Ohio Citizen Action grievance:
Misconduct by Ohio Supreme Court Justice Evelyn Lundberg Stratton

October 28, 2002

The Hon. Lee H. Hildebrandt, Jr.
Chief Justice of Ohio Courts of Appeal
First Appellate District
William Howard Taft Law Center, 12th Floor
230 East Ninth Street
Cincinnati, OH 45202

Dear Judge Hildebrandt:

Under Rule II, Rules for the Government of the Judiciary of Ohio, I respectfully file this grievance on behalf of Ohio Citizen Action regarding misconduct by Ohio Supreme Court Justice Evelyn Lundberg Stratton. Ohio Citizen Action believes that Justice Stratton has violated the Code of Judicial Conduct and the Rules for the Government of the Bar by virtue of statements she has publicly made about 1) trial lawyers, 2) medical malpractice judgments, and 3) class action lawsuits.

In support of this grievance, we attach as Exhibit A, a newspaper article dated October 9, 2002, from the Mansfield News Journal of an interview with Justice Stratton. The article both paraphrases and directly quotes Justice Stratton, as follows:

Ohio Supreme Court Justice Evelyn Stratton doesn’t have a high opinion of trial lawyers. "I have a few (trial lawyer) friends, but most of them abuse the system," she said.

Stratton, who is running for a second six-year term, said large malpractice judgments against doctors are leading the state into s serious medical crisis. In many cases, malpractice insurance rates are more than doubling from year to year and doctors can’t simply pass those costs along because of managed care, she said. . . .

As a result, many are retiring early or leaving Ohio to practice elsewhere. "We’re going to have a real (health care) access problem soon," she said. Stratton also is upset with a spate of class-action lawsuits that mostly benefit the lawyers who bring then to court. She was recently involved in one indirectly. . . .

As a "client," she demanded to know how much the lawyer was making from the suit. "He said he made $2.5 million, but he was one of the smaller lawyers in the case," she said. "I’m curious how much that main guy made." Stratton said her opponent in November, Janet Burnside of Cleveland, is heavily backed by the Trial Lawyers Association.

"Many, many trail lawyers are contributing to her campaign, so that makes it the trial lawyers against the rest of the state," she said. "It polarizes the race, because it influences policy."

We believe that Justice Stratton’s public comments violate Canon 1, Canon 2(A), canon 7(B)(1), and Canon 7(B)(2)(d) of the Code of Judicial Conduct, as well as the attorney’s oath of office prescribed by Rule I, Section 8 of the Rules for the Government of the Bar and the Judicial Creed also set forth in those rules. These canons and rules provide that:

Canon 1. A JUDGE SHALL UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and personally shall observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Code are to be construed and applied to further that objective.

Canon 2. A JUDGE SHALL RESPECT AND COMPLY WITH THE LAW AND SHALL ACT AT ALL TIMES IN A MANNER THAT PROMOTES PUBLIC CONFIDENCE IN THE INTEGRITY AND IMPARTIALITY OF THE JUDICIARY (A) Activities to improve the law A judge may engage in activities to improve the law, the legal system, and the administration of justice, provided those activities do not cast doubt on the judge’s capacity to act impartially as a judge, demean the judicial office, or interfere with the proper performance of the judicial duties.

Canon 7. JUDGES AND JUDICIAL CANDIDATES SHOULD REFRAIN FROM POLITICAL ACTIVITY INAPPROPRIATE TO JUDICIAL OFFICE (B) Political and campaign conduct ion general (1) A judge or judicial candidate shall maintain the dignity appropriate to judicial office. (2) A judge or judicial candidate shall not do any of the following: (d) Make statements that commit or appear to commit the judge or judicial candidate with respect to cases or controversies that are likely to come before the court;

The oath of office taken by every attorney states in part:

In my capacity as an attorney and officer of the Court, I will conduct myself with dignity and civility and show respect toward judges, . . . fellow professionals, and all other persons.

The Judicial Creed states in part:

I know that I must not only be fair but also give the appearance of being fair. . . . I will treat all persons, including … lawyers, … [and] judicial colleagues …. with dignity.

The use of general, inflammatory terms in printed and oral campaign communications are inappropriate in judicial campaigns. In Re: Judicial Campaign Complaint Against Hein (1999), 95 Ohio Misc. 2d 31. Statements that lessen the public’s understanding of the judicial system and damage the reputation of an opponent as a jurist are contrary to the overarching principle Canon 7 that judicial candidates should conduct their campaigns in a dignified and appropriate manner. In Re: Judicial Campaign Complaint Against Burick (1999), 95 Ohio Misc. 2d 1 ["Attorneys, and especially those who are seeking election to judicial office, have an obligation to further, not obscure, the public’s understanding of the law and legal system."]

In Berger v. Supreme Court of Ohio (S.D. Ohio 1984), 598 F. Supp. 69, the Federal District Court stated "Ours is an era in which members of the judiciary often are called upon to adjudicate cases squarely presenting hotly contested social or political issues. The state’s interest in ensuring that judges be and appear to be neither antagonistic nor beholden to any interest, party or person is entitled to the greatest respect." [Quoting Morial v Louisiana Judiciary Comm. (C.A.5, 1977), 565 F. 2d 295, 302.]

A judge should consider the possibility that legal challenges may arise with respect to a proposed amendment (or legislation.) Board of Commissioners Advisory Opinion 2002-3. Unfettered expression of personal views by a judge is improper and under Canon 3(E)(1) may lead to a judge’s disqualification from proceedings. Board of Commissioners Advisory Opinion 2002-3.

The phrase "trial lawyers" is commonly used in the media, the legal community, and legislative and political contexts to refer to attorneys who represent individuals as plaintiffs in litigation, as opposed to attorneys who represent defendants, usually business or governmental entities, in such litigation. Justice Stratton’s statements regarding trial lawyers clearly reflect a personal disdain of attorneys who bring actions on behalf of such plaintiffs. Her statements impugn the integrity of plaintiffs’ attorneys, a significant portion of the bar, and do not show the respect required by the Code of Judicial Conduct and Rules for the Government of the Bar. Her statements also demonstrate a lack of appreciation and respect for the proper and vital role served by trial lawyers in our adversarial system of justice. In short, her blanket statements regarding trial lawyers undermines public confidence in our system of justice. If a Supreme Court Justice voices her personal view that most trial lawyers abuse the system, how can she expect the public to have confidence in the system?

Justice Stratton’s strong critical comments regarding medical malpractice lawsuits and class actions likewise undermine public confidence in our judicial system. Her statements reflect a failure to understand the importance in our system of justice of victims of malpractice being able to seek redress for their injuries in courts of law. Ohio’s Bill of Rights, Article I, section 16 of the Ohio Constitution, specifically guarantees that, "All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay." A fundamental cornerstone of our civil justice system is the right to hold professionals, including medical professionals, to a higher standard of care and accountable for injury, loss and suffering that results from their negligence. Justice Stratton’s statements also reflect a regrettable distrust of citizens sitting as jurors to make proper determinations in such cases. Yet, the right to a jury trial is one of our most precious rights and serves both plaintiffs and defendants.

Justice Stratton’s statements regarding class actions is of particular concern to Ohio Citizen Action in light of the obvious importance of class actions in providing consumers and others redress which would otherwise be unavailable. Class actions have saved lives, stopped production of dangerous products, halted consumer fraud, and brought women and minorities into police and fire departments throughout the nation. In fact, Ohio Citizen Action has been involved in class action litigation. Unfortunately, Justice Stratton’s statements reflect negatively on the role that class actions play in providing an efficient method of seeking redress where there are many potential plaintiffs in often complex cases. Class actions serve both the interests of the courts by greatly reducing the number of cases and the interests of citizens who would not otherwise be able to seek redress in the courts or may not even be aware of harm done.

Even more troubling than the harm done to public confidence in our system of justice is that Justice Stratton’s statements regarding trial lawyers, class actions and medical malpractice lawsuits reflect a clear personal bias on her part. Further, the statements commit or appear to commit her to a position on any such cases that may come before the Court. As such, they cast doubt on her capacity to act impartially as a Justice of the Supreme Court and interfere with the performance of her judicial duties. How can the attorney for an injured worker or injured person expect to receive from Justice Stratton impartial and unbiased treatment in a case before the Supreme Court? How can consumers or other plaintiffs in a class action expect to receive equal consideration of their legal arguments from Justice Stratton?

Moreover, Justice Stratton made her statements at a time when the issue of medical malpractice insurance costs and their effect on the availability or future availability of health care services is in the public eye. The subject is one of an on-going intense debate and disagreement. The issue is being used to push for so-called "tort reform" legislation that, if passed, is certain to be challenged in court.

Canon 3(G)(1)(a) of the Code of Judicial Conduct, Disqualification-justices of the supreme court, provides that:
(1) A justice shall disqualify himself or herself in a proceeding in which the justice’s impartiality might reasonably be questioned, including but not limited to instances where:
(a) the justice has a personal bias or prejudice concerning a party.

Clearly, Justice Stratton’s ability to be impartial in any class action or medical malpractice case that comes before the Court may reasonably be questioned based on her public statements.

Justice Stratton’s statements regarding the contributions by trial lawyers to her opponent in the election and especially the statement that the contributions influence policy are also highly inappropriate. The disciplinary case of In Re Complaint Against Judge Harper (1996), 77 Ohio St. 3d 211, involved very similar statements. That case involved a campaign ad aired by Judge Harper in her 1994 campaign for election as Justice of the Ohio Supreme Court. Her opponent at the election was Justice Resnick. The ad stated, "On the Ohio Supreme Court, one Justice has a problem. It’s money. Most of Resnick’s money comes from just one place, the plaintiff lawyers who sue, sue, sue. Over $300,000.00 just from them. This small group of suing lawyers wants Resnick with her liberal rulings to make it easier for them to collect millions in fees."

A nine member panel of Courts of Appeals judges unanimously ruled that Judge Harper violated Canons 2A and 7B(1)(a) based on the statements made in the campaign ad. They stated in their decision that:

A reasonable member of the public could, nonetheless, have concluded from the advertisement that lawyers representing plaintiffs’ interests are dishonest and that these dishonest lawyers desired Justice Resnick’s reelection. However, contrary to the inferences in the ad, lawyers representing plaintiffs’ interests provide a valuable contribution to the public. To the extent that the advertisement suggested dishonest lawyers might find comfort in Justice Resnick’s reelection, it undermined public confidence in the integrity and impartiality of the judiciary. Furthermore, by authorizing the advertisement, respondent failed to maintain the dignity appropriate to her judicial office.

We also agree with the board that the advertisement suggested there was something improper in lawyers’ contributing to a judicial campaign. Again, this inaccurate representation also undermined public confidence in the integrity and impartiality of the judiciary.

We see no functional difference between Justice Stratton’s statements and the statement in Judge Harper’s advertisement.

For all the above reasons, Ohio Citizen Action respectfully request that Justice Stratton’s public comments be found to have violated the Code of Judicial Conduct and the Rules for the Government of the Bar.

Very truly yours,

Catherine Turcer
Ohio Citizen Action