On July 15, the Ohio Supreme Court voted to replace all seven justices with judges from the state's Court of Appeals, for purposes of considering a petition filed by Supreme Court Justice Maureen O'Connor.

Ray Vasvari, legal director of the American Civil Liberties Union (ACLU) of Ohio, called the en masse recusal "most unusual, but most necessary." In what some see as a case of strange bedfellows, Vasvari is serving as counsel for O'Connor, who was elected to the bench after serving as Ohio's Republican lieutenant governor. Vasvari said the case "is so unique on so many levels that we find ourselves in uncharted waters at every turn."

What prompted the recusal was a petition filed by O'Connor in June, asking the state Supreme Court to issue a writ prohibiting Judge William H. Wolff Jr., a Court of Appeals judge, from pursuing a judicial ethics complaint against her. O'Connor v. Wolff, No. 2003-0996.

There's a tangled history behind O'Connor's petition.

Last fall, O'Connor ran campaign advertisements depicting herself in judicial robes presiding over a staged proceeding, according to her petition. During the scene, a narrator and an overlaid text noted that she had served as a trial judge and magistrate from 1985 to 1995.

In October, Dennis L. White, chairman of the Ohio Democratic Party, filed a complaint with the appellate chief justice of the Ohio Court of Appeals, Lee H. Hildebrant Jr., accusing O'Connor of violating the canons of judicial conduct by misrepresenting herself as a sitting judge.

Hildebrandt appointed three of his colleagues, including Wolff, to a "probable cause panel" charged with determining if the complaint merited investigation. The panel voted 2-1 to proceed with the complaint. Although there is no official record of who voted how, Wolff admitted that he voted against O'Connor in his reply brief, according to Vasvari. Wolff's attorney, Michael Krumholtz of Dayton's Bieser, Greer & Landis, would not comment on any aspect of the case.

A second panel, on which Wolff did not serve, found clear and convincing evidence of a violation by O'Connor. Yet a third panel, also without Wolff, voted to drop the matter at the mutual request of White and O'Connor. White did not return messages asking for comment, but told the Cleveland Plain Dealer in January that legal fees were draining the party's coffers. Vasvari, who was not O'Connor's counsel at that time, said he knew nothing of the terms of their agreement.

In January, the music stopped and both O'Connor and Wolff sat in new chairs. O'Connor began her term on the Supreme Court and Wolff replaced Hildebrandt as appellate chief justice, a post to which he had been elected by his colleagues.

In March, Wolff used his newfound authority to reopen the prosecution of O'Connor. He denied O'Connor's requests that he recuse himself from the matter and appointed a probable cause panel in May. Fighting fire with fire, O'Connor seeks to turn back the ethics complaint against her by lodging an ethics complaint against Wolff. But Vasvari said that the case is about more than that. He said that the ACLU got involved because it believes that restrictions on campaign advertising violate the First Amendment.

O'Connor's petition argues that because Wolff has overall control of the proceeding, including determining who will sit on the panels that will judge her and who will act as investigator, he is improperly acting as both prosecutor and judge. But the core of her argument is that Wolff, having once sat in judgment on O'Connor, ethically cannot do so again.

Vasvari acknowledged that judges sometimes do exactly that, as when a trial judge pronounces sentence on a criminal defendant, is rebuked on appeal and then presides over a retrial.

What's missing in this case, Vasvari said, is that "there's no intervening instruction from above." A trial judge who gets a case back on remand is instructed in how to correct his earlier errors.

"In effect, he becomes a scrivener for the higher court," Vasvari said.

'An embarrassment'

Catherine Turcer, legislative director of Ohio Citizen Action, speculated that the Supreme Court may have taken the bold step of recusing all of its members because of recent concerns about the independence of the judiciary.

In November, Chief Justice Thomas J. Moyer, responding to complaints about advertising and the influence of big money in both the 2000 and 2002 elections, called the state's judicial selection system "an embarrassment to Ohio and an insult to thinking people."

Professor Paul Carrington of Duke University Law School said that the court's decision to appoint the most senior judge from each district of the Court of Appeals seemed eminently fair.

Young's e-mail address is gyoung@nlj.com.