Associate Ohio Supreme Court Justice William M. O’Neill
Ohio Supreme Court May be Forced to Immediately Suspend O’Neill
Paragraph 2 of the Preamble of the Ohio Code of Judicial Conduct could not be clearer:
Judges should maintain the dignity of judicial office at all times and avoid both impropriety and the appearance of impropriety in their professional and personal lives. They should aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence.
Likewise, Canon 1 of the Code builds upon that preamble:
A judge shall uphold and promote the independence, integrity, and impartiality of
the judiciary, and shall avoid impropriety and the appearance of impropriety.
Finally, Rule 1.2 of the Code echoes these same values:
A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.
In enforcing these rules the Ohio Supreme Court has stated that the test for impropriety is an objective standard that focuses on whether the conduct would create, in reasonable minds, that the judge has engaged in conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.
Notwithstanding all of this, on Friday, November 17, 2017, Ohio Supreme Court Justice O’Neill wrote the following on his Facebook page:
Now that the dogs of war are calling for the head of Senator Al Franken I believe it is time to speak up on behalf of all heterosexual males. As a candidate for Governor let me save my opponents some research time. In the last fifty years I was sexually intimate with approximately 50 very attractive females. It ranged from a gorgeous blonde who was my first true love and we made passionate love in the hayloft of her parents barn and ended with a drop dead gorgeous red head from Cleveland.
Now can we get back to discussing legalizing marijuana and opening the state hospital network to combat the opioid crisis. I am sooooo disappointed by this national feeding frenzy about sexual indiscretions decades ago.
Justice O’Neill had already stirred significant controversy by declaring himself a candidate for Governor while remaining an Ohio Supreme Court Justice. Running for a non-judicial office is covered in Rule 4.5 of the Ohio Code of Judicial Conduct:
Upon becoming a candidate in a primary or general election for a nonjudicial
elective office, a judge shall resign from judicial office.
Justice O’Neill has argued that under Ohio law he will not become a “candidate” for office until and unless he files petitions with the Secretary of State to become one. And he may have a point. Ohio Revised Code Section 3501(H) defines a “candidate” as “any qualified person certified in accordance with the provisions of the Revised Code for placement on the official ballot…”
But in making that argument, Justice O’Neill may be missing an important point. The comments in this rule specifically raises the concern of a sitting judge taking positions on public policy positions, something the Ohio Supreme Court believes is not appropriate for a sitting judge to do:
In campaigns for nonjudicial elective public office, candidates may make pledges, promises, or commitments related to positions they would take and ways they would act if elected to office. Although appropriate in nonjudicial campaigns, this manner of campaigning is inconsistent with the role of a judge, who must remain fair and impartial to all who come before him or her. The potential for misuse of the judicial office, and the political promises that the judge would be compelled to make in the course of campaigning for nonjudicial elective office, together dictate that a judge who wishes to run for such an office must resign upon becoming a candidate.
The “resign to run” rule ensures that a judge cannot use the judicial office to
promote his or her candidacy, and prevents post-campaign retaliation from the judge in the event the judge is defeated in the election.
Clearly the court is concerned here with a sitting judge making statements, promises, and pledges on public policy issues in a nonjudicial race while remaining a judge.
One other factor seems to indicate that Justice O’Neill may be treading hazardous waters. While the court has not defined “candidate” for nonjudicial races, they have defined it for judicial races in Rule 4.6(H):
“Judicial candidate” means a person who has made a public announcement of candidacy for judicial office, declared or filed as a candidate for judicial office with the election authority, or authorized the solicitation or receipt of contributions or support for judicial office, whichever occurred first.
Across the board condemnation of Justice O’Neill’s Facebook comments have been swift. Chris Clevenger, campaign manager for O’Neill’s Governor’s campaign announced his resignation on Twitter with the following statement:
The comments made today by @BillForOhio were both disturbing and misguided. As a victim of sexual assault, I cannot in good faith remain a part of #TeamONeill.
As some have wrote, Justice O’Neill may believe that it will be difficult or even impossible for him to be removed quickly. Perhaps he may even want to force the issue and paint it as some kind of political abuse of power by majority Republicans against the sole elected statewide Democrat in Ohio?
More likely, Justice O”Neill may have miscalculated the furor around his statements and the crisis in confidence it has caused throughout Ohio. He may also have forgotten about Rule V, Section 19 of the Supreme Court Rules for the Government of the Bar of Ohio.
Section 19 permits Ohio’s Disciplinary Counsel, upon receipt of substantial, credible evidence demonstrating that Justice O’Neill has committed both a violation of the Ohio Code of Judicial Conduct and poses a substantial threat of serious harm to the public, to file a motion with the Ohio Supreme Court requesting an immediate, interim suspension of the Justice. This practice has been used rarely in the past but Justice O’Neill may have forced the court’s hand.
Already, Justice O’Neill’s Facebook post is the most read story on the Washington Post and other leading national and international publications. The Ohio Supreme Court may soon have no other choice than to immediately suspend Justice O’Neill in order to restore the public’s confidence in the integrity of our judicial system.