A recent opinion from Mike DeWine on a technical legal issue could have huge long-term ramifications on the reputation and integrity of the Ohio attorney General’s Office. Records recently obtained by Plunderbund show that DeWine rejected the opinion of career government attorneys in order to assist Governor Kasich’s effort to privatize state prisons, sending a clear message that politics is more important to him than the rule of law.

The mission of the Attorney General’s Office is to enforce the law and defend the interests of the State of Ohio in order to ensure fair and impartial administration of the laws. The office is supposed to conduct its affairs without partisan bias or political agenda.

Here is the short story and why you should care.

The short story: Kasich pushed through legislation to privatize some state prisons. Traditionally, the Highway Patrol has investigated crimes on state prisons (such as inmate assaults of guards and drug smuggling). However, when the state prisons were privatized, every attorney consulted on the issue – both in the Attorney General’s Office and the OLSC – concluded that the Highway Patrol lost jurisdiction because the Patrol can generally only investigate crimes on property owned or leased by the state. The burden of investigating crimes at private prisons was shifted to local law enforcement – in effect creating an unfunded mandate on local governments in a time of dwindling resources.

DeWine, as we describe below, over-ruled the career attorneys and issued a letter concluding that the Highway Patrol did, indeed, retain jurisdiction to investigate crimes at private prisons.

So, by now you are probably thinking: do I really care which agency investigates crimes at private prisons?

The answer to that question is probably no.
(Unless you are a rank and file State Trooper who is worried about getting sued for acting outside his or her jurisdiction – an issue we addressed here.)

But you should care deeply about the process that went on here – and that is the real scandal. This is because if the Attorney General’s Office loses its reputation for acting without partisan bias or political agenda, then (at least) two bad things will happen: first, from a practical standpoint the value of the opinions offered will be lessened and ultimately lose all persuasive and precedential value; second, the general public will lose faith in many of the decisions of the Attorney General’s office, including when to initiate, defend, and settle lawsuits and investigations.

The timeline is important.

On January 3, 2012 Kevin M. McIver, Section Chief of the Opinions Section and a nine year veteran of the AG’s office, and Bridget Coontz, Assistant Attorney General in the Executive Agencies Section, issued an opinion to James Canepa at the Ohio Department of Public Safety.

Canepa, having exhausted all of his other legal (and likely not-so-legal) options, had asked the AG’s office if the Highway Patrol could claim that there was a “serious emergency situation” at the private prisons. Under Ohio law, a “serious emergency situation” is one of the few times that the Highway Patrol can take actions on private property. McIver and Coontz, in a very detailed six page response, concluded that this clause in state law was intended to protect against imminent risk of harm to other law enforcement officers, and could not be used to extend the jurisdiction of the Highway Patrol to the private prisons in typical circumstances. “An investigation of the facts and circumstances that culminated in the commission of a crime [at the private prison]“, they concluded, “is not a serious emergency situation” under existing state law.

The opinion that the Ohio State Highway Patrol has no jurisdiction to investigate crimes at a private prison was emailed [Emails] to Jim Canepa at 1:43PM on January 3rd.

At 3:32PM Canepa responded to Coontz calling the opinion “very problematic.” He attempted to persuade Coontz into believing that criminal investigations at prisons are somehow unique and different than typical criminal investigations, and therefore they should be considered a “serious emergency situation.” McIver and Coontz – we assume, because no records suggest otherwise – did not their opinions.

Amazingly, less than 24 hours later, on January 4th, 2012, Attorney General DeWine issued an opinion on the same topic completely reversing the decision made by his staff just a day earlier. Interestingly, DeWine’s opinion does not rely on the “serious emergency situation” clause in state law but, instead, relied on a totally different theory.

An attorney who has litigated a number of high profile cases against the AGO, including civil rights and election law issues criticized the opinion pretty harshly: “DeWine’s letter can only be described as bizarre. This letter seems to really concern whether an inmate can file a 1983 action [a federal civil rights claim] against a private corrections officer – which is a totally different question from who has the right to investigate. They clearly did not do their legal homework before coming up with the privatizing proposal.”

We don’t know what conversations occurred between the Kasich Administration and DeWine to permit him to issue such a flimsy opinion less than 24 hours after career attorneys had concluded the opposite.

(Technical legal point: as we’ve pointed out many times before, DeWine was clearly wrong and existing state law does not support his claim. Our recent release of opinions from OLSC also shows unequivocally that the Highway Patrol does not have the authority to operate at the prison. And, in case you needed further evidence that DeWine’s opinion was incorrect, there’s a bill currently sitting on Kasich’s desk that would change state law and allow the Patrol to operate at the prison. If DeWine was right in his opinion, why would be need to change the law?)

The most troubling – scandalous – aspect of this case is that DeWine clearly put politics ahead of sound legal judgment when he overrode the opinions of the career attorneys. In case you lost count: two professional, long-time attorneys working for the Attorney General’s Office issued official an opinions saying the Patrol absolutely cannot operate at the private prison. Similar opinions were provided by attorneys working for the Legislature.

But one politician (Mike DeWine) says otherwise. Everyone in Ohio should be concerned about this. An attorney who has represented state and local agencies and officials put it succinctly:

Regardless of whether the opinion is correct – and I don’t think any serious attorney can conclude the Patrol has jurisdiction here – the politicization and over-ruling of the Attorney General’s Office Opinions section is the real story here. The Opinions Section of the Attorney General’s Office has historically been composed of career attorneys. The opinions from this section are relied upon by public officers and courts throughout the state. This is because an opinion from this section was always thought to be fair and unbiased and free of political considerations.

Clearly, the Kasich Administration – and this includes senior officials at Public safety and the leadership of the Patrol – did not like the conclusion from the Opinions Section that the Patrol could not conduct criminal investigations at private prisons because it complicated the political objective of privatizing the prisons. So they went up the chain to try to find an attorney who would tell them what they wanted to hear. Apparently, they found a sympathetic ear in DeWine, who would essentially over-rule the Opinions Section to help Kasich pursue this political objective. The evidence here strongly suggests that the tail wagged the dog – DeWine’s conclusion was pre-determined by political or ideological agenda.

This sets a very dangerous precedent that should not be overlooked and we call upon the Legislature to conduct oversight hearings into how this happened.

[Full text of DeWine’s Opinion from January 4, 2012]

[Full Text of AG’s Office Opinion from January 3, 2012]