The Mission: Saving the Rule of Law

A Disqualifying Statement by a Sitting Ohio Justice

Before I ever entered politics, I was a lawyer.

And one of the things I’ve always respected about the law is that the profession adheres to agreed-upon principles of ethics and fairness that apply regardless of how powerful a lawyer or jurist may be. These rules are drilled into us as law students, and as we study for the Bar. And every two years, we take (and pay for) Continuing Legal Education courses to re-learn all these rules.

No matter how important the matter at hand—the same rules and same principles apply.

And the principles are especially appropriate when it comes to judges themselves, because they are the guarantor that courts serve the role of being an independent and fair check and balance. And especially when it comes to matters of government, that is their most important function.

In a world of corrupt and broken politics, where politicians grow ever more comfortable violating the law or abusing power, those essential principles assuring that courts remain independent are more important than ever. Because at those moments, courts are the final (and only) backstop protecting the rule of law. So rules of judicial conduct aren’t little peccadilloes or niceties—they matter tremendously.

If courts lose their independence from those other branches of government—if courts simply become an extension of the political battle, as opposed to separate from it—then the rule of law ceases to exist. All you have is politics.

And at its worst, a politicized court serves to legitimize that breakdown of the rule of law. It enforces the lawlessness itself, while giving it the color of law. And that presents a truly dangerous situation.

Meltdown in Ohio

That dark picture is why the behavior around and by Ohio’s Supreme Court in recent years has so troubled me. Not just as someone involved in politics. But as a lawyer, as someone who teaches law, takes (and pays for) those CLE courses, and as an American who believes in the rule of law.

Since 2021 (after Ohio elected a truly independent and bipartisan court), Ohio has seen the following downward spiral to its highest court:

• the addition of party labels to the ballot for court races, and movement of those races to the top of the ballot, to affirmatively MAKE the Court partisan, done because the legislature did not like facing an independent court;

• threats of impeachment against a sitting Justice because she made decisions upholding the Ohio Constitution;

• the outright defiance of Court orders (seven times) by the legislature;

• the tainted appointment by Governor DeWine of an old political crony (the family’s have traded shady personal favors for years) to be a Justice—the first time in decades someone was appointed to the highest bench in Ohio with no judicial experience;

  

  This op-ed called the relationship between the DeWines and Deters “incestuous” — for good reason

• the consistent violation of the most basic notions of judicial ethics—including a son (Justice DeWine) ruling for his dad (Governor DeWine) in numerous cases; and a Justice (Deters, the appointed one) ruling in a case that his own chief clerk was personally involved in (a family trip with the DeWines, the cost of which the Court kept secret)

These maneuvers all have pushed in the same unhealthy direction—for the Ohio Court to be as partisan as all other politics of the state. And away from being a desperately needed check.

And after this institutional meltdown, no surprise, Court rulings of late have essentially done exactly what I described above—become extensions of lawless statehouse politics, legitimizing those bad acts. The two worst examples: allowing a special election to take place on a day (last August) that violated Ohio statute; and recently approving ballot language this November that inverts the meaning of the anti-gerrymandering Constitutional Amendment (Issue 1) on the ballot this year.

You even see the “legitimizing” role playing out in the latter case. Here’s the Ohio GOP Chair using the Supreme Court’s disgraceful opinion to prop up the party’s political messaging on Issue 1:

As a long-time and respected Ohio political observer wrote: “With their ruling, Chief Justice Sharon Kennedy and Justices Joseph Deters, Pat DeWine and Patrick Fischer debased themselves and did lasting damage to the court’s reputation.”

Deters’ Comments on Issue 1

But amid ALL of that, what Justice Joe Deters—he’s the unqualified crony appointed by the Governor—said the other day is perhaps the culmination of the downward spiral. An arrogant advertisement of just how bad it’s gotten.

He was asked about his views on Issue 1 (the anti-gerrymandering Constitutional amendment that would ban partisan gerrymandering and replace politicians from the districting process and with a panel of citizens.)

To be clear, any responsible judge knows that such a question requires that great care be taken with the answer. Because one of the judicial rules (Ohio Code of Judicial Conduct) I referred to above says the following:

And in case that isn’t clear enough, another rule also commands caution:

And since Issue 1’s meaning 1) was just before them; and 2) will likely come before the Court again, any responsible judge—who would of course know Rules 4.1 and 2.2 above—would say something like the following in response:

“As a judge, I can’t take a position on whether to vote for it or not.”

In fact, that’s what one current Justice—Mike Donnelly—did say in response to a reporter’s question about Issue 1.

What did Joe Deters, the political crony of DeWine who’d never before been a judge, say in response?

First, he said: “I think it’s kind of humorous to watch.”

That’s right—he thinks the topic of how the people safeguard their own democracy is somehow funny.

And remember—seven different times, the state legislature ignored rulings by the very Court he sits on. The current maps are illegal. That’s the only reason Issue 1 even exists—to correct that. So Issue 1 comes in the wake of outright lawlessness.

And this sitting Justice finds that funny.

When his laughter died down, he next said: “When the other side can’t win, they want to change the rules.”

He then went on to compare Issue 1 to federal court reform plans and calls to eliminate the electoral college.

To say the least, his answer didn’t abide by the judicial rules above. His words are not at all impartial. For two reasons:

First, they aren’t honest.

The truth is, Issue 1 has been driven by non-partisan good government groups such as the League of Women Voters and Common Cause. It’s being led by the former Republican Chief Justice and Lieutenant Governor. It’s been put on the ballot by hundreds of thousands of Ohioans of all political views—pursuant to the very process the Ohio Constitution grants to Ohio citizens to set their own state’s Constitution. It has nothing to do with the national issues he mentioned.

So here, a sitting Supreme Court Justice is not only commenting on an issue he should stay out of, he’s providing a wholly dishonest account of the issue—amplifying the same dishonest spin we’ve heard from the GOP chair, Frank LaRose and countless other partisan state reps who are today sitting in illegally gerrymandered districts.

But as bad as it is, as a matter of judicial ethics, the fact that Deters is lying isn’t even the worst part.

Because in his statement, Deters also characterizes who HE is—a partisan. He reveals himself.

In his own words, he sits on the “the other side” of all of those citizens whose intentions he maligns. He is openly declaring his open bias right then and there. He is making it clear that HE is an extension of the political battle.

And he’s so contemptuous of those he considers on the “other side” of him, he finds what they are trying to do “humorous.”

He says this knowing full well that he may be ruling on this language as a Justice—and already did once, only weeks ago, in a decision that carries a tremendous potential impact on the matter. Saying what he did shows how little he thinks of the rules of judicial conduct meant to assure he’s independent.

He’s supposed to be impartial, but he has just declared that he stands on the “other side.”

Given his obvious partiality, he should never again take part in any ruling involving Issue 1. And he also just tainted even further the shameless ruling on the ballot language from a few weeks back. But given the lack of ethics practiced routinely by this Court majority, he of course will not recuse from the case.

Bottom line: when politicized judges rule in cases in which they publicly stood on “the other side,” the rule of law is simply gone.

Which means we only have one choice.

We must defeat Deters. We must flip the court. And we have the opportunity to do in the next month.

And I hope it’s clear now that defeating Deters and flipping the Court are not simply about winning three races.

They are about saving the rule of law itself in the state of Ohio.

Here’s How to Help…

To help get this done, please support the three candidates running for the Ohio Supreme Court.

They are Justice Melody Stewart (the incumbent who Deters is now running against, as opposed to running for the seat he was appointed to), Justice Mike Donnelly, and Judge Lisa Forbes.

You can support their effort by giving HERE. You’ll see we’ve already raised $25K to that link. Let’s double it!

Then please share this post so everyone you know understands the stakes of these three races.

For the rule of law, and for democracy itself.

Thank you!