Op-Ed: O’Connor’s textbook opinion shows she’s up to the high-court job

Columbus Dispatch
Lee Leonard
September 29, 2003

The verdict is in: Anyone who thought Maureen O’Connor, a former prosecuting attorney and member of the Taft administration, was going to be a get-along, go-along Ohio Supreme Court justice needs to re-evaluate.

O’Connor, ridiculed for pretending to be a sitting judge in a 2002 campaign commercial, demonstrated last week that her brief stint as a Summit County judge was no fluke; she is suited for the top court.

Whether you agree with her, O’Connor’s dissenting opinion in the concealed-weapons case was a well-researched, textbook example of how justices should rule based on law and precedent.

She was in the minority in a 5-2 decision, but her thoughtful opinion gave firearms advocates something to hang their hats on as the controversial issue shifts back to the legislature.

By winning a nasty campaign in 2002, O’Connor was the key to Republicans’ capturing a true majority of the high court. The GOP had a majority in party label only; Justices Andrew Douglas and Paul E. Pfeifer often failed to follow the party line, notably on the DeRolph school-funding case.

During the campaign, business and labor went head-to-head, with labor warning that if O’Connor won the court seat vacated by Douglas, ordinary citizens could forget about any kind of justice in their lawsuits.

Republicans fronting for O’Connor intimated that failure to elect her would free trial lawyers to win all sorts of outrageous damage claims, driving business out of Ohio.

Those kinds of campaigns followed the Ping-Pong game the court has played with the legislature for almost a decade on the law that applies to civil suits. The Republican legislature would enact a law helping the business community by curbing damage awards, and the court would rule it an unconstitutional abridgment of the right to recovery.

The jury, so to speak, is out on whether O’Connor will tip the balance toward the business titans who finance Republican campaigns; that will have to wait until the first new tort-reform law is lobbed over to the court.

But O’Connor’s performance on her first major opinion indicated she will be an umpire who studies the rule book before making the call. Declaring unconstitutional Ohio’s prohibition of concealed weapons might not have been the right call, but she left a clear legal trail in arriving at her opinion.

Pfeifer, writing the majority opinion, wasn’t exactly spitting out chopped liver. He hearkened back to the Constitutional Convention debates of 1850-51, to two subsequent conventions and to an Ohio Supreme Court decision of 1920 to determine that Ohioans have a constitutional right to bear arms, but nothing in the Constitution allows them to carry concealed handguns.

O’Connor, in her dissenting opinion, came to a different conclusion, saying that Ohio law regulates the manner in which a firearm may be carried and that any regulation must be "narrowly tailored to serve an important government interest," namely, protecting public safety.

Ohio allows concealed weapons for people who need them, such as business owners taking cash receipts to the bank.

However, if challenged by a law-enforcement officer, the gun carrier must go to court and use an "affirmative defense" that carrying the weapons was justified. Under the law, people could be challenged and forced into court time after time to prove their innocence.

"This is as offensive as a statute allowing the arrest of anyone who speaks in public, but permitting the speaker to prove at trial that the speech was constitutionally protected," O’Connor wrote.

She said the Ohio law treats a fundamental right as a mere affirmative defense.

"Public safety is a compelling state interest," said O’Connor, who was director of the Ohio Department of Public Safety before becoming a justice. "The regulation of concealed weapons falls within this public-safety interest; however, a regulation may limit a fundamental right only as much as absolutely necessary to promote public safety."

Pfeifer probably is correct; the Ohio Constitution guarantees the right to have firearms, but the legislature in its wisdom can regulate how or where they are carried to ensure public safety.

However, O’Connor is right that an individual should be innocent until proved guilty.

Will O’Connor be the lapdog of corporate Ohio? Not if she researches the law as carefully as she did this time.

Lee Leonard covers the Statehouse for The Dispatch.

Click here to read the story in the Columbus Dispatch (subscription site - paid access only).

Not surprisingly, Mr. Leonard's bosses at the Dispatch, and the Dayton Daily News editorial board disagree.

Click here to read the Dispatch's lead editorial Sunday, entitled "Court on target."

Click here to witness DDN editors make a ludicrous claim that it was the minority who executed judicial activism when ruling on this case.

OFCC PAC supporters will recall that some pro-gun interests in Ohio attacked the PAC for it's endorsement of O'Connor. Click here to read the rationale behind the PAC's 2002 endorsement. It makes even MORE sense in light of last week's ruling.