Judge Gary Tyack, 10th District Court of Appeals
ECOT seeks removal of Tyack from case after outburst from bench
Judge Tyack’s remarks about corrupt legislators and “Russian Oligarch” sparks legal action
By Connor Brown
Ohio 10th Circuit Court of Appeals Judge Gary Tyack might soon face the consequences of his emotional outburst in Court last week. As first reported by 3rd Rail Politics, Judge Tyack went on a tirade against ECOT during the proceedings on Friday as he and two other judges on the three judge panel listened to arguments in the appeals case between the Electronic Classroom of Tomorrow v. Ohio Department of Education. Judge Tyack claimed that he believes e-schools are a scam, that Ohio Legislators were basically bought and sold by charter school founders Bill Lager and David Brennan, and that those two should be properly labeled as “oligarchs.”
Understandably, ECOT is now asking Chief Justice O’Connor to remove Judge Tyack from the case as his rant revealed the deep bias he has against ECOT. The Chief Justice has authority under Ohio’s Judicial Canons to remove a Judge for various reasons from a case, including the appearance of or actual bias. Marion Little, the online school’s attorney in the case, filed a motion to remove Judge Tyack on Tuesday, which can be viewed here, courtesy of Cleveland.Com
Chief Justice O’Connor has been asked to disqualify Judge Tyack on the grounds of violations of Canons 1 and 2 of the Ohio Code of Judicial Conduct. Specifically, Little alleges that Tyack’s opinions violated Rule 1.1 Undermining Confidence in the Judiciary and Rule 2.3 Bias, Prejudice, and Harassment. As evidence, Little submitted an audio recording and transcript of the interrogatory as well as Friday’s Columbus Dispatch newspaper article that focused on the Judge’s comments, and not as much on the merits of the case.
Little went on to define the term “Oligarch” and its condescending usage as it relates to Russian business officials. Since Russia is a quasi-dictatorship and the Putin regime provides business opportunities like the Tsars used to hand out property to a select few, the connotation resonates as defamatory in nature, and alleges gross impropriety by its very usage.
It should be noted that The Ohio Department of Education’s lawyer went out of his way to not support Judge Tyack’s opinions. ODE, who clearly has a fractured relationship with ECOT at best, did not take Judge Tyack’s bait, and answered his questions respectfully, all the while not insulting the Legislature or agreeing with the Judge on his anti-e-schools rants. Judge Tyack also disparaged the Founder of White Hat Management, David Brennan, who is not a party to the case, in open Court.
Ironically though, it is Democrats who should be the most outraged by Judge Tyack’s statements. Tyack, as an endorsed Democrat candidate (Judges in Ohio are officially non-partisan), has been bankrolled and supported by labor unions for years. He opposes most things that Labor opposes. (Just like he accuses the Legislature of doing with Lager and Brennan’s ideas.)
By ranting against ECOT and online education that serve 40,000 Ohio schoolchildren, with talking points that he could have read out of a union propaganda flier, Judge Tyack showed his hand. Had Judge Tyack just stuck to the facts of the case and made no remarks one-way or the other about how he feels about e-schools, he could then have ruled against ECOT and no one would question his ruling. But Judge Tyack’s lack of restraint has now tainted whatever ruling he intends to make. That is should he remain on the case, and not be removed for cause by Chief Justice O’Connor.
Despite how one feels about ECOT, e-schooling, or this case in general, the case for his removal is rather solid. As explained in the April 14th article referenced above, the law is rather clear on issues of bias as even the “appearance” of bias is enough for a Judge to recuse themselves or be taken off of a case by the Supreme Court. Judge Tyack’s remarks clearly violate the code in a number of ways, but rather than digress in a legal brief, let’s swap out the issues and players just to put this into proper perspective:
AEP is before the court on a workers compensation issue. During the case’s proceedings, the judge remarks that AEP President Nick Akins’s business model is like that of a drug cartel, that Mr. Akin’s uses his money to control and influence the PUCO, and that he himself is Amish and doesn’t buy into this whole electricity thing anyhow. None of those statements have anything to do with the issue before the judge, but there’s little doubt on how the judge will rule on the facts of the case given his strong dislike for Mr. Akins and his business. (Oh and don’t forget the judge also receives substantial campaign contributions from AEP’s greatest detractor that stands to financially benefit from the case too.)
Or how about we take a real case and apply the same type of situation: United States v. Microsoft. The issue at hand: a monopoly. There, the judge reveals in the middle of the court proceedings that he’s never liked Bill Gates, hates the features on Microsoft Windows, and that he’s always been an Apple Computer user. While these revelations are unrelated to the case, they nonetheless reveal a bias against the defendant. If anything remotely similar to this had occurred during the actual case, there’s little doubt the judge would have been removed.
Chief Justice O’Connor’s decision should be a simple one. While she may or may not agree with some of the Judge’s sentiments on the Legislature or e-schools, what is clear is that the Judge’s statements reveal bias against the defendant. And according to the law that those “corrupt, bought-and-paid-for legislators” wrote, and the Judicial Canons, that’s all it takes.