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Reflections from the bench: Former Justice Paul E. Pfeifer

Supreme Court
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Published: December 31, 2018

The following is the first episode of Reflections from the Bench, a series provided by Court News Ohio of the Ohio Supreme Court.

Justice Patrick F. Fischer: Joining me today is former Ohio Supreme Court Justice Paul Pfeifer. Welcome.

Former Justice Paul Pfeifer: Good to be here.

Justice Patrick F. Fischer: With the inaugural interview show.

Former Justice Paul Pfeifer: Good to be here. This should be fun.

Justice Patrick F. Fischer: Good. Justice, you left the court in January of '17. What are you doing these days?

Former Justice Paul Pfeifer: Well, this afternoon I hope to be mowing hay, but this morning I was in front of the ballot board and in another hour I'll be on a conference call with our officers so I'm the principal thing that I get real money for is the executive director of the Ohio Judicial Conference which some wag jokingly called the judges’ union.

Justice Patrick F. Fischer: The judges’ union. OK let me ask this. Do you miss being on the Court?

Former Justice Paul Pfeifer: I do not.

Justice Patrick F. Fischer: Why not?

Former Justice Paul Pfeifer: Because I was blessed with 24 years. I didn't want to be a judge of any kind. I had never thought about the Supreme Court got recruited and recruited hard to do it recruited principally because at that point I had name high name awareness and folks who seek out candidates like that. Call it a cheap date. But the good news for me was I loved every moment of it and even better news was the age limitation took me off the Court at just the right time.

Justice Patrick F. Fischer: What was it like to leave the Court after 24 years there?

Former Justice Paul Pfeifer: It was not difficult. It would have been if I didn’t have something to do. But the next day I started as the executive director of the Ohio Judicial Conference. It’s like catching a fast-moving freight train. There are 722 judges that all of a sudden I’m responsible for to report to. For me, it was no different than leaving the legislature and going across Broad Street to the Court. It was something new, a new opportunity, something new in my life.

Justice Patrick F. Fischer: But you clearly loved the job?

Former Justice Paul Pfeifer: I loved the job. But 24 years was enough.

Justice Patrick F. Fischer: Well, let me ask on that subject. You know the provision in the state Constitution, some of us call is the constitutional senile provision. What do you think of it?

Former Justice Paul Pfeifer: I don’t think it should be in the Constitution because we’re all different in terms of our ability to be active. You know I consider myself among the blessed to have good health. Don’t take a pill of any kind. But not everybody is as lucky.

Justice Patrick F. Fischer: Why law? Why did you want to be a lawyer?

Former Justice Paul Pfeifer: Because you can make a difference in people’s lives. And I think the Constitution and the idea of, you know, whether it’s the Lincoln-Douglas debates, you name it. I think at age 15 or so I knew I wanted to be a lawyer was of my generation you watch Perry Mason solving all of these cases. And also. And you know so I got interested in both law and politics. I knew I wanted to do both.

Justice Patrick F. Fischer: Well let’s go back a little bit. You mentioned you had no intention of becoming a judge. I’ve heard you never wanted to really originally be on the Supreme Court.

Former Justice Paul Pfeifer: I didn’t.

Justice Patrick F. Fischer: What changed your mind?

Former Justice Paul Pfeifer: It was a combination of factors. I had lost three statewide races.

Justice Patrick F. Fischer One very close.

Former Justice Paul Pfeifer: One very close. The last one for attorney general. And in the run up to running for the Supreme Court, Phil Gramm stopped to see me. Senator from Texas wanted me to run again for the United States Senate, which I had done in 1982. But in '92 the opponent would have been America’s hero John Glenn and I may be a lot of things, but I’m no fool. So I told Senator Gramm look elsewhere. And about the same time then I saw people were approaching me to run for the Supreme Court and I was also practicing law in addition to being the state Senate. And the nature of our partnership was changing, where one partner had left the firm that the two wonderful individuals I practiced law with and the other one was getting up in years and so changes were happening in that. So it made a natural time to do something else. And so the happy result for me was I liked it other I got there.

Justice Patrick F. Fischer: I remember your 30 days as acting chief and everyone compliments you on the way you conducted yourself. Well, how did you think about this?

Former Justice Paul Pfeifer: I had great staff for one thing and I utilized something that Tom didn’t utilize. We were both old school. All this e-mail and computers and stuff was new to us. So by that time, I was aware that lawyers and judges are reachable that way. Tom had just done that. So my staff really wrote this stuff and we communicated with all of the judges and with all the lawyers in the state. We had a wonderful ceremony and tribute to him at Ohio State and the brand new student union.

Justice Patrick F. Fischer: Judges and lawyers thought highly of you and how you conducted yourself.

Former Justice Paul Pfeifer: I appreciate that.

Justice Patrick F. Fischer: Tell me about the death of Tom Moyer.

Former Justice Paul Pfeifer: That was…I remember exactly where I was and it’s hard to even talk about that today. You know when Steve Hollon, the administrative director, called me and said Tom had passed. (trails off...)

Justice Patrick F. Fischer: You knew him a long time. You said you went to law school together?

Former Justice Paul Pfeifer: On Tuesday of that week, he asked me to run conference in the afternoon. Said he wanted to go back up to the hospital and check on some things. I thought he wouldn’t be there on Wednesday. He was on the bench on Wednesday. Presided. And. The last I saw him was after conference. He said I’m going back up and check with the doctors again at Ohio State. I said, well I can drive you up there and he said, nah, I’ll be ok. I asked, is Mary coming. He said, no. I’m driving back up the hospital. So yeah, I was at the farm on a tractor.

Justice Patrick F. Fischer: I can tell you still miss him today.

Former Justice Paul Pfeifer: The other thing about it was traumatic for everybody on the Court and um…trails off.

Justice Patrick F. Fischer: Can you tell our viewers why so they understand the context?

Former Justice Paul Pfeifer: Well, you know somebody that you highly regard is with you one day and they’re gone the next.

Justice Patrick F. Fischer: He had been here a long time.

Former Justice Paul Pfeifer: Yes, he would have had 24 years. And at the end of his term.

Justice Patrick F. Fischer: Let’s move on to some cases. The one you’re obviously going to be asked about DeRolph. The Court ruled public school funding is unconstitutional. Any thoughts on that looking back?

Former Justice Paul Pfeifer I think we were right from start to finish. I wrote the final one. In which we released it. Unfortunately, and this is no surprise, folks in the legislature didn’t really read what we wrote. Within a matter of a couple of weeks, the governor turned around and said, well we need to fix this and we need to pay attention to the Court. But the legislature became so angry and entrenched that that he couldn’t get that done. And, you know, I have grandchildren who are good athletes and I get into new school buildings all the time and I feel good about that when I see that because that it wasn’t a direct response to how you dole out the fund the operation the money. It was a positive response.

Justice Patrick F. Fischer: Let’s move to another subject in which you involved in both the legislature and here. I’m sure you can guess why that is. Talk a bit about the death penalty. In '81, as best I could tell, you helped the state Senate helped craft the death penalty statute and then '17, 2017, you wrote, quote "It’s time to get rid of the death penalty in Ohio." Close quote. Yes, please explain.

Former Justice Paul Pfeifer: I was just fine who served in the Senate. Dick Finan.

Justice Patrick F. Fischer: Another Hamilton County person.

Former Justice Paul Pfeifer: Another Hamilton County person. He was the true believer in the death penalty. I was more of the Scrivener. I was less emotionally involved and I was not banging the gavel saying you know Ohio just desperately needs this. But what eventually happened, I’m on the Supreme Court and so I’m now I'm seeing the outcome of the statute that I helped craft. And I just at some point I had, you know, really mechanically doesn’t work. And I think we’re better than that. So on one level I came at it from an ethical or philosophical view and the other from a practical view.

Justice Patrick F. Fischer: You famously were raised on a dairy farm near Bucyrus.

Former Justice Paul Pfeifer Yeah, when I wasn’t here I was at the farm.

Justice Patrick F. Fischer: They told me about tractor time.

Former Justice Paul Pfeifer: Tractor time, very important. In fact, I’ll have tractor time this afternoon. It’s the time we all need to be away from the cell phone, to be away from the television, the ballgame, and be away from your staff and the phone, the whole thing. Private time. Where were you doing something for me and for me it’s a time to get new ideas and clarity of thinking and it’s healthy.

Justice Patrick F. Fischer: Having been a justice for so long, seen it from 30000 feet up down. Plus now your role is on the Judicial Conference, is it harder more difficult to be a judge today than 30 years ago?

Former Justice Paul Pfeifer: I think it is in this respect. When I when I was growing up, when I was a kid because I grew up in a small county, 50,000 people shrinking around toward 40,000. But the judge was a revered personality in the community, well-respected, very wel- respected. And I can’t say that isn’t true now, but it’s just not the same. Here’s the troubling thing. Some organization did a poll. I don’t know if it was even in Ohio. The report that I received was shocking to me was that a 100 percent of African-American respondents had nothing, no good comment, not one good comment, about police, about prosecutors, and not about judges. 100 percent of them. So there’s something going on in America today that those of us who lived our lives in basically white communities.

Justice Patrick F. Fischer: And within the legal system.

Former Justice Paul Pfeifer: And within the legal system are failing to understand. I couple that with I believe it was Carla Moore just left that the Ninth District, retired, and I’ve known her. I saw an exit interview she said that she felt some of our judges are racially biased. So again, that’s startling to me because I haven’t picked that up. It’s not possible. So when you ask me, are things tougher for judges today? I think they might not even perceive it yet, but the ground is shifting all around us and it’s something we need to pay attention to.

Justice Patrick F. Fischer: Speaking of shifting grounds, you were on the Court when Justice Resnick was elected, first woman elected in 60 years?

Former Justice Paul Pfeifer: She was here before me.

Justice Patrick F. Fischer: She was here before you, ok. But eventually you were on the Court with the majority of women. Does that really matter?

Former Justice Paul Pfeifer: It doesn't, except that one day before the afternoon conference Yvette McGee Brown was leading the discussion of Spanx. It changed in that regard. Terry O’Donnell and I looked at each other and said, so this is the way it’s going to be. (laughter) And then there is that little card. I don't know if it’s still up there.

Justice Patrick F. Fischer: No it’s gone.

Former Justice Paul Pfeifer: What did it say?

Justice Fischer: Women rule.

Former Justice Paul Pfeifer: Women rule. Yeah, that card mysteriously appeared above the law books in the conference room the day it went four women and three men.

Justice Patrick F. Fischer: It seems to me like the Court has moved towards more criminal cases and fewer civil. Any thoughts on that?

Former Justice Paul Pfeifer: Yes, it’s disappointing. I said, you know, I feel like I’m on the Texas Supreme Court of Criminal Appeals because they have two courts. So from my standpoint I loved civil cases. It made the work a little less enjoyable because in the criminal area, the defendant is entitled to full due process so there’s a lot of picking-lint-out-of-your-navel kind of issues that will come up and the Court will say this isn’t quite right and you have to do it over.

Justice Patrick F. Fischer: I don’t write many dissents, except I seem to dissent on taking cases in which case I wanted to take the cases. And the majority did not. Tell me how you looked at that process. Motions for jurisdiction.

Former Justice Paul Pfeifer: Well, it’s a big part of your work. It’s every two weeks. It’s about 75 cases. It got less burdensome. You sort of learn after a little while you don’t need to read any further to know that’s not going to get your vote. Now what burned me early on is I knew that pretty quickly into, it but it was salacious. So I kept reading because I wanted to see what had happened and how did this happen. Sometimes I think I know that if this case comes in I’m not going to like the outcome. Because I think I know the Court, so while I might think this rises to the level of something that ought to come in I’m not giving it a vote because I don’t think I'm going to be happy when the final opinion comes out.

Justice Patrick F. Fischer: Well, I can tell you looking at the statistics over the last five years the number of cases accepted has dwindled. Is that good?

Former Justice Paul Pfeifer: No, it’s not good. The problem is sometimes it’s almost all criminal in that box and the few civil cases in the pile of 75 aren’t worthy of coming in.

Justice Patrick F. Fischer: You wrote a lot of dissents. Why was that important for you versus just saying I dissent?

Former Justice Paul Pfeifer: The makeup of Court changed. A very skilled trial lawyer said to me, Paul don’t just be writing dissents where you just do one liners and do toss offs. Your job now is going to be to write thoughtful dissents, dissents which we can use in other cases that are not factually a carbon copy of the case the Court just decided.

Justice Patrick F. Fischer: Any thoughts on judicial free speech?

Former Justice Paul Pfeifer: Oh, yeah, that’s that has been of interest to me from the beginning. I think really think the rules are too confining.

Justice Patrick F. Fischer: You’re talking about rules for judges speaking running for office?

Former Justice Paul Pfeifer: And speaking out on issues of the day. But the longer I served on the Court I became institutionalized so I saw the other side of it and the rules were the rules. Of course, when I was running I was still in the legislature at the time, I had free reign. My first race I wasn’t a judge and I wasn’t confined by those rules. I did abide by those and, for me, part of the constraint. For example, people want to know, what do you think about the abortion question? Well, once you're a judge, you shouldn't be talking about that

Justice Patrick F. Fischer: Because it could come before the Court. Judicial fundraising?

Former Justice Paul Pfeifer: Judicial fundraising, I once famously said to the New York Times that I’ve never felt more like a hooker down at the bus station than when I ran for judicial office compared to running for attorney general or a governor or a United States senator or state senator or all of which I done. In all those circumstances, I always had the feeling that people were contributing to me because I thought I’d be good in that office. And when you're running for judicial office there's a little bit of a feeling that they are betting that they think they know how you might decide cases that they might be interested in. Strangely enough in my personal view, there was a cleaner feel raising money for partisan political races than raising money for judicial races.

Justice Patrick F. Fischer: I have a theory. Tell me if I’m right. I have a theory that 99 percent of the cases the partisan issue couldn’t affect anything in the case.

Former Justice Paul Pfeifer: Yeah, and for the trial judges that would be particularly true. For the Supreme Court, it is really only some election law cases and it’s a limited number of those because a lot of those cases are about local ordinances and all those kinds of things. So there’s only one big enchilada in terms of partisan politics on the Ohio Supreme Court, in terms of cases, and that only comes around once every 10 years and that’s the legislative districts. Reapportioning. Yeah. Now that’s political. And when you vote the wrong way on that you hear about it.

Justice Patrick F. Fischer: From having been on the Court so long, the newest trends, the biggest changes, since when you were on the Supreme Court bench? For the court system?

Former Justice Paul Pfeifer: Yeah, I said, you know, when you’re on the Supreme Court you see the judicial system from 30,000 feet. And when you’re doing this job you’ve seen it from all levels. And since I was never a trial judge it’s been educational for me.

Justice Patrick F. Fischer: Looking back, if you had to give your younger self a piece of advice, what would that be?

Former Justice Paul Pfeifer: I think I’ve done this reasonably well. So this would be advice to others.

Justice Patrick F. Fischer: To you, or to others, sure.

Former Justice Paul Pfeifer: Enjoy the moment. Enjoy where you are today. If you’re, if you’re a judge at any level and I am heartened by the fact that I don’t run into many judges who are unhappy that they decided to make that career decision to leave the practice.

Justice Patrick F. Fischer: In terms of serving on the Ohio Supreme Court, what do you want your legacy to be? What do you want people to remember of you?

Former Justice Paul Pfeifer: That he was fair.

Justice Patrick F. Fischer: Last, but not least, is there anything I haven’t asked you about now that we talked quite at length that I haven’t touched on that you think is important.

Former Justice Paul Pfeifer: There are a lot of other people like us who have been blessed to have held high public office. It’s a blessing. Seize the opportunities when they present themselves. The opportunities when you hold public office to influence young people that you don’t even know, but can be the next star in terms of public service.

Justice Patrick F. Fischer: That’s why I speak every year at the Boys State. Same Concept as 4-H.

Former Justice Paul Pfeifer: Those of us who have had the opportunity to do these things that’s a payback that we should all do every time somebody serves it up.

Justice Patrick F. Fischer: Well, I want to say thank you.

Former Justice Paul Pfeifer: Oh you’re welcome.

Justice Patrick F. Fischer: And also I’m honored for you to be the first guest.

Former Justice Paul Pfeifer: Well I’m honored to do that.

Justice Patrick F. Fischer: Thank you. Thank you very much. (Music Playing)


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