This year, our Court of Appeals will have four new judges out of six. That’s a major shakeup, brought about by a confluence of circumstances — one judge lost reelection, one maxed out on age, two were elected to the Ohio Supreme Court. The court reviews decisions of all courts in the district. (Our 1st District is Hamilton County, one of three Ohio counties large enough to have its own. The others are multi-county districts.)
Gov. John Kasich appointed Dennis Deters to one vacancy. Deters, younger brother of prosecutor Joe Deters, previously served as a Colerain Township trustee, was appointed last year to the county commission, but lost re-election to Democrat Denise Driehaus.
We all know that the appointment was political — a Deters replaces a DeWine. It’s sad that the courts are used thusly. It has always been this way in Hamilton County — judgeships are a political “reward.” The courts should be the last place where politics is paramount.
But we are stuck with the system we have. All judges in Ohio are elected. Vacancies are filled by the governor, almost always at the behest of the local party chair. So the process cannot help but be political.
Sometimes the system, despite itself, works — we have had some outstanding judges. Often though, the political system being applied to the court system turned out as expected. Badly.
Conflict?
The first objection I’ve heard to Deters’s appointment is the “conflict of interest” issue. Joe Deters is the county prosecutor, responsible for most criminal, and many civil, cases before the court.
There is no automatic problem with a judge being the brother of the prosecutor. The general rule, under the Ohio Code of Judicial Conduct, is that a judge is disqualified from a case if “the judge’s spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a person” is a lawyer in the case.
Obviously, a brother is a close relation. But the rule generally prohibits just the brother (or sister) from personally appearing before the judge. A member of a law firm where the sibling practices is not precluded. For instance, Joe Deters could not personally appear and try a case before a relative, but members of his “firm,” the prosecutor’s office, might.
We have had the situation before. Judge Sylvia Hendon was a trial and then appellate judge. She was then Joe Deters’ mother-in-law. Joe himself did not appear in cases before her, but members of the prosecutor’s office did.
The rule states: “The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not itself disqualify the judge.” But there could be other circumstances, such as if the lawyers in a small firm had a huge pecuniary interest in a case, that would require disqualification.
A rule of reason applies — if we banned the prosecutor’s office from cases where a relative of the prosecutor were a judge, it would disqualify the judge from hearing half the cases. In a small county, there would be real difficulty.
Competence.
When nepotism is suspected, the first thing that comes to mind is a relative who can’t get a job any other way. That’s not the case here. Dennis Deters is not unemployed. He has a law degree and has practiced for 16 years. The real issue is whether he is the best for this job.
I do not personally know this Deters, so I cannot comment on his personality, or give first-hand illustrations of his intellect. On paper, he has no obvious qualifications for the second-highest judicial office in Ohio. He has not been a judge. He has not taught law, or written any publications that I know about. He has never written a judicial decision, or even decided a case. Now he will be reviewing the decisions of other judges.
Traditionally, judges served in a lower court first (I served 13 years on Municipal Court). I would have found it difficult to start at the appellate level, without the experience of seeing how the law works out in the “trenches.”
In Ohio, the only technical qualification is that judges must be lawyers for six years before being any type of judge. Deters has been practicing 16, which should give him sufficient experience, though it is much less than normal for the appellate court. I don’t think every appellate judge should be from the same career path. Diversity is good. But too many inexperienced judges at one time may be a problem.
Judge Deters will be one of six judges on the court. Four will be new. That’s difficult. I can’t remember a time when more than two were new, and most years either one or no new judges ascended. There will necessarily be some on-the-job training.
Deters does have some credentials. In his early days, he worked in the court system as a law clerk. He has practiced 16 years, he has served in public office, he is highly rated by his peers and he seems to have no apparent flaws or weirdness.
If Deters is just doing this for a year or two and then will run for something else, that would be a shame. But if he is committed to being a judge, there is no reason he cannot be a good one. Study and hard work can overcome a lack of experience. It doesn’t take genius — it takes common sense, fairness and willingness to learn and apply the law.
And maybe the political system will work. He could be a great judge. In any event, he will be a judge, so we must wish him well.
Cincinnati native MARK PAINTER served as a judge for 30 years (Municipal Court 1982-1995, Court of Appeals 1995-2009, United Nations Appellate Tribunal 2009-2012) and as an adjunct law professor at UC for 20 years.
This article appears in Feb 22 – Mar 1, 2017.