Election Eve Reflections on the Judiciary and the Importance of Down Ballot Voting

Judicial races at the bottom of the ballot may carry more weight than more prominent contests at the top

By R. T. Andrews

How might the quality of local government be affected if instead of seeing the high profile offices such as President, Senator, and Governor first, followed by other executive and legislative offices, the ballot order was inverted so that the first candidates we voted for were judges?

A strong argument could be made that such a reversal could improve our whole system of government. Our top elected executive and legislative officials tend to come and go — or at least switch offices, thanks in part to term limits — but judges seem more likely to become entrenched. 

One reason for the longer tenure is that judges have longer terms. State and municipal judges are elected to six-year terms, whereas most other officials have two- or four-year terms. Because their real work is often done in chambers and courtrooms that receive less scrutiny than more contentious open meetings and processes, their decisions typically evoke less public ire. Judicial anonymity is further enabled by the wearing of robes, the rituals of solemnity that permeate courtrooms, and the use of a specialized language — stare decisis, interlocutors, mens rea — that challenges even the most attentive electorate and bores or bewilders the hell out of the rest of us.

But judges play a fundamental role in our society, far deeper than we are often prone to acknowledge. As far back as high school, I remember reading about the so-called Civil Rights Cases of 1883. That was a collection of cases decided as one by the US Supreme Court which interpreted the 13^th, 14^th and 15^th Amendments to the Constitution and the Civil Rights Act of 1875 so perversely as to lay the groundwork for Jim Crow laws across the country for the next seventy-five years.

Of course, those were federal jurists, meaning they held lifetime appointments, but even my juvenile mind came away with an early understanding of how judges had extraordinary power to thwart progress and justice. 

Subsequent lessons in history revealed how courageous judges — both elected and appointed — could also advance the cause of freedom and justice. Even here in Cleveland, US District Court Judge Frank J. Battisti endured a decided ostracism from the legal and political establishment for daring to protect the civil rights of poor black public school children whom that establishment had consigned to the margins.

The essential point here is to underscore the enormous power of the judiciary in the American system of government. In the state court system, where judges are more typically elected, that power is often encountered by ordinary citizens less on a philosophy of government scale than on personal dimensions: divorce court, juvenile court, criminal court, personal injury litigation, consumer law, etc.

Yet so many of us gloss over the merits of individual candidates in favor of either a familiar name or the partisan sample straight tickets distributed to voters by local parties. 

Black voters need to be especially wary of offering indiscriminate support to judicial candidates, many of whom turn around and sentence members of their community to disproportionately longer sentences in criminal matters.

This was brought to light recently in a dustup that occurred this past week outside the Board of Elections.  Democratic Party partisans professed outrage when supporters of Judge Ray Headen, a Republican appointed to the Court of Appeals in 2018 by Gov. DeWine, seized a box or more of Democratic Party sample ballots, crossed out the names of Headen’s opponent, and stapled the judge’s campaign literature onto the modified campaign literature. It struck us an effective way to remind voters to look beyond party labels and to focus on what’s important in judicial races.

Headen sits on the local Court of Appeals where his cerebral style, academic background, and general temperament serve the public well. He is an anomaly as a black male judge in Cuyahoga County, and doubly endangered as a Republican. He has also become a leader, in these days of racial recalibration, in calling for truth-in-sentencing by judges in felony criminal cases.

A number of so-called “hanging” judges go to work every day in Cuyahoga County and around the state dispensing disproportionate sentences to people of color in criminal cases. Their work is shrouded by a systemic reluctance to gather and report data that would address both perception and reality insofar as disparate criminal sentencing and our criminal judicial system as a whole. 

The 1999 report by the Ohio Commission on Racial Fairness, a joint commission of the Ohio Supreme Court and the Ohio State Bar Association, called for “Statistical data as to race be maintained in connection with sentences, including community based sentences, in all criminal cases, including misdemeanor, juvenile and traffic cases.”

The time is ripe for this recommendation and others to be addressed and implemented by Ohio’s legal and judicial communities. Judicial candidates should be evaluated for their stance on issues like these as well as on other more traditional measures.

We understand why many thoughtful voters, especially African Americans, have decided that a straight party vote is the only prudent way to vote given the menace we presently face. However, it is important always to remember that skim milk can masquerade as cream.

Black Americans in particular can not afford to take any elections off, nor can we fail to move all the way through the ballot, examining and acting in every race. 

As the Civil Rights Cases informed us almost 150 years ago, and as the bulldozed nomination of newly-minted Justice Amy Coney Barrett reminded us last week, our interests and our freedoms are always on the scaffold known as the ballot in this Republic we call The United States of America. We forget that at our peril.

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Ohio Supreme Court O.K.'s process giving homes to developers without compensating Owners or Taxpayers

In 2019, Taxpayers lost at least $11.25 million via administrative foreclosure, while Homeowners and Banks lost up to $77 Million 

By Lucia Walinchus

This article provided by Eye on Ohio, the nonprofit, nonpartisan Ohio Center for Journalism.  

The Ohio Supreme Court

The Ohio Supreme Court has ruled that an unusual foreclosure process that can result in people’s homes being sold without compensation for their equity should remain legal in the Buckeye State.

However, in a recently released opinion the state justices couldn’t agree on the reasoning behind it. 

Justice Judith French authored the lead opinion, joined by Justices Michael Donnelly and Robert Hendrickson. (Justice Robert A. Hendrickson, of the Twelfth District Court of Appeals, replaced Justice Melody Stewart.) They declined to comment on the constitutional issues presented by the case involving what are called “administrative foreclosures,” saying that they would not stop the process because the law governing these procedures was not “patently and unambiguously” unconstitutional. 

Not to be confused with expedited foreclosures, administrative foreclosures send abandoned properties to a county’s board of revision, a committee that usually considers home values for property owners wanting to contest their taxes. The board can then give foreclosed properties to the local land bank, which can clear any debts on the property and give them to local businesses to revamp and resell.

Elliot Feltner, a Cleveland landowner, sued the board in 2018 arguing that the process was an unconstitutional government seizure without compensation. The board had foreclosed upon his property, worth $144,500 in county records. In a sheriff’s sale, the state would have recovered the $68,089 owed to taxpayers and he would have received the rest. But under the BOR foreclosure, both he and the state got nothing. 

Eye on Ohio previously reported on thousands BOR foreclosures in Montgomery and Cuyahoga Counties in 2019. In those cases, local land banks wiped out at least $11.2 million in tax liens. Homeowners and banks lost up to $77 million in home equity. 

Though they lost, Feltner’s counsel, former Ohio Attorney General Marc Dann, filed the opinion as a Notice of Supplemental Authority in both federal cases where he is litigating similar issues, one in Montgomery County and one in Cuyahoga County. 

“One of the things we have to prove is that there’s no adequate remedy under state law. And I think the fact that Mr. Feltner was turned down demonstrates that people who have their properties taken who have equity, and have their properties given to government entities without payment, they don’t have any good remedies under law in the state courts because of the way the statute was structured,” Dann said. 

Opposing Counsel Gus Frangos said the administrative foreclosure process was an important way to prevent blight. 

“In the aftermath of the foreclosure crisis, there was rampant vacancy and abandonment, and tax delinquencies where people just abandoned their properties so whole neighborhoods were decimated. In 2006 we were seeing all this stuff coming, although Washington didn’t really see it. So there was an expedited foreclosure process in place in 2008 and it caused foreclosures to just skyrocket.”

Frangos was the primary drafter of the expedited foreclosure process and runs its largest program in Cuyahoga County. 

“The fallacy of all of this is that somehow people’s property has been taken. They’ve abandoned it, they have to pay taxes. You know, you and I have to pay taxes on our properties. And so that somebody doesn’t, and now they want to turn around and change the narrative to, ‘oh no my property, my valuable property was taken,’” Frangos said.

“At what point does it become a harm to all the surrounding neighborhoods, these properties?” he continued. “So number one, it applies to them. And number two, these cases don’t just happen when a person wakes up and loses his property. They get letters. They get served with notice. They get an opportunity to appear. And they ignore it all. They have an opportunity to come in and appear and get on a payment plan. So if you’re delinquent, and you can’t pay, you can get on a payment plan. If somebody feels they had a lot of equity in their home, all they have to do is pick up the phone and call a Realtor and sell it. The nanny state idea that we should babysit somebody who has totally neglected their obligation to pay taxes, at some point that becomes an affront.”

At the Ohio Supreme Court, Justice Sharon Kennedy agreed to the judgment, but not the reasoning behind it. 

Justice Pat DeWine also ruled for the county, but in a concurring opinion he laid out very different reasons: He said that the court should have addressed the constitutional issues, but that administrative foreclosures were very similar to normal taxing practices in the nineteenth century. 

Justice Patrick Fischer and Chief Justice Maureen O’Connor also agreed on the outcome, but they wrote a concurring opinion explaining their reasoning. They said the case should have been dismissed for procedural reasons, but the constitutional issues “cannot and should not be avoided” and that the lead opinion used “circular reasoning” to avoid getting to the heart of the issue. 

“The whole scheme is unsettling and just seems wrong,” Fischer wrote.

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Kasich appoints new justice to succeed O'Neill

New Justice joins Ohio Supreme Court 

Mary DeGenaro, appointed as the 159th justice of the Ohio Supreme Court by Gov. John R. Kasich, was sworn in today by Chief Justice Maureen O’Connor for a term beginning Sunday.

Justice-designate Mary DeGenaro

Justice-designate DeGenaro, who has served nearly 17 years as a judge on the Seventh District Court of Appeals in Youngstown, will begin serving on the Supreme Court on Jan. 28, filling the remainder of the term being vacated by the resignation, effective Friday, of Justice William M. O’Neill.

The appointed term ends Jan. 1, 2019. The seat is up for election this November for a full term beginning Jan. 2, 2019. Ohio Supreme Court justices serve six-year terms.

“I am mindful of, and humbled by, the responsibility you have given me on behalf of all the citizens of the state of Ohio,’’ Justice DeGenero, 56, told a statehouse news conference today with the governor. 

DeGenaro's appointment means that Ohio's highest court is now all-Republican. O'Neill, the only Democrat, is stepping down tomorrow to seek the Democratic gubernatorial nomination. His resignation will leave U. S. Senator Sherrod Brown as the sole Democrat elected to statewide office.

Effective next week, the Court will also be comprised of a majority of women.

DeGenaro began serving as a judge on the Seventh District Court of Appeals on Feb. 9, 2001. During her tenure, she sat by assignment with the Ohio Supreme Court and other appellate districts. Prior to her judgeship, she served on the Poland Village Council.

DeGenaro has served as an adjunct faculty member for the political science department at Youngstown State University, where she earned her Bachelor of Arts degree. She received her law degree from the Cleveland-Marshall College of Law, where she interned with U.S. District Judge George White.

She currently is vice president of the Ohio Women’s Bar Association.

She was admitted to the Ohio bar in 1986.

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BREAKING NEWS: Ohio Supreme Court issues order to Q expansion deal litigants

Court orders parties to file responses by this Friday

More Late-breaking News: Eric J. Brewer, Tony Madalone, Robert Kilo file more signatures hoping to get on ballot for Cleveland's Sept. 12 mayoral primary

The litigation to determine whether the voters of Cleveland are entitled to have a referendum on the Quicken Loans Arena expansion deal may be headed to a fast-track decision by the Ohio Supreme Court.

The Court this afternoon gave Cleveland Law Director Barbara Langhenry and Cleveland City Council Clerk Patricia Britt less than 48 hours to respond to a motion filed by five Cleveland voters on behalf of the more than 20,600 citizens who signed petitions asking for a chance to vote on the Q deal.

The Supreme Court case was initiated by Cleveland mayor Frank Jackson [through Langhenry] and Council president Kevin Kelly [Britt’s boss] last month. Jackson and Kelly, who both support the Q deal, filed the mandamus action, alleging that they did not know whether the referendum petitions should be accepted by the council clerk because the city charter provision ordering their acceptance was in apparent conflict with the fact that the city had already proceeded to act on the legislation the petitioners want to overturn.

The five Cleveland voters, acting on behalf of the petition signers, filed a motion with the Supreme Court on June . They want the Court to throw out the original suit. The petitioners argue the suit is “collusive” litigation cooked up by Jackson and Kelley to delay any referendum vote until after this year’s citywide municipal elections. Jackson and Kelly are both up for reelection, and all 17 council races are contested. Both the mayoral race and possibly as many as 14 of the council seats are slated for the September 12 primary.

Political observers suggest that were the referendum to be on the same ballot as the municipal elections, the increased turnout could very well jeopardize the reelection chances of the mayor and those council members who voted in favor of the Q deal.

The timing of the Court’s eventual ruling on the merits of this case thus becomes almost as important as its eventual decision. Generally speaking, the County Board of Elections orders ballots printed about 45 days in advance of an election. Should the Court rule that Britt must accept the petitions, and her office then finds at least 6,000 or so of them valid, city council would then either have to reverse its vote or put the issue before the voters. Theoretically, at least, if the Court were to rule in the voters’ favor in the next ten days or so, the referendum could come during the primary election, for which early voting starts August 15.

It would be speculation to infer that the Court’s order to all parties to expedite their responses to pending motions indicates a leaning in favor of one side or another. But it does seem to indicate the Court’s awareness that that the extraordinary remedies being sought by the parties have time-related consequences.

It should be noted that while the Jackson/Kelley argument that a referendum would impair contractual rights — the city signed an agreement with Cuyahoga County authorizing it to proceed with construction within hours of Jackson’s signing the enabling legislation — the County hasn’t yet issued the bonds to finance the work, undoubtedly because the potential for a referendum vote creates an uncertainty that bondholders would be unlikely to accept. This reality would seem to undermine the validity of the city’s already tenuous argument that the deal authorization was an emergency measure. All parties knew before the ordinance was passed that the referendum process provided for by city charter would be invoked.

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Meanwhile, the campaign watching continues with reports that three mayoral contenders — former East Cleveland mayor Eric Brewer, 2009 mayoral candidate Robert Kilo, and businessman Tony Madalone — each met today’s noon deadline to file additional signatures to qualify for September’s primary. They must now await petition checks to determine whether their names will appear on the September primary ballot alongside those of Jackson and five other previously validated mayoral candidates: Cleveland Councilmen Jeff Johnson and Zack Reed, state Rep. Bill Patmon, social entrepreneur Brandon Chrostowski, and Dyrone Smith.

Saturday Roundup and Parental Pride

 I am supposed to be off today but but I wanted to share the news with those who may be unaware that late yesterday the Ohio Supreme Court ruled unanimously that the Republican drawn congressional maps can be put to a voter referendum. The GOP had tried to end run state law by attaching an appropriations measure to the redistricting bill [House Bill 319] to prevent an attack by referendum. Even our too-partisan state Supreme Court could not swallow that stew.

On Monday the state Democratic Party is expected to ask the Court to restart the 90-day window for collecting signatures to but a repeal referendum of the ballot. This reasonable request is likely to be granted; otherwise the Court’s action yesterday would have been mostly for show and without substance.

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I’m off for the day to go see an international belly dancer, the world-renowned Lara Adrienne. Real Deal readers and parents of every stripe will forgive the mild hyperbole. Lara is my youngest daughter and a professional belly dancer. She is based in the Washington DC area and in Turkey, where she has spent most of this year.

I have been relegated to seeing her in videos on her website and YouTube. Tonight I get to see her live for the first time [apart from a 2010 wedding, this is her Midwest debut!] when she takes the stage at the Bohemian National Hall, 4939 Broadway Ave, in Slavic Village.  Call 216.883-0675 or visit sokolgreatercleveland.org for more information.

Lara Adrienne is Shaker Heights High School ‘00 and Howard University ’05. See her dance here and check out her writing here and here. With respect to the last website, I am personally amazed that one who can be so talkative would adopt a medium so spare.

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Stories we are working on for next week include the latest maneuvers from the Gang-That-Couldn’t-Shoot-Straight, aka the Richmond Heights Board of Education majority, and a certain news organization that has perverted the endorsement process in ways that seem inconceivable.

Remember, that since we publish daily, Sunday through Friday, we are sending fewer email reminders of publication. Become a follower to ensure prompt notice of publication of new material and to make us feel better.

Go Browns!