Three branches, one government

The judicial branch offers impartiality in political landscape

By A.J. Wagner

It started with Aristotle over 2300 years ago when he theorized a government consisting of a king, an aristocracy and a democracy. For the following two thousand years, others looked for ways to combine the best elements of existing models of government into a reliable and responsive method for living under the rule of law.

James Harrington first suggested a separation of powers in 1656 and John Locke followed in 1690 with the suggestion of separate legislative and executive branches that balanced each other. In 1748, Montesquieu added a judiciary, which filled out the model used by our nation’s founders at the beginning of the nineteenth century.

Thus, Article I of the Constitution of the United States outlines the formation and powers of a legislature, Article II defines the executive branch and Article III, the judiciary. Together, we call this the “separation of powers” or “checks and balances.”

This subject comes up because of an issue on the Ohio ballot this November that would amend the Ohio Constitution so that redistricting maps will be drawn and approved by an independent Citizen’s Commission. Specifically the Amendment provides:

-A 12-member Citizens Commission will create new legislative districts every 10 years. Any member of the public can submit a plan for consideration.

-All meetings, records, communications and draft plans of the Commission must be open to the public.

-The Citizens Commission will include equal numbers of Republicans, Democrats and independents, and the approval of at least seven of the twelve members of the commission will be required for the adoption of any plan.

-Districts will be created that are geographically compact, and which minimize the division of counties, townships, municipalities and wards between different districts.

-Politically balanced districts will be created. To the greatest extent possible, the share of districts leaning toward a party will reflect the political preferences of the voters of Ohio.

The Ohio State Bar Association has come out in opposition to this amendment, based upon the separation of powers. This is because a bipartisan panel of eight Ohio appeals court judges would select 42 people as potential commission members. The House speaker and the minority House leader then could each eliminate some nominees from the pool. From the remaining group, nine commission members would be randomly drawn. Those nine members would choose the final three members with an eye toward geographic diversity, and the panel would be split equally among Democrats, Republicans and independents or third-party members.

The Bar Association claims the amendment:

-Undermines the important constitutional doctrine of the separation of powers where each of the three co-equal branches undertakes particular responsibilities. This proposal inappropriately takes executive and legislative appointment authority and moves it to the judiciary. This politicizes the judicial branch of government, which must remain independent, fair and impartial;

-Involves the Chief Justice and the appellate judges in political activity unbefitting their offices because the proposal would not insulate these judges from attempted political influence by interest groups in terms of commission appointments and plan selection; and

-Places these judges, and Ohio’s judicial branch as a whole, in a potential position of conflict should the proposal become law and should a plan face judicial review.

I dissent.

Judges have long been looked to because of their positions of perceived neutrality. They appoint members to parks boards and veterans commissions. If a vacancy occurs in a judicial office there is no complaint that the governor appoints a replacement judge. The Ohio State Bar Association has long supported a process whereby judges are appointed through the executive or legislative branches. Why would judges selecting a pool of nominees, not the specific candidates, be an unacceptable breech of separation as opposed to the selection of judges by a governor or committee appointed by the legislature?

Judges run in a partisan primary and are elected through a political process that involves large contributions from interest groups. How is this nomination process “unbefitting?”

Judges create rules and make appointments subject to judicial review. This is not all that unusual. Committed to fairness and impartiality, judges still manage to find a way to review their own rulings.

We have long needed an improved process for drawing legislative districts. The current system is the cause of our partisan gridlock, which assures that majority voices are often muted and minority voices are silenced.

To ask a committee of judges to use their developed skills of neutrality in the nomination of committee members seems a great way to remove as much politics as possible from the selection. All branches of the government should be involved in the creation and maintenance of a fair and balanced voting process. Judges should not be excluded.

Judges are the third leg to a stool that will not stand without their wisdom and participation.

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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