Newman v. Voinovich, C-2-92-248.

• Decision Date: 31 March 1992
• Docket Number: No. C-2-92-248.,C-2-92-248.
• Citation: 789 F. Supp. 1410
• Parties: Robert B. NEWMAN, Plaintiff, v. Hon. George VOINOVICH, Defendant.
• Court: U.S. District Court — Southern District of Ohio

789 F. Supp. 1410

Robert B. NEWMAN, Plaintiff, v. Hon. George VOINOVICH, Defendant.

No. C-2-92-248.

United States District Court, S.D. Ohio, E.D.

March 31, 1992.

Bruce I. Petrie, Graydon, Head & Ritchey, Cincinnati, Ohio, for plaintiff.

Kathleen McDonald O'Malley, Ohio Atty. Gen., Columbus, Ohio, for defendant.

OPINION AND ORDER

GEORGE C. SMITH, District Judge.

This case presents before the Court the question whether the failure to consider for appointment, or the denial of an appointment, to an individual by the governor of the state to sit as a state judge because of that individual's partisan political affiliation violates the individual's rights under the First and Fourteenth Amendments of the United States Constitution; Article I, § 11 of the Ohio Constitution; and, the Voting Rights Act, 42 U.S.C. § 1973 et seq.

Currently pending before the Court is a motion for a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure. Also before the Court is a motion by the defendant requesting the dismissal of the Complaint as it relates to the Voting Rights Act. A hearing was held before the Court on March 26, 1992, wherein the respective pending motions were argued.

It should be noted from the outset, that while this matter has all the makings of a politically based, Democrats v. Republicans, confrontation, in fact the issue before this Court is a constitutional issue and not a political issue, although in these times the differences are often blurred for political gain. The political affiliations of the governor, the proposed appointee, and the plaintiff are only relevant insofar as the governor of the state and the proposed appointee are of the same party, to the exclusion of the individual desiring the appointment due to his or her antithetic political party affiliation.¹ If the act of placing considerable weight upon the candidate's political affiliation when appointing vacancies in the judiciary is deemed unconstitutional, then it will be unconstitutional for the current Republican governor just as will be unconstitutional for a subsequent Democratic governor.

I.

The Plaintiff Robert B. Newman brought this suit against the Governor of the State of Ohio, Governor George Voinovich. Newman seeks to have this Court declare the judicial appointment practices of the governor violative of the United States Constitution², the Ohio Constitution and the Voting Rights Act. Newman further seeks to have this Court restrain the Governor, specifically, from appointing a successor to a seat in Hamilton County, Ohio, that the parties have stipulated will be opening on April 1, 1992, and generally, from appointing judges to any vacancies in the State of Ohio until a process is put in place that does not run afoul of the United States Constitution, the Ohio Constitution and the Voting Rights Act. Plaintiff Newman requests and proposes that a nonpartisan nominating committee be put in place in each county in Ohio for the purpose of considering all qualified and interested individuals for judicial appointment, without regard to the individual's political affiliation or race.

II.

This case is a challenge to the appointment process provided for in the Ohio Constitution for the placement of judges due to vacancies at mid-term in the State of Ohio. Under Article IV, Section 13 of the Ohio Constitution, the Governor of the State of Ohio has the power to appoint individuals to fill vacancies in judgeships in a court in the State of Ohio.

The Governor for the State of Ohio is Defendant George Voinovich. He is a registered Republican and was elected to his current position on the Republican party ticket. Pursuant to the Ohio Constitution, the responsibility of appointing individuals to vacant positions runs to the defendant. The plaintiff in this action, Robert Newman is a registered Democrat, and has run for election as such, however, he was not elected.

The specific position at issue in this case is the position of Hamilton County Common Pleas Judge. The current judge, the Honorable Norman Murdock, will resign from that seat effective April 1, 1992, and will be replaced by appointment of the Governor. It has been stipulated that the current Hamilton County Prosecuting Attorney Arthur Ney, a Republican, will receive the appointment.

In 1851 the framers of the Ohio Constitution extinguished a system of pure judicial appointment and opted for a system whereby the judges are elected and interim vacancies were filled by appointment of the governor. Ohio Const. art. IV, § 13. Ironically, this change was the result of a system wrought with chaos due to a massive turn over of judges each time a new political party controlled the legislature and because of the political patronage abuses that were becoming commonplace. Therefore, from 1851 to the present time, the appointment of judges has been limited to those occasions where a vacancy occurs midterm, then the appointee must run for election as the term ends if he or she wishes to retain the seat. These are precisely the vacancies for which we concern ourselves today. Under the current system there are no enunciated limitations in the Ohio Constitution to the governor's power of appointment.

This system of gubernatorial appointments and incumbent retention was challenged in 1938 and again in 1987. At those times there was an effort to amend the Ohio Constitution to alter the methods by which judges are both appointed and retained. These efforts were defeated and the methods of appointment and election remain unchanged.

At the hearing for the preliminary injunction, the Special Assistant to the Governor for Boards, Commissions and Judges, Andrew J. Futey, testified as to the procedures followed by the State when notified that a vacancy for a judgeship will occur. It was his testimony that upon learning of a vacancy he would contact the Republican Party Chairperson in the county where the vacancy has occurred to request recommendations. This was pursuant to the Judicial Procedures Manual, Step 2, as prepared by Mary Beth Marcholz, Assistant Deputy Legal Counsel ("Judicial Procedural Manual").³

The actual contact to the Republican Party County Chair person is made via letter sent under the signature of Governor Voinovich, wherein the governor states that he "wants to find the best and brightest, achieve demographic balance and select individuals who can be re-elected to the bench."⁴ To that end the letter sets out the procedures to follow in nominating candidates for the governor's consideration. The letter asks that the county chairperson follow the current guidelines for the nomination of candidates for appointment as provided for by the local party rules, if any. The letter further provides that if there are no local party nominating guidelines they should "contact the chairman of the Ohio Republican party for advice and counsel." The county chairperson is called upon, "on an informal basis ...", to "periodically submit to the local bar association the names of individuals being considered for appointment ... and ask the bar if the individual is qualified to fill the post they are being considered for." This is done on a confidential basis. The final request set forth by the Governor is that they submit to him "in writing the names of a minimum of two, preferably three candidates for each post, one of which must be a female or minority."⁵ When submitting the names the county chairperson is asked to submit "extensive resumes and all other applicable documents regarding the appointment." It was the testimony of Futey that neither the Democratic Party Chairperson nor the Independent Party Chairperson⁶ are contacted by the governor's office for nominations.

The Judicial Procedure Manual provides that "when deemed necessary, each candidate will be interviewed by the Director of Administration, Stratford Shields, and the Special Assistant to the Governor, Andy Futey." Judicial Procedures Manual at p. 2. Each of the recommended candidates are then called upon to complete a background information questionnaire which is utilized by the Department of Highway Safety so that a thorough background check can be completed. Once all of these steps are completed, Mr. Futey makes a final selection for recommendation to the Governor. The Governor, in turn, "reviews all of the submitted information for each candidate, including resume, interview, and background check and decides whether to approve or disapprove the recommended appointee." Id. At no time does the Governor suggest that party affiliation is not taken into consideration, nor could he based upon the facts in this case and the past history of every governor over the last century.⁷ In fact, as noted by the plaintiff, there is considerable historical evidence that the governors of both parties have filled such vacancies on a partisan political basis. See, e.g., Laurence Baum, The Electoral Fates of Incumbent Judges in the Ohio Court of Common Pleas, 66 Judicature 420, 430 (1983); Conference, The Selection and Tenure of Judges in Ohio, 8 U.Cin.L.Rev. 359, 414-15 (remarks of Judge Walter Shohl); 421 (remarks of Milton Schmidt); 437 (remarks of Joseph Graydon) (1934). As such, the appointment procedures followed by this gubernatorial administration and virtually every gubernatorial administration preceding it are in question; and the question is whether a governor may properly exclude an otherwise qualified candidate based soley upon that candidate's political affiliation.⁸ The Court will now turn its attention to the standard to be applied to the instant matter.

III.

In determining whether a preliminary injunction is appropriate the Court must consider and weigh four factors:

First, whether the movant has shown a "strong or substantial likelihood or probability of success on the merits";

Second, whether the issuance of an injunction will spare the movant from suffering "irreparable injury";

Third,

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