Sunday, October 22, 2000

TV ads help mold Supreme Court race

Advocacy groups' role debated

By Spencer Hunt
Enquirer Columbus Bureau

        COLUMBUS — Has Alice Robie Resnick put justice up for sale? Or is she an independent Supreme Court justice who stands up to special interests?

        Voters looking for evidence to support either claim won't find much in the campaign commercials interest groups and party leaders are broadcasting across Ohio.

        Both ads use snippets of Justice Resnick's 30-year legal career to create two very different images of the judge.

        Those images may determine whether the two-term Toledo Democrat can retain her seat on the bench against Cuyahoga County appellate court Judge Terrence O'Donnell.

        The two candidates are locked in a multimillion-dollar battle that could shift the balance of power on the Ohio Supreme Court.

        Because the candidates are limited by ethics rules in what they can say and spend, TV ads by special interest groups have taken over and transformed the race into a referendum on Justice Resnick's record.

        They also have ignited an intense new debate about the integrity of the court system, and about groups that rely on secret donors to produce “issue advocacy” ads.

        “I don't like it,” Norton Webster, an Ohio Elections Commissioner, said about the race. “The simple fact of the matter is these organizations are within their rights to say what they want to say.”

Scales of justice
        At the center of the controversy is a 30-second commercial that calls Justice Resnick a pawn of personal-injury lawyers and union leaders.

        Created by the pro-business group Citizens for a Strong Ohio, the ad features a statue of Lady Justice who peeks underneath her blindfold as piles of special interest money tip her scales.

        The ad states Justice Resnick ruled nearly 70 percent of the time in favor of trial lawyers who have given her more than $750,000 since 1994. It also says the justice reversed one of her own decisions after a labor leader and contributor complained.

        Concludes the announcer: “Alice Resnick. Is justice for sale?”

        Justice Resnick has long been the target of insurance companies, doctors and business groups who blame her for a series of high court setbacks. Specifically, they are upset about a series of close decisions that overturned laws intended to cap expensive lawsuits and to reform worker compensation rules.

        The $750,000 figure comes from an Ohio Citizens Against Lawsuit Abuse study. The group has run radio ads criticizing Justice Resnick for the court's 4-3 rejection of the lawsuit-reform law. Laura Yeomans, a campaign-finance researcher at Ohio Citizen Action, says the fund-raising estimate could be accurate.

        The claim that Justice Resnick too often sides with trial lawyers is another matter.

        The 70 percent figure comes from the Ohio Chamber of Commerce, another outspoken critic of Justice Resnick. The chamber studied 93 Supreme Court cases in which the Ohio Academy of Trial Lawyers filed friend-of-the-court briefs.

        Court records show the Ohio Supreme Court has decided 2,649 cases since January 1995. The chamber study covers, at most, 3.5 percent of all cases.

        The accusation that Justice Resnick reversed herself springs from a 1991 labor case. The court ruled 4-3 that construction companies don't have to pay the prevailing wages in projects financed by public bonds.

        That decision prompted AFL-CIO director John Hodges to ask justices to reconsider. Although Justice Resnick did move to reconsider, the Supreme Court later decided to let the original 4-3 ruling stand. Bottom line: Justice Resnick never changed her vote.

        Chip McConville, the leader of Citizens for a Strong Ohio, said the case suggests labor interests have Justice Resnick's ear.

        “It's a case where an interest group made a very unusual appeal to the court,” he said.

A new debate
        This level of advertising is unprecedented in an Ohio judicial race. That has sparked a new controversy, not only over what the ad says, but the way it was financed.

        As an educational nonprofit corporation, Citizens for a Strong Ohio does not fall under the campaign-finance laws. That means it can accept unlimited donations without reporting them to the state.

        Gov. Bob Taft acknowledged he has called supporters to urge them to give money to Citizens for a Strong Ohio. He said he felt the Supreme Court's past decisions hurt the state's economy.

        “I feel an obligation as governor to support growth in jobs and businesses,” Mr. Taft said.

        A government watchdog group, Common Cause-Ohio, tried and failed this week to convince the Ohio Election Commission to declare the group a political action committee. The group said the ad clearly encourages a vote against Justice Resnick.

        But commission officials disagreed, saying Citizens has a First Amendment right to express its opinions.

        On Friday, the Ohio State Bar Association said the ad undermines the public's trust in a fair and independent Supreme Court.

        “The message it sends is, "If you can throw enough money at a Supreme Court justice, it will affect his vote,'” said Reginald S. Jackson, the association president.

More ads
        In the meantime, the Democratic Party and groups representing trial lawyers, unions and teachers have been running their own commercials to support Justice Resnick.

        “Why are corporate polluters and big insurance companies spending hundreds of thousands of dollars to distort Alice Robie Resnick's record?” an announcer asks in a spot bankrolled by the Ohio Democratic Party.

        The commercial refers to Citizens for a Strong Ohio's advisory board, which includes Galen R. Barnes, president and CEO of Nationwide Insurance, and Richard M. Wardop, chairman and CEO of AK Steel Corp.

        The commercial describes Justice Resnick as a champion for families and education in Ohio, a reference to two 4-3 decisions Justice Resnick wrote ordering the state to pay millions more to adequately fund public education.

        Another ad, run by a group calling itself Citizens for an Independent Court, calls Justice Resnick “an independent justice who's above party politics. She'll stand up to the special interests.”

        The group was formed by the Ohio Academy of Trial Lawyers, Ohio AFL-CIO, Ohio Education Association, Ohio Federation of Teachers and the state chapter of the Fraternal Order of Police.

        The affiliation with special interests does not undermine its message, says Mike Taylor, a spokesman for Citizens for an Independent Court.

        Mr. Taylor said the Fraternal Order of Police frequently is at odds with the Ohio Academy of Trial Lawyers over high court cases.

        “She's not beholden to any of these groups because we come from a lot of different directions on issues,” he said.

Quiet candidates
        While the ad war rages, voters are not hearing from the candidates themselves.

        A judicial code of ethics forbids Justice Resnick and Judge O'Donnell from saying anything that would indicate how they would decide cases. They have agreed to spend no more than $500,000 each on their campaigns.

        That means any television ads from the O'Donnell and Resnick campaigns may not appear until the final few days before the election.

        Though she is not on the air now, Justice Resnick is firing back at Citizens for a Strong Ohio.

        In a written statement, she challenged the group to open its financial records for public inspection. She called the ad a “vicious attack,” and added “Their charges are irresponsible and completely untrue.”

        Judge O'Donnell also sent out a statement challenging “voter education groups” to fully disclose their finances. In an interview he would say only that he recognizes these groups have a First Amendment right to express their opinions.

        Beyond that, he said he's focusing on his own campaign commercial.

        Said Judge O'Donnell: “We're working on trying to develop a positive and good campaign message.”


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