Monday, January 14, 2008

Sixth Circuit Rules Against O'Neill; Grievance to Continue

The Sixth Circuit Federal Court of Appeals has ruled against Judge William O'Neill in a case involving his campaign for the Ohio Supreme Court in 2006. The Sixth Circuit ruled that a state disciplinary proceeding emanating from that campaign may continue, reversing a trial court ruling.

The case could ultimately have implications for O'Neill's current campaign for Congress in the Fourteenth District, depending on the outcome of the grievance procedure.

According to the court opinion, after the Supreme Court campaign, Cuy. Co. Republican Chair Jim Trakas filed a grievance with the Office of Disciplinary Counsel, and office within the judiciary that investigates and disciplines judges and lawyers. Trakas' complaint alleged as follows:

    The grievance alleged that O’Neill’s campaign literature (1) failed to disclose the court for which he was a judge, in violation of Ohio Code of Judicial Conduct Canon 7(D)(2) (prohibiting a candidate from “[using] the term ‘judge’ when a judge is a candidate for another judicial office and does not indicate the court on which the judge currently serves”); (2) wrongfully identified his political party affiliation, in violation of Canon 7(B)(3)(b) (“After the day of the primary election, a judicial candidate shall not identify himself or herself in advertising as a member of or affiliated with a political party”); and (3) wrongfully attacked the credibility of the Ohio judiciary.

The first two points allege violations of technical election-type regulations. The last one is where it gets interesting. According to the court:
    As to this last allegation, the grievance alleged that O’Neill’s campaign statements “viciously malign the fair, unbiased and impartial judiciary” without specifying any canon that O’Neill violated. O’Neill and the district court, however, inferred that O’Neill was accused of violating Canon 7(B)(1), which requires judges and judicial candidates to “maintain the dignity appropriate to judicial office.”
This arises from Judge O'Neill's campaign for reforming judicial campaign financing:
    [O'Neill's] campaign theme was “Money and Judges Don’t Mix.” To that end, he supported judicial campaign finance reform and refused any donation over $10. In addition to the “Money and Judges Don’t Mix” slogan, O’Neill’s campaign website included the following statement: “The time has come to end the public’s suspicion that political contributions influence court decisions. The election of Judge O’Neill is the best step toward sending the message: ‘This Court is Not For Sale!’”
Upon receiving notice of the grievance, Judge O'Neill filed an action in Federal court alleging that the judicial Canons at issue violate the First Amendment and seeking to prevent the Disciplinary Counsel from enforcing them. The District Court found in O'Neill's favor, but the Sixth Circuit reversed.

The Circuit court found that Judge O'Neill's suit runs afoul of the Younger doctrine which is a more lawyerly way of saying "Don't make a Federal case out of it." At least not yet. Generally Federal courts refrain (or abstain as the favored term of art) from hearing a case arising from a state legal proceeding until that proceeding is complete. The court found that the grievance constitutes such a state proceeding, that state proceeding started when Trakas filed the grievance and that the state didn't waive the argument based on Younger.

The waiver argument gets technical and tedious. What you need to know is that it was the basis of the dissent on the three-judge panel.

As noted above, Judge O'Neill's opponents, both primary and general, may try to use the grievance as an issue, depending on the outcome. In the short run, the judge has a couple of options. He can ask for a rehearing in front of the entire Court of Appeals as opposed to the customary three-judge panel (a rehearing en banc). He could also conceivably petition the Supreme Court to hear the case. Given the 2-1 split, he may have a decent shot at a rehearing.

If he fails to persuade the full court of the Supreme Court to take the case and rule in his favor, the Office of Disciplinary Counsel proceeds with the grievance. And if he is found in violation of the Canons, he can start all over again with his First Amendment claim. Such are the joys of the abstention doctrine.

I contacted the campaign which has no official statement on the decision. A campaign spokesman also said he was unaware if the judge had decided what to do next.