Other local jurisdictions made the change long ago
Sheila McLaughlin reports:
Thomas Moyer, the late Ohio Supreme Court chief justice, tried for more than a decade to eliminate the use of part-time judges across the state.
They more recently came under attack by Butler County Prosecutor Mike Gmoser.
He called one local judge “the fox in the hen house” and was instrumental in getting the judge kicked off of 10 drunken driving cases.
He accused another of showing favoritism to a judicial colleague’s law associate. He asked the Supreme Court to all but strip part-time judges of their private law practices, saying it was a conflict.
“That solution is neither feasible nor advised. It would force some judges to immediately leave the bench and discourage others from seeking office,” Chief Justice Maureen O’Connor wrote in a statement to The Enquirer.
She also suggested that any move toward abolishing part-time courts in a particular community must come from local officials.
While other counties in Southwest Ohio have long ago gone to full-time misdemeanor courts or are looking at the possibility now, Butler County has resisted the change. The county has three area courts that cost taxpayers about $1.2 million a year to run.
“There’s always politics involved,” said Matthew Crehan, a retired Butler County Common Pleas Judge who led a 2006 study that looked at consolidating the county’s three area courts – Area I in Oxford, Area II in Hamilton, and Area III in West Chester – and making them full-time.
“You’ve got three part-time judges who have private law practices, and they get paid pretty good money for one day a week (as a judge). They get retirement and everything else,” Crehan said. “The problem is that there is just simply a natural conflict between being a lawyer and being a judge. You can’t serve two masters.”
All three Butler County Area Court judges – Rob Lyons, Dan Haughey and Kevin McDonough – say they can. By law, they aren’t allowed to practice in each other’s courts.
Lyons, who presides over the court in Oxford, was removed from the 10 drunken driving cases challenging Ohio’s alcohol breath testing procedures. Lyons had used the same approach in fighting for clients in his criminal defense practice in West Chester.
Lyons also is being sued by The Enquirer for improperly sealing minor misdemeanor convictions for Miami University students. Lyons advertises on his law firm website offering a service to seal criminal cases. He’s denied any wrongdoing.
“As a judge, I’m there to follow the law. As a defense attorney, I’m there to represent my client zealously. I’m able to differentiate between the two,” Lyons told The Enquirer on the issue of part-time judges. “The thing is, if there’s a problem with my decision in a criminal case,… the court of appeals is available for correcting that.”
Hamilton and Clermont counties have had full-time municipal courts for decades. Warren County recently hired the National Center for State Courts to study the possibility there, County Administrator David Gully said.
Butler County Area Court judges are among 52 part-time judicial seats across Ohio. Originally, part-time county courts were meant for rural areas where caseloads didn’t justify a full-time judge. Eight court systems have switched their judges to full time since 2008, according to data from the Ohio Supreme Court.
Montgomery County Municipal Court James Manning was among them. He spearheaded the effort in Montgomery County after Moyer, the chief justice, suggested that all part-time courts change to full-time. It took years to accomplish, Manning said.
The change came in 2010 and is not saving money in the short-term, Manning said, but it will in the long run. The court had five part-time judges. One received an appointment to common pleas court.
Manning and another judge were named full-time. Two part-time judges will be phased out over the next six years.
Part-time judges in Ohio make $65,650 a year. The annual salary for full-time municipal judges is $114,100. Those salaries are set by statute. County taxpayers pay the benefits, such as retirement contributions for the judges. The salary costs are split between the county and the state, with the county paying $35,500 for each part-time judge and $61,750 for each full-time municipal judge.
Manning said it wasn’t the cost so much as the conflict that part-time courts presented. Judges can practice law, just not in their own courts. Butler County area judges can’t practice in each others’ courts. But they can practice in other municipal courts and common pleas courtrooms in the county.
“As part-time judges we continued to have this conflict of interest. No matter how much you say to yourself, ‘I’m going to put that aside,’ we’re still human beings,” Manning said.
For Manning, who had a significant domestic relations practice, that conflict arose when he found himself hearing a case as a part-time judge in a criminal case with an attorney he had just opposed the day before in divorce court.
“Things might not go quite the way you’d like to see them go and the next day that attorney is in front of you on a criminal case. The other side of it is if it didn’t go well in a criminal case, I got the feeling that some attorneys were saying to clients, ‘I had a fight with this judge yesterday in domestic relations court and this is payback,’” Manning said.
Moyer died in 2010 without achieving his goal of shutting down part-time courts.
When Butler County officials first looked at the issue in 2006 and proposed a county-wide municipal court with two full-time judges. Commissioners didn’t act on it but took a second look at the issue in 2009 to try to fix a budget crunch. Again, the effort went nowhere.
“We needed something to fix the budget quick,” Commissioner Don Dixon said. “That wasn’t something that was going to happen quickly because it was going to take legislative changes.”
Gmoser, who declined comment for this story, didn’t suggest scrapping part-time courts altogether in his May 29, 2012, request to the Supreme Court. But he did ask for changes in the rules that would prohibit part-time judges from practicing law altogether or, at a minimum, any type of law that they handle in cases as a judge. He also wanted the area court judges’ law associates to stop practicing in area courts.
He asked for support from the Ohio Prosecuting Attorneys Association, which refused to take a position against part-time judges, saying they were necessary in many smaller counties.
Haughey, the judge in Area III court, rejected the notion that his law partner Dennis Deters gets preferential treatment in other courts. Deters was the attorney for a former Miami University whose case involving a controversial flier about how to rape female students and get away with it was sealed by Lyons twice.
Haughey’s law office is directly across the street from Lyons’ court in Oxford and Haughey’s website advertises handling cases for Miami students.
He said lawyers who practice with area court judges don’t get preferential treatment.
McDonough, who presides over Area II court in Hamilton, was accused by Gmoser of disregarding a blood alcohol test in a drunken driving case as a favor to Lyons’ law associate Jeff Meadows. Gmoser cited that as an example of a conflict.
A transcript of the case indicates that the prosecution’s expert could not establish a chain of custody for the defendant’s blood sample.
Prosecutors contended the motorcyclist’s blood alcohol level was three times the legal limit when he crashed into the back of a car on the interstate. McDonough admitted the lab test as evidence but found the defendant not guilty.
“I called it as I saw it. I didn’t show anybody any favoritism,” McDonough said. “I just didn’t believe that test had much weight.”