No Bones About It: Ohio Should Elect Donnelly, Stewart and Forbes to Ohio Supreme Court by C. Ellen Connally

In 2017, Michael Berkheimer went to dinner at Wings on Brookwood, a family-owned and -operated restaurant in Hamilton, Ohio. Berkheimer placed his usual order of boneless chicken wings with parmesan garlic. While eating his second boneless wing he felt like something went down the wrong way.

Berkheimer went to the restroom to try to clear whatever was in his throat but was unsuccessful. Ultimately, he went to the doctor, who discovered a thin chicken bone lodged in his esophagus. Medical records referred to the object as a “5cm-long chicken bone.” The bone had torn his esophagus, causing a bacterial infection to his thoracic cavity and resulting in ongoing medical issues and resulting medical expenses plus his pain and suffering. Berkheimer filed suit in Hamilton County Common Pleas Court to recover, asserting negligence and named as defendants the restaurant, its food supplier, and a chicken farm that supplied the chicken.

To the average citizen, this set of facts sounds like a slam dunk case. You order boneless wings but there’s a bone in the wing. You are injured so somebody should pay based on their negligence. But not so according to a recent decision of the Ohio Supreme Court, rendered by a Republican majority and authored by Justice Joe Deters, who is seeking re-election on the November ballot.

To synthesize the legal mumbo jumbo of the decision (Berkheimer, Appellant vs. REKM et al, No. 2024-Ohio 2787) and to put the decision in common English, the high court ruled that it was so obvious that none of the defendants did anything wrong or bore any responsibility for Berkheimer’s injury that the motion for summary judgment, which threw out the case, was properly entered by the trial court and properly affirmed by the appellate court. Which means that Berkheimer did not get a trial or the opportunity to put his case before a jury, a right that is deeply ensconced in the American judicial system.

The Republican majority ruled that bones are a natural part of chicken so a consumer should be on guard for them — even if the wings are sold as boneless.  The three Democratic justices — Michael Donnelly, Melody Stewart and Jenifer Brunner — dissented. In a well-written and well-thought-out decision, Donnelly argued that Deters’s decision reads like a Lewis Carroll piece of fiction. “The majority opinion states that ‘it is common sense that the label boneless wing was merely a description of the cooking style” and not descriptive of the product. He calls the ruling “Jabberwocky.”  Donnelly and his two Democratic colleagues argue that Berkheimer should have had the chance to put his case before a jury and not have it thrown out with no chance to be heard.

Joe Deters is a name that should be familiar to those who follow Ohio politics. He was appointed to the high court by his long-time friend and political ally, Governor Mike DeWine, in 2023. The 67-year-old Deters held his first public office in 1988 when he was appointed Clerk of the Hamilton County Courts. He was subsequently elected Hamilton County prosecutor, serving from 1992 to 1999 and again from 2005 to 2023.

In 1999, Deters was sworn in as Ohio’s 44^th state treasurer. But he resigned from office in 2004 amid a pay-to-play scandal that saw Deters’s former chief of staff, Matt Borges, plead guilty to improper use of a public office based on allegations of campaign contributions received in exchange for preferential treatment in receiving state contracts. Borges is now serving a five-year sentence because of the $60 million dollar First Energy scandal, the largest in Ohio’s history. Deters was never implicated or charged in the scheme, but he resigned from the treasurer’s office, saying that he wanted to return to his role as Hamilton County prosecutor.

Political pundits assert that when Deters’s prospects of reelection to the Hamilton County prosecutor’s office appeared slim, he sought out his friend Governor DeWine for the seat on the Ohio Supreme Court when Justice Sharon Kennedy was elected Chief Justice. DeWine then chose Deters for the seat on the high court over other candidates with judicial experience, making Deters the first Justice of the Ohio Supreme Court in 30 years to serve with no prior judicial experience.

According to a commentary by Ohio political writer David DeWitt in a March 2023 article, Deters and DeWine have been closely associated for decades. DeWine’s selection of Deters appears to have been extremely beneficial to DeWine’s son, Justice Pat DeWine, also on the Ohio Supreme Court.

In 2019, Deters hired Justice DeWine’s senior staff attorney, Mary Stier, as an assistant prosecutor in the Hamilton County appellate division with a salary of $100,000. By coincidence, that same year, Justice DeWine’s wife filed for divorce accusing him of adultery. Although Mrs. DeWine did not elaborate in court documents as to any specific person, Stier and Justice DeWine are currently in a relationship that the justice confirmed via a statement in an email to The Enquirer, according to Dewitt.

Once Deters was sworn in as a Justice of the Ohio Supreme Court, Stier was hired by Deters as his senior judicial attorney. As Dewitt goes on the say, “. . . regardless of the legitimacy of Stier’s professional qualifications, it sure looks like Deters played a role in helping the DeWine family clean up some sensitive issues at a critical time and thus may have obtained some political capital.”

In the November election Deters is seeking to remain on the Ohio Supreme Court. If he runs for the seat he now holds, which has a balance of a four-year term, he would be ineligible to seek re-election due to his age in the next election. He has chosen instead to run against his Democratic colleague, Justice Melody Stewart, who is seeking re-election to a full six-year term.

Ohio voters should have a bone to pick with Deters not only over his ruling in the boneless chicken wing case and his taint of scandal because of the Borges matter, but also for his other right-wing conservative opinions, including his statement when he was prosecutor encouraging the return of the death penalty by use of a firing squad.

In November voters will have a chance to replace the right-wing Republican majority on the Ohio Supreme Court with three highly qualified Democrats who will join Democratic Justice Jennifer Brunner who currently sits on the court.

Justice Michael Donnelly is a former Cuyahoga County Common Pleas Court Judge who is completing his first six-year term on the Supreme Court.

 Justice Melody Stewart is a former Cuyahoga County Court of Appeals Judge who is also completing her first six-year term on the Supreme Court.

Judge Lisa Forbes is currently a judge on the Cuyahoga County Court of Appeals and is seeking election to the Ohio Supreme Court.

All three will be on the November ballot. All three deserve the support of the voters. If elected, they would join Senator Sherrod Brown and Justice Jennifer Brunner as the only Democrats elected statewide in Ohio.

It is important for voters to stay in the polling place and vote the entire ballot in the coming election.  There are important races for the Cuyahoga County Common Pleas Court and Court of Appeals. The seats on the Ohio Supreme Court represent Democrat’s only hope of maintaining some form of sanity in decisions by the high court.

Voters can send the Republican majority on the Ohio Supreme Court packing in November. Ruling that a boneless chicken wing does not mean boneless but is merely a description of the way that the fowl was cooked seems foul to me. It should smell that way to Ohio voters in November.  Elect Donnelly, Stewart and Forbes to the Ohio Supreme Court. You owe it to your fellow Ohioans.

C. Ellen Connally is a retired judge of the Cleveland Municipal Court. From 2010 to 2014 she served as the President of the Cuyahoga County Council. An avid reader and student of American history, she is a former member of the Board of the Ohio History Connection, and past president of the Cleveland Civil War Round Table, and is currently vice president of the Cuyahoga County Soldiers and Sailors Monument Commission.  She holds degrees from BGSU, CSU and is all but dissertation for a PhD from the University of Akron.

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