None of this is against the law or prohibited in the oath all part-time Ohio judges take.
Judge Lyons is one of many part-time judges in Ohio who also practice law, but if it’s up to Butler County Prosecutor Mike Gmoser that would change.
Gmoser submitted a 200-plus page document to the Ohio Supreme Court asking the high court to promulgate a rule that would prohibit part-time judges from handling the types of cases they preside over in their courts in their private law practices.
The Butler County prosecutor is not the first to voice concern about the use of part-time judges. Montgomery County went to full-time judges in its Area Courts in 2010 and Mahoning County will do the same this year.
In both counties, the change was pushed for because officials said there was an inherent conflict of interest of having practicing attorneys serve as judges.
Part-time judges serve in Area Courts or Municipal Courts where misdemeanor cases are handled.
A Warren County judge who has served at this level said he believes moving part-time judges to full-time positions would also save taxpayers in the long run.
Warren County Judge Don Oda, who is the presumptive successor to Common Pleas Court Judge Neal Bronson, said there would be some cost savings for a county with a move to full-time judges.
But Oda is also quick to point out part-time judges serve their purpose.
“I think the natural tendency of the public and folks who don’t know any better, is to think that the only time you’re working is when you’re on the bench or have your robe on,” he said. ”That’s just not true. It’s like going to college, you have a lot more work than just going to class.”
Gmoser’s concerns came up when Judge Lyons maintained he could fairly and impartially rule on OVI case suppression motions regarding the Breathalyzer 8000 alcohol testing machine. Gmoser called foul because Lyons had filed an identical suppression motion for one of his private practice clients in Hamilton County.
A disqualification motion regarding 10 OVI cases in Lyon’s court was filed by Gmoser with Butler County Common Pleas Presiding Judge Michael Sage in March. Sage disqualified Lyons from hearing the cases last month, saying the public could perceive a conflict of interest.
Lyons has maintained county court judges can only be disqualified from practicing as an attorney in the county which they serve. He said he and the two other county court judges do not practice in each other’s courts.
“Mr. Gmoser suggests that I limit my private practice beyond what the law requires,” he said during an April hearing. “I believe what Mr. Gmoser is seeking is improper and troubles me on many levels, including the separation of power, restraining trade and the Ohio Code of Professional Responsibility.”
Gmoser also accused Area II Court Judge Kevin McDonough of playing favorites with Lyons’ law partner Jeffrey Meadows. In his letter, Gmoser called Lyons “the fox in the henhouse” and asked the high court to remedy the situation so the playing field for his assistant prosecutors who practice in the area courts can be leveled.
Gmoser also asked the court to consider including the part-time judges’ law partners in a rule so the judges can’t profit by association.
“The integrity of the area courts should be protected and frankly it is not being protected by the present system,” Gmoser wrote. “I can think of no better case for the court to say ‘enough is enough’ and take immediate action to address this issue before the appearance of impropriety influences the public perception of full-time judges and the legitimacy of our judicial system.”
Retired Butler County Common Pleas Judge Matthew Crehan, who co-chaired a 2006 task force that looked into consolidating the municipal and area courts in Butler County, said he doesn’t think the general public was aware of a potential problem with part-time judges, until now.
“The Judge Lyons situation, I think people understand that, because there is an obvious conflict” he said. “The guys at the Y that I work out with every morning understand it and they say ‘it doesn’t sound right, it doesn’t pass the smell test’.”
The task force submitted a letter to the county commissioners outlining options for consolidation, but noted the stakeholders were resisting change. The now deceased chief justice of the Ohio Supreme Court Tom Moyer was pushing for all counties to transform part-time courts to full-time back then, and Crehan’s report noted the legislature may force the county’s hand. It never happened. Warren County stakeholders also broached the subject of consolidation but officials couldn’t come to any agreement.
Crehan said he agrees with Gmoser and Moyer that part-time judges should be a thing of the past.
“We are in a situation where we ought to have full-time judges,” he said. “In my estimation you can’t be a judge part time, it’s a full time job, especially with the case loads their carrying. And there is the appearance of impropriety... It’s always been a problem for me.”
Lyons is on the bench in Oxford one day a week, some of the judges in the two counties hold court more often. The part-time judges earn $65,650 annually and the budget for the area courts this year was just over $1 million. The Area I, II and III courts had case loads of 4,097, 7,335, 10,026 respectively last year. The three courts share three magistrates to help with the case loads.
The three area court judges in Butler County declined to comment on the issue.
Oda said he doesn’t believe part-time judges give each other preferential treatment.
“In the trenches of the legal system it doesn’t matter, people don’t say to themselves I’m gonna go hire this guy because he’s a part-time judge and he’s gonna get me a better result,” he said. “I’m not saying that hasn’t happened a couple of times, but you just set them straight, you say ‘you can hire me if you want to, but I’m not going to get a better deal because I’m on the bench a couple of days a week.”
Franklin Municipal Court Judge Rupert Ruppert, who is also a part-time judge, says he restricts his private law practice to civil litigation and the common pleas courts because he wants to avoid the appearance of conflicts of interest. He said he can see Gmoser’s point, but a changed high court rule would hurt part-time judges.
“Supreme Court rules don’t require them to give up their practice with respect to other courts in any area that they practice,” he said. “I think that could seriously hamper some of the part-time judges. There is no question in my mind it could seriously affect their practice, that’s one of the reasons there isn’t a rule against it.”
Supreme Court spokesman Chris Davey said he could not comment on the request.
If the counties decided to revisit consolidating the part-time courts, it would take legislative action. Sen. Bill Coley, R-Liberty Twp., who is also an attorney, said he has not been approached to introduce a state law.
Contact this reporter at (513) 696-4525 or dcallahan@coxohio.com.
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