Sunday, September 24, 2000

Judicial races stretch ethics


Ads, agendas tarnishing impartiality

By Spencer Hunt
Enquirer Columbus Bureau

        COLUMBUS — During the 1996 campaign, a 30-second television ad told Cincinnati voters that one of the candidates “voted to end the death penalty” while in Congress.

        It was a routine TV commercial, normal in races for partisan offices. But not in a race for judge.

CLAMPING DOWN
Hildebrandt
Hildebrandt
    A TV ad on behalf of Judge Lee Hildebrandt, an incumbent on the Ohio 1st District Court of Appeals, made the claim that Mr. Mann, former Cincinnati mayor and congressman, voted to oppose the death penalty, a claim ostensibly designed to suggest he wasn't the right judge to decide appeals of such cases.
    Judge Hildebrandt's ad may have helped him win reelection in a conservative county, but it also cost him $15,000 in fines and six months probation after a panel found he'd violated several rules of ethical conduct. It was the harshest penalty to date meted out by tbe court.

        As Campaign 2000 shifts into overdrive, a growing number of top judges and legal experts say they are troubled to see misleading ads and special-interest agendas popping up again and again in judicial races.

        The problem is so widespread that chief justices from 15 state supreme courts will gather in Chicago this December to discuss campaign reform ideas. Ohio's Chief Justice, Thomas J. Moyer, is going to attend.

        “The perception is campaigns are becoming more strident,” he said. “Certainly more money is involved.”

        Candidates for the bench are bound by a unique set of ethics rules not to say anything misleading about their opponents, endorse other candidates, or say anything else that hints at how they would decide cases. The rules are intended to protect the ideal of completely fair-minded judges who serve only the law.

        Though Justice Moyer praises campaign reform measures the high court enacted in 1995, he said more time is needed to determine whether they have cleaned up Ohio's judicial campaigns. In the short term, he acknowledges the reforms have spurred more complaints and done little to curb spending.

        The Supreme Court created a faster process for investigating campaign misconduct in 1995. The idea was intended to discourage bad behavior by handing out punishments before an election is held.

        Records show 13 candidates received written rebukes, punishments and fines for breaking ethics rules over the past five years. The complaints cover a range of misconduct, from questionable claims in letters and yard signs to misleading radio and television ads.

        The most striking case was in Hamilton County.

        A TV ad on behalf of Judge Lee Hildebrandt, an incumbent on the Ohio 1st District Court of Appeals, made the claim that Mr. Mann, former Cincinnati mayor and congressman, voted to oppose the death penalty, a claim ostensibly designed to suggest he wasn't the right judge to decide appeals of such cases.

        Judge Hildebrandt's ad may have helped him win reelection in a conservative county, but it also cost him $15,000 in fines and six months' probation after a panel found he'd violated several rules of ethical conduct. It was the harshest penalty to date meted out by tbe court.

        Mr. Mann said the ad was inaccurate because it mentioned a vote on the 1994 Clinton crime bill, which had 60 death penalty specifications. The bill never became law.

        Now a lawyer in private practice, Mr. Mann said an official finding that Judge Hildebrandt violated ethics rules didn't help him, because it came just one day before voters went to the polls.

        “It just was too late to make a difference,” he said.

        Judge Hildebrandt declined to comment on the case, but campaign strategist Chris Finney defended the ads he helped create. Mr. Finney said they described things Mr. Mann had done in Congress — not things he would do as a judge.

        This year common pleas court contestants can spend no more than $125,000 in a campaign, while a Supreme Court candidate faces a $500,000 spending cap.

        While many critics consider the limits an unconstitutional restriction on free speech rights, others say they've simply shifted campaign spending outside the candidates' control.

        Special-interest groups figure to do most of the talking and spending in a high-stakes race between Supreme Court Justice Alice Robie Resnick and challenger Terrence O'Donnell, a Cuyahoga County appeals court judge.

        Labor unions, trial lawyers and school administrators are expected to praise Ms. Resnick for helping lead several controversial 4-3 decisions on school funding reform and workers' rights. Business groups, led by the Ohio Chamber of Commerce, are expected to criticize Ms. Resnick for her part in a 4-3 defeat of a lawsuit reform law. Ads independent of a judicial candidate are not bound by the same ethics rules. In other words, most anything goes.

        Though Ms. Resnick and Mr. O'Donnell have nothing to do with these voter education campaigns, the mere perception that either might favor a political agenda worries Seth Andersen, an ethics expert with the Chicago-based American Judicature Society.

        “If the perception is judges are bound to particular interests, you run the risk of destroying the public's confidence in the courts,” Mr. Andersen said. “If it gets to a point where a judge can already be identified as "pro-this' or "anti-that' you really are getting away from the image of a judge as an impartial referee.”

        Judge O'Donnell has said he knows nothing about any special-interest campaigns. About Justice Resnick and himself, Mr. O'Donnell will say only that he favors judicial restraint over judicial activism.

        He also questions whether the spending limits are legal, but he decided not to challenge them in court.

        “I decided to live within it,” he said.

        Justice Resnick said she has heard that special interests will spend up to $8 million to defeat her in November. While she finds that troubling, she said she will defend any group's free speech rights in an election.

        Once the election is over, she also hopes to travel to Chicago to attend the chief justices campaign reform summit.

        “I have a tremendous interest,” she said. “Politics are being infused in races where they have no place.”

        Justice Moyer said he's not sure what changes could be made to clean up judicial races in Ohio. About the summit meeting in Chicago, he said he's going mostly to listen to what his fellow chief justices have to say.

        Where the Resnick-O'Donnell race is concerned, the chief justice won't say anything. That's because a judicial ethics panel re cently cleared him of misconduct charges for statements he made about Judge O'Donnell.

        During a public gathering of Republican Party officials, Justice Moyer told audience members that Judge O'Donnell's judicial philosophy was similar to his own. Justice Moyer admits it's hard for judicial candidates to toe the line in campaigns.

        “When you are at an all-Republican or all-Democratic meeting, the audience does not understand why we can't stand there and say why we do or do not support a person,” he said. “We have to consciously not do what seems to be natural.”
       
       



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