Last Week at Rotary

Thursday, July 13, 2017

JUSTICE PAT DEWINE
Supreme Court of Ohio
Our Ohio Courts and Constitution

Justice Pat DeWine began his service on the Supreme Court of Ohio on January 2, 2017, following a statewide election in which he received over 56% of the vote.

Before serving on the Supreme Court, Justice DeWine was a judge on the First District Court of Appeals based in Cincinnati. An excellent writer, Justice DeWine was known for the quality and thoroughness of his legal opinions. His opinions reflect his strong belief in judicial restraint and his respect for the constitutional roles of the other coequal branches of government.

Justice DeWine graduated in the top ten percent of his class from the University of Michigan Law School with Order of the Coif honors. He was selected Executive Editor of the University of Michigan Journal of Law Reform, won honors as a moot court semifinalist, and on multiple occasions, received academic awards for obtaining the top marks in his class. In addition to his academic achievements, during his third year in law school, he finished second in the Toledo marathon with a time of 2:30:53, one of the top marathon times in the state that year.

Justice DeWine is a 1990 graduate of Miami University, where he received degrees in History and Diplomacy & Foreign Affairs while maintaining a perfect 4.0 grade point average and Summa Cum Laude honors. At Miami, Justice DeWine was awarded the academic Alumni Scholarship three times, received recognition as the top student in the Political Science Department, and was a national Truman Scholarship finalist alternate award winner. 

As a member of the Hamilton County Board of Commissioners, he focused on reforming County government, lowering the tax burden, eliminating unnecessary bureaucracy, and promoting public safety.  He led the citizens referendum that ultimately repealed the nearly $1 billion sales tax increase that was enacted by his colleagues on the Commission.  

Justice DeWine and his wife Rhonda live in Cincinnati where they are the proud parents of five children:  Michael (20), Matthew (18), Jacob (18), Grace (15) and Brian (15) where three are in college and two are in high school.

Ohio Supreme Court Justice Pat DeWine said, “I see many of my old friends here with whom I’ve worked for this city.” 

I am the newest member to the Ohio Supreme Court as of January 2, 2017. There are actually two new members: the other is Judge Fisher who came in on January 1, 2017. There are two judges from Cincinnati now; whereas the court was always dominated by Cleveland. It is noteworthy for Cincinnati because there have been only two since 1930. 

The court hears cases 4 – 5 days per month. The rest of the time is spent reading and writing. I have an office at UC’s Law School. Alexander Hamilton once said, “The least dangerous branch of the government is the judiciaryj because it doesn’t have the power of the purse or the sword; it draws only on the competence of its judgment.” Our purpose is to educate others on the judiciary. 

In Ohio, we elect our judges. This is not the same in other states where they are appointed. In 1851, Ohio adopted the constitution that we use today. The idea was that political appointments made the appointed too beholden to whomever had made the appointment. In Ohio, we are elected and accountable to the people. It is not easy and oftentimes it is taken for granted. For example, voters typically vote the top of the ticket. In this past national election, in Ohio, 5.4M voted for the President of the US, while 4.4M voted for me and 4M voted for Fisher.

Here is an example of a typical case. Let’s take one of your Rotary members, Bud Dornette, who was arrested a few months ago. His neighbor was sporting a new segway in the Saylor Park neighborhood. This made Bud jealous apparently because he proceeded to break into the neighbor’s house, to steal the segway, and then to be seen later scooting about on the segway. It was reported and Bud was arrested. We had the trial whereby the case was expanded because Bud had broken into a place where someone lives. This is punishable by being condemned to prison for 2 – 8 years. He was offered a plea bargain by the local judge: plead guilty today and your prison sentence will only be 3 years. Bud turned it down. It goes to trial. He is found guilty and gets 6 years. Since he was originally offered 3 years, he appealed the decision. 

Where to appeal? It begins at the Court of Appeals in the Court House on Main Street in the 1st district or Hamilton County. Ohio has 12 districts composed of 88 counties. 

Who speaks? In an appeal, there is no evidence or witnesses. Only two attorneys argue. Bud says, “I have the right to a trial, but the judge sentenced me to 6 years.” Three judges hear Bud’s case. (In a regular case you have one judge. In the higher court, you have more judges.)

When is the decision offered? The Court of Appeals issues written opinions based on law and precedent. It is not whimsical. The Court is dependent upon competence and the law. 

Now what? A memorandum has been written stating why this is so important a case that it merits the appeal. A response is offered. 

The Ohio Supreme Court has 7 judges; while the US has 9 judges. Therefore, in Ohio, four votes make a majority. 

The case proceeds to argument. All 7 judges will hear arguments regarding what happened in the trial court. Nothing new, like new evidence, may be admitted. 

Afterward. We hear 4-5 cases each morning. Afterward each justice goes back through and each writes his/her own opinion. Each can speak only once in the delivery of his/her opinion, then we vote. The most junior judge votes first. The decision is rendered by the majority. After the vote the justice who will write the opinion, is determined by a dice game using a leather dice shaker. One die with each person’s number is placed into the shaker. Whomever is drawn, writes the opinion. Once the selection is made, a judge will give the work to law clerks. I have three. One will write the opinion. It may take three weeks. The opinion is circulated to the other justices. They can respond. The process continues until voting on opinions concludes.

Did Bud win the case? I wrote the opinion. All decided there had been a violation of his rights for the judge to give a higher sentence. A plea bargain is a bargain.

What does Bud do? Bud has the right to ask and the Supreme Court the right to hear. If the judge sentenced Bud to 9 years, Bud would be done. (Nine years is final.) 

This is a typical issue. Other issues may include habeas corpus (illegal imprisonment) or anything relating to the discipline of an attorney in Ohio. Here’s an example. Justice O’Neal (sp?) was advertising as an attorney practicing law while on the court. The law states a law firm can’t advertise. The vote was 4 to 3. In another case a law student applied to take the Bar Exam. When filling out the application, he stated that he had had several speeding tickets and had been arrested. The application process serves the purpose of an investigation of the person prior to becoming a Bar certified attorney. He merely offered his driver’s license. As it turned out he had 8 speeding tickets with no explanation other than “KKK.” (Not sure I heard this correctly.) When asked about it later, he said, “I wanted to exercise my first amendment muscles.” We recommended that he be denied taking the Bar Exam. He argued that he had no obligation to tell the details. We ultimately decided to allow him to take the Bar Exam, but after two years. 

Questions/Answers

  1. Supreme Court school funding formula? The state dropped the case. Answer: During the 1990’s Ohio funded unconditionally. The legislature fixed this by saying money could only be used for new buildings. More was requested. This kept up for ten years. The court agreed to no longer hear this.  Typically courts are not good at legislating decisions. It is better done by those elected who talked about it during their candidacy. 
  1. Often there are few or no opponents for judges at the local level while Supreme Court races are contested. Answer: More choice is a good thing.
  1. Voting? Answer: orally. Since I am most junior, I have to vote first. I have to prepare more.
  1. What do you do when you encounter weak attorneys? Answer: Cases are decided on facts and the law. By the time it reaches the Supreme Court, we will look at all arguments. I would rather have the facts than a good attorney, but it is nice to have both.