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(July 1, 1995 through Dec. 8, 2006)
In re Judicial Campaign Complaint against Carr (1995)
In re Judicial Campaign Complaint against Emrich (1996)
In re Judicial Campaign Complaint against Keys and Tailer (1996)
In re Judicial Campaign Complaint against Roberts (1996)
In re Judicial Campaign Complaint against Hildebrandt (1997)
In re Judicial Campaign Complaint against Morris (1997)
In re Judicial Campaign Complaint against Burick (1999)
In re Judicial Campaign Complaint against Hein (1999)
In re Judicial Campaign Complaint against Runyan (1999)
In re Judicial Campaign Complaint against Kienzle (1999)
In re Judicial Campaign Complaint against Brigner (2000)
Disciplinary Counsel v. Evans (2000)
In re Judicial Campaign Complaint against PerDue (2002)
In re Judicial Campaign Complaint against PerDue (2003)
In re Judicial Campaign Complaint against Grunda (2003)
Disciplinary Counsel v. Kaup (2004)
Disciplinary Counsel v. Spicer (2005)
In re Judicial Campaign Complaint Against O'Reilly (2006)
In re Judicial Campaign Complaint against Carr (1995), 74 Ohio Misc.2d 81; aff'd (1996), 76 Ohio St.3d 320.
Opinion: http://www.sconet.state.oh.us/rod/newpdf/0/1996/1996-ohio-396.pdf
Summary:
In a letter, respondent claimed that her opponent had never handled a single
case in housing court as an attorney. In a separate letter from her campaign
committee to potential donors, respondent included hand-written notes such
as "We need your help now! (signed) Cathleen"
Respondent was found to have knowingly misrepresented her opponent's qualifications in violation of Canon 7(B)(2)(f) and to have personally solicited contributions in violation of Canon 7(C)(2)(a). In addition to a cease and desist order and costs, the Board hearing panel recommended a fine of $500 for each violation.
The five-judge commission appointed to review the panel's report unanimously affirmed the panel's finding of a personal solicitation and affirmed, by a vote of 3-2, the finding of a knowing misrepresentation of an opponent's qualifications. The commission also found that the panel's denial of a continuance requested by the respondent was not an abuse of discretion and did not deny the respondent her right to due process.
On appeal, the Supreme Court affirmed the commission's order by a vote of 6-1, holding that the panel's denial of the requested continuance and adherence to the expedited time frames in Gov. Jud. R. II, Section 5 was not error. Specifically, the Court noted that the issues presented were simple and straightforward and required little preparation. The Court also noted the respondent's lack of cooperation, failure to present evidence to refute the charges against her, and failure to appear at the hearing before the Board panel.
The Court also established a balancing test to be used to determine the expediency with which future cases are to be processed. In balancing the parties' right to a hearing with the parties' due process rights, the Board is instructed to consider: (1) the immediacy of the alleged violation; (2) the complexity of the complaint; (3) when the respondent received notice of the hearing; (4) whether a weekend intervenes to shorten the five-day hearing time contained in Gov. Jud. R. II, Section 5; and (5) the parties' difficulty in obtaining documentation and witnesses to prove the case.
In re Judicial Campaign Complaint against Emrich (1996), 78 Ohio Misc.2d 32; appeal dismissed as untimely filed (1996), 76 Ohio St.3d 1431.
Opinion: http://www.sconet.state.oh.us/Judicial_Candidates/summaries/emrich.pdf
Summary:
Respondent was a county court judge running for the probate division of the
court of common pleas. In billboards and yard signs, respondent used terms
such as "Elect Judge Emrich to Probate Court." He was charged with
using the title of "judge" in a way to imply that he currently was
serving as the probate division judge, in violation of Canons 7(B)(2)(f),
(D)(1), and (E)(1), and with failing to timely file a judicial qualifications
statement, as required by Canon 7(B)(6).
Relying on Board of Commissioners Advisory Opinion 89-15, the commission concluded that the respondent had violated Canon 7 by using the title "judge" without specifying the court on which the judge currently serves. The commission cited to the respondent's testimony, which indicated that he was aware of Advisory Opinion 89-15 and had reviewed and approved of all advertisements that were subject of the complaint. The commission adopted the Board hearing panel's recommendation of a cease and desist order and fines of $250 for the advertising violation and $100 for failing to timely file the statement of judicial qualifications.
In re Judicial Campaign Complaint against Keys and Tailer (1996), 80 Ohio Misc.2d 1.
Opinion: http://www.sconet.state.oh.us/Judicial_Candidates/summaries/keystailer.pdf
Summary:
Two judicial candidates agreed to have their names placed on an invitation
to a fundraiser for another candidate for public office. The respondents'
names were included as members of the host committee for that event under
the heading of "Please join the Hamilton County legal community in supporting
Eve Bolton's reelection for Recorder." Upon learning that the inclusion
of their names on the invitation was in violation of Canon 7, respondents
ceased their association with the Bolton campaign, and respondent Tailer attempted
to have her name removed from the invitation.
Respondents were charged with violating Canon 7(B)(2)(b) by having publicly endorsed another candidate for public office. The Board hearing panel recommended issuance of a cease and desist order, but did not recommend imposition of other sanctions since the respondents had desisted from the conduct in question. Neither complainant nor respondents contested the Board's recommendation, and the commission adopted the hearing panel's report.
In re Judicial Campaign Complaint against Roberts (1996), 82 Ohio Misc.2d 59.
Opinion: http://www.sconet.state.oh.us/Judicial_Candidates/summaries/roberts.pdf
Summary:
Respondent was county court judge running for the court of appeals. He distributed
a circular badge that consisted of the phrase "For Court of Appeals/Judge
Roberts," with no indication that respondent currently served on the
county court. The phrase "For Court of Appeals" appeared above the
phrase "Judge Roberts," and the two phrases were separated by a
horizontal line and three stars. Respondent also disseminated campaign literature
that stated "* * * the legal community says only County Court Judge Bob
Roberts is qualified * * *." The record showed that respondent was endorsed
by only one county bar association within the seven-county appellate district.
Respondent also was charged with distributing campaign literature that stated
his opponent had "never even had a private law practice." Respondent
was charged with violating Canons 7(B)(2)(f) and (D)(1) with regard to the
badge and Canon 7(D)(8) with regard to the use of the phrase "legal community."
The third count of the complaint regarding the respondent's alleged misstatement
of his opponent's qualifications was dismissed at the hearing before the Board
panel.
The hearing panel found a violation on the first count, holding that the badge would lead the average person to believe that respondent was a judge on the court of appeals, especially since respondent did not include the court on which he served. As to count two, the hearing panel found that use of the term "legal community" without providing a clear explanation of what constitutes the "legal community" was misleading and false. The hearing panel recommended that respondent be fined $250.
The commission concluded that the record did not support a finding by clear and convincing evidence that the badge was misleading. The commission stated that "while the lapel sticker is potentially misleading, we cannot say that the respondent acted knowingly or recklessly in circulating the lapel sticker." Judge Lazarus dissented from this conclusion, stating that she would have found a knowing violation of Canon 7(D)(1) based on respondent's admitted understanding of the interpretation given this provision by the commission in Emrich, supra.
The commission upheld the hearing panel's finding regarding use of the term
"legal community" and imposed a fine of $250 plus costs of the proceeding.
In re Judicial Campaign Complaint against Hildebrandt (1997), 82 Ohio Misc.2d 1.
Opinion: http://www.sconet.state.oh.us/Judicial_Candidates/summaries/hildebrandt.pdf
Summary:
Respondent was a court of appeals judge running for reelection. In television
and radio advertisements, respondent included statements that "according
to the district attorneys, [respondent's opponent] voted to end the death
penalty" and "[respondent's opponent] ran for judge then dropped
out, then ran for Congress and lost." The former statement was based
on a 1994 letter to the President and Attorney General from the National District
Attorneys Association terming a vote for certain legislation was a "subrosa
attempt to end imposition of the death penalty."
Respondent was charged with violating Canons 7(B)(1), (B)(2)(f), and (E)(1). With respect to the death penalty statement, the hearing panel found that the advertisement was false and misleading in that the complainant never voted to end the death penalty and failed to inform the public of the facts underlying the statement. As to the latter statement, respondent failed to inform the public that complainant actually had won election to Congress before losing a subsequent race for reelection. The panel noted that complainant had informed respondent of the inaccurate nature of the advertisements and that respondent continued to run the advertisements. The panel recommended a cease and desist order and a fine of $750.
The commission concurred in and adopted the hearing panel's statements regarding the severity of the respondent's misconduct. In addition, the commission noted that the advertisements in question were timed to appear just prior to the election so as to provide the complainant little time to respond to the misstatements or seek redress prior to the election through the expedited grievance process. The commission also expressed distress with the respondent's failure to verify personally the content of his advertisements, especially after he was informed by the complainant of the incorrect statements.
The commission concluded that the $750 sanction recommended by the hearing panel was inadequate given the gravity of the respondent's violations and the need to deter similar misconduct by judicial candidates in the future. The commission suspended the respondent from judicial office, without pay, for a period of six months, beginning on February 9, 1997. The term of the suspension was stayed, and the respondent was placed on probation, subject to the following terms: issuance of a public apology to the complainant and the citizens of Hamilton County; payment of a $15,000 fine and costs of the proceedings; and payment of the complainant's reasonable and necessary attorney fees and expenses totaling $7,963.50. Payment of attorney fees was found appropriate given the public interest served by the complainant's prosecution of the grievance.
Judge Hildebrandt appealed the commission's sanction to the Supreme Court,
but dismissed his appeal on May 21, 1997. On June 3, 1997, the commission
issued a revised order relative to its sanctions that made the sanctions effective
June 17, 1997. In addition, the commission rejected the respondent's proposed
apology that had been submitted in February and issued a revised statement
of apology. The respondent was required to issue this revised statement.
In re Judicial Campaign Complaint against Morris (1997), 81 Ohio Misc.2d 64.
Opinion: http://www.sconet.state.oh.us/Judicial_Candidates/summaries/morris.pdf
Summary:
Respondent was a candidate for the domestic relations division of the court
of common pleas. The complainant's spouse was a county court judge and the
respondent's opponent. In a domestic relations hearing in which respondent
and the complainant's spouse were opposing counsel, the complainant's spouse
referred to the son of the parties as a "loser." The son was nineteen
at the time of the hearing and was not present at the hearing.
Respondent ran a television advertisement that pictured a twelve year-old boy sitting in a courtroom. The advertisement contained a reference to respondent's opponent has referring to a "child" as a "loser." The advertisement suggested that because of this remark, the respondent's opponent was not suited to become a domestic relations judge. The panel report found that respondent violated Canon 7(E)(1) by portraying the opponent's remark out of context both visually and audibly and with the intent of leading the public to believe that the remark was made regarding a young boy and in the opponent's judicial capacity. The panel recommended a fine of $500.
The commission affirmed the findings of fact and conclusions of law issued by the hearing panel. However, in view of the dual purpose served by the judicial election rules of punishing misconduct and "informing the legal and judicial communities of appropriate campaign conduct," the commission rejected the sanction recommended by the panel. The commission found that to sanction the conduct at issue by means of a $500 fine was:
"* * * to create a campaign environment in which judicial candidates may determine to engage in known violations of the judicial code, including in their campaign budgets a calculation of fines to be paid as a'cost of doing business.' Such an environment would in no way enhance the public respect for the judiciary or increase the ability of the citizenry to make more informed choices among candidates for judicial office."The commission publicly reprimanded the respondent and ordered her to pay the costs of the proceeding.
In re Judicial Campaign Complaint against Burick (1999), 95 Ohio Misc.2d 1.
Opinion: http://www.sconet.state.oh.us/Judicial_Candidates/summaries/burick.pdf
Summary:
Respondent made several statements that were found to be contrary to Canon
7:
In re Judicial Campaign Complaint against Hein (1999), 95 Ohio Misc.2d 31.
Opinion: http://www.sconet.state.oh.us/Judicial_Candidates/summaries/hein.pdf
Summary:
The respondent was the elected prosecuting attorney running for election
against the complainant, who was the sitting common pleas judge. In a press
release, the respondent criticized the sentence imposed by the complainant
in a case the respondent had appealed. In campaign communications and at a
public candidate's forum, the respondent referred to the complainant as a
"liberal" and "soft on criminals."
Upon review of the hearing panel's report finding violations of Canon 7(B)(2)(e) and (f), the judicial commission noted the comments regarding the complainant's sentencing were related to a substantive matter in a case pending on appeal before the court of appeals. The commission rejected the respondent's argument that the comments were made by him, not as a judicial candidate, but in his capacity as the elected prosecuting attorney, noting that as a "judicial candidate" defined in Canon 7(A)(1), the respondent was obliged to comply with the requirements of Canon 7. With regard to the respondent's characterization of the complainant as a "liberal" and "soft on criminals," the commission found evidence to support violations of Canon 7(B)(2)(f) and (E)(1).
[T]he use of general, inflammatory terms or "buzzwords," such as those employed by the respondent in his printed and oral campaign communications, are inappropriate in judicial campaigns. Moreover, the terms do not allow for a fair and accurate portrayal of the record of the respondent's opponent. As such, they "would be deceiving or misleading to a reasonable person." Canon 7(E)(1).Citing concern with the respondent's lack of familiarity with Canon 7 and "somewhat cavalier attitude toward obtaining a greater understanding," the commission imposed the sanction of a public reprimand in addition to the $2,500 fine and attorney fees and costs recommended by the hearing panel.
In re Judicial Campaign Complaint against Runyan (Feb. 25, 1999), 95 Ohio Misc.2d 62.
Opinion: http://www.sconet.state.oh.us/Judicial_Candidates/summaries/runyan.pdf
Summary:
During an interview with the editorial board of a local newspaper, the respondent
was alleged to have made the statement that, "If elected, I will imprison
all convicted felons," in violation of Canon 7(B)(2)(c). Upon review,
a majority of the judicial commission concluded that the record made before
the hearing panel did not support the finding of a violation of Canon 7(B)(2)(c)
by clear and convincing evidence. The record contained conflicting evidence
as to whether the comment attributed to the respondent was a direct quote
by the respondent or an interpretation by the newspaper and whether the comment
was an absolute pledge or promise or expression of a philosophical view. There
also was some question as to whether the respondent had used the term "prison"
or "incarceration." Accordingly, a majority of the commission rejected
the hearing panel's recommendation and dismissed the complaint.
Two members of the judicial commission found that a statement to the effect that "convicted felons are going to be incarcerated" constituted a pledge or promise in violation of Canon 7(B)(2)(c).
In re Judicial Campaign Complaint against Kienzle (1999), 96 Ohio Misc.2d 31.
Opinion: http://www.sconet.state.oh.us/Judicial_Candidates/summaries/kienzle.pdf
Summary:
In campaign materials, the respondent stated that his opponent, the incumbent
judge, imposed $430,000 in taxes on residents of Wayne County by issuing a
ruling that later was reversed on appeal. The respondent went on to state
that he would never impose taxes on Wayne County residents contrary to law.
The Board hearing panel found these statements were contrary to Canon 7(E)(1)
and recommended a fine of $2,500 plus attorney fees and costs.
The judicial commission concurred with the panel's finding of a violation, concluding that the respondent knew or should have known that members of the judicial branch are without power to impose taxes. The commission referenced the respondent's undergraduate degree in political science and his experience as a high school government teacher, twenty-four years as a licensed attorney, and seven years as a magistrate. The commission rejected the respondent's defense that his statements and the wording of the appellate opinion that reversed the complainant's ruling were "functionally equivalent" and noted that the respondent's statements not only were inaccurate but promoted misunderstanding of the role of the judiciary.
The commission reduced the recommended fine to $1,000 but publicly reprimanded the respondent for his misconduct. The public reprimand was viewed as a more appropriate sanction given the fact that the respondent's statements were harmful to the judiciary as an institution and in view of his experience as an educator, lawyer, and judicial officer. The commission also cited prior holdings in Morris and Hein relative to the inadequacy of imposing only monetary sanctions for violations of Canon 7. The respondent also was ordered to pay attorney fees of $4,600 and costs.
In re Judicial Campaign Complaint against Brigner (2000), 89 Ohio St.3d 1460.
Opinion: http://www.sconet.state.oh.us/Judicial_Candidates/summaries/brigner.pdf
Summary:
In late January, respondent's campaign committee distributed a fundraising
letter that included statements asserting that his opponent "* * * has
never handled a divorce case" and was "* * * a novice who lacks
even one day of domestic relations experience." An enclosure distributed
with the letter contained a chart contrasting the experience of respondent
and complainant and claiming that complainant had no experience in various
types of domestic relations cases. The Board hearing panel concluded that
these statements did not violate Canon 7(B)(2)(f), but were in violation of
Canon 7(E)(1), and recommended a sanction of a public reprimand, attorney
fees, and costs. The hearing panel also recommended that respondent be required
to return any campaign contributions received by his campaign committee from
persons who received the materials upon which the complaint was based.
The five-judge commission concurred in the finding of a violation, but modified the sanction recommended by the hearing panel. The commission concluded that, "[i]n comparing respondent's violation with those committed by other judicial candidates, * * * the recommended sanction of a public reprimand [is] excessive and inappropriate." Specifically, the commission noted that prior cases in which a public reprimand was imposed involved multiple Canon 7 violations [Burick], wide distribution of false and misleading statements [Morris and Kienzle], and improper communications that occurred shortly before the election [Hildebrandt]. By contrast, the mailing distributed by respondent's campaign committee constituted a single instance of misconduct and was distributed to a limited number of individuals well in advance of the election.
In place of the public reprimand, respondent was fined $1,000. The commission further rejected the suggestion that respondent be required to return campaign contributions received as a result of the mailing, finding that such a sanction was not specifically authorized by the rules and would be difficult to monitor. However, the commission did order the respondent to provide complainant with the names and addresses of all persons known to have received the fundraising letter so that she could accurately communicate her qualifications to those persons. The commission also ordered the payment of attorney fees totaling $4,115 and costs.
Disciplinary Counsel v. Evans (2000), 89 Ohio St.3d 497
Opinion: http://www.sconet.state.oh.us/rod/newpdf/0/2000/2000-ohio-227.pdf
Summary:
Judicial candidate for an appellate court serving a fourteen-county district
accepted an offer from two members of his campaign committee to construct
campaign signs at no charge to the campaign. The construction work was performed
in a township garage, and later at a private warehouse, using township equipment,
and the free labor was performed by jail inmates on work release, welfare
recipients assigned to work for the township, and a fulltime township employee.
Upon discovering the manner in which the work was being performed, the candidate
ordered that the work be stopped. However, he did not report the value of
the facilities, material, or labor as a contribution on his campaign finance
reports. Affiant also used advertisements in which he claimed to be, "Endorsed
by Southern Ohio's Top Prosecutors and Sheriffs!" At the time the advertisements
were distributed, the candidate had been endorsed by only five sheriffs and
three prosecutors in the fourteen-county appellate district.
A judicial campaign grievance initially was filed against the candidate by two of his primary election opponents in June 1998. The following month, the grievants asked that the grievance be transferred to the Disciplinary Counsel for investigation and possible prosecution through the regular grievance process. While the matter was pending before the Board of Commissioners on Grievances & Discipline, the candidate, who had been elected to the court of appeals in November 1998, filed a defamation action against the grievants.
The Board hearing panel found the candidate's conduct in violation of Canons 7(B)(1), (C)(9), and (E)(1). Cited as aggravating factors were the candidate's admission of campaign misconduct while proceeding with a civil law suit against the grievants, his lack of candor and sincerity, and his failure to rectify misconduct of which he was aware until after a grievance had been filed against him. The hearing panel recommended a stayed, six-month suspension from the practice of law. The Board agreed with the panel's finding of a violation, but recommended that the suspension be imposed without a stay based on the candidate's lack of good faith mitigation efforts and his conduct subsequent to the filing of the grievance.
The Supreme Court affirmed the Board's finding of violations, but split 4-3 on the sanction. The majority of the Court agreed with the stayed six-month suspension, in part, finding the sanction to be comparable to that imposed in other judicial elections cases (Hildebrandt, Harper, Burick, and Roberts).
In re Judicial Campaign Complaint Against PerDue (2002), 97 Ohio St. 3d 1427
Opinion: http://www.sconet.state.oh.us/Judicial_Candidates/summaries/perdue02.pdf
Summary:
Respondent failed to timely complete the judicial campaign course requirement
imposed by Canon 7(B)(5) of the Code of Judicial Conduct, but later completed
the course and provided proof of attendance. Respondent was fined $100, with
the fine suspended, and ordered to pay costs.
In re Judicial Campaign Complaint Against PerDue (2003), 98 Ohio St. 3d 1548
Opinion: http://www.sconet.state.oh.us/Judicial_Candidates/summaries/perdue02.pdf
Summary:
Respondent was charged with three violations of Canon 7: (1) identifying
himself in post-primary campaign literature as a "conservative Republican"
in violation of Canon 7(B)(3)(c); (2) distributing campaign literature that
alleged an individual had murdered a police officer after respondent's opponent
had placed the individual on probation; and (3) accusing contributors to his
opponent's campaign of "trying to buy a judgeship" and alleging
that his opponent's judicial decisions were for sale.
The Board hearing panel found the respondent's conduct to be in violation
of various provisions of Canon 7 and recommended a sanction of a public reprimand
and imposition of costs. The five-judge commission concurred in the findings
of the hearing panel but found the recommended sanction "fail to apply
sufficient weight to the violations given their egregious nature." In
addition to imposing a public reprimand and ordering the payment of costs,
the commission ordered the respondent to pay the complainant's attorney fees
and expenses of $2,001.50.
In re Judicial Campaign Complaint Against Grunda (November 4, 2003), 100 Ohio St. 3d 1466
Opinion: http://www.sconet.state.oh.us/rod/newpdf/0/2003/2003-ohio-5896.pdf
Summary:
Respondent published campaign advertisements after the primary election
that included his name and the phrase "Endorsed Democrat." After
reviewing the complaint and a stipulation from the parties, the Board hearing
panel concluded this advertisement constituted a statement of party membership
in violation of Canon 7(B)(3)(c). The hearing panel recommended issuance of
a cease and desist order prior to the election but recommended no additional
sanction because the respondent did not act in bad faith.
The five-judge commission appointed by the Supreme Court concurred in the hearing panel's finding that use of the phrase "Endorsed Democrat" in a post-primary campaign advertisement violated Canon 7(B)(3)(c). The commission did not issue a cease and desist order, finding such an order would have no meaningful impact since the commission's opinion and order was being issued on election day. The commission ordered respondent to pay the costs of the proceeding.
Disciplinary Counsel v. Kaup, 102 Ohio St.3d 29, 2004-Ohio-1525
Opinion: http://www.sconet.state.oh.us/rod/newpdf/0/2004/2004-ohio-1525.pdf
Summary:
Respondent published and distributed various forms of campaign advertising that included a reference to the respondent having been endorsed by the “Neighborhood Protection Council.” No such entity existed; rather the “Neighborhood Protection Council” was a shortened version of the name of the respondent's campaign committee. Both the hearing panel of the Board of Commissioners on Grievances & Discipline and the full Board concluded that by running the advertisements, the respondent violated Canon 7(D) [false statements as to endorsements] and Canon 7(E) [deceiving or misleading campaign information] and recommended the respondent be publicly reprimanded.
In reviewing the Board's report and recommendation, the Supreme Court concurred in the Board's finding of a violation of Canon 7(D) and (E). However, the Court increased the recommended sanction to a six-month stayed suspension in view of the serious nature of respondent's misconduct and respondent's insistence that he did nothing wrong. The Court also cited prior judicial campaign misconduct decisions, including Harper, Burick, Roberts, and Hildebrandt.
Disciplinary Counsel v. Spicer, 106 Ohio St.3d 247, 2005-Ohio-4788
Opinion: http://www.supremecourtofohio.gov/rod/newpdf/0/2005/2005-ohio-4788.pdf
Summary:
In the course of his judicial campaign, respondent was charged with violating three provisions of the Code of Judicial Conduct. Respondent did not contest the allegations of Count I, that a negative television advertisement sponsored by his campaign committee and directed against his opponent violated Canon 2 (requiring that a judge act, at all times, in a manner that promotes public confidence in the integrity and impartiality of the judiciary) and Canon 7(E)(1) (providing that a judicial candidate shall not knowingly or with reckless disregard use campaign materials that contain information concerning the candidate or an opponent, either knowing the information to be false or with a reckless disregard of whether or not it is false or, if true, that would be deceiving or misleading to a reasonable person). The advertisement that was the subject of County I of the complaint falsely and inaccurately implied that respondent's opponent, who was a sitting judge, was illegally and unethically enriching her family, that she was under investigation for misconduct, and that she was seeking election to the probate division so that she could continue her efforts to illegally and unethically enrich her family. The Board cited Harper, infra, and Hildebrandt and Burick, supra, in support of its finding that respondent violated Canons 2 and 7. The Court concurred in this finding and publicly reprimanded respondent.
Count II of the formal complaint alleged that respondent failed to report, as an in-kind contribution, a $97,466 expenditure on campaign advertising that was made by the Summit County Republican Party. Both the respondent's campaign commercials and the commercials aired by the party were produced by a company that was co-owned by the chairman and the treasurer of the county party. The party's treasurer also served as administrator of the respondent's court and assisted in organizing the respondent's reelection campaign. Because the party's treasurer was an active participant in both the respondent's campaign and the party's efforts on behalf of the respondent and because the content of the advertisements was virtually identical, Disciplinary Counsel contended that the party's expenditure was an in-kind contribution and should have been reported as such by the respondent's campaign committee. The alleged in-kind expenditure, in addition to other expenditures made by the party to the respondent's campaign committee, would have exceeded the applicable limit on campaign contributions by the party.
The Board of Commissioners on Grievances & Discipline concluded that the party's campaign advertising expenditures on behalf of the respondent were not made “with the consent of, in coordination, cooperation, or consultation with, or at the request or suggestion of” the respondent, his agent, or his campaign committee. The Board recommended dismissal of Count II of the formal complaint. In reviewing the Board's recommendation and applicable law, the Supreme Court concluded that the record did not demonstrate the requisite degree of “active involvement or interaction” by respondent in the party's development and airing of its campaign advertisements. Nonetheless, the Court strongly disapproved and admonished judicial candidates to avoid the type of “intermingling of interests in election campaigns” that was present in this case.
In re Judicial Campaign Complaint Against O'Reilly (November 28, 2006), 111 Ohio St.3d 1485, 2006-Ohio-6212
Opinion: http://www.supremecourtofohio.gov/rod/newpdf/0/2006/2006-Ohio-6212
Summary:
Respondent was a candidate for election to the court of appeals, and his opponent was a sitting common pleas court judge and a former assistant county prosecutor. Respondent ran a television advertisement in which he alleged that his opponent committed errors or mistakes while serving as either a prosecutor or judge in three high profile criminal cases. The advertisement stated the respondent's opponent: (1) made an error as a trial judge that allowed Larry Flynt to go free and continue selling pornography in Hamilton County; (2) placed an alleged rape victim in jail; and (3) prosecuted the only death penalty case in which the death sentence was commuted by Governor Taft. A grievance was filed, and respondent subsequently was charged with a violation of Canon 7(E)(1) for broadcasting an advertisement that contained false, misleading, or deceiving information regarding his opponent.
Respondent moved to dismiss the complaint on the grounds that the Ohio Elections Commission failed to find probable cause that the advertisement violated the Ohio election law and that such determination barred the prosecution of an alleged violation of Canon 7(E)(1). The hearing panel denied the motion, finding that although both R.C. 3517.21(B) and Canon 7(E)(1) prohibit the dissemination of false information, the Canon further prohibits the dissemination of information that, if true, would be deceiving or misleading to a reasonable person.
The hearing panel took evidence regarding the content of the advertisement and court records related to the three cases referenced in the advertisement. Respondent contended that the statements in the advertisement were true and based on his reasonable research in the form of reviewing newspaper accounts of the three cases in question. The hearing panel concluded that even if individual portions of the campaign advertisement were not false, the entirety of the message, including the tone, production, and visual aids of the advertisement, were clearly designed to mislead a reasonable person about the opponents conduct in the three referenced cases. Specifically referencing the three portions of the advertisement, the hearing panel found the respondent's opponent (1) committed no error in signing a judgment entry that dismissed obscenity charges against Larry Flynt; (2) committed no error or mistake in issuing a “body attachment,” as authorized by the Revised Code, to ensure the appearance of the complaining witness at the rape trial; and (3) did not commit any error or mistake that resulted in the commutation of a death sentence. The hearing panel went on to state that respondent was not justified in basing his campaign advertisement on newspaper accounts of the cases in question, while ignoring actual court records that contained accurate information about what transpired in each of the three cases. The hearing panel recommended issuance of a cease and desist order and imposition of a $5,000 fine and costs against respondent.
The five-judge commission concurred in the hearing panel's factual determinations and found the advertisement in question to contain misleading and deceiving statements in violation of Canon 7(E)(1). Although respondent did not contest the hearing panel's report, he did ask the commission to consider reducing or eliminating the $5,000 fine based on no previous disciplinary violations and three additional factors. The commission imposed a $5,000 and costs and specifically discussed the mitigating factors cited by respondent. First, the commission found it to be of little consequence that respondent did not prevail in the election, stating that the focus should instead be on the fact that respondent created and disseminated the campaign advertisement for the purpose of misleading or deceiving prospective voters. Second, the commission commended respondent's efforts to consult the applicable law before running the advertisement but indicated that this was an obligation incumbent on all judicial candidates as noted in Hein, supra. Third, the fact that respondent took immediate action to cease broadcasting the advertisement upon issuance of the hearing panel's report was not considered a mitigating factor but an appropriate response to a finding of an ethical violation. The commission stated that these factors did not lessen the seriousness of the misconduct but caused the commission to conclude that additional sanctions were unwarranted.
Also See: