Disciplinary Counsel v. Tamburrino (Slip Opinion)
2016 Ohio 8014
| Ohio | 2016Background
- Ronnie Michael Tamburrino, an attorney and first-time judicial candidate in 2014, aired two television campaign ads criticizing incumbent Judge Timothy P. Cannon: one about Cannon’s concurring opinion in State v. Andrews ("teenage-drinking ad") and one alleging Cannon refused to disclose taxpayer-funded travel expenses ("expense-disclosure ad").
- Cannon’s campaign counsel notified Tamburrino in writing that the ads contained false statements; Tamburrino denied falsity and continued airing the ads through Election Day.
- Relator (disciplinary counsel) filed a complaint alleging violations of the Code of Judicial Conduct: Jud.Cond.R. 4.3(A) (no knowingly or recklessly false statements in campaign materials) and Jud.Cond.R. 4.2(A)(1) (maintain judicial independence, integrity, impartiality).
- A Board panel found clear-and-convincing evidence Tamburrino knowingly or recklessly disseminated patently false statements in both ads; the panel recommended a six-month suspension stayed on conditions. The Board recommended a one-year suspension with the final six months stayed.
- The Ohio Supreme Court reviewed objections and adopted the Board’s findings and sanction: one-year suspension, final six months stayed contingent on no further misconduct and completion of a six-hour CLE on judicial campaigns; costs taxed to Tamburrino.
Issues
| Issue | Plaintiff's Argument (Relator) | Defendant's Argument (Tamburrino) | Held |
|---|---|---|---|
| Constitutionality of Jud.Cond.R. 4.3(A) as applied | Rule narrowly tailored to compelling interest in judicial integrity; survives strict scrutiny | Rule chills political speech; later Sixth Circuit decisions cast doubt | Rule is facially valid here; O’Toole controls; application permissible to judicial candidates |
| Whether disciplinary process violated due process (delay, disclosure, discovery) | Process complied with disciplinary due-process standards; no prejudice from delay or inadvertent disclosure; discovery disputes resolved | Investigation exceeded one-year limit; reply improperly sent to grievant; uncharged findings; discovery withheld | No due-process violation: prima facie delay shown but no prejudice; inadvertent disclosure harmless; no prejudicial discovery error; objections overruled |
| Falsity and mens rea for teenage-drinking ad | Statement ‘‘Cannon doesn’t think teenage drinking is serious’’ was patently false and at minimum recklessly disseminated; continued airing after notice shows knowledge | Statement reasonably susceptible to truthful interpretation based on Cannon’s Andrews concurrence; political debate, not reckless falsity | Court found statement false as framed by ad; Tamburrino acted knowingly or recklessly (clear-and-convincing evidence) |
| Falsity and mens rea for expense-disclosure ad | Statement ‘‘Cannon won’t disclose his Taxpayer Funded Travel Expenses’’ was false; Cannon had disclosed expenses to the court and had not been asked to produce them; continued airing after notice shows knowledge | Statement could be interpreted as criticizing lack of voluntary website posting or as prediction; not knowingly false | Court found statement false and knowingly or recklessly disseminated; violated Jud.Cond.R. 4.3(A) and 4.2(A)(1) |
Key Cases Cited
- In re Judicial Campaign Complaint Against O’Toole, 141 Ohio St.3d 355 (Ohio 2014) (upholding rule prohibiting knowingly or recklessly false judicial-campaign speech; struck narrower misleading-speech language)
- Winter v. Wolnitzek, 834 F.3d 681 (6th Cir. 2016) (application-of-rule analysis; statements "readily capable of a true interpretation" receive protection)
- Susan B. Anthony List v. Driehaus, 814 F.3d 466 (6th Cir. 2016) (addressing criminal statute penalizing knowingly or recklessly false political statements; distinguished from judicial-discipline rules)
- United States v. Alvarez, 132 S. Ct. 2537 (U.S. 2012) (plurality opinion recognizing some First Amendment protection for false speech; government must show knowing or reckless falsity to prohibit)