Friday, March 23, 2001

Choices rare in judge races

Analysis: Only 29% faced opposition in Ohio

By Howard Wilkinson
The Cincinnati Enquirer

        When Southwest Ohio voters go to the polls this fall to elect 11 judges, there may not be much suspense.

        In recent years, most judges in the region have rarely, if ever, faced opposition when they have to run for election. Nearly half the judges in Ohio first came to office through a gubernatorial appointment to a vacant judicial seat.

        An Enquirer analysis of elections in Ohio reveals:

        • Last year, 153 judges were elected, but only 45 were opposed on the ballot.

        • In Hamilton County, all 14 judicial elections since 1998 have been uncontested.

        • Since 1990, in Hamilton County, only 29 of the 86 judges elected had opponents at the polls.

        • In Butler, Warren and Clermont counties, only five of 22 common pleas, county and municipal judges elected since 1998 have been in contested races.

        While no one suggests the electoral system produces unqualified judges, it does run counter to a basic tenet of American democracy: Elections are about choices.

        A Cincinnati lawyer, Bruce I. Petrie Sr., who has crusaded for 30 years against the judicial election system, called it a sham.

        “What is the point of having judicial elections if all judges are appointed and nobody ever runs against them?” he said.

        He wants to replace the system with a “merit selection” process under which appointees would be chosen by bipartisan commissions instead of through a partisan political process. Mr. Petrie and others argue the current system allows politics to influence what should be a nonpolitical office.

        Political appointments do not necessarily produce bad judges, Mr. Petrie said, but they “exclude every lawyer except those who have some connection to their party. Lawyers who are good, competent and want to advance are excluded because they don't have the political connections.”

        Supporters of judicial elections, however, say the lack of competition proves that Ohio has, for the most part, good judges.

        “When a judge is bad, people are going to know it,” said Judge Guy Guckenberger of Hamilton County Municipal Court, who supports having judges elected instead of appointed.

        For the past quarter-century, when a vacancy occurred, the governor has made the appointment after receiving a recommendation from his party's political organization in that county. Rarely does the governor disregard the county recommendation.

        Contested races were commonplace in Hamilton County as recently as the 1980s. In 1989, eight municipal court judges were elected, all with opposition. Five were elected from a 10-candidate race for five seats; three others won in head-to-head contests.

        Judge Guckenberger, who was re-elected two years ago without opposition, said the lack of competition in recent elections does not justify scrapping the system.

        “It's important to have the option available, the option of running against a sitting judge,” said Judge Guckenberger, who was appointed in 1993 and elected that year with 84 percent of the vote.

        “If you mess up big time — if you make inappropriate comments from the bench, don't show up for work — you should be challenged and probably will be,” Judge Guckenberger said.

        Ohio's system is out of step with much of the rest of the country.

        Thirty-two states have some sort of merit selection of judges at trial court or appellate levels, or both.

        In many, a bipartisan commission of lawyers and lay people screens candidates for judgeships and recommends several to the governor, or sometimes, the Legislature.

        In most of those states, appointed judges have to stand for a “retention election,” where voters are asked to vote up or down on keeping them. If a judge is not retained, the merit selection process begins anew.

Ky., Ind. systems

        Kentucky has much the same system as Ohio, only with longer terms for judges. Supreme Court, appeals court and circuit court judges in Kentucky all run for eight-year terms, compared with six years in Ohio. Indiana Supreme Court justices and district appeals court judges are appointed through a merit selection system to 10-year terms. But after two years in office, they must survive a “yes or no” retention election to stay for the full 10 years.

        The only time Ohio voters could have gone to a merit selection system was in 1987. But, that year, 65 percent voted against a constitutional amendment for merit selection.

        In Ohio, merit selection advocates have some powerful allies, including Ohio Supreme Court Chief Justice Thomas Moyer and Ohio State Bar Association President Reginald S. Jackson Jr.

        Justice Moyer said it especially makes sense for Supreme Court justices, district appeals court judges and “in large urban counties, where voters aren't as likely to know much about their judges.”

        “In smaller counties, where there are fewer judges, people have a better idea who is a good judge and who is not so good.”

        On Tuesday, Justice Moyer used the occasion of his annual State of the Judiciary speech in Columbus to encourage development of a selection system that rewards merit and not politics.

        Political parties, which influence gubernatorial appointments today, have been particularly resistant to changes in how Ohio chooses its judges.

        Since becoming governor in January 1999, Republican Bob Taft has appointed 32 judges on the recommendation of GOP county parties.

        Orest Holubec, the Taft staff aide who handles judicial appointments, said the governor's office has given the Republican party organizations in all 88 counties a 50-question survey that it must administer to potential nominees before they can be considered.

        The governor's questionnaire covers personal information about the candidate, private finances, judicial temperament and legal experience. The questionnaire also has political questions about the person's experience as a candidate, ability to raise campaign money and involvement in other campaigns.

        The political questions are what are objectionable, Mr. Petrie said.

        “Why should these questions of electability matter when you are choosing the person who would be the best judge?” Mr. Petrie said.

        Judge Guckenberger said he does not consider a judge's ability to go out and make his case to the voters a drawback.

        “I don't see anything wrong with a judge having to go out to the people and stand up and explain your record,” he said.

        Judge Mark Painter, an Ohio 1st District Court of Appeals judge re-elected without opposition last fall to a second six-year term, said that while it is “good to get out in the community and humble yourself a bit,” there is a downside to judges running for election.

        “It means you have to go out and raise money,” said Judge Painter, who supports merit selection. “There's something about a judge going out begging for money that doesn't look right.”

        But, in a system where most judges are appointed and few have election opponents, most judges don't have to do much of that.

        In 1999, for example, seven Hamilton County Municipal Court judges were elected from districts without opposition. This year, another seven judges will be running. Three judges are up for election in Butler County and one in Mason. No judges are being elected in Clermont County.

        Leaders of both political parties in Hamilton County say they're seeking candidates to run in all of those districts, but cannot guarantee they will all be contested.

        In some Hamilton County elections in the past, the Republican and Democratic parties have agreed not to challenge each other's judicial candidates. This, said Tim Burke, co-chairman of the Hamilton County Democratic Party, has led to more minority representation on the court.

        A district's political makeup also can discourage prospective candidates, party leaders say.

        “There are districts where Republicans know they won't be competitive and districts where Democrats don't have much of a chance,” Mr. Burke said.

        Sometimes, voters can't tell where a race is contested.

        Last fall, two Hamilton County Common Pleas Court judges — Democrat incumbent Richard Niehaus and Republican incumbent Dennis Helmick — were the only candidates to file in a field race where the top two finishers would be elected.

        Many voters, however, apparently thought they were choosing one over the other by casting only one vote. Judge Niehaus received 219,135 votes, and Judge Helmick got 101,956.

        To Mr. Petrie, the Niehaus-Helmick “contest” was a great exhibit for his case against electing judges.

        “How can you say it works,” Mr. Petrie said, “when people don't even know what they are voting on?”

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