Ohio Chief Justice Moyer challenges Vindy editorial

Ohio Chief Justice Moyerchallenges Vindy editorial
EDITOR:
I write to dispel misconceptions that were evident in an editorial your newspaper recently ran, "The court's defining moment."
Your editorial indicated that because I had made a statement on the bench that the court would "write law" in a recent important case, that I was somehow betraying an inclination toward judicial activism.
There are four important points I would like to make:
1) I was misquoted out of context. Your editorial quoted me as saying that in this case it "would be the first time to write a law...to bind future governors. Hopefully we can write a law that is clear enough." Here's what I really said: "Again we have the opportunity here. This case is important because it's the first time that we have the opportunity to write law that is going to bind this governor and future governors. I hope that we don't have a case like this again.
2) I have an 18-year record as chief justice, in which I have authored hundreds of decisions and participated in thousands of cases. This extensive record, compared with one sentence uttered from the bench, clearly demonstrates that I am committed to the important principle of judicial restraint. I do not believe that judges should ever "legislate from the bench," nor have I ever done so. I will not be changing this judicial philosophy. But don't take my word for it; read my decisions.
3) When I said "write law," I was referring to case law, not statutory law. We have hundreds of books here where the reader will find opinions in which the court has written case law (not statutory law) on legal issues submitted by lawyers. An example: When the court held that the battered woman syndrome could be asserted as a defense to a charge of murder, the law on that issue was decided on that issue for the benefit of prosecutors and defense counsel. The General Assembly is not the only institution that says what the law is in Ohio. The term activist judge is used in many contexts, but a judge who says he or she is writing law on an issue in which the parties are arguing about the application of a constitutional or statutory provision is doing precisely what the parties have requested the court to do. They surely do not want us to write fiction (despite the claims of some that that is what we do now and then).
One definition of an activist judge is one who renders a decision that reflects the judge's personal opinion about the issue decided rather than following the clear mandate of a statute. That is certainly not what I was indicating when I made the point in oral argument that regardless of how we decided the case the law we write on the issue will bind not just the current governor but future governors as well. We have used the term in the past during oral argument and never had this misunderstanding of its meaning.
4) The sole reason that this misunderstanding arose was because a state representative, who is not a lawyer, pounced on my statement and twisted it to fit this absurd notion that I, after a legal career spanning three decades, have suddenly decided to reverse my judicial philosophy. Partisan attempts to politicize the important work of the judiciary are not a good basis for thoughtful editorial writing.
THOMAS J. MOYER
Chief Justice
Ohio Supreme Court
Columbus