Judge Mark P. Painter is not a shrinking violet. In his written opinions Painter, one of six judges in the Ohio First District Court of Appeals, has invoked the film Animal House and the 1950s TV series The Honeymooners. In addition to reading biography and history, he makes time for John Grisham and Scott Turow.
He loves the written word and has authored a thick sheaf of written opinions, legal articles and a stack of books as evidence. His book, The Legal Writer (Jarndyce & Jarndyce Press), is to the legal profession what E.B. White's and William Strunk Jr.'s book, Elements of Style, is to the writer's profession.
From The Legal Writer:
As lawyers, what we do most is write. Lincoln said that lawyers' time and advice are our stock in trade, but we express the advice in words. And we use our time in drafting, in communicating mostly by the written word. Sometimes, though, we fail to remember the first object of writing -- to communicate.
His office at the William Howard Taft Law Center on Ninth Street, where the appeals court moved from the Hamilton County Courthouse in 1997, is a generous room of bookcases lined with law books, biographies, history, literary and popular fiction. Among them are a Theodore Roosevelt biography by Nathan Miller, Victor Hugo's Les Miserables, Tom Wolfe's A Man in Full.
Painter is dressed in a dark three-piece pinstripe suit, a rainbow tie, elegant cuff links peeking from his wrists. In more than 30 years in Hamilton County's halls of justice -- more than 20 as a judge -- he's become perhaps the highest-profile judge in the county.
He is a Republican with a maverick streak, one slightly outside the GOP fold with a Barry Goldwater sense of independence. To some, he seems awfully officious and formal, buttoned-down and aloof, yet he was before all else a tavern-keeper who chose to spend his entire adult life living in a modest, middle-class, urban neighborhood -- a place where his neighbors are both professional and blue-collar, along with transient university students who rent.
He spent 13 years in the hurly-burly world of presiding over cases in municipal court -- the "people's court" -- but finds himself more comfortable in the thoughtful and bookish world of appellate work, where workday afternoons are spent reading, more reading, writing, more writing, editing, more editing. Much of his time is spent before a computer.
"Sometimes a dentist appointment is the highlight of the day," he says.
Painter acknowledges labels such as "controversial" and "maverick" but is quick to point out that 90 percent of appellate cases are decided unanimously among three judges.
"If a maverick is someone who calls cases as they are, regardless of the people or interests involved, then I am proud to be one," he writes in an e-mail. "But generally I am a conventional, hard-working, taxpaying Cincinnati burgher."
In dress, demeanor and politics, he arguably can be likened as the judicial equivalent of Tom Wolfe, whose natty attire, irreverence and spunky prose suggest the literary equivalent of Judge Mark P. Painter.
Painter's opinions have been published close to 300 times, a competitive process that makes him one of the most published judges in Ohio. It is a source of pride. Rupert Doan, a fellow appellate judge, supplies an anecdote.
"We were discussing once the fact that another judge would be coming up here and I said, 'Well, you know that judge won't have too big an ego,' and he looked at me and rolled his eyes and said, 'You mean an ego bigger than mine?' So he can be self-deprecating," Doan says.
'You can't be buffaloed'
His life has been the law, but Painter is a student of history and observer of city politics. There is talk that he has an interest in running for mayor of Cincinnati next year, talk the judge himself does not discourage. He stands on the front porch of his Fairview home and wonders, only half in jest, where the press would fit onto his well-appointed but tiny garden that adorns his front yard as he delivers his campaign announcement.
Asked about further political ambitions such as mayor, Painter says, "It's possible. A number of people are urging me to run. I've been a city-dweller for almost 40 years, and it saddens me to see the decline of the past several years. But I would have to resign from the court at least by the end of this year. And I love the law as much as I love the city. Here on the court I know I make a difference."
Does he think he can make more of a difference as mayor than as appellate judge?
"It's different," he says. "The city needs development. Also, it needs somebody who can sit down on an equal level with people like (Bengals owner) Mike Brown. You simply can't be buffaloed by big business people. They're people like everybody else. They wouldn't push me around."
There are conditions on whether he'd run for mayor of Cincinnati, which hasn't had a Republican mayor since 1971. The most important is who else might decide to challenge Mayor Charlie Luken.
"I'd run for mayor if no one else comes forward who would be good," he says. "I think the city needs a change. I'm not itching to run for another office. But somebody has to do it. I've lived in the city for 40 years and I think I can make a contribution. "A lot of people have talked to me about it, most encouragingly. A lot of the lawyers do not want me to run. They want me to stay here (as an appellate judge). I can certainly see the scenario where I would do it."
What would he do if he had to make the decision now?
"If it's just Charlie Luken and me, I would run," Painter says. "And I would beat him. I have no doubt."
What makes him say that?
"Because I'd get more votes."
It's vintage Mark Painter, a touch of Barry Goldwater and William F. Buckley Jr. rolled into one.
Those who know and respect the judge believe his candidacy -- especially should he win -- would be a loss for the legal profession. Some say privately that they wonder whether Painter would be able to suffer fools gladly, sure to be the case with some at City Hall. A judge's domain is the law in his or her courtroom. A judge's word is final -- unless, of course, overturned.
"It would be tough," says one supporter. "He would find (City Hall) a tough milieu. I think he would be so focused on obtaining results and moving things forward, while a pure political process involves lot of different peoples' agendas and wading through the whole bureaucratic council process and how long that takes. All of those things would be very frustrating to him.
"On the legal side of it, when you're a judge, you just bang your gavel and that's the way it is. Well, that's not the way it is in City Hall."
Dan Hurley, a friend of the judge's but a Democrat, is a historian and host of Channel 12's Newsmakers, which explores local and regional issues. His take on a Painter candidacy is guarded, but mostly because of differences in politics.
"I presume he would be decisive," Hurley says. "I think that's something the city really needs, someone who can take a clear stand, carve out a position. That's what we haven't had. You can get into why we haven't had that -- the splintering of council or that we haven't had a truly executive mayor. Obviously, someone who has lived in Fairview is someone committed to the city. He hasn't fled to the suburbs. "I think Mark is not somebody who would try to do everything. He is someone who would try to identify things he would want to do and drive those things. I don't know what those things would be or whether I'd agree with them, but I think he would be good at that." Former Hamilton County Common Pleas Judge Thomas Heekin sees the advantages and disadvantages of Painter's candidacy.
"I think he's vitally interested in the city," Heekin says. "I think he's an urban guy. He enjoys a vibrant downtown environment and has ideas about how the city can go about improving in that regard. I think he would be certainly a loss to the legal profession. That is clear. I think he has an intense interest in the city and brings with it a lot of knowledge and ideas."
Hamilton County Prosecutor Mike Allen says he'd be encouraged by Painter's running for mayor, in spite of disagreements in the past over some judicial decisions.
"There was some speculation some time ago that he would run for mayor," Allen says. "If he did that, I would certainly support him. He's got strong ballot ID. And I would think he would do well in the city. I think he would do better than a lot of Republicans.
If he ever decided to make that leap, I would support him."
Joe Tomain, dean of the University of Cincinnati College of Law, gives a favorable assessment.
"He's got great knowledge of the city," Tomain says. "We could use good public servants. He certainly understands the city, and I think he not only understands the legal issues but the political issues as well. He's dedicated."
It would be the first time Painter has run for something other than judicial office since he ran for, and won, a race for student body president at UC in 1969.
(Full disclosure: As a wide-eyed, earnest 19-year-old living away from home for the first time, taken with the conservative opposition to New Left campus politics of the time, I helped organize a get-out-the-vote campaign for Painter in '69.)
Painter won the race against a field of two others -- Jim O'Brien, a UC football star and kicker who went on to win Super Bowl V for the Baltimore Colts in 1971 with a field goal in the game's final seconds, and Jim Finger, who was a committed radical whose campaign slogan was, "Give UC the Finger." Painter recalls winning by 134 votes over O'Brien out of about 5,000 cast.
"Sort of like Nixon, but that's where I want the comparison to end," he says.
'He never snapped'
During a typical week, Painter is at the office at 7:45 a.m. He makes coffee, checks e-mail, reviews the morning's cases. At 8:35, he's meeting with the other judges in conference to talk about the docket of oral arguments. At 9 they enter the courtroom and listen to oral arguments. At 10:30, arguments finished, the three-judge panel meets to review the cases. They break for lunch at 11:30.
"I eat at my desk," Painter says.
Afternoons are for writing, reading and reviewing. He often returns to his office on weekends for more work, six or seven hours a day. On top of that are preparations for classes he will teach at the UC College of Law and seminars on the law and legal writing he'll conduct all across the state.
The entire ambience is different in this appellate courtroom, where Painter now serves. Absent are the blue plastic chairs that once served as benches in municipal courtrooms, rooms jerry-rigged into a building that was once a department store on Central Parkway. Courtrooms were often packed. Court hallways were filled with cigarette smoke and littered with the detritus of consumption on the run -- ashtrays piled with butts and floors cluttered with candy wrappers, empty snack bags, crushed cigarette packs, pop cans and coffee cups. The judge was crammed into "chambers" little larger than a closet.
In the new appellate courtrooms, appointed in mahogany, pews are rarely packed and, if so, with lawyers. The gorgeous woodwork and high ceiling suggest high-mindedness, even restraint.
"Surroundings do make a difference," Painter says as he descends from behind the elevated bench. "It has to have a little majesty to it. A person behaves differently in a bar than in a church."
In more temperate months, spring and fall, Painter will walk to work on Ninth Street downtown maybe once or twice a week. From his home in Fairview, down steep Ravine Street, taking a left on McMicken Street, then right on Main Street. Sometimes stepping down to McMicken and then a right hand turn on Vine Street. Or walking straight to Central Parkway. About 2.2 miles, maybe 30 to 35 minutes of walking. A dress suit awaits him at his office on those days.
He's 57 years old. Shortly before his 35th birthday in 1982, he became a judge. Municipal Judge Ronald Panioto had been appointed to Domestic Relations Court, and the young attorney replaced him on the municipal bench. Painter sat with Panioto a few days on the bench, just to get his legal feet wet. His first case was a medical doctor who had gotten a speeding ticket on the drive from Gilbert Avenue to Eden Park, a winding drive in the middle of winter. The doctor had allegedly gone over the center line.
"It had been snowing and slick," Painter says. "The trial went on for like two hours. I found him not guilty. In that area, there's not much room for staying in your lane."
Allen, who has been the prosecutor since 1999 and has also served as a municipal court judge and assistant county prosecutor, thought Painter even-handed as a municipal judge.
"His demeanor was very good," Allen says. "I spent three years as a judge there myself, and if you're not careful, it's easy to lose your temper. He never did. He handled himself well. He never snapped or yelled at anyone. "My office does not always agree with his decisions, but they are always well reasoned and well written. His decisions are the best-written decisions I've ever seen from any judge. He has a real skill for writing opinions that even non-lawyers can comprehend."
Of course, some would argue that while he doesn't yell he does bristle, and whenever Painter bristled it would be in print for posterity. Judges have felt the barb of his pen. In a 1999 opinion, he said one judge -- who had sentenced a defendant to more than 10 years in prison for a high school prank -- had dispensed justice illustrative of 19th-century West of the Pecos : "a shocking travesty of justice." The remark elicited "no comment" in published reports from the judge, Robert Ruehlman, who is considered a good, solid judge. The Enquirer editorialized that Painter "can be condescending, contumacious and contemptuous. His written opinions seldom use a scalpel when a chain-saw will do." Yet, the editorial concluded, it was no reason to replace him.
One GOP official made noise that year, according to The Post, about trying to supplant Painter as an appellate judge in a primary battle with Ruehlman, a fight that never came to pass.
Five years later, Painter is more circumspect. In most cases, he says, the appellate court doesn't criticize trial judges.
"We make sure that the trial courts follow the law -- it's not personal," he says. "We might reverse because they misinterpreted the law. And we have three judges, six law clerks and a much longer time to figure out whether they did something wrong in the often 30 seconds they had to rule."
Painter has little complaint with media coverage, in spite of the editorial jabs, except perhaps for its paucity of coverage of appellate court decisions. He credits retired Enquirer reporter Ben Kaufman and current Enquirer reporters Dan Horn and Sharon Coolidge with having done good jobs in covering courts. Otherwise, he says, "Coverage of the courts here has always been sporadic. ... Citizens here get very little news of the appellate court."
About 1,000 cases are appealed each year in Hamilton County courts. About 300 are dismissed or settled, and decisions are rendered in 600 to 700. Painter will write opinions in about 100. The challenging cases are legal puzzles, which Painter finds intellectually stimulating.
"There's a lot of them when I've agonized over a decision," he says. "Sometimes I'll be thinking about it at night and the answer will come. We do get complicated cases once in a while, but most of them aren't. About 70 percent of our cases are pretty easy. But there will be four or five a year where we really aren't sure."
On a recent Saturday, Painter takes a walk in Fairview Park, not far from his home, past a painted sign on the side of a building on McMillan Street that reminds voters Painter is one of their neighbors. He finally arrives at an overlook that gives him a panoramic view of the western side of the city; he wonders why the city can't spread out into corridors that are undeveloped. "Look, there's empty buildings, vacant land," he says, with his wife, Sue Ann Painter, standing at an overlook with a view of Queensgate. "There's under-used space down there. There's all kinds of places to develop. We cover over half our land with highways. There's more potential there than you can imagine. The city has neglected it. The city moved to the hillsides to escape heat, floods, dust."
"We moved because of the cool, green rim of the city, says Sue Ann, as they walk along the park sidewalk.
Painter clasps Sue Ann's right hand in his left. They walk and take in the scenery that unfolds before them in the valley below.
"A man has to have his gun hand free," Painter says, smiling.
The remark is off-hand, not a reflection of any emotional investment in possessing firearms. Though he wrote the majority opinion in an April 2002 decision of the First District Court of Appeals that declared Ohio's concealed weapons ban unconstitutional, he's not Charlton Heston.
Citing Section 4, Article I of the Ohio Constitution, Painter wrote, "There is no doubt that the Ohio Constitution grants citizens the right to possess and to bear arms. That is exactly what it says .... We believe they meant what they said."
The Ohio Supreme Court later overturned the decision.
"People thought I was such a gun person," Painter says. "I haven't shot a gun in 20 years. I do own an old flintlock. But I'm not a gun person. I just applied the law."
He can be playful as a jurist. In a decision concerning Larry and Jimmy Flynt and their downtown Hustler store, the appellate court challenged a deal in which charges were dropped but could be reinstated if the Flynts sold sexually explicit items -- even if different from the ones they promised never to sell again.
"I'm having a hard time with this," Painter said in a published report. "If you dismiss a case, it's over. If this were proper, it seems to me you could have everybody in the county on super-secret probation indefinitely."
Pure Animal House.
In a domestic abuse case, with a man accused of hitting a daughter, he wrote there was no evidence that the father assaulted his daughter beyond the discipline. As to a notion the father threatened to "beat the shit out of her," Painter reminded that threats can be rhetorical.
"Should we jail every parent for such a threat?" he wrote. "Were these words made criminal, who would be free? Ralph Kramden, who was never known to hit anyone, would be in jail forever."
'The experience of real people'
Painter calls himself a strict constructionist as a jurist, but that doesn't mean he's a carbon copy of U.S. Supreme Court Justice Antonin Scalia, one of the court's most conservative jurists. Painter is rarely as predictable as other more conservative or liberal judges.
"It could be characterized as strict construction," he says. "A constitution or statute must be applied as written. But many laws are vague. The drafters didn't -- and couldn't -- think of the hundreds of different cases that might arise. The court must interpret and apply the law in a common sense way. As Justice Holmes famously said, 'The life of the law has not been logic; it has been experience.'
"A common-sense application of the law could also be called pragmatism -- what works in the real world. I have been fairly called a 'Constitutionalist' and a 'moderate conservative.' My philosophy has evolved over the 30-plus years since law school. Reading, writing and study have been part. But the experience of real people and real cases is more important."
Even though as an appellate judge, real people -- victims and defendants, the aggrieved and the accused -- do not appear before him, he says he can see them and their predicaments before him, faces and personalities drawn in the words in the briefs and motions submitted to the court.
"The job of an appellate judge, consisting mostly of reading, research and writing, may seem boring," he says. "But the cases themselves are about real people."
It's easier to make the connection because he'd served as a municipal court judge, where those very real faces appeared daily before him. It's what guides his animating theme in The Legal Writer:
Some judges believe that we write only for lawyers. But we should strive to be understandable to everyone
After all, the cases involve real people -- shouldn't they be able to read what is happening to them?
He's given more than three dozen seminars on language to the legal community. Close to 2,000 copies of The Legal Writer have been sold. In just the past month he's given writing seminars for about 300 attorneys, magistrates and judges in Cleveland, Columbus and Cincinnati.
"Lawyers have been writing for a long time," Painter says. "My crusade is to stop the use of two words where one will do, passive voice, lengthy sentences and long, confusing paragraphs. And calling it a crusade may be appropriate.
"Lawyers started using multiple words after the Norman Conquest. English courts were then in Norman French, but most people spoke English. So they started using both the French and English words -- a shorthand translation. But the Norman Conquest was in 1066, almost 1,000 years ago. It's time to stop this nonsense."
He has been an adjunct professor of law at UC for 14 years; he enjoys teaching because he thoroughly enjoys talking about writing. Tomain gives him high marks as a professor, as do the students whose evaluations Tomain receives.
"It's all high praise," he says. "I first became familiar with him when I came across an opinion he wrote when he was a municipal court judge on a breach of contract case, which was very interesting. I thought he was on the cutting edge of contract law.
"Mark is a very intelligent as well as thoughtful person. That serves him extraordinarily well as both a judge and a teacher. As a judge, he has written any number of opinions and they're crafted extraordinarily well. They're logical, they're persuasive, they're sound legally."
Painter is proud to remind people that he owned Murphy's Pub in University Heights for three years.
"Certainly I learned as much as running a bar in the innercity as I did in law school," he says. "It was at the same time."
What did he learn?
"How people live," Painter says. "How many people out there live hand to mouth. Of course, I was living hand to mouth at the same time going to law school. I usually had two jobs while going to law school."
Heekin enjoys Painter's company.
"First of all, he's a fun guy to have a beer with," the former judge says. "He's got great stories and he's owned a bar in Clifton. He has a great sense of humor. I think Mark is a far more complex person than those who don't know him well might understand. If you go to the courthouse, you will hear people describe him as pompous. But he has the ability to laugh at himself and to puncture the balloon with the best of them."
That he'd been a saloon-keeper in this city is not a connection lost on the historian Hurley, who connects the dots. He points to Councilman David Crowley, owner of Crowley's in Mount Adams, and Councilman Jim Tarbell, former owner of Arnold's downtown.
"There is something of the old school, something I joke about with Crowley and Tarbell," Hurley says. "There's something of the old saloon-keeper about them. That's a long tradition going back to Boss Cox. And Mark is a saloonkeeper at heart. Part of that is an interest in all kinds of people. "
"No matter what your political interests are, if you're going to hang around behind a bar or own a bar, you're going to be interested in talking to people. You're interested in rubbing your shoulders or exchanging ideas with people. I think there's a part of Mark that's that. People think of Mark as the judge. They forget about the saloonkeeper side of him. There he is in that neighborhood that has a real mix of people."
The walks in Fairview Park, a patch of green oasis, are a respite. Painter and Sue Ann might take a walk up to the Esquire Theater in Clifton for a film. Or walk to UC's College-Conservatory of Music for a performance there. Or up to Uncle Woody's or Christy's.
"We get along with one car between us," Painter says. "Our neighborhood is an inner-city gem."
'Every case is a puzzle'
Painter prefers the work as an appellate judge, a more cerebral calling than trial work. The late Judge Gilbert Bettman, a highly-respected liberal who served as both trial and appellate judge, once left the appellate bench and returned to common pleas court. He thought appellate work boring.
Painter understands Bettman's decision.
"A lot of people wouldn't be suited to doing research and writing," he says. "A lot of people would want to be more in the fray. That's why I do seminars and a lot of speaking, because it would be pretty difficult to sit in the office all the time and it is interesting to puzzle out cases, to try to solve them.
"Every case is a puzzle that needs to be solved. Gil Bettman said he liked the court of appeals, but he just liked the other better. He said this is just a little slow-paced. It is slow-paced, there's no question about it."
And yet there's some symmetry to what Painter is considering these days -- from the fast-paced years of municipal court to the more heady years of appellate work to now the consideration of the topsy-turvy world of city politics.
Painter can recall the days when he saw before him in municipal court the ragged, tired, poor, as well as those who had made minor mistakes and those just shit out of luck. The past is important. It could very well guide him in a future.
"I had one where some young black guy from Millvale was before me," he recalls. "Somebody was chucking rocks at a police car. They arrested one of the group. Cops arrested somebody who was running away, a pretty serious thing. After the trial was over, I had a doubt as to whether they caught the right guy. The guy said he didn't do it. He said, 'I was there, but I didn't do it.' He said he was there when everybody ran away when the cops came. I'm sure they thought he did it. They weren't making it up.
"But I found the guy not guilty. What happened is I think they caught the slowest guy. You always catch the slowest guy."
Some he sentenced didn't make it. Others did.
"There are those who didn't reform," Painter says. "But if you can make a difference in one out of 100, you think how much good that's done. The problem is when people get to court, that's really the last place. That means the family failed, the school failed or whatever. And we're supposed to fix everything.
"Hey, it's pretty late when you get to court. When you get to the point where you're in jail, that means about every other system has failed you. Or you've failed the system." ©
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