The race is making Ohio a case study in an aggressive new judicial
politics that is reshaping courts and drawing unprecedented political
spending to campaigns for state judgeships nationwide.
''People around the country are watching the Ohio judicial race,'' said
Seth S. Anderson, director of the Hunter Center for Judicial Selection at
the American Judicature Society, a nonpartisan group. ''It typifies the
intense involvement of interest groups in judicial races that has been
growing for the last 15 years but that could reach its apex in Ohio this
year.''
Listeners to WSPD radio in Toledo have been hearing an unusual
advertisement that seems to put the entire Ohio Supreme Court on trial. It
was placed by the Michigan Chamber of Commerce to lure Ohio businesses to
the state, chamber officials said.
''The Ohio Supreme Court,'' the commercial says, ''has rejected
reasonable legal reform,'' when it blocked efforts by the Ohio Legislature
to limit liability suits against businesses.
Some people here (Democrats) said the advertisement was an example of
plotting by Chamber of Commerce types against their candidate, Justice Alice
Robie Resnick, an incumbent abhorred by business groups because she wrote
the decision blocking the liability measures.
Other people (Republicans) said the advertisements were just a reminder
of why Ohio jobs would be saved by their candidate, Terrence O'Donnell, a
Cleveland appeals court judge who broadly hints he would have voted
differently, saying he is against ''activist judges.''
The Michigan Chamber of Commerce president, E. James Barrett, denied
being in league with anyone. But whatever their true purpose, the
advertisements were another reminder that judicial races are beginning to
provoke the same partisanship as races for other offices.
In a year when state Supreme Court campaigns across the country are
transforming judges more fully into politicians, Ohio is leading the way,
said Mark F. Kozlowski, a lawyer at the Brennan Center for Justice at New
York University Law School, which studies judicial independence.
''If there is success in defeating Resnick in Ohio, that could very well
become a model.'' Mr. Kozlowski said, ''Because there is an extremely
focused, specific campaign against her, and if they defeat her that could
become the textbook case.''
Although the election is not until November, accusations have been flying
here for months. With predictions that spending on the race could reach $12
million, the campaign is expected to be the most expensive judicial race in
Ohio, and is likely to be one of the most expensive in the country.
A race is also under way for another seat on the court, but the
Republican incumbent, Deborah L. Cook, is favored over her challenger, a
Democratic Municipal Court judge, Timothy S. Black.
At stake in the Resnick-O'Donnell race is the ideological balance of the
court, which has been split 4 to 3 on many economic issues, including
so-called tort reform, which is how supporters describe the efforts to
reduce the number of lawsuits.
But, with many state courts around the country similarly divided, the
Ohio election has also drawn the attention of national groups that view it
as a test of strategies in battles over state courts.
Each judicial campaign is limited by law to spending $550,000. The
balance of the spending is expected to be by unions, lawyers, business
groups and political parties, which are coming to see the courts as a
political forum like any other. Ohio imposes no limits on spending by
interest groups.
In interviews, Judge O'Donnell and Justice Resnick expressed surprise at
finding themselves the objects of so much attention. Judge O'Donnell
virtually squirmed during an interview in his chambers and talked of earlier
campaigns in which, he said, reputation and integrity had been the only
issues.
Justice Resnick seemed breathless from the intensity of the campaign.
''With these special interest groups,'' she said, ''people are beginning to
think judges are politicians, that seats can be bought on courts.''
Over the last year, Justice Resnick has inflamed Republican legislators
and business groups by writing majority opinions in two highly publicized
cases. The decisions struck down measures to limit suits by people claiming
injury, and the state's system of financing public schools.
For many here, the rulings highlighted an ideological standoff on the
court, in which two Republicans have voted with the court's two Democrats on
some issues.
In her opinion in the school case last month, Justice Resnick seemed
outraged by what she said were the inequities of financing public schools
largely through property taxes. For the second time in three years, the
court ruled that the school financing system controlled by the Republican
governor and Legislature had deprived students in poorer districts of the
education guaranteed them. In her opinion, Justice Resnick dwelled on
descriptions of sewage leaks in Ohio schools.
Republicans have declared that a ''Resnick tax'' will be necessary to pay
for the public schools, and the state's Republican chairman, Robert T.
Bennett, created an acronym for the race -- DARTH -- for Defeat Alice
Resnick Tax Hike.
The three Republicans in the minority on the court, including the court's
chief justice, Thomas J. Moyer, have appeared to be crying for rescue.
At a political meeting in April, Justice Moyer said Judge O'Donnell
shared his philosophy of judicial restraint. Without mentioning Justice
Resnick, according to The Toledo Blade, the chief justice added that ''when
a Supreme Court justice decides he or she is smarter than the Legislature,
what they are doing, in my view, is overruling the will of the people.''
An ethics panel of Ohio judges is considering complaints filed against
Justice Moyer by a critic of the court and a county Democratic Party
chairman, who said he had violated rules intended to keep judges outside the
political fray. Chief Justice Moyer has said he did not make a political
endorsement, but acknowledged that he would not have spoken so glowingly
about Judge O'Donnell if he had known reporters were in the room.
Judge O'Donnell, 54, who often uses the word ''traditional'' to describe
himself, was chosen by Republican leaders to oppose Justice Resnick. A
review of more than 50 of his decisions shows that he has expressed a
conservative view of the role of courts, but has seldom made sweeping
comments about legal issues.
In a lawsuit by the mother of a young man killed at a gay nightclub, for
example, Judge O'Donnell tersely ruled that the club could not be held
liable for failing to provide adequate security because its owners had no
reason to expect a homicide. A Democratic judge, Leo M. Spellacy, dissented,
saying the dead man's family had a right to a trial because owners had
failed to provide security inside the club, even though it was in a
high-crime neighborhood and there had been previous violence.
In the interview, Judge O'Donnell declined to characterize his judicial
philosophy and said he had also voted for plaintiffs in some cases. Judges,
he said, ''should not be for or against anything.''
Some of Judge O'Donnell's critics here have said his emphasis on opposing
judicial activism is a coded way of saying he would vote to overturn some of
the decisions written by Justice Resnick.
''I am not talking in code,'' he said.
Justice Resnick, who was first elected to the state's top court in 1988,
is no firebrand, either, though she has consistently ruled that injured
people have a right to have their claims heard in court. Now 60, she
patiently climbed the ranks of Democratic judicial politics from the trial
court after first winning election in Toledo in 1975. Earlier, as a
prosecutor, she was a staunch death penalty proponent, with 10 death
sentences on her resume.
On the State Supreme Court, Justice Resnick has been neither particularly
famous nor liberal. She has enthusiastically agreed with conservative
criminal justice rulings. Once, in a case involving a protester who had
burned an American flag, she voted against a decision that said the jury
should have been told that flag burning is protected by the First Amendment.
Justice Resnick said she saw the current campaign as a battle of
fundamental values. Her opponents, she said in an interview, ''want business
to not have to worry about any negative decisions. To me, the most serious
thing going on in this country is what corporate America is doing to working
men and women.''
The liability decision last summer made Justice Resnick a political
target. For more than a decade, the Legislature had passed measures limiting
injury claims and the court had struck them down as violations of the Ohio
constitution's guarantees of the right to access to the courts.
Then in 1996, the Republicans who had gained control of the Legislature
passed many of those same laws again. In what legal experts said was a rare
challenge to a court's authority, the legislators included provisions that
simply said they ''respectfully disagree'' that the provisions violated the
constitution.
In a 4-to-3 opinion, Justice Resnick said the court had no choice but to
strike down the laws again. To do otherwise, she wrote, would make the court
''a co-conspirator in the abdication of fundamental individual rights and
liberties contained in our Constitution.''
The decision certainly gained notice for Justice Resnick.
Insurance, medical and other business groups began working against her.
She ''defied the will of the people'' as expressed by the laws limiting
injury claims, said Andrew E. Doehrel, the president of the Ohio Chamber of
Commerce, who said his members were mobilized to defeat her.
But the decision won Justice Resnick support, too. Plaintiffs' lawyers,
consumer groups and unions are behind her. The Democratic Party will spend
''whatever it takes'' to defend her, said David J. Leland, the state
chairman.
In the quaint ways of the law, it was a procedural fluke that landed
Justice Resnick in the position of writing two of the most visible court
decisions here in years. After the justices vote on cases, the court selects
which justice will write the opinions by lot, drawing numbered marbles out
of a leather jar.
So, just as she was facing a re-election bid, it happened that Justice
Resnick's number was drawn both for the liability and school cases. The
spokesman for the court here in Columbus, Jay Weubbold, said the number on
the marble assigned to Justice Resnick is seven. It is not yet clear whether
it is her lucky number.
