News: Judicial Challenge

Attorney says opponent unfit to run for judge

Jymi Bolden

Attorney Bruce Whitman says he will go to court to challenge his Republican opponent's eligibility to run for judge.

In elections, voters are asked to consider two or more candidates and select the one best qualified. But Hamilton County voters rarely have that option in judicial races; nominees often run unopposed, particularly Republicans, who hold 25 of 28 judgeships elected countywide.

This year 11 seats in the Hamilton County Common Pleas Court are on the ballot, but only one is contested. Bruce Whitman and Fred Nelson are vying for that seat, which is open due to the retirement of Judge Fred Cartolano.

The campaign has so far revolved around whether Nelson has been practicing law in Ohio for six years, a statutory requirement for eligibility.

'A systemic problem with judges'
Whitman, the Democratic candidate, handles civil and criminal work. He represented the family of a young man killed in the 1979 Who concert tragedy.

Whitman also worked with the U.S. Justice Department about five years ago on a fraud case against Allied Clinical Laboratories. A whistleblower said the company was over-billing Medicare for certain lab tests. The company settled for $5 million.

Whitman says he's probably handled cases in every court in the county in his more than 20 years of practicing law — from municipal court to the U.S. Sixth Circuit Court of Appeals.

Nelson, endorsed by Republicans, is a Harvard Law School graduate who was involved in politics before he began practicing in Ohio in 1987. He worked for the U.S. Senate Judiciary Committee from 1983 to 1985. He was deputy assistant attorney general in the Ronald Reagan administration and White House associate counsel during former President George H. Bush's administration. He is former chief of staff and legal counsel for U.S. Rep. Steve Chabot's (R-Cincinnati).

But Nelson might be most recognizable for his appearances on Hot Seat, which he co-produces for WCPO (Channel 9).

Nelson, a self-described Libertarian, says he will "follow the law, not legislate from the bench."

But Nelson doesn't meet the legal qualifications to be a judge in Ohio, according to Whitman. State laws require a judge to have six years practicing law in Ohio or six years experience as a judge elsewhere in the United States.

Whitman says Nelson received his Ohio law license in September 1987, but moved to Washington, D.C. in October 1989. He returned in 1991, but his court appearances trail off about two years later.

Whitman filed a protest Aug. 14 with the Hamilton County Board of Elections, challenging Nelson's qualifications for the ballot.

The court of common pleas is stocked with former prosecutors and former city attorneys. At least 11 of the 16 judges have worked as city attorneys or prosecutors for the city, county or federal governments.

The judges don't have much experience representing people in the court system, Whitman says.

"I think it means that it's a very bureaucratic system — that it's very inbred," he says.

Democrats have had little success recruiting attorneys to challenge Republican nominees. In any given election year, one or two of the races might be contested.

"It's a disgrace for the entire community," Whitman says. "In an electoral system, there should be a contest. There should be an election."

This year the Democrats thought they had a second candidate for the common pleas bench, but he had second thoughts, according to Tim Burke, co-chair of the Hamilton County Democratic Party.

Campaigns cost money, and Republicans have had an easier time raising it. Whitman and Nelson will probably raise $100,000 each, Burke says.

But Whitman will also sacrifice time from his law practice. Republican prosecutors, by contrast, work in a system that can cover for them while they run for office.

Ohio's governor appoints judges to vacant seats. For the past 12 years the governors have been Republicans, and local Republicans have been able to move judges around as they please.

Private attorneys have no such safety nets or access.

"I think there's a systemic problem in the community with judges," Whitman says. "It's been a political job, in essence, for many years."

Mike Barrett, chair of the Hamilton County Republican Party, did not return a reporter's calls.

'Tortured interpretation'
There's only one potential problem for Nelson: the six-year rule.

The Hamilton County Board of Elections heard Whitman's protest in mid-September. But instead of talking about Nelson's qualifications, his attorney, Daniel Buckley, argued the board lacked authority to hold the hearing.

Buckley said the board of elections can't hold hearings on candidates' qualifications after the primary election. Before a primary, only a member of the same party can challenge a candidate's qualifications, he said. After the election, the prosecutor could challenge the candidate's qualifications in court, according to Buckley.

"It makes no sense," Whitman says. "It can't be that way."

Whitman says Buckley cites the law out of context. His attorney, Mark Vander Laan, cites a 1992 Ohio Supreme Court ruling that a board of elections can hold qualification hearings months after the primary — even on its own, with no candidate protesting.

Buckley and Nelson are taking an "undemocratic, tortured" interpretation of the law, according to Whitman.

"I think that says something about my opponent and his approach to law," he says.

The board of elections voted 2-2 along party lines, which means the Ohio Secretary of State decides the case. Secretary of State Ken Blackwell, a Republican, ruled in Nelson's favor Sept. 30. Whitman says he will appeal in court.

Nelson says he's more than qualified for the bench.

"I meet the legal requirements of the state quite clearly," he says.

Nelson cites his 2001 appointment to the Ohio Commission on Uniform State Laws, a body of lawyers working on smoothing out differences in highly technical laws in different states.

The proper procedure should be followed, according to Nelson.

"The board of elections either has jurisdiction or it doesn't," Nelson said. "If it doesn't, there is no legal justification for the proceeding."

There's no such problem on the campaign trail.

"I think that's the proper forum to discuss these issues," Nelson says.

Whitman sees the issue differently.

"If he's got the qualifications, why doesn't he come out with them?" Whitman says. "He knows what the statute says." ©

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