justices from contributors, 
including a ban on personal solicitations by the justices. Some said they tried 
to avoid learning the identities of their many contributors, though they 
conceded it could sometimes be unavoidable. Justice Evelyn Lundberg Stratton, 
for instance, said she had attended 50 fund-raisers during her last campaign.

None of the justices interviewed suggested that more frequent recusals from 
contributors¹ cases would be a positive step rather than a recipe for havoc. 
Last year, though, five justices did recuse themselves from a case involving a 
Republican fund-raiser, Thomas W. Noe. They had taken $23,510 from Mr. Noe and 
his wife. Appeals court judges filled in for the justices.

³It is not necessary for a judge to recuse himself just because an attorney or 
party has contributed to his campaign,² Chief Justice Moyer said in a statement 
at the time. ³However, this is a high-profile case with political implications 
and with potential personal consequences for the campaign contributor in 

Some legal experts say that recusal should be the rule and not the exception. 
Indeed, in 1999, the American Bar Association revised its Model Code of Judicial
Conduct to require judges to disqualify themselves if they received campaign 
contributions of a certain amount from a party or its lawyer. But the bar 
association did not name an amount, leaving it to the states should they adopt 
the code. No state has adopted it.

Unlike campaign contributions, direct gifts to judges, even relatively small 
ones, almost always require disqualification.

In 2002, for instance, the Ohio Supreme Court reprimanded a lower-court judge 
for accepting football tickets from Stuart Banks, a lawyer who had appeared 
before the judge. Yet three of the justices who issued the reprimand had 
accepted at least $1,000 each in contributions from Mr. Banks in the previous 10
years. Those same justices also sat on several cases in which Mr. Banks appeared
before them.

Ruling on a Lemon Law

From the day he leased it in 1996, when it leaked transmission fluid all over 
the garage, Duane J. Adams¹s Dodge Caravan was nothing but trouble.

³My wife went to start it at the grocery store, and the battery blew up,² Mr. 
Adams said. ³We didn¹t feel safe in it.²

Mr. Adams invoked Ohio¹s tough lemon law, which calls for a refund for defective
cars. DaimlerChrysler took the car back after an arbitration found the car 
defective but deducted a $6,000 ³mileage fee.²

Mr. Adams and other Ohio car buyers filed a class-action lawsuit against three 
car companies that routinely imposed such mileage fees in settlements and 
arbitrations. Drawing on a 1996 appeals court decision that banned the fees and 
the fact that the Ohio Legislature had rejected such fees when it enacted the 
law, an appeals court allowed the case to go forward in 2003.

In the first week of November 2004, while the case was pending in the Ohio 
Supreme Court, the political action committee of DaimlerChrysler, a defendant, 
gave $1,000 each to the election campaigns of Chief Justice Moyer and Justice 
O¹Donnell. Two months earlier, the committee of a second defendant, Ford, gave 
those same justices $500 apiece. From 2000, when the suit was filed, to 2004, 
when it was decided, the affiliates of the three companies gave $15,000 to four 
of the justices on the case.

Still, all four of the justices continued to sit on the case, and all of them 
were in the majority in the 4-to-3 decision issued on Nov. 10, 2004, just days 
after the last set of DaimlerChrysler contributions.

The justices ruled that the plaintiffs had voluntarily accepted settlement 
offers or arbitration awards with the mileage fee deducted. The ban on the fees 
applied only to lawsuits filed in court and not disputes resolved less formally,
the majority said.

The three dissenting justices said the majority¹s ruling gave the plaintiffs an 
impossible choice: to pursue a lawsuit that could cost more than the car itself 
or to accept the reduced sum.

Elaine Lutz, a spokeswoman for DaimlerChrysler, defended the company¹s actions. 
³The contributions that companies¹ PAC¹s make are driven by the campaign 
calendar, not the judicial calendar,² Ms. Lutz said. Candidates for the court 
may accept contributions for about a year before an election and four months 

Lawyers for Ford also said it complied with Ohio law. ³By definition,² said one 
of the lawyers, John Beisner, ³if you have an elective system, the judges are 
going to go to those with the greatest interest in the system to get their 

Car company lawyers said the contributions were merely an effort to level the 
field against big-spending plaintiffs¹ firms. In the lemon-law case, though, the
overall contributions were tilted heavily in favor of the companies and their 
own lawyers.

Mr. Adams and the other named plaintiffs gave no money to the justices. While 
the case proceeded, their lawyers contributed about $12,000 to five of the seven
justices in the case, dividing their money roughly evenly between a justice who 
voted for them and several who voted against them. The law firms representing 
the companies gave only to the justices in the majority, for a total of more 
than $115,000.

That was consistent with national trends. ³The current wars are epic battles 
between businesses and trial lawyers,² said Bert Brandenburg, the executive 
director of Justice at Stake. ³Over the past half-decade, business groups are 
outraising and outspending trial lawyers.²

A week after the lemon-law case was decided, the court announced another ruling 
in favor of a business. This one halted a class action to support the medical 
monitoring of workers who had been exposed to beryllium, a potentially toxic 
substance. The vote was 5 to 2. Employees and the political action committee of 
the parent company of the defendant, Brush Wellman, gave a total of $5,700 to 
four justices, more than $2,600 of it after the case was argued and before it 
was decided. All four were in the majority.

Patrick Carpenter, a spokesman for Brush Wellman, said its political action 
committee ³contributes to deserving candidates in the interest of advancing good
government² and noted that the workers¹ lawyers had also given to the justices. 
The lawyers gave about $20,000 to several justices, though most voted against 
the workers. Mr. Carpenter also said the company had lost a 2002 decision by a 
4-to-3 vote, before the court¹s conservative wing took over.

Michael Fincher, a 48-year-old roofer who was a plaintiff in the beryllium suit,
said the contributions meant he had not received impartial justice. ³I don¹t 
think it¹s appropriate, period,² Mr. Fincher said.

Screening the Candidates
Business groups have turned picking potential justices into an art.

³They study very carefully the field of potential candidates, really studying 
their backgrounds and what makes them tick, and picking a person who is liable 
to be leaning their way,² said Justice Pfeifer, who has shown an independent 
streak in his 14 years on the court. He did not name names.

Justice O¹Donnell¹s campaign materials say he is ³rooted in law enforcement² as 
the son a Cleveland police officer. They also note that he served as a law clerk
and taught elementary school students and paralegals. In 20 years on lower 
courts before his appointment to the Supreme Court in May 2003, he created a 
long paper trail of conservative decisions. On the Supreme Court, he has helped 
consolidate its transformation from a court that routinely ruled against 
corporations and insurance companies to one quite friendly to business 

In 2004, running to complete the six-year term to which he had been appointed, 
Justice O¹Donnell had a million-dollar advantage over his opponent that led to 
an Election Day rout.

Now that same opponent, Judge O¹Neill, is back for a rematch. His campaign 
slogan: ³No money from nobody.²

Contributing to candidates for states¹ highest courts can be money well spent in
at least one sense: the courts are very powerful. They have the last word on 
most of the issues that come before them. The United States Supreme Court has no
jurisdiction over cases that present pure questions of state law, and in any 
event it hears only about 80 cases a year.

The states use various methods to choose their judges. The approaches are often 
some combination of nominating commissions, governors¹ and legislative action, 
and popular voting, including partisan contests and retention elections. 
Political machines still play a role in some states. In the federal system, by 
contrast, judges are appointed by the president, confirmed by the Senate and 
awarded lifelong tenure.

³Although there may be no good method of selecting and retaining judges, there 
is a worst method, and Ohio is among the states to have found it,² Paul D. 
Carrington and Adam R. Long wrote in a 2002 study of the Ohio Supreme Court in 
the law review of Capital University here in Columbus. ³That worst method is one
in which judges qualify for their jobs by raising very large sums of money from 
lawyers, litigants and special interest groups, and retain their offices only by
continuing to raise such funds.² The problem, the authors found, is not a new 
one, but one that grows with the sums involved.

Ohio started electing judges in 1851, and the system seems unlikely to change. 
Voters overwhelmingly rejected a proposed return to an appointive system in 
1987. In the 1980¹s, a campaign for a seat on the Ohio Supreme Court cost 
$100,000, compared with the $2 million a candidate may raise and spend these 

Much of the recent spending came from business groups furious with what they 
called a liberal ³Gang of Four² on the court after a pair of 1999 decisions. One
of the decisions struck down a law revising the treatment of injury cases. The 
other interpreted employers¹ insurance policies broadly to cover some 
off-the-job injuries.

In 2000, business groups mounted a multimillion-dollar campaign to unseat 
Justice Alice Robie Resnick, a Democrat who wrote the first decision and joined 
the second. One advertisement showed a female judge switching her vote after 
someone dropped a bag of money on her desk.

Her opponent was Judge O¹Donnell. He refused to denounce the attack 
advertisements, which seemed to backfire with voters. Justice Resnick won the 
election with 57 percent of the vote.

From that election on, ³Ohio became a poster child for everything that was wrong
with judicial elections,² said Mr. Weisenberg, the Ohio State Bar Association 

Money poured in, from political parties, from trial lawyers and especially from 
business interests. Contributions from people and entities affiliated with the 
finance and insurance industries totaled more than $800,000 in 2004. Doctors and
the health care industry contributed more than $440,000.

The Balance of Power Shifts

Interest groups on the other side give, too, and the justices they support 
overwhelmingly vote their way. But Justice Pfeifer says the balance of financial
power has shifted to business groups.

³I don¹t care how well a trial lawyer does or how big a pot a labor union has,² 
he said, ³they can¹t begin to match the business corporations. It¹s not a fair 

Justice Stratton, a Republican, said the recent contributions from business 
groups were a predictable consequence of a series of rulings ³very strongly in 
favor of trial lawyers.²

³You only have the big money coming out,² she said, ³when the court has swung 
too much to the left or to the right.²

In 2002, Lt. Gov. Maureen O¹Connor, a Republican, won a seat on the court, 
replacing a more liberal Republican justice and altering the balance. Her 
campaign took more than $330,000 from affiliates of insurance companies and 
medical groups. Not long after she joined the court, Justice O¹Connor wrote the 
opinion that overruled the 1999 insurance decision. Only four years after the 
court ruled that employers¹ insurance policies covered many off-the-job 
injuries, it reversed course. ³It serves no valid purpose to allow incorrect 
opinions to remain in the body of our law,² Justice O¹Connor wrote for the 
majority. The vote was 4 to 3.

The shift in personnel had a prompt impact on other cases, too. Since then, law 
firms that work mostly for plaintiffs have fared poorly in the court. A look at 
a sample of 14 big plaintiffs¹ firms showed that they won 64 percent of the 
cases in the study before 2003. In the next three years, after the rise of the 
court¹s conservative wing, their success rate dropped to 17 percent. Since 1995,
Ohio has imposed campaign contribution limits. They are $3,000 from individuals 
and $5,500 from organizations for each judicial election. Primary and general 
elections are counted separately.

A Critic Takes On the System

But, depending on how donations from individuals and political action committees
are counted, the limits do not stop some businesses from making very large 
aggregate contributions. Affiliates, employees, officers and directors of the 
Cincinnati Insurance Company, for instance, gave more than $200,000 to Ohio 
Supreme Court candidates from 1998 through 2004.

Joan Shevchik, a spokeswoman for the parent company of Cincinnati Insurance, 
Cincinnati Financial Corporation, cited the effort to overturn the 1999 decision
as a reason for the contributions, but emphasized that the corporation itself 
gave nothing. ³As insurance professionals,² she said, ³each of us sees up close 
the immediate impact that the Ohio Supreme Court has on the industry, our 
company and our policyholders.²

There is a small printing press in the garage of Judge O¹Neill. In the evenings,
he and his children produce fliers for a long-shot no-money campaign for Justice
O¹Donnell¹s seat on the Ohio Supreme Court.

³We¹re going to do a million pieces for $4,000 from my pocket,² Judge O¹Neill 
said, explaining that he will not accept a penny in contributions. Even some of 
his supporters view his effort as quixotic, notwithstanding the higher ratings 
Judge O¹Neill gets from many Ohio bar associations.

³They¹re out soliciting the next million dollars to beat me,² he said. ³The 
insurance industry, the manufacturers and now the doctors treat the Ohio Supreme
Court as a personal piece of property.²

Justice Resnick, the last Democrat on the court, is retiring this year, and her 
seat is also open, making an all-Republican court next year a distinct 

Marc Dann, a Democratic state senator running for attorney general, said Judge 
O¹Neill¹s strategy might have been driven by necessity as well as principle.

³Best case,² Mr. Dann said, ³maybe he goes to the plaintiff¹s bar and labor 
unions, and maybe he raises $300,000. To do a good week of TV in Ohio is 

Judge O¹Neill¹s assertion that seats on the Supreme Court are for sale 
infuriates many in the legal establishment in Ohio, and in July 2004 the 
Disciplinary Counsel of the Ohio Supreme Court began an investigation into 
whether Judge O¹Neill had violated judicial ethics by making similar statements 
in the last campaign.

Judge O¹Neill laughed when asked if the investigation worried him.

³I am a Vietnam veteran, and I lost my wife 10 years ago,² he said. ³I raised 
four kids by myself. When you talk about fear, I fear big things in life. Being 
hauled before a disciplinary counsel does not qualify.²

For the time being, a federal judge has suspended the investigation on First 
Amendment grounds. If the Ohio Legislature is troubled by Judge O¹Neill¹s 
conduct, the federal judge, Ann Aldrich wrote, ³the proper solution is to stop 
electing judges and make state judgeships appointed offices.²

Judge O¹Neill disagreed. He likes elections, he said.

³We have more authority over people¹s lives than anyone else in elected office,²
he said. ³We decide who goes to jail and who gets out of jail. We decide what 
happens to your life savings after you die. We decide whether or not you will be
permitted to finish raising your child. I can¹t think of any other industry that
has a more profound impact on people¹s lives. And it is arrogant at best that 
some committee should make this appointment.²

But Chief Justice Moyer said the flaws in Ohio¹s approach were the product of 

³In a perfect world,² he said, ³you would have justices being selected not based
on the amount of money their campaign committees can raise from various 
interests, but on their character and record ‹ and somewhat on judicial 
philosophy, certainly, but in a more abstract way.²

Adam Liptak reported from Columbus, Ohio, and New York, and Janet Roberts 
reported from New York. Mona Houck contributed reporting from New York.

Copyright 2006 The New York Times Company

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