Ohio Chief Justice’s Mandate Frustrates Cleveland Jurists

It’s gotten more difficult in Ohio to request a visiting judge—someone who can step in when the regular judge is conflicted or busy—brewing distrust and frustration on and off the bench toward the state’s chief justice.

Chief Justice Sharon L. Kennedy this year, her first on the job, mandated that instead of directly requesting a visiting judge, the permanently-seated judge must first must ask all their sitting colleagues if they can take the matter.

The Kennedy administration downplayed the change, saying these rules have been on the books since the late 1980s, but new enforcement of the old procedure hasn’t been well-received by some judges in Cuyahoga County, where the number of visiting judge requests have plummeted. It’s igniting fresh fears that the procedure may complicate efforts to clear the pandemic-induced backlog of cases.

“Here’s the problem,” said Cleveland attorney Christian R. Patno, president of the Ohio Association for Justice, a plaintiff lawyer’s trial advocacy group. “The post-Covid dockets are much larger than normal, and we’re now at a time where we probably need VJs the most to reduce that docket. It’s at a time where we don’t have access to them to the level we once did.”

Some judges in the county feel the same way. One judge, who didn’t want to be named for fear of reprisal, said the way Kennedy introduced the changes to the judges during a meeting in March made them feel put upon, as if the chief justice thought they weren’t working hard enough.

The long-running program gives courts a chance to ask the chief justice to appoint a visiting judge to take over if a permanently-seated judge can’t hear a case due to circumstances like a conflict of interest, vacation, or extended absence.

In the past, judges in Cuyahoga County regularly used visiting judges if there were multiple trials set for the same day. But not anymore.

While the statewide numbers exceeded those made in 2022, requests by the county’s Common Pleas Court general division judges have dropped dramatically, according to information provided by the Ohio Supreme Court. They’ve made 19 requests as of Dec. 13, down from 57 in 2022 and 53 in 2021.

Brendan J. Sheehan, the administrative and presiding judge of the county’s common pleas court, said requests are down because of his court’s understanding of how the rules are now enforced. In previous years, a cadre of visiting judges were on standby at the Justice Center in downtown Cleveland on Mondays, awaiting the green light to preside over a civil trial if called upon.

For his part, he hasn’t seen problems with the new enforcement, and said some of the concerns boil down to philosophy more than issues administering justice.

“Changes, especially for judges, it’s hard to swallow,” he said, later adding that “a lot of judges are changing the way they do business because of the rules.”

Interpreting the Rules

Robert W. Horner III, administrative director for the Ohio Supreme Court, noted in an interview that the requirements at issue were put in place in 1988. Other changes were made this year and were distributed to courts across the state in October, he said.

Sheehan and others said Kennedy’s predecessor, Maureen O’Connor, didn’t require courts to survey every judge it had before making a visiting judge request. Paul Pfeifer, executive director of the Ohio Judicial Conference representing judges across the state, said the rules as written had “fallen into a serious degree of disuse” and he believes the greatest degree of unhappiness with enforcement is probably in Cuyahoga County.

Kennedy noted this in an email she sent to Ohio judges in March.

“I know that the former chief justice granted some requests for the assignment of judges ‘on call,’” Kennedy wrote in the email, provided by a court spokeswoman. “In other words, some requests were granted ‘when’ no recusal, absence, or disqualification had occurred. But this limited practice has now ballooned to be the regular practice for some courts.”

Kennedy then said the guidelines contain restrictions and that because of them, she will only consider requests for “on call” judges if a permanent judge has an “illness or inability to attend to judicial duties” or a “personal or family emergency that interferes with the performance of judicial duties.”

O’Connor, who retired at the end of 2022, declined to comment.

Kennedy noted in another email to judges in January that she sought to make the judicial-assignment program more transparent and was therefore requiring more details for visiting judge requests, on which $14.4 million was spent over three years.

Frustrated Lawyers

For some who practice in the county, the changes have been frustrating.

Patno, who is a principal at McCarthy Lebit Crystal & Liffman Co., said he had a medical malpractice trial against the Cleveland Clinic set to go forward in May. But with the lack of judges on Mondays, he said Common Pleas Judge Deborah M. Turner postponed the trial to September because a criminal case was also set to start the same day. That meant eating thousands of dollars’ worth of expert witness fees, Patno said.

The trial ended up going forward in the later month and resulted in a $550,000 verdict on Sept. 22.

Turner, though a staffer, declined comment.

Still, Patno said this case could’ve wrapped up months earlier had Turner used a visiting judge. He commended Kennedy for trying to make the program more efficient, but said the newly-enforced requirements don’t account for 34 judges “who are independently elected with independent rights and duties” that must agree to cooperate.

The program as it’s now set up is “not tenable,” the Cuyahoga County Common Pleas judge said, and ignores that many judges still have too many cases because of the pandemic. It’s not as if many judges there consistently have time to take on a complex three-week case, the judge said.

Patno said the association he leads is gathering information about the effects of the requirements.

Sheehan, however, said only a few of the judges on the court use visiting judges. He’s not one of them.

The head judge added that he asked his colleagues on the bench if they needed help with cases lingering from during the pandemic and that nobody has asked for any.

And Horner, the Supreme Court’s administrative director, said nobody from Cuyahoga County has reached out for any help.

“We can’t help someone with an inquiry that they don’t make,” he said.