Saturday, July 03, 1999

Judge says: Don't tread on me

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Co-workers love or hate Mark Painter

BY DAN HORN
The Cincinnati Enquirer

Appeals Judge Mark Painter (Michael E. Keating photo) | ZOOM

        It's hard to picture Judge Mark Painter as a rebel.

        Maybe it's the dark blue suit or the spotless office or the bookshelves lined with law journals. He just doesn't look the part.

        But here he is, a “Don't Tread on Me” flag hanging behind him, talking about what it's like to be the most controversial judge in Hamilton County.

        “Sometimes you have to call it like it is,” says the veteran appeals court judge. “Everybody has criticism, but when you're right, you don't mind.”

        The furor surrounding his scathing decisions is so strong it has touched off the kind of political battle that is rarely seen in public at the courthouse.

        It has even prompted talk within his own Republican Party about a campaign against him when he runs for re-election next year.

PAINTER FILE

• Age: 52.   • Born: Norwood.   • Education: Sycamore High School and the University of Cincinnati undergraduate and law school.   • Employment: Owner, Murphy's Pub (1971); private law practice (1979-82), municipal judge (1982-95) and appellate judge (1995-present).   • Politics: Republican.   • Personal: Lives in Clifton; married to Sue Ann Painter.   • Other: Lost bid for seat on the Ohio Supreme Court in 1992; part-time law professor at UC; co-author of handbook on Ohio drunken driving laws.

        “I know there's a lot of judges that dislike him with a passion,” says Common Pleas Judge Robert Ruehlman, a Republican who says some in the party have asked him to run against Judge Painter.

        “He criticizes me and lots of judges,” Judge Ruehlman says. “But I don't believe in criticizing other judges.”

        Most of the criticism handed down by Judge Painter ap pears in the sharply worded opinions and dissents he has authored over the years for the Ohio 1st District Court of Appeals.

        Those include the reversal of a rape conviction for “prosecutorial misconduct,” a ruling against a judge who quoted from the Bible and a dissent that compared Judge Ruehlman to a hanging judge from the Wild West.

        Whether they agree with his decisions or not, support ers and foes alike say Judge Painter's style can be abrasive.

        “He has a great legal mind, but some of his comments are unusual,” says Buck Niehoff, the county's GOP chairman. “The comments about specific judges, you don't always see that.

        “It makes people unhappy.”

        Some of the least happy are fellow judges who have seen Judge Painter describe their work as “muddled,” “egregious” and “a shocking travesty of justice.”

        Comments like those tend to stand out in legal opinions known for reserved language and long-winded quotes from law books.

        “I try to be direct, to write in plain English,” Judge Painter explains. “You shouldn't have to be a lawyer to figure out what the court said.”

        His direct approach to the job has even added a few words to the courthouse lexicon: Some lawyers now refer to a stinging turn-of-phrase as “Painter-esque,” while judges who have been reversed by him may complain about being “Paintered.”

        All the attention is a bit unusual considering the appeals court, which reviews about 1,000 lower court decisions a year, lacks the daily drama of murder, rape and robbery trials. Mostly, the job involves researching cases and writing opinions.

        Judge Painter, however, often manages to make the court — and himself — the center of attention.

        He does it with a style that is, depending on who's talking, either arrogant and ego-driven or gutsy and principled. Some suggest it's all of those things.

        Even Judge Painter admits to having “a judge's ego,” pointing out the color-coded stickers he places on the law journals in his office.

        The blue stickers denote the books containing published opinions he authored as a municipal judge. The red stickers are for his appellate opinions.

        “I was the most published trial judge in the state,” he says, putting the current total at 124 opinions.

        While critics might call that arrogance, his supporters see it as proof of a sharp legal mind.

        “A judge is supposed to call a case the way he sees it,” says Timothy Smith, a veteran defense attorney who describes the judge as one of the county's best. “People are trying to stir up a mob to go after him for perfectly sensible decisions.”

        At 52, Judge Painter says he's accustomed to criticism. He heard it when he was a municipal court judge for 13 years and he heard it when he joined the appeals court in 1994.

        “People grumble about all kinds of cases,” he says. “You can't make an omelet without breaking eggs.”

        If his most recent decisions are any indication, he's working on a very big omelet. Two weeks ago, in a dissenting opinion, he blasted Judge Ruehlman for imposing a 10¹/₂-year prison sentence on a teen-ager who sprayed Mace during a high school talent show.

        Although Judge Painter agreed the defendant caused a serious safety risk, he concluded the sentence was too harsh because no one was seriously hurt.

        “My mistake,” he wrote in his dissent, “I thought we lived east of the Pecos.”

        He went on to describe the majority opinion, written by fellow appellate Judge Ralph Winkler, as a “muddled” and “shocking travesty of justice.”

        Judge Winkler, a Republican, joined the court this year after ousting Marianna Brown Bettman in the fall election.

        One of the stated goals of his campaign was to “restore collegiality” to the court, a not-so-veiled reference to criticisms of other jurists.

        “I would stand up with him and fight for his right to his own opinions,” Judge Winkler says of Judge Painter. “But it's just the way he does it that is regrettable.”

        Asked about collegiality on the court today, he says: “I get along with most everyone, with one exception. I'll let you draw your own conclusions.”

        Judge Painter says he's not bothered by such talk and professes not to worry about the political wisdom of ripping other judges, even when most of them are fellow Republicans.

        “The last thing you want to inject in a legal decision is partisan concerns,” he says.

        Although Judge Ruehlman says he's been approached by “party officials,” he says he enjoys his job in Common Pleas too much to run against Judge Painter.

        Mr. Niehoff, the party chairman, insists Judge Painter is “our candidate” in 2000, at least for now.

        “If someone else enters the race,” he says, “we'd have to make a decision as to whether we'd endorse either candidate or stay out of it.”

        Judge Painter smiles when asked to consider the possibility of a campaign challenge. He won 77 percent of the vote his last time out and says he'll be ready again in 2000.

        He says he's confident because he's been something of an outsider from the beginning. Born in Norwood and raised in Blue Ash, he describes himself as a libertarian and names Barry Goldwater as one of his heroes.

        “I'm not a country club Republican,” he says. “I was the first in my family to go to college.”

        He also has something of a subversive streak that has always set him apart from the county's more traditional Republicans.

        In high school, as editor of an underground student newspaper, he smuggled copies into class by slipping them into the valedictorian's book bag.

        “It was banned, of course,” he says, chuckling. “We criticized people for not teaching very well.”

        He later learned to balance political successes — student body president at the University of Cincinnati — with more offbeat pursuits. One was his three-year ownership of Murphy's Pub.

        “I didn't make any money,” he says, “but I got free beer in law school.”

        Along the way, he says, he learned a lot about people. He also made some important friends, like former Ohio Senate President Stanley Aronoff.

        To this day, Mr. Aronoff describes Judge Painter as “nothing less than brilliant.” He says his friend was his political strategist for a time and, later, won his recommendation for an open seat on municipal court.

        Once there, Judge Painter placed the bright yellow “Don't Tread on Me” flag at his side. He likes the message, he says, although today the words sound like wishful thinking.

        Even Mr. Aronoff says he understands why some don't approve of Judge Painter's approach.

        “Sometimes Mark has an irresistible impulse to make his point in a way that can't be missed,” he says. “There's a question about whether he goes out of his way to pick a fight.”

        Another ally, former Judge Bettman, makes a similar observation. “Judge Painter is very principled, especially when it comes to individual rights,” she says. “But he can be tactless in the way he points out errors.”

        To be sure, more than a few judges have felt the sting of a Judge Painter decision.

        In 1996, he voted to throw out the rape conviction of Ricky Cotton because the trial judge had “aided and abetted” prosecutors by allowing jurors to hear “blatantly inadmissible evidence.”

        Judge Painter is quick to point out that he doesn't use such language unless he's done the research to support it.

        In Judge Ruehlman's Mace case, for example, he cited 10 cases in which defendants who had caused someone's death received a lighter sentence than the teen who got 10¹/₂ years.

        Judge Painter says he has no regrets about that decision, or any other he's made on the bench. The latest uproar, he says, won't change anything either.

        “No,” he says, briefly considering the possibility. “Absolutely not.”

       

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