Who gets to define ‘candidacy’?
I respond to the Dec. 8 Dispatch story, “O’Neill: ‘I will not be rushed’ off bench,” which reported the legislature’s intention to violate the constitution’s separation of powers in its quest to remove a sitting Ohio Supreme Court justice, William M. O’Neill. Many questions arise as a result.
First, in relation to separation of powers, what statutory or constitutional provision provides authority for the Ohio Legislature to enforce the Judicial Code of Conduct of the Supreme Court? The code is not a creature of statute or constitution. It’s a creation of the court, which is executed and enforced by the state’s high court. No other branch of government seems to have any authority at any stage in that process, likely for good reason.
The next appropriate question for Senate President Larry Obhof, R-Medina, Ohio Auditor Dave Yost, Rep. Niraj Antani, R-Miamisburg, and others who disagree with O’Neill’s chosen definition of “nonjudicial candidate” for the purposes of the code, is this: What is their definition for when someone becomes a nonjudicial candidate and what statute, or more aptly, code basis supports it? I’m guessing the answers will vary, along with the murky legal rationale that led to them.
In the article, Obhof stated, “That’s not the way it works.” What is the way it works then? When do you become a candidate? Is it when you begin to whisper to donors that you are intending to run? Or when you create a 501(c)(4) in lieu of a campaign committee to raise money in a thinly veiled effort to avoid officialness? Or is it when you make a public statement specifically declaring your intentions?
The problem with Obhof’s assessment is, while I agree that under O’Neill’s definition nobody would be a candidate right now, under Obhof’s ostensible definition everyone likely would have been a candidate long before they were actually “deemed” a candidate anyway. O’Neill’s definition of candidate for purpose of the judicial code at least has some statutory basis to point to, found in ORC 3501.01(H). The only other candidate definition found in the ORC is 3517.01(C)( 3), adding the solicitation and raising of funds to the definition.
I welcome Obhof’s efforts and the legislature’s prerogative to clarify, in statute, an appropriate definitive pointin-time that a “candidate” becomes a “candidate” for state law purposes, because the law is not as clear as it could be.
If the Supreme Court wishes to tie its definition in the Judicial Code of Conduct to the statutory definition, that would be its prerogative, not the legislature’s or the auditor’s. My suspicion is that is not the intent of these efforts. If and when we gain a better statutory definition of when someone becomes a candidate, which I hope is a result, just remember that the autonomous, separatebut-equal judiciary is well within its authority to provide and administer rules of conduct for the judiciary and the definitions thereof, including any definition of “nonjudicial candidate,” for its own intent and purpose and without interference from any other branch of government. Grove City Columbus