Ohio Republicans Seek Friendly Courts to Check Democratic City

Republicans are chipping away at the power of the blue-county judges in Ohio’s capital as the politics of the state and the city grow farther apart.

Franklin County, home to Columbus, and its panel of judges has traditionally heard much of the state’s major litigation. But as the makeup of that bench—it’s currently staffed by 15 Democrats and only two Republicans—has changed over the years and the Tenth District Court of Appeals has swung to nearly all Democrats, the state’s conservative officials are exploring new options.

Specifically, Attorney General Dave Yost (R) has chosen to bypass Franklin County and file a number of politically-charged lawsuits in Delaware and Fairfield counties, which have Republican-controlled trial courts. That includes a challenge to gun laws passed by Democratic leaders in the capital city and a battle over regulating tech behemoth Google LLC.

“The dirty word used for that is called ‘forum shopping,’” said Charles Schneider, a former Franklin County Common Pleas judge who worked for Yost after retiring from the bench. “But I personally believe if you can do that and can do it ethically and responsibly and legally, I think you’re doing your client a disservice by not doing it.”

A legislative change is also in the works that could further eat away at the number of certain cases Franklin County’s judges hear.

A bill (SB21) that passed the Ohio Senate and a House committee would, among other things, allow appeals of many state government decisions to be heard in the county where a business is located or where a licensee lives instead of solely in Franklin County, where the law currently requires them to be filed.

And while a key sponsor of that bill says the political makeup of Franklin County’s bench wasn’t the driving force, others say politics can’t completely be ignored.

“The change in the political makeup of Franklin County, and therefore the Tenth District bench, has just given some energy to an effort that probably should have been addressed a long time ago,” said Paul Pfeifer, a former Ohio Supreme Court justice and the executive director of the Ohio Judicial Conference.

Picking And Choosing

The move away from Franklin County started in earnest a couple of years ago.

Yost elected to bring a 2021 suit seeking a declaration that Google should be regulated like a public utility in Delaware County, where he previously served as prosecutor. He later filed his antitrust case against pharmacy benefit managers in the same county.

“I don’t think there’s any question that when the attorney general files a lawsuit that can be filed anywhere, Franklin County is not his first choice,” said Schneider, a Republican. He is now of counsel for the Isaac Wiles law firm in Columbus.

So by December, when Yost wanted to challenge something as politically divisive as new firearms restrictions passed by Columbus City Council, he tried a court outside Franklin County. He filed his lawsuit more than 30 miles away in Fairfield County, which only has a sliver of the sprawling city and two Common Pleas Court judges, both Republican.

The decision to file there led Columbus City Attorney Zach Klein, who is defending the restrictions in court, to accuse Yost of picking and choosing where to file.

“The Attorney General didn’t like the decision out of Franklin County, so now he’s judge shopping over in Fairfield County hoping he gets a decision he likes,” Klein said in a statement in December, referencing a ruling in a gun laws case from the previous month. “That’s not how this works. It’s like a kid getting told no by one parent, but then going to the other to see if they say something else.”

Yost’s spokeswoman didn’t respond to emails seeking comment.

But the judge in Fairfield County, Richard E. Berens, ruled against Yost’s request for a preliminary injunction against the gun restrictions while the lawsuit was pending. Berens previously went the other way, blocking the restrictions through a temporary restraining order.

The Buckeye Institute, a right-leaning organization, tried its hand in February at challenging the same restrictions. It filed in the Delaware County, which also has two Republican judges.

It found more success there with Common Pleas Judge David M. Gormley. The city’s restrictions were blocked in April while litigation proceeds.

A spokeswoman for The Buckeye Institute said in an email that it filed in Delaware County because it’s “an appropriate venue for the case.”

Retired Franklin County Common Pleas Judge Richard A. Frye said that it’s a reality that lawyers will and should consider many factors in deciding where to file a case, and that those decisions aren’t always inherently political.

“In a legal system operated using human judges and human jurors, it is a reality that some locations will seem somewhat more attractive once one analyzes the history of local court decisions, local economic factors...and other seemingly mundane things like how rapidly the docket moves,” Frye wrote in an email.

He continued that allowing lawyers to consider such things “is the best system we have to assure justice in each individual case.”

Still, Schneider said it can’t be ignored that “Franklin County has changed,” he said. “A number of years ago, it was a predominantly Republican County with a predominantly Republican bench.”

‘Representing Your Clients’

Meanwhile, the Senate bill to change where challenges to agency decisions are heard was passed out of a House committee this week.

The co-sponsor of that bill says the ideological leanings of the Franklin County Common Pleas Court bench and the Columbus-based Tenth District wasn’t a reason he proposed the change. State Sen. Rob McColley (R) said the goal is to even the playing field for litigants from across the state who have historically had to trek to Columbus and hire a big-city lawyer.

“My primary objection is only that they’re elected by just the people in Franklin County, and they’re deciding issues for businesses across the entire state,” McColley said. “It has nothing to do with their political leanings at all. In fact, there’s probably not much politics involved in administrative hearings.”

He acknowledged, however, that some issues stemming from decisions by the Ohio Health Department during the coronavirus pandemic era, which were heavily opposed by many Republicans in the state, were challenged in Franklin County courts.

Gov. Mike DeWine (R) vetoed a similar bill in January, though it isn’t clear how he feels about the new bill. A spokesman didn’t respond to an email.

Pfeifer, the head of the Ohio Judicial Conference, said he sensed that Tenth District judges aren’t thrilled with the proposal, but it hasn’t received pushback from the other judges in his organization. Inquiries sent to the presiding and administrative judges of the Franklin County Common Pleas Court, as well as the Tenth District’s court administrator, were not returned.

Whatever way the bill goes, though, the movement of litigation from Franklin County is here.

Schneider, meanwhile, brushes off any accusations that seeking alternate forums, or “judge shopping” is improper.

“Is it politics or are you just representing your clients?” he said.