O'Toole v. O'Connor
260 F. Supp. 3d 901
S.D. Ohio2017Background
- Plaintiffs: Judge Colleen M. O’Toole (sitting appellate judge running for Ohio Supreme Court), her campaign committee, and a prospective donor challenge Ohio Code of Judicial Conduct Rule 4.3(C) and Comment [2].
- Rule 4.3(C) bars a judicial candidate from using the title of a public office the candidate does not hold; Comment [2] says a sitting judge running for a different court violates the rule if she uses the title “judge” without identifying the court on which she currently serves.
- Lower courts previously ruled on related preliminary matters; this decision resolves cross-motions for summary judgment and Plaintiffs’ motion for reconsideration after an earlier partial judgment on the pleadings.
- Plaintiffs allege Comment [2] and its enforcement chill truthful campaign speech (e.g., referring to O’Toole simply as “Judge O’Toole” or “Justice O’Toole”) and seek declaratory and injunctive relief.
- Defendants argue the rule regulates only false or misleading claims of current office, urge the court to ignore or narrowly construe Comment [2], and rely on Ohio precedent and the Code’s text and history.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Comment [2] to Rule 4.3(C) prohibits truthful use of the title “judge” by a sitting judge running for a different court | Comment [2] as written forbids a sitting judge from using the title “judge” absent court identification, which chilled Plaintiffs’ truthful speech | Comment [2] is non-binding guidance and Rule 4.3(C)’s text should be read to prohibit only false or misleading assertions of current office | Comment [2] is applied in practice and compelled Plaintiffs’ compliance; the Court finds Comment [2] operates to prohibit the pleaded truthful speech and cannot be ignored for enforcement purposes (as-applied) |
| Whether Rule 4.3(C) (with Comment [2]) survives First Amendment strict scrutiny as applied to Plaintiffs’ truthful speech | The rule and comment suppress protected, truthful campaign speech and are not narrowly tailored to the state’s interest | The rule regulates false speech and legitimate ethics interests justify restrictions; any tension arises from a non-binding comment that should be read harmlessly | As-applied to Plaintiffs’ truthful speech (per Comment [2]) the provision fails strict scrutiny; enforcement of Comment [2] is enjoined |
| Whether the court should adopt a narrowing/saving construction to avoid invalidation | Plaintiffs argue the comment is unambiguous and their reliance was reasonable; they seek a judgment and injunction | Defendants urge courts to construe the rule narrowly or ignore the comment to preserve constitutionality | No reasonable alternative construction avoids Comment [2]’s plain effect here; court declines to save the comment in this context |
| Whether Rule 4.3(C) is facially overbroad | Plaintiffs urge facial invalidation because Comment [2] chills speech generally | Defendants contend the rule has substantial legitimate sweep (false speech) so facial invalidation is improper | Rule 4.3(C) is not facially invalid; it is invalid only as-applied to Plaintiffs’ pleaded truthful speech under Comment [2] |
Key Cases Cited
- Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015) (states may impose narrowly tailored restrictions on judicial-candidate speech to protect judicial integrity)
- McCutcheon v. Federal Election Comm’n, 134 S. Ct. 1434 (2014) (plurality discussion of democratic accountability cited by plaintiffs)
- O’Toole v. O’Connor, 802 F.3d 783 (6th Cir. 2015) (appellate decision discussing Rule 4.4(E) fundraising window and applying Williams-Yulee)
- United States v. Williams, 553 U.S. 285 (2008) (facial-overbreadth standard: statute invalid only if it prohibits a substantial amount of protected speech)
- In re Judicial Campaign Complaint Against O’Toole, 141 Ohio St.3d 355 (2014) (Ohio Supreme Court decision addressing constitutionality of related Code provisions)
- Cherry Hill Vineyards, LLC v. Lilly, 553 F.3d 423 (6th Cir. 2008) (constitutionality of statutes is a question of law appropriate for summary judgment)
- Elrod v. Burns, 427 U.S. 347 (1976) (loss of First Amendment freedoms constitutes irreparable harm warranting injunctive relief)