So I lied. Yeah, I know, on Monday I promised you I'd take a look at some of the final criminal decisions the Supreme Court came down with in the past few weeks, and a post on the 4th Amendment cases this past term, and instead you wind up with a two-part post on Missouri v. McNeely and implied consent laws. So sue me. Blame it on Mike Duff. He's the sharp-eyed attorney in Lorain who spotted an Idaho case, no less, on the impact McNeely might have on implied consent, and gave me a call about it. So I ran with it. It's an interesting issue, and it's one where I think the logical implications of the decision went right by a lot of people. Including the ones who made it.
Follow the money. The Cleveland Plain Dealer recently started its annual push for a Pulitzer by running an above-the-fold front-page story on fecal transplants, accompanied by the puzzling butslightly unsettling picture at right. Not the kind of subject you want to ponder over your cup of morning joe. That might provide more comfort from the PD's recent announcement that its print edition is going to be published only three days a week, thereby sparing readers from having their breakfasts spoiled by reading about stool while they're sitting on one.
But there were also stories in the legal genre. Not just ones about the Cleveland Indians pitcher who was busted for having a package of marijuana shipped to his house from California. (He certainly wasn't impressed by the "Buy Ohio" campaign.) Or those providing another data point on our glide path to societal implosion, like the one about a fight breaking out at a kindergarten graduation. Sprinkled among those was one was on the common pleas court's commercial docket, initiated back in 2009, in which two judges were selected to handle all cases involving business disputes. Yeah, I know, it smacks a little bit too much of "inside baseball," but stick with me here.
The idea behind it appears to be a good one: those judges would accumulate expertise in those types of cases, thus decreasing delays and increasing the likelihood of a proper result. This would make the region more attractive to businesses thinking of relocating here. The program was up for renewal at the end of June, and there was a lot of talk that the judges would vote to scuttle it. Not true, it turned out; they voted 21-13 to retain it.
But the story about the retention of the program offers some interesting insights if you read between the lines. First, we learn that not only is the program going to be retained, it will be expanded: the number of judges assigned to that docket will be doubled, to four, and terms for service on the commercial docket will be limited to three years. Why?
Rotation of judges was in part a response to criticism that the commercial court -- which oversees business lawsuits that tend to have the most money at stake, handled by some of the region's most prominent attorneys -- is a privileged assignment that should be shared.
Why would it be a "privileged assignment"? That clue is provided by a Franklin County common pleas judge, who told the PD that the reason that court last year voted to disband their commercial docket was due to the fact that it "became a political football because business litigation often attracts premier attorneys who can be generous donors to judges when they're running for election."
The discerning reader will note that if the purpose of having a commercial docket is to allow the judges on it to gain expertise in the area, it makes little sense to limit their terms to three years. That point was noted by a local law professor, who opined that the limit was "perhaps a political compromise."
Judges run for election every six years. It's not cheap; even a judge who's running unopposed has to pony up about seven grand just to be on the ballot sheet printed by the respective parties and mailed out to voters. Go to any of the numerous judicial fundraisers which dot the calendar in even-numbered years, and who will you see? Most of the attendees are criminal defense lawyers, having shelled out a hundred bucks for the privilege of eating lukewarm hors d'oeuvres in the hope that the next time that judge is in the arraignment room, he'll assign them a criminal case where they'll be paid $50 or $60 an hour, and then work for free once they hit the fee caps, which are among the lowest in the state. (Only four of Ohio's eighty-eight counties pay less for assigned counsel in criminal cases than does Cuyahoga County.) I'm not sure why a lot of defense attorneys regard that as a viable business model, but they do.
Now, change that to a room of lawyers wearing $2,000 suits, probably more than the entire wardrobe for the average criminal lawyer. Wouldn't you rather be the judge at that fundraiser?
That's not to cast aspersions. I've known both of the judges who are presently on the commercial docket for years, and they're men of impeccable integrity. I know virtually all of the 34 judges on the common pleas bench, and I can't think of a single one who would even contemplate allowing politics or campaign contributions to influence the outcome of a case.
I'd probably feel a bit more comfortable making that assertion if two judges here hadn't gone to Federal prison for doing just that a couple years back.
Here's the deal. This is the system the voters want; they've rejected the idea of merit selection time and time again, to such an extent that Chief Justice Maureen O'Connor, in her latest proposal for judicial reform, didn't even bother including it. Well, if you want to elect judges, they've got to raise money for their campaigns. Being a judge on the commercial docket attracts "generous" campaign donors, so you can hardly fault the court for deciding to increase the number of judges and rotate them, thereby allowing more of them to drink from the Golden Chalice.
If you're a voter and are disturbed by this, tough. Think of it as the cost of doing business.