The law license of Attorney Olivito was suspended by the Ohio Supreme Court
last summer [July of 2006].
In the fall, both the northern and southern district federal courts of Ohio heard what is called
show cause motions on why his license should NOT be suspended in the various related Federal Courts for the same period of time, in what is commonly referred to as a reciprical discipline
issue process.
The outcome in each of these districts resulted after some additional oral in person presentations were made respectively to each district administrative bodies and/or single court -in the southern district- as to why the same exact suspension that the State Supreme Court
ought NOT to be followed nor supported in the U.S. courts where Attorney Olivito had focused most of his practice and particularly his critical civil rights police and municipal liability claims.
Was there any basis for Olivito to so argue that his federal license ought NOT to be subjected to the same process and result that the state supreme court applied? Was there any standard of review that the federal courts ought to have followed and should follow in making any such reciprical disciplinary decision? Did those courts 'hear' this argument and apply the federal law of such review and the long established independent review required by the reciprical disciplinary federal case law, in this particular instance and in this case?
These are the questions and issues to now which this blogger will turn his attention and the focus of his arguments before both the Northern and Southern Districts of Ohio.
While the decisions were ultimately made against him on both counts, the manner in which these decisions were reached are both instructive and illuminating in exactly how the federal courts in Ohio have been defaulting their own independent judgment and oversight and even their own judicial independence to the State Supreme Court as a matter of course, without much thought, or legal understanding or even knowledge of the applicable standards, even according to their own administrative judges who heard such arguments, at least in one critical district.
We will explore this fact and how this revelation in turn played a pivitol role in the making of the decision against Olivito in the Southern District and how the very reviewing judge did not herself, even understand, much less apply the proper applicable standard, even according to the record of the two very lengthy oral hearings held in Cincinnati last fall, in relation to his particular show cause reciprical disciplinary hearings before her.
While this is true, there will be a clear focus on the merits of the case and how and why the court decided its decisions and whether or not they followed the facts, the proper reviewing standards and what if any, did these courts actually do in relation to the clear established law relating to the same, as it applied to the federal judiciary when it is to review a close case of state lawyer disciplinary actions.
In the process, even more interesting and noteworthy issues will be discussed as well and these along with the clear misguided legal findings and applications of their decision will be critiqued. Timing is everything as many say, in both the arts and entertainment fields.
The same can be said, in the experience of a veteran civil rights advocate and how the federal courts of Ohio timed their decisions in relation to Attorney Olivito's reciprical discipline, from a critical standpoint which was raised by Mr. Olivito particularly before Sandra Beckwith of the Cincinnati district administrative court in relation to his ongoing civil rights cases.
What were the arguments that Mr. Olivito utilized and openly presented inside a three hour hearing before Ms. Beckwith?
What were some of the legal standards sought to be applied and what were some of the critical due process concerns that Attorney Olivito raised within his motion contra the application of the state Supreme Court's heavy sanctions are matters which need a public airing and perhaps a another critical look or review.
The related motions created and used by Attorney Olivito will themselves will be posted by link here, soon. The various supporting documentation will also be noted. But first we will turn to the actual theories and arguments and the many factual variances which were clearly referenced, documented and presented inside each forum , but were either completely discarded, ignored and/or simply clearly miscontrued and muted inside each district's formal opinions and decisions.
One Kudro needs to be given to Sandra Beckwith, the Cincinnati district court; At least she allowed for two opportunities, at length, for Attorney Olivito to make a record and to detail his arguments orally and present his "case" before her, before simply ignoring most of what he argued effectively before her for hours, twice, first without ANY opposition or opposing counsel and the secod time, without any counsel from the Mahonining County Bar Association present, much less arguing on behalf of anything in defense of the State of Ohio's Supreme court's disciplinary decision related to the underlying issues which resulted in Olivito's 'two year, one year' actual suspension arising out of an isolated one time, signature issue case, involving a bankruptcy for clients who not only obtained everything they sought from the legal services of Mr. Olivito, for very little pay, but also had the same original bankruptcy petition prepared by Mr. Olivito and his staff, ---the very signatured document ---pass itself for the discharge inside a federal bankruptcy court and magistrate's review, with their clear and direct knowledge that the signature was that of Mr. Olivito's, signed in an derived manner, in furtherance of his clients interests.
There is much more, but what she did, is at least, allow for process; Ms. Beckwith findings are however something from a novel that does not seem to be written from the same facts that gave rise to the story. Its competely off center, imbalanced and does not do even some justice to Attorney Olivito's arguments of fact and the applicable law and appropriate standards of review which she obviously and admittedly was not even aware of, before Olivito educated
both her and the entire southern district itself as to the significant judicial independence that
the federal district and appellate courts have in making such decision as opposed to
'sucking up' administratively to oftentimes, wayward and niggardly produced state supreme court related [lawyer] disciplinary decisions.
Despite her adverse and strongly worded findings against his position, Attorney Olivito gives her recognition for one thing: in her adversity and obviously bizarre one sided findings, she did more for the "appeareance of fairness of propriety" of the administration of justice.....than did the northern district which simply forgot its own policies and its own administrative rules, much less the very applicable deep juriprudence and standard of review, in making its rush to judgment against Attorney Olivito, and issued its findings and decision, without ANY formal in court, final show cause hearing before the full court whatsoever, much less issue ANY formal opinion of why it applied the kind of related suspension it did, in a case which its own very Northern District Bankrutpcy Court of Youngstown's office did not find that this lawyer had done any thing remotely deserving of the kind of thing that the fop endorsed and supported process inside the local and state supreme court of Ohio did against Attorney Olivito.
The northern district court dispensed with the notion it had any obligation to place its finding and legal conclusions in any formal opinion and just issued a "decision"drained of any publicly stated reasoning and granted its disciplinary decision mirroring the best intentions of a few particular judge[s] which innured to the stated purpose and ideas of a particular district court
inside the northern District of Ohio, in which various civil rights cases are being litigated against the City of Warren, Ohio.
The blog here will begin to detail this process; hold on, its a ride into the world of "A Civil action" 'Ohio' indeed but its just much more personal and even more hidden, than that sad tale itself, ever could make its readers imagine.
Just like the real world plaintiffs and the plaintiff's 'suffering' counsel came face to face with the literal "wall of injustice" and was confronted with the Kalfequese world of federal procedural short cuts, so does the experience of civil rights attorney Richard Olivito come into a similar
material clash with the real world of state and federal judicial nullification and masked
agendas and less then genuine realities of law, posing as impartial independent judicial
fact based decisions.
[Any mildly interested student of america's legal system, ought to read the book as a primer,
"A Civil Action" by Jonathen Herr...its a primer on how major plaintiff counsel and their client's needs will be subverted in their search for justice inside the highest and most unique and powerful courts of this nation which is supposedly a bastion for democratic search for egalitarian justice, if indeed, it is... ]
here it goes...
Saturday, September 8, 2007
Sunday, September 2, 2007
Supreme Court of Ohio and its "Findings of Fact" in Mahoning County Bar Association v. Richard Olivito
The Ohio Supreme Court suspended my law license in the summer of 2006, in late July, July 28th to be exact, the exact same day the two open seat republican candidates for that high court were publicly endorsed by the state FOP. These two republican candidates would go on to win their seats on the Ohio Supreme Court with the backing of large corporate law firm donations, insurance company donations and the Chamber of Commerce as well as the statewide endorsement of the Ohio FOP three months later.
What the court's opinion wrote about the "facts" of the discipinary case which Mahoning County Bar association brought against Attorney Richard Olivito is something out of either a Kalfa novel or a page lifted from within an "Alice in Wonderland" kind of looking glass 'finding".
This blog post will attempt to detail first some of the findings of this Supreme Court's opinion which has been widely published in both print and news media but more fully on Google and other internet /legal websites.
One thing is clear: the findings of the Supreme Court in reliance upon its own Board of Commissioners 'findings' are but the creation of a process which is not only seriously flawed itself, lacking in fundamental due process but one which in a word, evinces a certain mysterious but obviously serious court bias and/or even a very distinct 'agenda' both
in the court's opinions' tone and result.
It not unlike the state had adopted apriori, the most unsubstantiated, negative and false and seriously misleading allegations based on mere inneundo, despite what the real facts, testimony and documents in evidence proved during the prior due process proceedings.
In a word, its findings were not only flawed in the legal and due process sense, but they seem to evince a motive other than that which the lawyer disciplinary process is supposedly designed to promote; the fair administration of justice among the people and public who rely upon this very system of laws.
The case arose back in 2004, when a client [the client was a day contractor who filed for bacnkruptcy and was a twice convicted felon] was somehow motivated to file a formal grievance against me for a signature issue inside a basic Chapter Seven bankruptcy case.
The details of the incident which are clearly stated on the record in part, inside the official case, because Richard Olivito did NOT challenge, or lie or even contest that his signature was that which he signed for the clients to assist in getting their bankruptcy filed in a timely manner.
In other words, he signed a bankruptcy petition, for these clients in place of their own signature at the federal bankruptcy court clerk's window at the time of the filing of the petition when he noticed that the bankruptcy petition was itself completed, but left unsigned by the clients.
It was a mistake to do this. Olivito readily admited to the magistrate in Youngstown at the very next court hearing, that indeed, this petition filed in person by Mr. Olivito, in the midst of an extremely busy day and time, contained his own signature for his clients, who had assisted directly in preparing the lengthy [50 plus pages] petition.
What is critical here is: Mr. Olivito never tried at any time to hide this fact, either then during the bankruptcy processing itself within the Federal Bankruptcy Court nor later at ANY time, within the investigation arising within the local bar association.
He did NOT attempt in any way avoid this fact nor did he at any time actually deceive anyone about this fact.
It was a simple inadvertance done in a busy and pressured moment which will be more fullly explained below in a follow up post.
Attorney Richard Olivito admitted it was wrong to do and so stated to both the court, the bar association, in his deposition on this issue and at the follow up hearings inside the Supreme Court. He painfully recounted the incident, acknowledged it as a serious but honest mistake, noting it was not involving others or any secretary nor was it repeated. He commented that it was not intended in any way to benefit himself nor did it nor could such an act do so; it only was intended to further the client's interests in getting their petition filed.
He also noted he never made any attempt to perpetrate any kind of real deception on the court or practice as evinced by his readily admitting when the issue arose at the bankruptcy magistrate's creditor's hearing that it was indeed his own signature for that of his clients.
He noted repeatedly in writing, both thru counsel and in his own deposition and in court testimony and arguments that the signature issue was a mistake. He only mentioned that he
did not actually gain nor did he intend to gain from it whatsoever and that there was a context to how it happened but this was not expressly given as any excuse for any violation fo the prohibition on such conduct.
Even the Mahoning County Bar Association agreed and stipulated openly before the hearing officer on the open public hearing on this issue, that Attorney Olivito did not "act out of any selfish motive". There was absolutely no evidence to this effect ever produced anywhere especially where the clients obtained the full discharge as later noted for a very small sum or fee.
Most lawyers who have done this kind of isolated thing, who do NOT damage their clients and do NOT engage in some serious pattern of related signature conduct, which otherwise results in a direct benefit to the lawyer themselves, usually have received very light sanctions, if any from the Ohio Supreme Court
disciplinary process.
In fact, at most, for a "first time", singular non-harmful inadvertant signature case, almost all Ohio lawyers have received either a public reprimand and/or a six months suspension, oftentimes, with the suspension sanction completely stayed. Actual time off is usually limited to the lower end of the court's sanction continuum where there is a first time, non material event which does not evince any true harm to the client or selfish motive on the part of the misconduct committed.
This is even true in much more direct and intentional 'deceiving' lawyer signature cases, where the lawyer was clearly either not forthcoming about his signing a document for the client and/or even where the signature actually has caused harm to the legal interests of the clients.
[One of the most important cases of this kind of conduct expressly cited often by Supreme Court Cheif Justice Moyers as setting the standard for this kind of case's review only held that the lawyer would be suspended for six months, in a case which had much more serious intentional consequence both for the client and the lawyer involved.]
What is most interesting however, is this very signature issue which was admitted to and never concealed by Olivito at any time and was completely done out of unselfish motives, because it involved ONLY forwarding the interests of the client, and NONE of any of Olivito's personal interests inside this process were even capable of being furthered by the signature issue, became the basis for one of the most serious such 'signature cases' sanctions in recent State Supreme Court history .
For this reason and in this manner, however, the Supreme Court thru its agents and Board of Commissioners motivated by interests far beyond this individual signature case, somehow reached a conclusion that Olivito somehow not only lied and deceived a court of law, but he had also somehow neglected seriously these clients' bankruptcy and caused a "substantial delay"
in the bankrputcy processing itself.
The record is simply devoid of any such supporting evidence and is actually contra the same as per the federal court who handled the underlying client's petition itself.
Finally, the Supreme court found that he somehow had also violated the disciplinary rule against an "improper withdraw" as counsel after the client's had requested and stated in open court that they wished to pursue the bankruptcy without my services any longer and did so.
What is missing, from this very bizarre and uneven and even oftentimes completely false factual finding and holding, is that the clients received their bankruptcy from the sole work product of Attorney Richard Olivito; that they received this according to the very magistrate who passed the petition prepared in the case for the client by Attorney Olivito "in a timely manner" and that all told, they obtained the bankrputcy discharge completely, fully and without any signficant delay, for over $103,000.00 in debts, by the sole work product of Attorney Richard Olivito for a total fee of less than $150.00 total!!
What was left out of the Ohio Supreme Court's findings also is that Attorney Richard Olivito paid the bankruptcy filing fees for these clients, well BEFORE this signature issue ever arose between them and the court, and that Attorney Olivito also fully protected the clients' debtor interests, at all times, and personally protected and sought out, unilaterally without the client's assistance many of the most significant and major debts, which took additional time and effort, all of which time and effort was NOT compensated by the clients, at ANY time before or AFTER the petition was filed.
The case's petition review and legal process once filed, took the standard 90 to 120 days to finalize and became itself, the instrument discharging the client's bankruptcy.
In otherwords, these clients did NOT have ANY other instrument, document, petition or legal filing done or produced or created for them AT ANY TIME AFTER they discharged Attorney Olivito over the alleged "signature" issue, during a magistrate's scheduled creditor's hearing.
I.E. they not only obtained the bankruptcy full discharge by his sole work product, BUT THEY OBTAINED THE SAME WITH THE VERY SAME SIGNATURE ITSELF THAT WAS ALLEGED AND FOUND BY THE MAHONING COUNTY BAR ASSOCIATION to be "fraudulent" and "deceitful".
SO, IN other words, an experienced federal bankruptcy magistrate AND a separate veteran bankruptcy Federal judge, knowing the facts of the signature issue, PERMITTED THE SIGNATURE AND DOCUMENT {THE PETITION}... which Attorney Olivito signed and admitted and disclosed to the same federal court, in December of 2003, BEFORE THE BANKRPUTCY DISCHARGE... TO BECOME THE INSTRUMENT AND SOLE BASIS FOR THE CLIENT'S DISCHARGE ITSELF a very few weeks later.
In the end, the Ohio Supreme Court handed Attorney Olivito one of the heaviest sanctions ever given to a lawyer, for a single, first time, isolated,inadvertant,
non -material- to- the- case damaging lapse which caused NO damage to the client economically, nor to the court materially and did NOT benefit him, in ANY way NOR COULD IT HAVE.
Yet, in light of such facts, the republican dominated state supreme court subjected Olivito to a two year suspension with one year 'stayed on conditions', [as found on google here] for signing a client's otherwise valid, properly executed and ultimately successful bankruptcy petition wherein the petition itself, signed by Olivito and admitted before the very bankruptcy court magistrate and judge, of the Northern District Of Ohio, competely accepted and discharged the client's $103,000 [that is one hundred and three thousand dollars] bankruptcy debts alone, WITHOUT FURTHER LEGAL ASSISTANCE BY ANY OTHER LAWYER.
This proper and valid and legally binding petition discharged for the Accola's debts, based upon the petition filed by Richard Olivito, occured, just two weeks AFTER Attorney Olivito HAD to, under the Code of Professional Responsibility, MANDATORILY withdraw from further representation of the clients when he offered continued representation inside a magistrate conference and was expressly declined by the clients to continue with them as their bankruptcy lawyer, even where all the work had been done by him to obtain their debts' dischargd.
[This all happened also, wherein he did NOT charge the clients any further, other than the original $150.00 dollars they originally paid six months prior for which he took much more time and effort on their behalf to successfully draft a solid petition which operated to discharge the clients' bankruptcy. ]
As stated above, Mr. Olivito personally had paid the $200 filing fee, in October of 2004, when he filed the petition, from my own funds, SEPARATE and apart from their bankrutpcy fees which he had prior to filing the client's petition, charged them in writing and yet the clients never fully remitted.
For this related conduct, as they court allegedly finds, the court said, this conduct was the kind that requires the most severe form of a lawyer sanction and subjected Olivito's license to the "higher sanction" because he allegedly had somehow, in Justice Moyer's eyes, "damaged" the clients, despite all evidence , records and federal bankruptcy courts' findings, to the contra
Adding, further, the clients, somehow, had suffered a form of undocumented, never in court produced, or even anywhere ever documented, noted and/or recorded 'damages.'
What kind of damages exactly demonstrated through ANY court testimony, document, or findings is not specified clearly except to say that Attorney Olivito somehow had caused "about a month" delay in the process when after the client's discharged him and then had their backruptcy hearing postponed.
This was as will be seen, was something which was not Olivito's fault or failure but was one of several decisions of the clients' own choosing.
Whatever the alleged finding's basis by the Supreme Court about Mr. Olivito causing "at least a one month delay", in the process, the federal local magistrate who actually processed the bankruptcy case herself, openly stated, when examined at her deposition, readily admitted, "this case was NOT SERIOUSLY delayed and it discharged on time". {Page 135 of Magistrate's Deposition} ESPRESSLY CONTRA TO THE OHIO SUPREME COURT'S "FINDINGS" -- ISSUED TWO AND HALF YEARS AFTER THE BANKRPUTCY DISCHARGED IN FEDERAL COURT.
Furthermore, even if a month delay occured, the clients were NOT HARMED BY THE SAME AND THEIR CREDITOR STATUS WAS PROTECTED BY THE WORK AND EFFORTS OF ATTORNEY OLIVITO AS FOUND INSIDE THE BANKRUPTCY CASE's OFFICIALLY STAMPED AND CERTIFIED FILE COPY.
Nonetheless, Moyers and the court also "found" that, simply because Attorney Olivito strongly denied and then fought the other flawed and undocumented Mahoning County Bar allegations, and presented a strong defense in his own behalf and had differed within various depositions inside the case's litigation,-- and at times locked horns with the local bar lawyer and prosecutor who oftentimes was making wild, personal, unsubstantiated serious allegations against him inside of depositions-- that Olivito's attitude towards the process was concluded to be therefore "uncooperative" by the Ohio Supreme Court, towards the investigation and process itself;
They found that he was "uncooperative", even where Attorney Olivito had retained Attorney Richard Koblentz out of Cleveland, the month the formal complaint was brought against him, in the amount of $10,000.00 and Olivito had Koblentz file a timely, consistent and clearly stated written formal answer and denial with his direct input and drafting of the same.
That all discovery was undertaken by Olivito himself and he personally conducted four depositions and presented four of his own witnesses in his all day hearing before the panel chair in Columbus and that he submitted to not only one sworn deposition but another sworn open hearing testimony which submitted him to cross examination again.
Later and at the end of the entire disciplinary case's process, six months prior to the Supreme Court issuing a final opinion, Attorney Olivito had retained the late Max Kravitz for a retainer fee of $25,000.00--- to file what is called an "objections brief" to the Boards' findings and then had noted Columbus Attorney Max Kravitz and his fine and respected law partner Paula Brown make the oral argument stating that he did nothing deceptive whatsoever before the bankruptcy court, nor with the investigators, nor to the panel in their careful review of the entire case's records and documented evidence, in representing his interests in regards to these allegations at any time.
In otherwords, Olivito was at such critical times, except during the panel process and parts of key discovery deposition process which lasted about a month on the case's record, represented by competent counsel of record [even wherein he had a serious disagreement arise between the first counsel Mr. Koblentz , just prior to the panel hearing] Attorney Olivito in short, paid over $35,000.00 in lawyer fees only to be called "uncooperative" by the Ohio Supreme court where he fully otherwise submitted and participated in the process of both defending himself, attempting to reach a stipulated settlement and then arguing in mitigation on his own behalf, after a full eight hour open public hearing, on this related $150.00 bankrutpcy signature issue which otherwise passed the federal bankruptcy court system two years prior without much of a problem except this noted signature issue which did not PREVENT the bankruptcy from discharging in any way.
The Court nonetheless, in a manner evincing something of a bias or motive other than true fact finding created an entirely new, post hearing "charge" or alleged "violation" of being "uncooperative" and "wasting time" was NOT presented on review for any KIND OF DUE PROCESS defense or argument or review or post Board finding briefing, at any time, by any of my lawyers or myself.
Yet, this very same conclusion and flawed factual "finding of uncooperativeness" by the Ohio Supreme Court, served their own needs to find another alternative and additional basis to 'elevate' the sanction inside an otherwise, singular non materially damaging, and otherwise isolated first time in an entire career, technical signature, ethical violation case.
WE will address this part in a second portion of this particular blog post. But suffice it to end this initial part by stating, Richard Olivito was handed the heaviest suspension in this modern court's history for a bankruptcy/legal signature case...
... wherein the clients themselves again 1] obtained a complete and TIMELY discharge of ALL of their debts within six months start to finish 2]WHERE the clients admittedly never did PAY COUNSEL ALL of his requested fees [$300.00] prior to filing their petition as is customary inside such bankruptcy cases and 3] Olivito admitted openly and quickly to the signature issue when asked by the magistrate about it and offered continued representation but was 4] declined by the clients, despite having completed ALL the necessary legal work and heavy lifting and legal filings and petitions associated with such a bankrputcy case months prior to this hearing. 5] The petition created by Attorney Olivito and his legal staff, was the ONLY instrument that was present on the bankruptcy case file and they had in fact, paid NO legal fees to ANY other lawyer to complete this matter.6] Attorney Olivito present four clear personal secretarial and legal assistant testimony which was basically uncontroverted on key material relevant points of contention during the open public hearing portion of the pre decision process which develops the underlying case's record and the prosecution did NOT present ANY live witnesses in rebuttal, in their case against Olivito.
The Client: Mr. Michael Accola{ THE TWICE CONVICTED FELON: THEFT BY DECEPTION KIND OF GUY
The main client in this disciplinary case, and the chief complainant, with whom Mr. Olivito had spoken with and had been originally retained by, was a Mr. Michael Accola. He never submitted to a deposition by the local bar association, he was never called by the Mahoning County Bar Association to the stand during the one day open hearing, and he was never made to swear an affidavit against Olivito, although several key allegations of the Bar Association's complaint were solely founded upon his false allegations of what he either was alleged to have done or said or what Olivito did or did not say to him.
In otherwords, much of the main prosecution's case from the Mahoning County Bar association is purely based on hearsay "evidence" and/or simple false inneundo.
While Mr. Olivito has often represented criminal clients and clients with strong felony backgrounds, he has not usually encountered the same kind of convicted felons when representing such individuals filing a federal bankruptcy petition. Perhaps, indeed, he ought
to have been more careful.
Mr. Olivito only discovered AFTER the formal bankrupcty was completed, AFTER the represenation had ended and even as the disciplinary process had begun against him, brought by the local bar association, over the alleged mistaken signature issue, that Mr. Accola was a local Youngstown twice convicted felon...
Accola had plead guilty to defrauding homeowners of work related homeimprovements in the area, taking fees but not producing the related work product; i.e Mr. Accola had been convicted of "theft by deception" several years prior to coming to Mr. Olivito's office and asking for his second bankruptcy in ten years.
Yet, this client's hearsay comments about Mr. Olivito and his solid office staff and legal assistants were taken as gospel truth while Mr. Olivito's unblemished legal career credibility was held in strict contempt by the Chief Justice and his cohorts at the Board of Commissioners of Ohio's Lawyer Disciplinary system.
Lets try to find out why...
There is more and this is only the beginning. But what is important, is Mr. Olivito's follow up attempt to not only fight the other than signature issues in a legal, strong and documented fashion within the proper due process hearings afforded to him, but also how and what he did and discovered along the way in appealing the findings of these Boards and even the Supreme Court 's final opinion findings of fact, about his conduct, later.
This very discipinary action has become subject to more twists and turns and eventual issues which are presently pending between Mr. Olivito and this present Disciplinary system of the Ohio Supreme Court. Some issues are beyond this present blog post scope in part;
But please, do not read the Opinion of the Ohio Supreme Court as if it is based on real, actual entirely "the whole truth and nothing but truth" based factual findings.
What is being posted and officially stated about my legal character and professionalism is nothing short of a very serious false light campaign to smear a lawyer's abilities, his legal background and his capacity to function on behalf of clients, even when the clients themselves are twice convicted felons who have repeatedly withheld critical information to their lawyer, subverted the process to maintain the semblance of open and honest due process and have engaged in a special form of cover up of at least their own issues, within the Youngstown's area and by its hard working Bar Association in making sure this lawyer is not able to continue on with his signficant legal work inside their region and local bar area.
The work of Richard Olivito on behalf of civil rights litigants and those who have suffered serious constitutional violations, has been and remained the main focus of most of his entire adult legal career; Mr. Olivito fought hard over the last fourteen years to bring important civil rights issues in hard to reach, out of the way, smaller communities, to high public attention and helped to litigate many serious real, serious citizen civil rights cases before the various courts of eastern Ohio and elsewhere.
This particularly solo bankrupcty case represents a problem in that while Mr. Olivito admitted to the serious but technical error and signature mistake and clearly denoted it as something that ought not to have happened and is not otherwise defensible, or a model for lawyer conduct, nontheless, it was and remained a
isolated, one time, inadvertant issue which came up inside a difficult client's case, wherein the timing of the same became a problem for him and his clients.
Again, a solo lawyer can not benefit economically from signing his or her client's name inside such a modest and otherwise unremarkable bankruptcy petition in the selfish sense of the word.
This did not intend any economic or personal gain in ANY manner, for attorney Richard Olivito. His actions only furthered the client's petition and interests but mistakenly and inadvertantly so. He admitted to the same, more than once inside the formal process itself.
It also just happened to occur while he was in the midst of a national breaking news legal issue which was enveloping the City of Warren and causing major officials in Washington DC to take a critical look at what was happening in the Mahoning Valley region, including Youngstown and Warren police departments, where Mr. Olivito was then on the front page and headlines of every media organization for the immediate prior three months to this issue about the bankruptcy becoming a serious distraction to his important legacy and critical legal work and advocacy on behalf of those citizens and individuals.... whom the local area or state FOP do NOT want to have a dedicated and otherwise strongly ethical lawyer suing them in either a state or federal court anywhere or anytime.
Moreover, the FOP and the chamber of commerce of various Ohio municipalities, who both openly endorsed the Ohio Republican Supreme Court candidates and contributed heavily to their elections, even in 2004 and 2006, were also much less interested in having the Department of Justice in Washington DC coming into such regions and opening up federal investigations into their area's police departments mainly because the efforts of Attorneys like Richard Olivito have had a long and detailed competent history in eastern Ohio of doing just this kind of thing.... that in turn, helps to triggers such intense, very complex reviews by the Special Litigation unit of the Washington D.C. Civil Rights Section of the DOJ.
Taking A Moment to Breath and Ask Why?
The very outcome of this argument against this Ohio Supreme Court disciplinary case against Attorney Olivito brings to light several important questions.
What the court's opinion wrote about the "facts" of the discipinary case which Mahoning County Bar association brought against Attorney Richard Olivito is something out of either a Kalfa novel or a page lifted from within an "Alice in Wonderland" kind of looking glass 'finding".
This blog post will attempt to detail first some of the findings of this Supreme Court's opinion which has been widely published in both print and news media but more fully on Google and other internet /legal websites.
One thing is clear: the findings of the Supreme Court in reliance upon its own Board of Commissioners 'findings' are but the creation of a process which is not only seriously flawed itself, lacking in fundamental due process but one which in a word, evinces a certain mysterious but obviously serious court bias and/or even a very distinct 'agenda' both
in the court's opinions' tone and result.
It not unlike the state had adopted apriori, the most unsubstantiated, negative and false and seriously misleading allegations based on mere inneundo, despite what the real facts, testimony and documents in evidence proved during the prior due process proceedings.
In a word, its findings were not only flawed in the legal and due process sense, but they seem to evince a motive other than that which the lawyer disciplinary process is supposedly designed to promote; the fair administration of justice among the people and public who rely upon this very system of laws.
The case arose back in 2004, when a client [the client was a day contractor who filed for bacnkruptcy and was a twice convicted felon] was somehow motivated to file a formal grievance against me for a signature issue inside a basic Chapter Seven bankruptcy case.
The details of the incident which are clearly stated on the record in part, inside the official case, because Richard Olivito did NOT challenge, or lie or even contest that his signature was that which he signed for the clients to assist in getting their bankruptcy filed in a timely manner.
In other words, he signed a bankruptcy petition, for these clients in place of their own signature at the federal bankruptcy court clerk's window at the time of the filing of the petition when he noticed that the bankruptcy petition was itself completed, but left unsigned by the clients.
It was a mistake to do this. Olivito readily admited to the magistrate in Youngstown at the very next court hearing, that indeed, this petition filed in person by Mr. Olivito, in the midst of an extremely busy day and time, contained his own signature for his clients, who had assisted directly in preparing the lengthy [50 plus pages] petition.
What is critical here is: Mr. Olivito never tried at any time to hide this fact, either then during the bankruptcy processing itself within the Federal Bankruptcy Court nor later at ANY time, within the investigation arising within the local bar association.
He did NOT attempt in any way avoid this fact nor did he at any time actually deceive anyone about this fact.
It was a simple inadvertance done in a busy and pressured moment which will be more fullly explained below in a follow up post.
Attorney Richard Olivito admitted it was wrong to do and so stated to both the court, the bar association, in his deposition on this issue and at the follow up hearings inside the Supreme Court. He painfully recounted the incident, acknowledged it as a serious but honest mistake, noting it was not involving others or any secretary nor was it repeated. He commented that it was not intended in any way to benefit himself nor did it nor could such an act do so; it only was intended to further the client's interests in getting their petition filed.
He also noted he never made any attempt to perpetrate any kind of real deception on the court or practice as evinced by his readily admitting when the issue arose at the bankruptcy magistrate's creditor's hearing that it was indeed his own signature for that of his clients.
He noted repeatedly in writing, both thru counsel and in his own deposition and in court testimony and arguments that the signature issue was a mistake. He only mentioned that he
did not actually gain nor did he intend to gain from it whatsoever and that there was a context to how it happened but this was not expressly given as any excuse for any violation fo the prohibition on such conduct.
Even the Mahoning County Bar Association agreed and stipulated openly before the hearing officer on the open public hearing on this issue, that Attorney Olivito did not "act out of any selfish motive". There was absolutely no evidence to this effect ever produced anywhere especially where the clients obtained the full discharge as later noted for a very small sum or fee.
Most lawyers who have done this kind of isolated thing, who do NOT damage their clients and do NOT engage in some serious pattern of related signature conduct, which otherwise results in a direct benefit to the lawyer themselves, usually have received very light sanctions, if any from the Ohio Supreme Court
disciplinary process.
In fact, at most, for a "first time", singular non-harmful inadvertant signature case, almost all Ohio lawyers have received either a public reprimand and/or a six months suspension, oftentimes, with the suspension sanction completely stayed. Actual time off is usually limited to the lower end of the court's sanction continuum where there is a first time, non material event which does not evince any true harm to the client or selfish motive on the part of the misconduct committed.
This is even true in much more direct and intentional 'deceiving' lawyer signature cases, where the lawyer was clearly either not forthcoming about his signing a document for the client and/or even where the signature actually has caused harm to the legal interests of the clients.
[One of the most important cases of this kind of conduct expressly cited often by Supreme Court Cheif Justice Moyers as setting the standard for this kind of case's review only held that the lawyer would be suspended for six months, in a case which had much more serious intentional consequence both for the client and the lawyer involved.]
What is most interesting however, is this very signature issue which was admitted to and never concealed by Olivito at any time and was completely done out of unselfish motives, because it involved ONLY forwarding the interests of the client, and NONE of any of Olivito's personal interests inside this process were even capable of being furthered by the signature issue, became the basis for one of the most serious such 'signature cases' sanctions in recent State Supreme Court history .
For this reason and in this manner, however, the Supreme Court thru its agents and Board of Commissioners motivated by interests far beyond this individual signature case, somehow reached a conclusion that Olivito somehow not only lied and deceived a court of law, but he had also somehow neglected seriously these clients' bankruptcy and caused a "substantial delay"
in the bankrputcy processing itself.
The record is simply devoid of any such supporting evidence and is actually contra the same as per the federal court who handled the underlying client's petition itself.
Finally, the Supreme court found that he somehow had also violated the disciplinary rule against an "improper withdraw" as counsel after the client's had requested and stated in open court that they wished to pursue the bankruptcy without my services any longer and did so.
What is missing, from this very bizarre and uneven and even oftentimes completely false factual finding and holding, is that the clients received their bankruptcy from the sole work product of Attorney Richard Olivito; that they received this according to the very magistrate who passed the petition prepared in the case for the client by Attorney Olivito "in a timely manner" and that all told, they obtained the bankrputcy discharge completely, fully and without any signficant delay, for over $103,000.00 in debts, by the sole work product of Attorney Richard Olivito for a total fee of less than $150.00 total!!
What was left out of the Ohio Supreme Court's findings also is that Attorney Richard Olivito paid the bankruptcy filing fees for these clients, well BEFORE this signature issue ever arose between them and the court, and that Attorney Olivito also fully protected the clients' debtor interests, at all times, and personally protected and sought out, unilaterally without the client's assistance many of the most significant and major debts, which took additional time and effort, all of which time and effort was NOT compensated by the clients, at ANY time before or AFTER the petition was filed.
The case's petition review and legal process once filed, took the standard 90 to 120 days to finalize and became itself, the instrument discharging the client's bankruptcy.
In otherwords, these clients did NOT have ANY other instrument, document, petition or legal filing done or produced or created for them AT ANY TIME AFTER they discharged Attorney Olivito over the alleged "signature" issue, during a magistrate's scheduled creditor's hearing.
I.E. they not only obtained the bankruptcy full discharge by his sole work product, BUT THEY OBTAINED THE SAME WITH THE VERY SAME SIGNATURE ITSELF THAT WAS ALLEGED AND FOUND BY THE MAHONING COUNTY BAR ASSOCIATION to be "fraudulent" and "deceitful".
SO, IN other words, an experienced federal bankruptcy magistrate AND a separate veteran bankruptcy Federal judge, knowing the facts of the signature issue, PERMITTED THE SIGNATURE AND DOCUMENT {THE PETITION}... which Attorney Olivito signed and admitted and disclosed to the same federal court, in December of 2003, BEFORE THE BANKRPUTCY DISCHARGE... TO BECOME THE INSTRUMENT AND SOLE BASIS FOR THE CLIENT'S DISCHARGE ITSELF a very few weeks later.
In the end, the Ohio Supreme Court handed Attorney Olivito one of the heaviest sanctions ever given to a lawyer, for a single, first time, isolated,inadvertant,
non -material- to- the- case damaging lapse which caused NO damage to the client economically, nor to the court materially and did NOT benefit him, in ANY way NOR COULD IT HAVE.
Yet, in light of such facts, the republican dominated state supreme court subjected Olivito to a two year suspension with one year 'stayed on conditions', [as found on google here] for signing a client's otherwise valid, properly executed and ultimately successful bankruptcy petition wherein the petition itself, signed by Olivito and admitted before the very bankruptcy court magistrate and judge, of the Northern District Of Ohio, competely accepted and discharged the client's $103,000 [that is one hundred and three thousand dollars] bankruptcy debts alone, WITHOUT FURTHER LEGAL ASSISTANCE BY ANY OTHER LAWYER.
This proper and valid and legally binding petition discharged for the Accola's debts, based upon the petition filed by Richard Olivito, occured, just two weeks AFTER Attorney Olivito HAD to, under the Code of Professional Responsibility, MANDATORILY withdraw from further representation of the clients when he offered continued representation inside a magistrate conference and was expressly declined by the clients to continue with them as their bankruptcy lawyer, even where all the work had been done by him to obtain their debts' dischargd.
[This all happened also, wherein he did NOT charge the clients any further, other than the original $150.00 dollars they originally paid six months prior for which he took much more time and effort on their behalf to successfully draft a solid petition which operated to discharge the clients' bankruptcy. ]
As stated above, Mr. Olivito personally had paid the $200 filing fee, in October of 2004, when he filed the petition, from my own funds, SEPARATE and apart from their bankrutpcy fees which he had prior to filing the client's petition, charged them in writing and yet the clients never fully remitted.
For this related conduct, as they court allegedly finds, the court said, this conduct was the kind that requires the most severe form of a lawyer sanction and subjected Olivito's license to the "higher sanction" because he allegedly had somehow, in Justice Moyer's eyes, "damaged" the clients, despite all evidence , records and federal bankruptcy courts' findings, to the contra
Adding, further, the clients, somehow, had suffered a form of undocumented, never in court produced, or even anywhere ever documented, noted and/or recorded 'damages.'
What kind of damages exactly demonstrated through ANY court testimony, document, or findings is not specified clearly except to say that Attorney Olivito somehow had caused "about a month" delay in the process when after the client's discharged him and then had their backruptcy hearing postponed.
This was as will be seen, was something which was not Olivito's fault or failure but was one of several decisions of the clients' own choosing.
Whatever the alleged finding's basis by the Supreme Court about Mr. Olivito causing "at least a one month delay", in the process, the federal local magistrate who actually processed the bankruptcy case herself, openly stated, when examined at her deposition, readily admitted, "this case was NOT SERIOUSLY delayed and it discharged on time". {Page 135 of Magistrate's Deposition} ESPRESSLY CONTRA TO THE OHIO SUPREME COURT'S "FINDINGS" -- ISSUED TWO AND HALF YEARS AFTER THE BANKRPUTCY DISCHARGED IN FEDERAL COURT.
Furthermore, even if a month delay occured, the clients were NOT HARMED BY THE SAME AND THEIR CREDITOR STATUS WAS PROTECTED BY THE WORK AND EFFORTS OF ATTORNEY OLIVITO AS FOUND INSIDE THE BANKRUPTCY CASE's OFFICIALLY STAMPED AND CERTIFIED FILE COPY.
Nonetheless, Moyers and the court also "found" that, simply because Attorney Olivito strongly denied and then fought the other flawed and undocumented Mahoning County Bar allegations, and presented a strong defense in his own behalf and had differed within various depositions inside the case's litigation,-- and at times locked horns with the local bar lawyer and prosecutor who oftentimes was making wild, personal, unsubstantiated serious allegations against him inside of depositions-- that Olivito's attitude towards the process was concluded to be therefore "uncooperative" by the Ohio Supreme Court, towards the investigation and process itself;
They found that he was "uncooperative", even where Attorney Olivito had retained Attorney Richard Koblentz out of Cleveland, the month the formal complaint was brought against him, in the amount of $10,000.00 and Olivito had Koblentz file a timely, consistent and clearly stated written formal answer and denial with his direct input and drafting of the same.
That all discovery was undertaken by Olivito himself and he personally conducted four depositions and presented four of his own witnesses in his all day hearing before the panel chair in Columbus and that he submitted to not only one sworn deposition but another sworn open hearing testimony which submitted him to cross examination again.
Later and at the end of the entire disciplinary case's process, six months prior to the Supreme Court issuing a final opinion, Attorney Olivito had retained the late Max Kravitz for a retainer fee of $25,000.00--- to file what is called an "objections brief" to the Boards' findings and then had noted Columbus Attorney Max Kravitz and his fine and respected law partner Paula Brown make the oral argument stating that he did nothing deceptive whatsoever before the bankruptcy court, nor with the investigators, nor to the panel in their careful review of the entire case's records and documented evidence, in representing his interests in regards to these allegations at any time.
In otherwords, Olivito was at such critical times, except during the panel process and parts of key discovery deposition process which lasted about a month on the case's record, represented by competent counsel of record [even wherein he had a serious disagreement arise between the first counsel Mr. Koblentz , just prior to the panel hearing] Attorney Olivito in short, paid over $35,000.00 in lawyer fees only to be called "uncooperative" by the Ohio Supreme court where he fully otherwise submitted and participated in the process of both defending himself, attempting to reach a stipulated settlement and then arguing in mitigation on his own behalf, after a full eight hour open public hearing, on this related $150.00 bankrutpcy signature issue which otherwise passed the federal bankruptcy court system two years prior without much of a problem except this noted signature issue which did not PREVENT the bankruptcy from discharging in any way.
The Court nonetheless, in a manner evincing something of a bias or motive other than true fact finding created an entirely new, post hearing "charge" or alleged "violation" of being "uncooperative" and "wasting time" was NOT presented on review for any KIND OF DUE PROCESS defense or argument or review or post Board finding briefing, at any time, by any of my lawyers or myself.
Yet, this very same conclusion and flawed factual "finding of uncooperativeness" by the Ohio Supreme Court, served their own needs to find another alternative and additional basis to 'elevate' the sanction inside an otherwise, singular non materially damaging, and otherwise isolated first time in an entire career, technical signature, ethical violation case.
WE will address this part in a second portion of this particular blog post. But suffice it to end this initial part by stating, Richard Olivito was handed the heaviest suspension in this modern court's history for a bankruptcy/legal signature case...
... wherein the clients themselves again 1] obtained a complete and TIMELY discharge of ALL of their debts within six months start to finish 2]WHERE the clients admittedly never did PAY COUNSEL ALL of his requested fees [$300.00] prior to filing their petition as is customary inside such bankruptcy cases and 3] Olivito admitted openly and quickly to the signature issue when asked by the magistrate about it and offered continued representation but was 4] declined by the clients, despite having completed ALL the necessary legal work and heavy lifting and legal filings and petitions associated with such a bankrputcy case months prior to this hearing. 5] The petition created by Attorney Olivito and his legal staff, was the ONLY instrument that was present on the bankruptcy case file and they had in fact, paid NO legal fees to ANY other lawyer to complete this matter.6] Attorney Olivito present four clear personal secretarial and legal assistant testimony which was basically uncontroverted on key material relevant points of contention during the open public hearing portion of the pre decision process which develops the underlying case's record and the prosecution did NOT present ANY live witnesses in rebuttal, in their case against Olivito.
The Client: Mr. Michael Accola{ THE TWICE CONVICTED FELON: THEFT BY DECEPTION KIND OF GUY
The main client in this disciplinary case, and the chief complainant, with whom Mr. Olivito had spoken with and had been originally retained by, was a Mr. Michael Accola. He never submitted to a deposition by the local bar association, he was never called by the Mahoning County Bar Association to the stand during the one day open hearing, and he was never made to swear an affidavit against Olivito, although several key allegations of the Bar Association's complaint were solely founded upon his false allegations of what he either was alleged to have done or said or what Olivito did or did not say to him.
In otherwords, much of the main prosecution's case from the Mahoning County Bar association is purely based on hearsay "evidence" and/or simple false inneundo.
While Mr. Olivito has often represented criminal clients and clients with strong felony backgrounds, he has not usually encountered the same kind of convicted felons when representing such individuals filing a federal bankruptcy petition. Perhaps, indeed, he ought
to have been more careful.
Mr. Olivito only discovered AFTER the formal bankrupcty was completed, AFTER the represenation had ended and even as the disciplinary process had begun against him, brought by the local bar association, over the alleged mistaken signature issue, that Mr. Accola was a local Youngstown twice convicted felon...
Accola had plead guilty to defrauding homeowners of work related homeimprovements in the area, taking fees but not producing the related work product; i.e Mr. Accola had been convicted of "theft by deception" several years prior to coming to Mr. Olivito's office and asking for his second bankruptcy in ten years.
Yet, this client's hearsay comments about Mr. Olivito and his solid office staff and legal assistants were taken as gospel truth while Mr. Olivito's unblemished legal career credibility was held in strict contempt by the Chief Justice and his cohorts at the Board of Commissioners of Ohio's Lawyer Disciplinary system.
Lets try to find out why...
There is more and this is only the beginning. But what is important, is Mr. Olivito's follow up attempt to not only fight the other than signature issues in a legal, strong and documented fashion within the proper due process hearings afforded to him, but also how and what he did and discovered along the way in appealing the findings of these Boards and even the Supreme Court 's final opinion findings of fact, about his conduct, later.
This very discipinary action has become subject to more twists and turns and eventual issues which are presently pending between Mr. Olivito and this present Disciplinary system of the Ohio Supreme Court. Some issues are beyond this present blog post scope in part;
But please, do not read the Opinion of the Ohio Supreme Court as if it is based on real, actual entirely "the whole truth and nothing but truth" based factual findings.
What is being posted and officially stated about my legal character and professionalism is nothing short of a very serious false light campaign to smear a lawyer's abilities, his legal background and his capacity to function on behalf of clients, even when the clients themselves are twice convicted felons who have repeatedly withheld critical information to their lawyer, subverted the process to maintain the semblance of open and honest due process and have engaged in a special form of cover up of at least their own issues, within the Youngstown's area and by its hard working Bar Association in making sure this lawyer is not able to continue on with his signficant legal work inside their region and local bar area.
The work of Richard Olivito on behalf of civil rights litigants and those who have suffered serious constitutional violations, has been and remained the main focus of most of his entire adult legal career; Mr. Olivito fought hard over the last fourteen years to bring important civil rights issues in hard to reach, out of the way, smaller communities, to high public attention and helped to litigate many serious real, serious citizen civil rights cases before the various courts of eastern Ohio and elsewhere.
This particularly solo bankrupcty case represents a problem in that while Mr. Olivito admitted to the serious but technical error and signature mistake and clearly denoted it as something that ought not to have happened and is not otherwise defensible, or a model for lawyer conduct, nontheless, it was and remained a
isolated, one time, inadvertant issue which came up inside a difficult client's case, wherein the timing of the same became a problem for him and his clients.
Again, a solo lawyer can not benefit economically from signing his or her client's name inside such a modest and otherwise unremarkable bankruptcy petition in the selfish sense of the word.
This did not intend any economic or personal gain in ANY manner, for attorney Richard Olivito. His actions only furthered the client's petition and interests but mistakenly and inadvertantly so. He admitted to the same, more than once inside the formal process itself.
It also just happened to occur while he was in the midst of a national breaking news legal issue which was enveloping the City of Warren and causing major officials in Washington DC to take a critical look at what was happening in the Mahoning Valley region, including Youngstown and Warren police departments, where Mr. Olivito was then on the front page and headlines of every media organization for the immediate prior three months to this issue about the bankruptcy becoming a serious distraction to his important legacy and critical legal work and advocacy on behalf of those citizens and individuals.... whom the local area or state FOP do NOT want to have a dedicated and otherwise strongly ethical lawyer suing them in either a state or federal court anywhere or anytime.
Moreover, the FOP and the chamber of commerce of various Ohio municipalities, who both openly endorsed the Ohio Republican Supreme Court candidates and contributed heavily to their elections, even in 2004 and 2006, were also much less interested in having the Department of Justice in Washington DC coming into such regions and opening up federal investigations into their area's police departments mainly because the efforts of Attorneys like Richard Olivito have had a long and detailed competent history in eastern Ohio of doing just this kind of thing.... that in turn, helps to triggers such intense, very complex reviews by the Special Litigation unit of the Washington D.C. Civil Rights Section of the DOJ.
Taking A Moment to Breath and Ask Why?
The very outcome of this argument against this Ohio Supreme Court disciplinary case against Attorney Olivito brings to light several important questions.
Why would this kind of thing happen inside a lawyer discipline case in Ohio?
Has it ever happened to anyone else?
What would be the background and motives of a local bar association's interest in "getting" a non local originated lawyer and have him suspended from the practice of law?
Has this kind of thing occurred before, or elsewhere in Ohio?
Was there any potential conflict of interests that were being played out inside this otherwise singular, one time inadvertant technical violation case wherein the client got everything and more what they came to Mr. Olivito and paid him the sum total of about $150.00 for six months of work on their bankruptcy case.
The numerous 'found' allegations yet do not match up to the either the records, the sworn testimony and the plain certified copied documents and the defense of the claim on the grounds of "improper withdraw from representation" and "uncooperativeness" and most importantly, the "serious neglect" of a legal matter regarding the bankruptcy and the all important related lack of actual damages issue as addressed above.
Why would the court so suspend Attorney Olivito's license then for up to two years in such a case as this where the client's goals and aims were actually fullfilled by the subject lawyer's petition and work product, wherein the client got away without paying anything close to the market value of such legal services?
Another issue to be addressed is whether or not any one at the local bar of any status ever tell him anything about the nature of the prosecution which was being brought against him and how it was originally perceived?
Also, the follow up inquiry may ask if any courts in the Youngstown region ever mentioned this particular local Mahoning County Bar Association case while it still was pending and undecided by the Ohio Supreme Court, against him as a reason to not rule on important pending motion[s] before it on completely unrelated issues and unrelated clients but during signficant and continued important cases of any kind?
i.e. Did any Courts in the region ever use the pending issue of the Accola case against Mr. Olivito's clients, as a weapon against their best interests?
Also, as a practical matter, the question arises, why would the Accola's complain at all, since they obtained what they sought in the end, from his work product and efforts, --all that they could obtain----without paying Mr. Olivito much if anything, especially where the main party is a convicted felon locally.
Indeed, how did these clients' come into Mr. Olivito's solo busy law practice in the first instance?
Who are the powers behind the decision makers in this very disciplinary hearing process that came to such drastic conclusions that permitted or "caused" the Ohio Supreme Court to be able to make draconian and seriously false conclusions about Mr. Olivito and his character?
Did any of these important hearing officers inside this case have any interests or conflicts of their own which may have played a role inside of this hearing and Olivito's underlying case which ought to have been revealed as a matter of public policy, law and/or simple fairness and ethical conduct itself, before any such officer of the court made any judicial determination of the facts and/or law as it applied to Mr. Olivito's own presentation and representation of himself before the Board of Commissioner's one "due process" panel hearing.
Indeed, even the most basic question can be reviewed now in hindsight...
Did the Mahoning County Bar Association know who the Accola's were and what Mr. Accola's background was in the criminal sense of the word?
Was there any court in Youngstown that had actual knowledge or should have, of Mr. Accola's very serious problem with truthfulness?
This related blog posts will continue. The question which arises on the face of the disciplinary case which has issued suspending the law license of Mr. Olivito is Did the Ohio Supreme Court make its decision in this case related to Mr. Olivito and the bankruptcy matter in accordance with its own prior case precedent, and its own standards in finding a basis for elevating its sanctions for related conduct?
And finally, did it properly apply its OWN due process rules governing related disciplinary case sanctions and holdings for conduct of equal or even more serious value?
If not, what are some of the case decision of the same court which would say they did not....
...or have held completely varying opinions from Attorney Olivito's case on either similar or even much much worse lawyer conduct cases containing actual admitted criminal lawyer misconduct itself.
That is the topic to which the next related blog postings on this subject will address
Friday, August 24, 2007
And Who Did Justice Lanzinger Say Gave Her the Idea to Run for the Supreme Court? 'Master Noe'
Justice Judith Ann Lanzinger Inauguration SpeechJan. 7, 2005
Good morning everyone! How wonderful to be here, celebrating this grand occasion in this magnificent room. Dear Chief Justice Moyer, you are very kind to have administered the oath and I appreciate the presence of the Justices, my new colleagues. Governor Taft, what an honor to have you here, especially when you made such generous remarks. To reassure all of you, since the election, my judicial philosophy remains unchanged. Although representatives from the Executive branch, and members of the General Assembly are here, I will NOT be joining either group. As a member of the third branch, I look forward to working along side of them, in the judiciary, to interpret, rather than make or enforce the law.
As you can see, looking around, this is a very personal event for me. I've been amazed by the outpouring of good wishes from all of you. In the audience today there are some very dear old friends --as well as many new friends, including those watching on the webcast. I wish I could name you all individually and certainly want to talk to each of you before the day is over. But I must take time to tell you just a bit about the participants in today's event.
Tom Noe, our Master of Ceremonies today and campaign chair this last year is a wonderful friend. He and Bernadette were the first to suggest that I run for Justice Sweeney's position. I was stunned at the time, but yet now here we are! Thanks for all you have done for me. Thanks also to the FOP which provided our color guard this morning. I'm happy so many of you could be here. Next, Sister Diana Lynn Eckel –She has known me since I was 14 years old and represents a most significant portion of my life. For we were in the convent together and she was my “guardian angel”—the person who showed me the ropes and who was a good friend to me for the 6 years I was there. We've stayed close, even now as she is the Mother Superior of the order. To all the sisters in the audience—welcome. The golden-throated Christine Dever is married to my very first law clerk, Tim. Their son Jack was born on the day I was sworn into Toledo Municipal Court, and their son Tom is my godson—so a special thanks to the Dever family for being here. I'm proud to have someone from northwest Ohio representing the attorneys of the state and no one could do that better than Reg Jackson, a former president of both the Ohio and Toledo Bar Associations. Finally, Father Billian the pastor St. Patrick's Historic, our parish in Toledo as well as a family friend, will provide a concluding blessing. Thanks to all of you, and the many other people who traveled some distance to be here in questionable weather. I'm so glad you did.
Let me note that the young lady who led us in the Pledge of Allegiance is my step-granddaughter, Jordan Spidel. Good job, honey. My family is here, as you saw from the swearing-in itself: this day would be incomplete without them all. Robert, my husband of 37 years is the bearded one with the big smile (that's from knowing no more campaigning for at least 6 years). Of our two children, I have to mention our son Joshua first, because he wasn't able to be at the formal oath taking for the appellate court 2 years ago because he was in Iraq . Fortunately, his tour of duty is complete and he is back to practicing law in Toledo. Our daughter, Mara and her husband Doug Spidel are also Toledo attorneys and brought our grandchildren Jordan, John Robert and Jade Elise with them. Bob's sister Lynn Harman and her son, Luke also are here, but unfortunately we are missing my mother, Dorothy Hodorowski, and my sister, Janice Kruest, who are back in Toledo, due to my mother's health. We do miss them but because of the miracle of modern technology, I'm able to say—Hi mom! Hi Sis! We're fortunate to be able to create a video for them to see later.
Many people said that although I had run for judicial offices for the last 20 years, that they did not know so much about my background until this last year. Well, when you're trying to introduce yourself to the entire state of Ohio and make folks comfortable with you as a candidate for the Supreme Court, you must be willing to share personal information. So “Judge Judy”, the carpenter's daughter and coal-miner's granddaughter, took to the airwaves. Apparently it worked, because as it turns out, two and a half million of my closest friends actually did vote for me.
I'm now joining a line of 143 men and 6 women to become the 150th justice of the Supreme Court of Ohio. What a privilege and what an honor! Especially so, since this is the first judicial inauguration in the renovated Ohio Judicial Center. Little did I know in 1977 after graduating from the University of Toledo College of Law that someday I would have the opportunity to serve Toledo on the municipal court, to serve Lucas County on the court of common pleas and to serve Northwest Ohio on the 6th district court of appeals. Becoming a justice of the Ohio Supreme Court was beyond my wildest imagination or my biggest dream.
Justices, of course can make no promises about how they intend to handle cases. But I can assure you that I'll work hard during this term of office. Because each case is important to the parties, each case will receive my attention and best efforts. I'll try to write logically sound and legally defensible opinions. Joining a collegial bench for this collaborative appellate work will be a delight.
No one ever gets elected alone. To all—campaign coordinators, friends, volunteers, contributors-- who saw me through the last challenging year, many, many thanks. Each person who Tom has introduced has helped me along the way. I must acknowledge my Treasurer, Mark La Place, who kept the campaign on the straight and narrow financially, Brian Hicks and his associates and my two right hand women, Amy Jenkins and Sara Salupo. I've always had fine people to work with me during my years as an attorney and judge. Many of those judges, attorneys and staff are here today—how grand is that! I'm looking forward to the future with Sandy Ringer, Lora Peters and David Harold at my side as well as with all the dedicated employees of the Supreme Court who work in this fabulous building. I know it will be a very good six years.
My prayer for my very first oath taking in 1985 was from the 3 Book of Kings. It was the petition of Solomon, that wise old man: “Lord, give to thy servant an understanding heart to judge thy people and discern between good and evil.” These words still have much meaning and I would ask for and would appreciate your continuing prayers so I can be a good justice for all Ohioans. Today is a time for celebration and for gratitude. I'm so glad you all are here. You shared in the effort—now please share in the glory! THANK YOU from my whole heart.
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• 65 South Front Street Columbus, Ohio 43215-3431 •
Good morning everyone! How wonderful to be here, celebrating this grand occasion in this magnificent room. Dear Chief Justice Moyer, you are very kind to have administered the oath and I appreciate the presence of the Justices, my new colleagues. Governor Taft, what an honor to have you here, especially when you made such generous remarks. To reassure all of you, since the election, my judicial philosophy remains unchanged. Although representatives from the Executive branch, and members of the General Assembly are here, I will NOT be joining either group. As a member of the third branch, I look forward to working along side of them, in the judiciary, to interpret, rather than make or enforce the law.
As you can see, looking around, this is a very personal event for me. I've been amazed by the outpouring of good wishes from all of you. In the audience today there are some very dear old friends --as well as many new friends, including those watching on the webcast. I wish I could name you all individually and certainly want to talk to each of you before the day is over. But I must take time to tell you just a bit about the participants in today's event.
Tom Noe, our Master of Ceremonies today and campaign chair this last year is a wonderful friend. He and Bernadette were the first to suggest that I run for Justice Sweeney's position. I was stunned at the time, but yet now here we are! Thanks for all you have done for me. Thanks also to the FOP which provided our color guard this morning. I'm happy so many of you could be here. Next, Sister Diana Lynn Eckel –She has known me since I was 14 years old and represents a most significant portion of my life. For we were in the convent together and she was my “guardian angel”—the person who showed me the ropes and who was a good friend to me for the 6 years I was there. We've stayed close, even now as she is the Mother Superior of the order. To all the sisters in the audience—welcome. The golden-throated Christine Dever is married to my very first law clerk, Tim. Their son Jack was born on the day I was sworn into Toledo Municipal Court, and their son Tom is my godson—so a special thanks to the Dever family for being here. I'm proud to have someone from northwest Ohio representing the attorneys of the state and no one could do that better than Reg Jackson, a former president of both the Ohio and Toledo Bar Associations. Finally, Father Billian the pastor St. Patrick's Historic, our parish in Toledo as well as a family friend, will provide a concluding blessing. Thanks to all of you, and the many other people who traveled some distance to be here in questionable weather. I'm so glad you did.
Let me note that the young lady who led us in the Pledge of Allegiance is my step-granddaughter, Jordan Spidel. Good job, honey. My family is here, as you saw from the swearing-in itself: this day would be incomplete without them all. Robert, my husband of 37 years is the bearded one with the big smile (that's from knowing no more campaigning for at least 6 years). Of our two children, I have to mention our son Joshua first, because he wasn't able to be at the formal oath taking for the appellate court 2 years ago because he was in Iraq . Fortunately, his tour of duty is complete and he is back to practicing law in Toledo. Our daughter, Mara and her husband Doug Spidel are also Toledo attorneys and brought our grandchildren Jordan, John Robert and Jade Elise with them. Bob's sister Lynn Harman and her son, Luke also are here, but unfortunately we are missing my mother, Dorothy Hodorowski, and my sister, Janice Kruest, who are back in Toledo, due to my mother's health. We do miss them but because of the miracle of modern technology, I'm able to say—Hi mom! Hi Sis! We're fortunate to be able to create a video for them to see later.
Many people said that although I had run for judicial offices for the last 20 years, that they did not know so much about my background until this last year. Well, when you're trying to introduce yourself to the entire state of Ohio and make folks comfortable with you as a candidate for the Supreme Court, you must be willing to share personal information. So “Judge Judy”, the carpenter's daughter and coal-miner's granddaughter, took to the airwaves. Apparently it worked, because as it turns out, two and a half million of my closest friends actually did vote for me.
I'm now joining a line of 143 men and 6 women to become the 150th justice of the Supreme Court of Ohio. What a privilege and what an honor! Especially so, since this is the first judicial inauguration in the renovated Ohio Judicial Center. Little did I know in 1977 after graduating from the University of Toledo College of Law that someday I would have the opportunity to serve Toledo on the municipal court, to serve Lucas County on the court of common pleas and to serve Northwest Ohio on the 6th district court of appeals. Becoming a justice of the Ohio Supreme Court was beyond my wildest imagination or my biggest dream.
Justices, of course can make no promises about how they intend to handle cases. But I can assure you that I'll work hard during this term of office. Because each case is important to the parties, each case will receive my attention and best efforts. I'll try to write logically sound and legally defensible opinions. Joining a collegial bench for this collaborative appellate work will be a delight.
No one ever gets elected alone. To all—campaign coordinators, friends, volunteers, contributors-- who saw me through the last challenging year, many, many thanks. Each person who Tom has introduced has helped me along the way. I must acknowledge my Treasurer, Mark La Place, who kept the campaign on the straight and narrow financially, Brian Hicks and his associates and my two right hand women, Amy Jenkins and Sara Salupo. I've always had fine people to work with me during my years as an attorney and judge. Many of those judges, attorneys and staff are here today—how grand is that! I'm looking forward to the future with Sandy Ringer, Lora Peters and David Harold at my side as well as with all the dedicated employees of the Supreme Court who work in this fabulous building. I know it will be a very good six years.
My prayer for my very first oath taking in 1985 was from the 3 Book of Kings. It was the petition of Solomon, that wise old man: “Lord, give to thy servant an understanding heart to judge thy people and discern between good and evil.” These words still have much meaning and I would ask for and would appreciate your continuing prayers so I can be a good justice for all Ohioans. Today is a time for celebration and for gratitude. I'm so glad you all are here. You shared in the effort—now please share in the glory! THANK YOU from my whole heart.
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• 65 South Front Street Columbus, Ohio 43215-3431 •
Wednesday, August 22, 2007
Corrupt Money Laundering and the Ohio Supreme Court
Article published Saturday, February 25, 2006Ex-Taft aides fined for ethics breaches2 didn't disclose cash from Noe
H. Douglas Talbott ( THE BLADE/DAVE ZAPOTOSKY )
Zoom Photo ReprintsBy JOSHUA BOAK BLADE STAFF WRITER
COLUMBUS — A pair of former high-ranking aides to Gov. Bob Taft and former Gov. George Voinovich were convicted yesterday for not publicly disclosing thousands of dollars they received from Republican fund-raiser Tom Noe, who was indicted last week for stealing from a $50 million state rare-coin investment.As members of state boards, Columbus lobbyists Doug Moormann, 38, and H. Douglas Talbott, 41, were obligated to inform the Ohio Ethics Commission about the cash they received from Mr. Noe. Additionally, Mr. Talbott illegally laundered money from Mr. Noe to the campaigns of three Ohio Supreme Court justices.An investigator yesterday said the task force is examining whether the $39,000 that Mr. Noe gave Mr. Talbott in a 2002 loan to buy a vacation home in Lakeside came from the state’s rare-coin investment.
Doug Moormann
Zoom Photo Reprints
On Aug. 29, 2002, Mr. Noe wrote a check for $100,000 from Capital Coin II to his Vintage Coins accounts for “coin purchases.”On that same day, Mr. Noe wrote a $35,000 check on the Vintage Coins account to Larry Schottenstein, a Columbus real-estate executive who sold the Lakeside home that Mr. Talbott bought.Mr. Talbott also received a $4,000 check from Mr. Noe’s Vintage Coin, and he told investigators that he wrote a check two days later to Mr. Schottenstein in the same amount. He said the $39,000 from Mr. Noe was for a down payment on the Lakeside home, and Mr. Schottenstein last year told The Blade that he did not remember details about the checks. In an agreement with prosecutors, Mr. Moormann and Mr. Talbott pleaded “no contest,” just as the governor and two of his other former aides, Brian Hicks and Cherie Carroll, pleaded last summer after being charged with ethics violations for accepting gifts from Mr. Noe.Judge Scott VanDerKarr of the Franklin County Municipal Court found Mr. Moormann guilty and fined the governor’s former assistant for criminal justice $1,000 and ordered him to deposit $5,000 he took from Mr. Noe into an escrow account.Mr. Talbott, who managed the governor’s appointments to state commissions until 2000, was found guilty and fined $3,960 for three misdemeanors and directed to put place the $39,000 he received from the coin dealer into an escrow account.“I apologize for any harm this may have caused, and I assure you that I won’t be in this courtroom or any other courtroom,” he said, forgetting to add the word “again” to his statement.With a $1,960 payment from Mr. Noe in 2004, Mr. Talbott laundered campaign donations to three Ohio Supreme Court justices: Chief Justice Thomas Moyer, Terrence O’Donnell, and Judith Lanzinger. Judge VanDerKarr fined him $1,960 for that offense.The $39,000 payment that Mr. Noe made to Mr. Talbott to buy a Lakeside vacation home was supposed to be a loan, but Mr. Noe never collected any payments from Mr. Talbott, only asking for repayment last May after The Blade reported about the loan and the state began to examine Mr. Noe’s management of the Ohio Bureau of Workers’ Compensation’s rare-coin funds, according to investigative documents. He was fined $1,000. Required to disclose gifts worth more than $75, Mr. Talbott also failed to list the $160 in dinners he ate at Morton’s Steakhouse in Columbus as a member of the “Noe Supper Club.” A $1,000 fine resulted.“At the time, Noe was not trying to lobby him at all,” said Roger Synenberg, Mr. Talbott’s lawyer, outside the courtroom. “He wasn’t asking for any favors. They were just friends.”Minutes before Mr. Talbott’s conviction, Mr. Moormann answered questions from the judge.“You understand I can give you up to 180 days in jail?” Judge VanDerKarr asked.“Yes, sir,” Mr. Moormann responded, nodding his head.Almost two weeks after Mr. Moormann joined the state’s Transportation Review Advisory Committee on Aug. 17, 2004, Mr. Noe gave him a $5,000 loan to help him pay dual mortgage payments.He had recently moved to the Cincinnati area, but had not yet sold his home in the Columbus area.Mr. Moormann, now an executive with the Cincinnati Chamber of Commerce, failed to report the loan, resulting in the misdemeanor ethics charge. The loan was never repaid to Mr. Noe.After being sentenced, Mr. Moormann and his lawyer declined to comment. “These folks are folks who have been around political processes,” said David Freel, the ethics commission’s executive director. “They know what they have to disclose. And disclosure is important because that is how you, and the public, knows who is trying to influence policy.”Mark Rickel, a spokesman for Mr. Taft, said the governor continues to be “disappointed” by the actions of his former staff members.“It is what it is,” Mr. Rickel said. “He expected everyone and expects everyone to work with the highest level of integrity.”Blade staff writer Steve Eder contributed to this report.
H. Douglas Talbott ( THE BLADE/DAVE ZAPOTOSKY )
Zoom Photo ReprintsBy JOSHUA BOAK BLADE STAFF WRITER
COLUMBUS — A pair of former high-ranking aides to Gov. Bob Taft and former Gov. George Voinovich were convicted yesterday for not publicly disclosing thousands of dollars they received from Republican fund-raiser Tom Noe, who was indicted last week for stealing from a $50 million state rare-coin investment.As members of state boards, Columbus lobbyists Doug Moormann, 38, and H. Douglas Talbott, 41, were obligated to inform the Ohio Ethics Commission about the cash they received from Mr. Noe. Additionally, Mr. Talbott illegally laundered money from Mr. Noe to the campaigns of three Ohio Supreme Court justices.An investigator yesterday said the task force is examining whether the $39,000 that Mr. Noe gave Mr. Talbott in a 2002 loan to buy a vacation home in Lakeside came from the state’s rare-coin investment.
Doug Moormann
Zoom Photo Reprints
On Aug. 29, 2002, Mr. Noe wrote a check for $100,000 from Capital Coin II to his Vintage Coins accounts for “coin purchases.”On that same day, Mr. Noe wrote a $35,000 check on the Vintage Coins account to Larry Schottenstein, a Columbus real-estate executive who sold the Lakeside home that Mr. Talbott bought.Mr. Talbott also received a $4,000 check from Mr. Noe’s Vintage Coin, and he told investigators that he wrote a check two days later to Mr. Schottenstein in the same amount. He said the $39,000 from Mr. Noe was for a down payment on the Lakeside home, and Mr. Schottenstein last year told The Blade that he did not remember details about the checks. In an agreement with prosecutors, Mr. Moormann and Mr. Talbott pleaded “no contest,” just as the governor and two of his other former aides, Brian Hicks and Cherie Carroll, pleaded last summer after being charged with ethics violations for accepting gifts from Mr. Noe.Judge Scott VanDerKarr of the Franklin County Municipal Court found Mr. Moormann guilty and fined the governor’s former assistant for criminal justice $1,000 and ordered him to deposit $5,000 he took from Mr. Noe into an escrow account.Mr. Talbott, who managed the governor’s appointments to state commissions until 2000, was found guilty and fined $3,960 for three misdemeanors and directed to put place the $39,000 he received from the coin dealer into an escrow account.“I apologize for any harm this may have caused, and I assure you that I won’t be in this courtroom or any other courtroom,” he said, forgetting to add the word “again” to his statement.With a $1,960 payment from Mr. Noe in 2004, Mr. Talbott laundered campaign donations to three Ohio Supreme Court justices: Chief Justice Thomas Moyer, Terrence O’Donnell, and Judith Lanzinger. Judge VanDerKarr fined him $1,960 for that offense.The $39,000 payment that Mr. Noe made to Mr. Talbott to buy a Lakeside vacation home was supposed to be a loan, but Mr. Noe never collected any payments from Mr. Talbott, only asking for repayment last May after The Blade reported about the loan and the state began to examine Mr. Noe’s management of the Ohio Bureau of Workers’ Compensation’s rare-coin funds, according to investigative documents. He was fined $1,000. Required to disclose gifts worth more than $75, Mr. Talbott also failed to list the $160 in dinners he ate at Morton’s Steakhouse in Columbus as a member of the “Noe Supper Club.” A $1,000 fine resulted.“At the time, Noe was not trying to lobby him at all,” said Roger Synenberg, Mr. Talbott’s lawyer, outside the courtroom. “He wasn’t asking for any favors. They were just friends.”Minutes before Mr. Talbott’s conviction, Mr. Moormann answered questions from the judge.“You understand I can give you up to 180 days in jail?” Judge VanDerKarr asked.“Yes, sir,” Mr. Moormann responded, nodding his head.Almost two weeks after Mr. Moormann joined the state’s Transportation Review Advisory Committee on Aug. 17, 2004, Mr. Noe gave him a $5,000 loan to help him pay dual mortgage payments.He had recently moved to the Cincinnati area, but had not yet sold his home in the Columbus area.Mr. Moormann, now an executive with the Cincinnati Chamber of Commerce, failed to report the loan, resulting in the misdemeanor ethics charge. The loan was never repaid to Mr. Noe.After being sentenced, Mr. Moormann and his lawyer declined to comment. “These folks are folks who have been around political processes,” said David Freel, the ethics commission’s executive director. “They know what they have to disclose. And disclosure is important because that is how you, and the public, knows who is trying to influence policy.”Mark Rickel, a spokesman for Mr. Taft, said the governor continues to be “disappointed” by the actions of his former staff members.“It is what it is,” Mr. Rickel said. “He expected everyone and expects everyone to work with the highest level of integrity.”Blade staff writer Steve Eder contributed to this report.
New York Times Article On Ohio Supreme Court Ties to Corporate Money Trails
Campaign Cash Mirrors a High Court's Rulings
Corporate-friendly Ohio Supreme Court raises questions of integrity
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By Adam Liptak and Janet Roberts First Published by the New York Times, October 1, 2006
COLUMBUS, Ohio — In the fall of 2004, Terrence O'Donnell, 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 O'Donnell's 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 O'Donnell joined majorities that handed the three companies significant victories.
Justice O'Donnell's 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 O'Donnell 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 contributors' cases. In the 215 cases with the most direct potential conflicts of interest, justices recused themselves just 9 times.
Even sitting justices have started to question the current system. “I never felt so much like a hooker down by the bus station in any race I've ever been in as I did in a judicial race,” said Justice Paul E. Pfeifer, a Republican member of the Ohio Supreme Court. “Everyone interested in contributing has very specific interests.”
“They mean to be buying a vote,” Justice Pfeifer added. “Whether they succeed or not, it's hard to say.”
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 defendant's company or seeing a relative's name on a brief generally requires automatic disqualification.
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 “sitting on the case is going to be perceived as just totally unfair.”
Duane J. Adams, a plaintiff in one of the class-action suits heard by Justice O'Donnell, concerning defective cars, said he questioned the impartiality of the justices who ruled against him. Mr. Adams had sued DaimlerChrysler under the state's lemon law, and he grew angry when told that the company's political action committee had given money to justices in the majority.
“At the very least, it's a conflict of interest,” Mr. Adams said. “These gentlemen, they should be prosecuted for what I consider is taking a bribe.” 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 justices' votes in particular cases.
The middle ground, advanced by groups representing business, labor and plaintiffs' lawyers, is to support justices who hold views similar to their own. “Various interests see voting patterns,” Chief Justice Moyer said. The alignment between contributions and votes, he said, is a matter of shared judicial philosophy.
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 plaintiffs' lawyers and unions. Now that business groups are outspending their adversaries, the court has become dominated by more conservative justices. And the court's decisions are no longer markedly sympathetic to people claiming injuries.
Justice O'Donnell, 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 O'Neill, is making contributions an issue.
“We have to stop selling seats on the Ohio Supreme Court like we sell seats on the New York Stock Exchange,” said Judge O'Neill, a Democrat on the 11th District Court of Appeals in Warren, in northeast Ohio. He says he will not accept contributions.
Justice O'Donnell, 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, “Any 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.”
“A judge,” the statement said, “may fairly and impartially consider matters despite receipt of the campaign contribution by the campaign committee.”
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.
“The role of the judge and the role of the legislator are completely different,” said William K. Weisenberg, an Ohio State Bar Association official. “You 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 don't want the umpire calling balls and strikes before the game has begun.”
Influencing the Bench Many judges concede that sitting on their contributors' cases creates the perception that their votes can be bought. But in public, at least, most insist the perception is wrong.
“All the surveys I've seen indicate that generally 75 percent of the people believe that contributions influence decisions,” said Chief Justice Moyer, a Republican. But when asked if contributions played a role in courts' decisions, he said: “I don't believe they do. I know they don't for me.”
That view is not universally held.
“It's pretty hard in big-money races not to take care of your friends,” said Richard Neely, a retired chief justice of the West Virginia Supreme Court of Appeals. “It's very hard not to dance with the one who brung you.”
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 “judges should be prohibited from presiding over and ruling in cases where one of the sides has given money to their campaign.”
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 study's 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 court's 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 justices' campaigns took contributions after a case involving the contributor was argued and before it was decided — just when conflicts are most visible and pointed.
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 O'Donnell, 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 O'Donnell — agreed to interviews for this article, and all said contributions had not affected their decisions.
“There is a lot more to the story than the cold numbers suggest,” said Justice Maureen O'Connor, 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 court's 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 O'Donnell said that “selectively screening a limited number of case decisions results in a skewed outcome.” He did not elaborate.
But Justice Pfeifer, who voted for his contributors 69 percent of the time, backed the study's methodology. “I quite frankly can't think of another way,” he said. “You're using the only yardstick that I'd know of that you can use.”
Several justices said they found Ohio's 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 contributors' 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.
“It is not necessary for a judge to recuse himself just because an attorney or party has contributed to his campaign,” Chief Justice Moyer said in a statement at the time. “However, this is a high-profile case with political implications and with potential personal consequences for the campaign contributor in question.”
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 LawFrom the day he leased it in 1996, when it leaked transmission fluid all over the garage, Duane J. Adams's Dodge Caravan was nothing but trouble.
“My wife went to start it at the grocery store, and the battery blew up,” Mr. Adams said. “We didn't feel safe in it.”
Mr. Adams invoked Ohio's 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 “mileage fee.”
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 O'Donnell. 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 majority's 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 company's actions. “The contributions that companies' PAC's make are driven by the campaign calendar, not the judicial calendar,” Ms. Lutz said. Candidates for the court may accept contributions for about a year before an election and four months afterward.
Lawyers for Ford also said it complied with Ohio law. “By definition,” said one of the lawyers, John Beisner, “if you have an elective system, the judges are going to go to those with the greatest interest in the system to get their contributions.”
Car company lawyers said the contributions were merely an effort to level the field against big-spending plaintiffs' 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. “The current wars are epic battles between businesses and trial lawyers,” said Bert Brandenburg, the executive director of Justice at Stake. “Over the past half-decade, business groups are outraising and outspending trial lawyers.”
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 “contributes to deserving candidates in the interest of advancing good government” and noted that the workers' 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 court's 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. “I don't think it's appropriate, period,” Mr. Fincher said.
Screening the CandidatesBusiness groups have turned picking potential justices into an art.
“They 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,” said Justice Pfeifer, who has shown an independent streak in his 14 years on the court. He did not name names.
Justice O'Donnell's campaign materials say he is “rooted in law enforcement” 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 interests.
In 2004, running to complete the six-year term to which he had been appointed, Justice O'Donnell had a million-dollar advantage over his opponent that led to an Election Day rout.
Now that same opponent, Judge O'Neill, is back for a rematch. His campaign slogan: “No money from nobody.”
Contributing to candidates for states' 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, governors' 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.
“Although 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,” 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. “That 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.” 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 1980's, 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 days.
Much of the recent spending came from business groups furious with what they called a liberal “Gang of Four” 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 employers' 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 O'Donnell. 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, “Ohio became a poster child for everything that was wrong with judicial elections,” said Mr. Weisenberg, the Ohio State Bar Association official.
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 ShiftsInterest 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.
“I don't care how well a trial lawyer does or how big a pot a labor union has,” he said, “they can't begin to match the business corporations. It's not a fair fight.”
Justice Stratton, a Republican, said the recent contributions from business groups were a predictable consequence of a series of rulings “very strongly in favor of trial lawyers.”
“You only have the big money coming out,” she said, “when the court has swung too much to the left or to the right.”
In 2002, Lt. Gov. Maureen O'Connor, 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 O'Connor wrote the opinion that overruled the 1999 insurance decision. Only four years after the court ruled that employers' insurance policies covered many off-the-job injuries, it reversed course. “It serves no valid purpose to allow incorrect opinions to remain in the body of our law,” Justice O'Connor 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 plaintiffs' 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 court's 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. “As insurance professionals,” she said, “each of us sees up close the immediate impact that the Ohio Supreme Court has on the industry, our company and our policyholders.”
There is a small printing press in the garage of Judge O'Neill. In the evenings, he and his children produce fliers for a long-shot no-money campaign for Justice O'Donnell's seat on the Ohio Supreme Court.
“We're going to do a million pieces for $4,000 from my pocket,” Judge O'Neill 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 O'Neill gets from many Ohio bar associations.
“They're out soliciting the next million dollars to beat me,” he said. “The insurance industry, the manufacturers and now the doctors treat the Ohio Supreme Court as a personal piece of property.”
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 possibility.
Marc Dann, a Democratic state senator running for attorney general, said Judge O'Neill's strategy might have been driven by necessity as well as principle.
“Best case,” Mr. Dann said, “maybe he goes to the plaintiff's bar and labor unions, and maybe he raises $300,000. To do a good week of TV in Ohio is $750,000.”
Judge O'Neill's 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 O'Neill had violated judicial ethics by making similar statements in the last campaign.
Judge O'Neill laughed when asked if the investigation worried him.
“I am a Vietnam veteran, and I lost my wife 10 years ago,” he said. “I 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.”
For the time being, a federal judge has suspended the investigation on First Amendment grounds. If the Ohio Legislature is troubled by Judge O'Neill's conduct, the federal judge, Ann Aldrich wrote, “the proper solution is to stop electing judges and make state judgeships appointed offices.”
Judge O'Neill disagreed. He likes elections, he said.
“We have more authority over people's lives than anyone else in elected office,” he said. “We 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 can't think of any other industry that has a more profound impact on people's lives. And it is arrogant at best that some committee should make this appointment.”
But Chief Justice Moyer said the flaws in Ohio 's approach were the product of elections.
“In a perfect world,” he said, “you 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.”
Adam Liptak reported from Columbus, Ohio, and New York, and Janet Roberts reported from New York. Mona Houck contributed reporting from New York.
© 2006 New York Times
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Corporate-friendly Ohio Supreme Court raises questions of integrity
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By Adam Liptak and Janet Roberts First Published by the New York Times, October 1, 2006
COLUMBUS, Ohio — In the fall of 2004, Terrence O'Donnell, 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 O'Donnell's 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 O'Donnell joined majorities that handed the three companies significant victories.
Justice O'Donnell's 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 O'Donnell 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 contributors' cases. In the 215 cases with the most direct potential conflicts of interest, justices recused themselves just 9 times.
Even sitting justices have started to question the current system. “I never felt so much like a hooker down by the bus station in any race I've ever been in as I did in a judicial race,” said Justice Paul E. Pfeifer, a Republican member of the Ohio Supreme Court. “Everyone interested in contributing has very specific interests.”
“They mean to be buying a vote,” Justice Pfeifer added. “Whether they succeed or not, it's hard to say.”
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 defendant's company or seeing a relative's name on a brief generally requires automatic disqualification.
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 “sitting on the case is going to be perceived as just totally unfair.”
Duane J. Adams, a plaintiff in one of the class-action suits heard by Justice O'Donnell, concerning defective cars, said he questioned the impartiality of the justices who ruled against him. Mr. Adams had sued DaimlerChrysler under the state's lemon law, and he grew angry when told that the company's political action committee had given money to justices in the majority.
“At the very least, it's a conflict of interest,” Mr. Adams said. “These gentlemen, they should be prosecuted for what I consider is taking a bribe.” 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 justices' votes in particular cases.
The middle ground, advanced by groups representing business, labor and plaintiffs' lawyers, is to support justices who hold views similar to their own. “Various interests see voting patterns,” Chief Justice Moyer said. The alignment between contributions and votes, he said, is a matter of shared judicial philosophy.
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 plaintiffs' lawyers and unions. Now that business groups are outspending their adversaries, the court has become dominated by more conservative justices. And the court's decisions are no longer markedly sympathetic to people claiming injuries.
Justice O'Donnell, 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 O'Neill, is making contributions an issue.
“We have to stop selling seats on the Ohio Supreme Court like we sell seats on the New York Stock Exchange,” said Judge O'Neill, a Democrat on the 11th District Court of Appeals in Warren, in northeast Ohio. He says he will not accept contributions.
Justice O'Donnell, 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, “Any 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.”
“A judge,” the statement said, “may fairly and impartially consider matters despite receipt of the campaign contribution by the campaign committee.”
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.
“The role of the judge and the role of the legislator are completely different,” said William K. Weisenberg, an Ohio State Bar Association official. “You 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 don't want the umpire calling balls and strikes before the game has begun.”
Influencing the Bench Many judges concede that sitting on their contributors' cases creates the perception that their votes can be bought. But in public, at least, most insist the perception is wrong.
“All the surveys I've seen indicate that generally 75 percent of the people believe that contributions influence decisions,” said Chief Justice Moyer, a Republican. But when asked if contributions played a role in courts' decisions, he said: “I don't believe they do. I know they don't for me.”
That view is not universally held.
“It's pretty hard in big-money races not to take care of your friends,” said Richard Neely, a retired chief justice of the West Virginia Supreme Court of Appeals. “It's very hard not to dance with the one who brung you.”
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 “judges should be prohibited from presiding over and ruling in cases where one of the sides has given money to their campaign.”
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 study's 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 court's 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 justices' campaigns took contributions after a case involving the contributor was argued and before it was decided — just when conflicts are most visible and pointed.
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 O'Donnell, 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 O'Donnell — agreed to interviews for this article, and all said contributions had not affected their decisions.
“There is a lot more to the story than the cold numbers suggest,” said Justice Maureen O'Connor, 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 court's 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 O'Donnell said that “selectively screening a limited number of case decisions results in a skewed outcome.” He did not elaborate.
But Justice Pfeifer, who voted for his contributors 69 percent of the time, backed the study's methodology. “I quite frankly can't think of another way,” he said. “You're using the only yardstick that I'd know of that you can use.”
Several justices said they found Ohio's 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 contributors' 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.
“It is not necessary for a judge to recuse himself just because an attorney or party has contributed to his campaign,” Chief Justice Moyer said in a statement at the time. “However, this is a high-profile case with political implications and with potential personal consequences for the campaign contributor in question.”
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 LawFrom the day he leased it in 1996, when it leaked transmission fluid all over the garage, Duane J. Adams's Dodge Caravan was nothing but trouble.
“My wife went to start it at the grocery store, and the battery blew up,” Mr. Adams said. “We didn't feel safe in it.”
Mr. Adams invoked Ohio's 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 “mileage fee.”
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 O'Donnell. 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 majority's 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 company's actions. “The contributions that companies' PAC's make are driven by the campaign calendar, not the judicial calendar,” Ms. Lutz said. Candidates for the court may accept contributions for about a year before an election and four months afterward.
Lawyers for Ford also said it complied with Ohio law. “By definition,” said one of the lawyers, John Beisner, “if you have an elective system, the judges are going to go to those with the greatest interest in the system to get their contributions.”
Car company lawyers said the contributions were merely an effort to level the field against big-spending plaintiffs' 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. “The current wars are epic battles between businesses and trial lawyers,” said Bert Brandenburg, the executive director of Justice at Stake. “Over the past half-decade, business groups are outraising and outspending trial lawyers.”
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 “contributes to deserving candidates in the interest of advancing good government” and noted that the workers' 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 court's 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. “I don't think it's appropriate, period,” Mr. Fincher said.
Screening the CandidatesBusiness groups have turned picking potential justices into an art.
“They 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,” said Justice Pfeifer, who has shown an independent streak in his 14 years on the court. He did not name names.
Justice O'Donnell's campaign materials say he is “rooted in law enforcement” 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 interests.
In 2004, running to complete the six-year term to which he had been appointed, Justice O'Donnell had a million-dollar advantage over his opponent that led to an Election Day rout.
Now that same opponent, Judge O'Neill, is back for a rematch. His campaign slogan: “No money from nobody.”
Contributing to candidates for states' 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, governors' 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.
“Although 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,” 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. “That 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.” 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 1980's, 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 days.
Much of the recent spending came from business groups furious with what they called a liberal “Gang of Four” 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 employers' 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 O'Donnell. 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, “Ohio became a poster child for everything that was wrong with judicial elections,” said Mr. Weisenberg, the Ohio State Bar Association official.
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 ShiftsInterest 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.
“I don't care how well a trial lawyer does or how big a pot a labor union has,” he said, “they can't begin to match the business corporations. It's not a fair fight.”
Justice Stratton, a Republican, said the recent contributions from business groups were a predictable consequence of a series of rulings “very strongly in favor of trial lawyers.”
“You only have the big money coming out,” she said, “when the court has swung too much to the left or to the right.”
In 2002, Lt. Gov. Maureen O'Connor, 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 O'Connor wrote the opinion that overruled the 1999 insurance decision. Only four years after the court ruled that employers' insurance policies covered many off-the-job injuries, it reversed course. “It serves no valid purpose to allow incorrect opinions to remain in the body of our law,” Justice O'Connor 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 plaintiffs' 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 court's 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. “As insurance professionals,” she said, “each of us sees up close the immediate impact that the Ohio Supreme Court has on the industry, our company and our policyholders.”
There is a small printing press in the garage of Judge O'Neill. In the evenings, he and his children produce fliers for a long-shot no-money campaign for Justice O'Donnell's seat on the Ohio Supreme Court.
“We're going to do a million pieces for $4,000 from my pocket,” Judge O'Neill 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 O'Neill gets from many Ohio bar associations.
“They're out soliciting the next million dollars to beat me,” he said. “The insurance industry, the manufacturers and now the doctors treat the Ohio Supreme Court as a personal piece of property.”
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 possibility.
Marc Dann, a Democratic state senator running for attorney general, said Judge O'Neill's strategy might have been driven by necessity as well as principle.
“Best case,” Mr. Dann said, “maybe he goes to the plaintiff's bar and labor unions, and maybe he raises $300,000. To do a good week of TV in Ohio is $750,000.”
Judge O'Neill's 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 O'Neill had violated judicial ethics by making similar statements in the last campaign.
Judge O'Neill laughed when asked if the investigation worried him.
“I am a Vietnam veteran, and I lost my wife 10 years ago,” he said. “I 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.”
For the time being, a federal judge has suspended the investigation on First Amendment grounds. If the Ohio Legislature is troubled by Judge O'Neill's conduct, the federal judge, Ann Aldrich wrote, “the proper solution is to stop electing judges and make state judgeships appointed offices.”
Judge O'Neill disagreed. He likes elections, he said.
“We have more authority over people's lives than anyone else in elected office,” he said. “We 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 can't think of any other industry that has a more profound impact on people's lives. And it is arrogant at best that some committee should make this appointment.”
But Chief Justice Moyer said the flaws in Ohio 's approach were the product of elections.
“In a perfect world,” he said, “you 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.”
Adam Liptak reported from Columbus, Ohio, and New York, and Janet Roberts reported from New York. Mona Houck contributed reporting from New York.
© 2006 New York Times
Fair Use NoticeThis site occasionally reprints copyrighted material, the use of which has not always been specifically authorized by the copyright owner. We make such material available in our efforts to advance understanding of issues. We believe this constitutes a 'fair use' of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is available without profit. For more information go to : http://www4.law.cornell.edu/uscode/17/107.html. If you wish to use copyrighted material from this site for purposes of your own that go beyond 'fair use', you must obtain permission from the copyright owner.
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