Thomas Morgan Herbert
b. 1927
d. February 23, 2014
125th Justice of the Supreme Court of Ohio
Term
Jan. 1, 1969
to July 31, 1980

THOMAS MORGAN HERBERT

Thomas Morgan Herbert has the distinction of being one of two father-son successions on the Supreme Court of Ohio, succeeding his father, Justice Paul M. Herbert on the Court.

Herbert was born in 1927 to Paul Morgan and Ruby Thomas Herbert. His father was a criminal defense attorney and also served the people of Ohio as lieutenant governor.

After graduation from the Ohio State University in 1950 with a bachelor’s degree, Thomas entered the U.S. Air Force in 1951. The following year, he earned his pilot’s wings and flew 260 hours of combat in B-29 airplanes during the Korean War. He was awarded the Air Medal with cluster.

Upon the completion of his military service in 1955, Herbert entered OSU’s College of Law where he earned Bachelor of Laws and juris doctor degrees. He joined his father’s law practice in 1957, where he specialized as a trial attorney.

In 1960, Herbert was elected to the Ohio House of Representatives and re-elected in 1962 and 1964. Herbert was elected in 1966 to the 10th District Court of Appeals of Ohio.

Upon the impending retirement of his father from the Supreme Court of Ohio, Herbert announced his candidacy in 1968 to succeed him. He defeated Merrill D. Brothers in 1968, and in 1974, was re-elected. His father administered the oath of office in a private ceremony in chambers on Dec. 24, 1968. Thomas Herbert served under Chief Justices Kingsley A. Taft, C. William O’Neill, Robert E. Leach and Frank D. Celebrezze.

Herbert’s legal opinions reveal his desire that those appearing before the Supreme Court receive fair and unbiased review of their cases. He was particularly concerned that arrested persons obtain judicial proceedings free of judicial errors. His opinion in In re Jackson (1970) demonstrates this: Leslie Jackson, age 16, was charged in Cuyahoga County Juvenile Court with being a delinquent child. His offense was that he allegedly shot at a Cleveland police officer with intent to kill. After a hearing in juvenile court, he was ordered bound over to Cuyahoga County Court of Common Pleas to be tried as an adult, but the juvenile court did not find him to be a delinquent child. Herbert wrote the majority opinion that a child cannot be turned over to a common pleas court until a determination is made by the juvenile court that the child is delinquent. If found to be delinquent, the juvenile court must then provide evidence that the child could not be rehabilitated within the exclusive jurisdiction of the juvenile court, before sending the child to common pleas court.

Death penalty cases also were carefully considered by Herbert. The appellant in State v. Anderson (1972) was convicted of first-degree murder without a recommendation of mercy, so he was scheduled for execution. The trial judge forbade the prosecuting attorney, the defendant or the defense attorney to ask the jurors their views on capital punishment during jury selection. Herbert wrote that this violated Witherspoon v. Illinois (1968). The death sentence was revoked and the defendant was sentenced to imprisonment for life.

In 1978, Herbert sought election to the position of Chief Justice to succeed the late C. William O’Neill. Celebrezze defeated him.

On Nov. 14, 1979, he announced he would not seek re-election to a third term. Herbert originally planned to finish the remainder of his term. However, he tendered his resignation to Gov. James A. Rhodes effective July 31, 1980. The governor appointed Judge David D. Dowd Jr. of the 5th District Court of Appeals of Ohio to serve Herbert’s unexpired term.

After his resignation, Herbert joined the Columbus law firm of Porter, Wright, Morris, and Arthur. From 1982 to 1984, he served as a judge with the U.S. Southern Bankruptcy Court. He married Patricia Mae Harris on June 9, 1956. They have two children: Lisa Herbert Cobe and Paul M. Herbert II.

Herbert died February 23, 2014 at the age of 86.