Ohio justices don't pull punches in written dissents

High court acted with “arrogance and cowardice” in mistakenly upholding a teacher’s firing, one justice says.
TNS Regional News
Nov 28, 2013

 

In one case, Ohio Supreme Court justices used a “smokescreen” to justify a bad decision that could endanger women.

Another ruling ignored the fact that “a monster ... was on the loose” in Ohio State University hospitals.

Justices let a city off the hook after it had created a “perfect killing field” that crippled a child.

And the high court acted with “arrogance and cowardice” in mistakenly upholding a teacher’s firing.

Who is it making such harsh accusations against justices of the Ohio Supreme Court?

Justices of the Ohio Supreme Court.

The sharp words come from dissenting opinions of justices who disagree with the ruling arrived at by the majority on the seven-member court.

Most of these critiques start out pretty much the same: “I respectfully dissent ...” But the dissenting opinions have included especially pointed language in several recent high-profile rulings.

Justice William M. O’Neill used the “monster” line to decry a decision on Wednesday by a five-justice majority that declined to hear a case in which an OSU doctor was secretly draining medication from patients’ pain pumps — including his father’s — to satisfy his drug habit.

“At a minimum, once the university was aware that the drug-impaired doctor was stealing pain medicine from the pain pumps of patients, the university had a duty to warn its patients that a monster wearing OSU Medical Center scrubs was on the loose, and that he may be carrying an OSU ID badge and utilizing the OSU patient database to obtain the home addresses of his former patients,” O’Neil wrote.

In last week’s ruling that the Mount Vernon school board had properly fired controversial science teacher John Freshwater, Justice Paul E. Pfeifer’s dissenting opinion strongly criticized the four justices behind the ruling:

“The majority shrinks from the chance to be a Supreme Court. The lead opinion cobbles together the piddling other claims of supposed insubordination, and, sitting as Supreme School Board, the majority declares the matter closed. In a case bounding with arrogance and cowardice, the lead opinion fits right in.”

Last month, Chief Justice Maureen O’Connor, joined by the two other female justices, ripped the four-male majority for using a “smokescreen” to justify a decision that might make women less able to get civil protective orders against former and estranged spouses.

“Rather than abide by the line drawn by the General Assembly, the majority opinion circumvents the Ohio Revised Code for the simple reason that it can,” she wrote. “This case perfectly illustrates the problem with the judiciary involving itself in policymaking. ... Our democracy is not designed to permit four justices to heedlessly override the studied policy judgment of 129 legislators and one governor.”

O’Connor and O’Neill declined interview requests. But Pfeifer, the court’s senior justice, said he’s not sure that the strong language of today’s dissenting opinions differs greatly from the language in years past — such as the four decisions declaring Ohio’s school-funding system unconstitutional.

“I’ve been writing tough dissents for a long time,” said

Pfeifer, a former state legislator completing his 21st year on the court. “A sharp-elbowed dissent from me is nothing new.”

He said he took such a tough tone in the Freshwater case because — as the son, grandson and uncle of school-board presidents — he was “incensed” at how badly school officials handled the controversy over the teacher. But he added: “Part of it goes to how wrong I think the majority is in this.”

Still, the GOP justice acknowledged the changing dynamics of Ohio’s top court over the years: “ The court is obviously a good deal more conservative.”

A transformation was inevitable this year when three new justices — two of whom knocked off incumbents — were seated on the court. The change brought new personalities to the court’s writings, Pfeifer said.

For instance, O’Neil is the court’s only Democrat and was highly critical of sitting justices during his campaign.

O’Neil was the author of the “perfect killing field” line in an opinion on a lawsuit against the city of Circleville.

“It just will be in his nature that he’ll be the source of some colorful, interesting, sharply worded things,” Pfeifer said.

The new lineup also could be expected to show natural tension between O’Connor and new Justice Sharon Kennedy because the chief justice made no secret of her support for Kennedy’s opponent last year, Justice Yvette McGee-Brown — even though McGee-Brown is a Democrat.

O’Connor, who was lieutenant governor under GOP Gov. Bob Taft, “has from time to time shown a willingness to disregard some blowback that may be coming from her own party,” Pfeifer said. “I think this court is going to be a little more diverse, not from an ethnic standpoint but a philosophical standpoint, than in the past few years.”

On occasion, when a dissenting opinion is circulated among justices, it changes some minds and what was a minority opinion becomes the majority.

“When we write, hopefully we persuade colleagues that they’re wrong and we’re right about some of this stuff,” Pfeifer said.

He readily admits that he tries, with the able help of his law clerks, to make his dissents interesting.

“I want to make it memorable enough so that lawyers and judges who read it will be glad they did. That includes being spirited, that includes being critical of another justice’s analysis.”

In June, Pfeifer took issue with a majority opinion that relied on a statute containing a 307-word sentence by writing a one-sentence dissent: 300-plus words to lampoon the “24 lines of unrelenting abstruseness.”

“If I offend colleagues from time to time, you’re never going to hear me say I’m sorry. It goes with the territory.”

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By Darrel Rowland - The Columbus Dispatch, Ohio (MCT)

©2013 The Columbus Dispatch (Columbus, Ohio)

Visit The Columbus Dispatch (Columbus, Ohio) at www.dispatch.com

Distributed by MCT Information Services

Comments

Truth2u

Admit it, you the reader are like most others, never knowing anything about those who run for the court, school board or other positions that are not the Presidency, governor or senate. My wife and I spend hours investigating the beliefs and lives of these people seeking our votes, but most take their little UAW cards with them and match the names. We got what most voted for, canned elections.

hit the road jack

You got it! hell, I even heard a retard that worked for the railroad say that Mitt was going to take their retirement away,boy,what a laugh,if he only knew the dumocrats are the ones wanting to take retirement funds away from everyone and thats a fact!