IN RE JUDICIAL CAMPAIGN COMPLAINT AGAINST O‘TOOLE
No. 2012-1653
Supreme Court of Ohio
September 24, 2014
2014-Ohio-4046
LANZINGER, J.
Submitted February 26, 2014
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In re Judicial Campaign Complaint Against O‘Toole, Slip Opinion No. 2014-Ohio-4046.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2014-OHIO-4046
IN RE JUDICIAL CAMPAIGN COMPLAINT AGAINST O‘TOOLE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In re Judicial Campaign Complaint Against O‘Toole, Slip Opinion No. 2014-Ohio-4046.]
Judges-Judicial campaigns-Misconduct-
APPEAL from the Order of the Judicial Commission of the Supreme Court.
SYLLABUS OF THE COURT
- The portion of
Jud.Cond.R. 4.3(A) that prohibits a judicial candidate from conveying information concerning the judicial candidate or an opponent knowing the information to be false isnot an overbroad restriction on speech and is not unconstitutionally vague. - The portion of
Jud.Cond.R. 4.3(A) that prohibits a judicial candidate from knowingly or recklessly conveying information about the candidate or thecandidate‘s opponent that, if true, would be deceiving or misleading to a reasonable person is unconstitutional as a violation of the First Amendment to the United States Constitution.
LANZINGER, J.
{1} This disciplinary action was brought against respondent, Colleen Mary O‘Toole of Concord, Ohio, Attorney Registration No. 0053652, who was admitted to the practice of law in Ohio in 1991. Pursuant to
{2} For reasons that follow, we hold that the portion of
FACTS
{3} O‘Toole was elected to the Eleventh District Court of Appeals of Ohio in 2004. She served until she was defeated in the May 2010 Republican primary and left the bench upon the expiration of her term in February 2011. In 2012, she sought another seat on the same appellate court and defeated an incumbent judge, Mary Jane Trapp, in the November 2012 general election. O‘Toole began a new six-year term on the court on February 9, 2013.
{4} The complainant in this case, James B. Davis, filed a grievance with the Board of Commissioners on Grievances and Discipline against O‘Toole in August 2012. He alleged that O‘Toole had violated the Code of Judicial Conduct during her judicial campaign. Specifically, he alleged that certain campaign materials, including a photograph on the Ashtabula County Republican Party website of O‘Toole wearing what appears to be a judicial robe, certain public statements, and a name tag that she wore to campaign events violated the prohibition against false or misleading statements under
{5} O‘Toole responded that the grievance should be dismissed on the grounds that
{6} At a hearing on September 18, 2012, the panel took testimony from O‘Toole, the complainant, and three additional witnesses and received 26 exhibits. The panel found that there was insufficient evidence that O‘Toole had posted, published, circulated, or distributed the challenged materials that appeared on the Ashtabula County Republican Party website and therefore recommended that the first count of the complaint that alleged a violation of
{7} The panel did find, however, that O‘Toole had violated
{8} The panel recommended that O‘Toole be ordered to pay a fine of $1,000, the costs of the proceedings, and $2,500 of the reasonable and necessary attorney fees that the complainant incurred in bringing his grievance and prosecuting the formal complaint. The panel further recommended that she be ordered to modify her website to include the date that her service as a judge ended, to remove any reference to herself as “Judge O‘Toole” from the website, and to stop wearing the name badge identifying herself as a judge.
{9} A five-judge commission appointed by this court pursuant to
{10} O‘Toole objected to the panel‘s report, renewing her constitutional challenges to
{11} Pursuant to
{12} O‘Toole also filed a motion to stay the sanctions imposed against her. We granted the motion in part and stayed the five-judge commission‘s order that she pay a $1,000 fine, $2,530.82 in costs, and $2,500 in attorney fees pending our disposition of her appeal. In re Judicial Campaign Complaint Against O‘Toole, 133 Ohio St.3d 1481, 2012-Ohio-5282, 978 N.E.2d 206.
CONSTITUTIONALITY OF
{13} O‘Toole challenges
{14} This court has exclusive authority to regulate the practice of law in Ohio. See
{16}
During the course of any campaign for nomination or election to judicial office, a judicial candidate, by means of campaign materials, including sample ballots, advertisements on radio or television or in a newspaper or periodical, electronic communications, a public speech, press release, or otherwise, shall not knowingly or with reckless disregard do any of the following:
(A) Post, publish, broadcast, transmit, circulate, or distribute information concerning the judicial candidate or an opponent, either knowing the information to be false or with a
reckless disregard of whether or not it was false or, if true, that would be deceiving or misleading to a reasonable person.
{17} By its own terms, then, section (A) restricts two categories of speech by judicial candidates such as O‘Toole: (1) speech conveying false information about the candidate or her opponent and (2) speech conveying true information about the candidate or her opponent that nonetheless would deceive or mislead a reasonable person.
{18} The rule also restricts speech under limited circumstances. First, the speech must be during a specific time period, i.e., “[d]uring the course of any campaign for nomination or election to judicial office.” Second, the speech must occur “by means of campaign materials, including sample ballots, advertisements on radio or television or in a newspaper or periodical, electronic communications,
Strict Scrutiny for Content-Based Rules
{19} As a general matter, government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002). Thus, “content-based restrictions on speech [are] presumed invalid” and “the Government bear[s] the burden of showing their constitutionality.” Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 660, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004).
{20}
{21} In applying strict scrutiny to
Compelling government interest
{22} The Code of Judicial Conduct as a whole is premised on our recognition that the judicial branch of government differs from the legislative and executive branches of government in fundamental ways. “Unlike the other branches of government, the authority of the judiciary turns almost exclusively on its credibility and the respect warranted by its rulings.” Cary v. Wolnitzek, 614 F.3d 189, 194 (6th Cir.2010). Judicial office is a public trust, and the system
{23} To this end, the code expressly articulates two overarching state interests. First, Ohio seeks to promote and maintain “[a]n independent, fair, and impartial judiciary” as “indispensable to our system of justice.”
{24} The code also expresses these interests in the context of judicial campaigns. Canon Four prohibits judges and judicial candidates from “engag[ing] in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.” O‘Toole relies on comment [1] to
{25} A comment to
{26} We determine, as have other courts, that these interests are compelling. “There could hardly be a higher governmental interest than a State‘s interest in the quality of its judiciary.” Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 848, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978). “[J]udicial integrity is * * * a
{27} O‘Toole attempts to show that these interests are insufficient to pass strict scrutiny by citing two United States Supreme Court decisions: United States v. Alvarez, 567 U.S. ___, 132 S.Ct. 2537, 2544, 183 L.Ed.2d 574 (2012), and White. First, she implies that White foreclosed the possibility that any state interest could justify regulating judicial elections differently from other elections. But she is wrong to claim that White put judicial elections on the same footing as other elections, because the White court expressly denied having decided that question. “[W]e neither assert nor imply that the First Amendment requires campaigns for judicial office to sound the same as those for legislative office. What we do assert * * * is that, even if the First Amendment allows greater regulation of judicial election campaigns than legislative election campaigns,” the regulation under review in that case would still not survive strict scrutiny. (Footnote omitted and emphasis sic.) Id. at 783.
{28} Second, O‘Toole says that Alvarez supports her claim that the state has no compelling interest in preventing either false speech or true but misleading speech in judicial elections. According to O‘Toole, Alvarez held that “the state has no constitutionally cognizable interest in prohibiting or punishing even false speech, much less * * * truthful but misleading, or potentially misleading speech.” But Alvarez said no such thing. Instead, the Alvarez court held that content-based restrictions permitted for certain categories of expression, such as obscenity and defamation, are not permitted for speech that is merely false. Alvarez at 2544. Alvarez does not consider whether the state can ever have a compelling interest in restricting false speech solely on the basis that it is false so that such prohibition could withstand strict scrutiny.
{29} We determine that neither White nor Alvarez forces us to reject the compelling interests identified in our Code of Judicial Conduct as justification for its regulation of certain speech. Ohio has a compelling interest in promoting and maintaining an independent judiciary, ensuring public confidence in the independence, impartiality, integrity, and competence of judges, and ensuring that the
Overbreadth of
{30} Having identified compelling interests for
{31} Although there is precedent in other jurisdictions holding that the regulation of false judicial campaign speech is constitutional, we have found no other jurisdiction that extends its regulation to the truthful but misleading speech of judicial candidates. In fact, the Supreme Courts of Michigan and Alabama have held rules comparable to
Other State Cases
{32} In Chmura, the Supreme Court of Michigan considered a facial challenge to the constitutionality of Canon (7)(B)(1)(d) of the Michigan Code of Judicial Conduct, which provided at that time that a candidate for judicial office
should not use or participate in the use of any form of public communication that the candidate knows or reasonably should know is false, fraudulent, misleading, deceptive, or which contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading, or which is likely to create an unjustified expectation about the results the candidate can achieve.
{33} Although the court found that the state had a compelling interest in preserving the integrity of the judiciary, Chmura at 534, it found that the rule was overbroad and chilled debate regarding the qualifications of candidates for
{34} The Michigan Supreme Court narrowed the rule‘s meaning to prohibit a candidate for judicial office from knowingly or recklessly using or participating in the use of any form of public communication that is “false.” Chmura at 541. The court rejected the subjective “actual malice” standard employed in public-figure defamation cases, id. at 542, in favor of an objective standard that permits a candidate to freely exercise First Amendment rights and make statements that are “supported by a reasonable factual basis, even if the candidate turns out to be mistaken.” Id. at 544.
{35} The Supreme Court of Alabama ruled similarly. In Butler, 802 So.2d 207, the Alabama Judicial Inquiry Committee charged an associate justice of that court with ethics violations for distributing false and misleading information against his opponent in the primary election in violation of the Alabama Canons of Judicial Ethics. The justice brought an action against the committee in the United States District Court for the Middle District of Alabama, alleging that those judicial canons violated the First Amendment. The federal district court granted the justice‘s motions for a temporary or restraining order and preliminary injunction because there was a substantial likelihood that the justice would prevail on his constitutional claim. Butler v. Alabama Judicial Inquiry Comm., 111 F.Supp.2d 1224, 1234-1239 (M.D.Ala.2000). On appeal, the United States Court of Appeals for the Eleventh Circuit certified three questions to the Supreme Court of Alabama and invited the court to consider whether the challenged canons violated the First Amendment‘s guarantee of free speech. Butler v. Alabama Judicial Inquiry Comm., 245 F.3d 1257, 1265-1266 (11th Cir.2001).
{36} At the relevant time, Canon 7B(2) of the Alabama Canons of Judicial Ethics provided:
Campaign Communications. During the course of any campaign for nomination or election to judicial office, a candidate shall not, by any means, do any of the following:
Post, publish, broadcast, transmit, circulate, or distribute false information concerning a judicial candidate or an opponent, either knowing the information to be false or with reckless disregard of whether the information is false; or post, publish, broadcast, transmit, circulate, or distribute
true information about a judicial candidate or an opponent that would be deceiving or misleading to a reasonable person.
The Supreme Court of Alabama declared that the canon was unconstitutionally overbroad on its face, 802 So.2d at 213, approving the Chmura rationale and the reasoning advanced by the federal district court in granting the justice‘s motions for a TRO and preliminary injunction. 802 So.2d at 217-218.
{37} Both the Supreme Court of Alabama and the federal district court held that the canon chilled protected speech because the canon‘s prohibition of “deceiving or misleading” information did not take into account the candidate‘s intent or contain a falsity requirement and left a candidate subject to charges if a “reasonable person” would deem true information either “deceiving or misleading.” Id. at 217, quoting Butler, 111 F.Supp.2d at 1234-1236. To remedy the constitutional defect, the Supreme Court eliminated the language proscribing negligent misstatements and misleading true statements and narrowly construed the canon to prohibit judicial candidates from disseminating demonstrably false information concerning a judicial candidate or an opponent with actual malice, i.e., with knowledge that it is false or with reckless disregard of whether it is false or not. 802 So.2d at 218.
{38} Likewise, in Weaver v. Bonner, 309 F.3d 1312 (11th Cir.2002), the Eleventh Circuit Court of Appeals addressed the constitutionality of Canon 7(B)(1)(d) of the Georgia Code of Judicial Conduct, which provided that candidates for any judicial office filled by public election
shall not use or participate in the use of any form of public communication which the candidate knows or reasonably should know is false, fraudulent, misleading, deceptive, or which contains a material misrepresentation of fact or law or omits a fact necessary to make the communication considered as a whole not materially misleading or which is likely to create an unjustified expectation about results the candidate can achieve.
{39} The Eleventh Circuit Court of Appeals held that the state had a compelling interest in “‘preserving the integrity, impartiality, and independence of the judiciary’ and ‘ensuring the integrity of the electoral process and protecting voters from confusion and undue influence.‘” Id. at 1319, quoting from the state appellees’ brief. But it also held that the rule was not narrowly tailored, because it prohibited false statements negligently made and true statements that were misleading or deceptive and, therefore, did not afford the requisite “breathing space” to protected speech. Id. The court held that to be narrowly tailored, restrictions on judicial campaign speech “must be limited to false statements that
{40} While Chmura, Butler, and Weaver are not binding on this court, their holdings are of assistance nonetheless.
{41} We therefore look at the breadth of
{42} However, the latter clause of
{43} This “dramatic chilling effect” cannot be justified by Ohio‘s interest in maintaining a competent and impartial judiciary. Weaver v. Bonner, 309 F.3d at 1320. Accordingly, we hold that
{44} As noted above, we promulgated the Code of Judicial Conduct pursuant to our authority to regulate “all * * * matters relating to the practice of law” within the state.
{45} Limiting the reach of
MISCONDUCT
{46} We next address O‘Toole‘s argument that
{47} There is clear and convincing evidence that O‘Toole committed one violation of
Count Three-the Badge
{48} Count Three of the complaint challenges O‘Toole‘s practice of wearing a name badge that identified her as a judge during campaign events. The name badge at issue is gold-colored plastic, approximately 3.5 inches by 1.5 inches, with engraved black lettering that states:
COLLEEN MARY O‘TOOLE
JUDGE
11TH DISTRICT COURT OF APPEALS
{50} We find that O‘Toole was not a judge in 2012 and that she knew she was not a judge. Members of the public and the legal community may have continued to refer to her as “judge” as a matter of courtesy in recognition of her past service, but there is no question that she was defeated and that her term ended before her judicial campaign in 2012.
{51} O‘Toole argues that she was still “a” judge, just not a “sitting judge.” But Ohio law makes no such distinction. And O‘Toole knew that she no longer had a courtroom, a docket, or any judicial authority. Indeed, in contrast to the judge in O‘Neill, the case she cites, O‘Toole was not retired. She was not even eligible to receive referrals of civil cases pursuant to
{52} In spite of all this, O‘Toole continued to wear the name badge proclaiming that she was a judge at campaign events and even at the panel hearing on this matter. O‘Toole relies on O‘Neill, but unlike the brochure in that case, the name badge did not identify O‘Toole as a former judge. O‘Toole testified that she also wore, below the challenged name badge, a separate paper name badge that stated, “O‘Toole for Judge. Paid for by Diane Goss, Treasurer.” According to O‘Toole, she intended this separate paper name badge to convey that she was a candidate for the office. But nothing in the text of that paper served to diminish or negate the false statement of incumbency on the engraved name badge above it.
{53} This intentional misrepresentation is not protected speech under the First Amendment. By repeatedly calling herself a judge when she was not, O‘Toole undermined public confidence in the judiciary as a whole. Such misconduct injures both the public and the judiciary from the moment the lie is uttered, and that injury cannot be undone with corrective speech. Under the circumstances, we perceive no constitutional infirmity in the commission‘s application of
Count Two-the Website
{54} Count Two of the complaint filed by the secretary of the board alleges that O‘Toole knowingly or recklessly made false or misleading statements on her campaign website, stating that “Judge O‘Toole” advocated for the Ohio Judicial
{55} The commission of judges agreed with the panel that a reasonable person would be deceived or misled into believing that O‘Toole was a sitting judge. In re Judicial Campaign Complaint Against O‘Toole, 133 Ohio St.3d 1427, 1428, 2012-Ohio-4920, 976 N.E.2d 916. As the commission explained, “respondent‘s testimony, together with her wearing the name badge in question to the hearing in this matter, leave little doubt that she intended the public to believe that she is a judge, when she is not.” Id.
{56} This second allegation, that O‘Toole violated
{57} We have found that
{58} With her misconduct regarding the badge in mind, we turn to the issue of sanctions.
SANCTIONS
{59} In addition to challenging the constitutionality of
{60} If a five-judge commission concludes that the record supports the hearing panel‘s finding that a violation of Canon 4 of the Code of Judicial Conduct has occurred and there has been no abuse of discretion by the hearing panel,
{61} On an appeal of a commission‘s order of sanctions, our review is limited to whether the commission abused its discretion. In re Judicial Campaign Complaint Against Moll, 135 Ohio St.3d 156, 2012-Ohio-5674, 985 N.E.2d 436, ¶ 17. “‘A decision constitutes an abuse of discretion when it is unreasonable, arbitrary, or unconscionable.‘” Id., quoting State ex rel. Ebbing v. Ricketts, 133 Ohio St.3d 339, 2012-Ohio-4699, 978 N.E.2d 188, ¶ 13.
{62} In considering whether the commission abused its discretion in this case, we consider the purpose of sanctions.
{63} “[T]he primary purpose of disciplinary sanctions is not to punish the offender, but to protect the public.” Disciplinary Counsel v. O‘Neill, 103 Ohio St.3d 204, 2004-Ohio-4704, 815 N.E.2d 286, ¶ 53.
{64} We have also found that these sanctions serve as a deterrent to similar violations by judicial candidates in future elections. In re Judicial Campaign Complaint Against Brigner, 89 Ohio St.3d 1460, 732 N.E.2d 994 (2000), citing In re Judicial Campaign Complaint Against Morris, 81 Ohio Misc.2d 64, 65, 675 N.E.2d 580 (1997). Perhaps particularly important here, we have recognized that sanctions inform the public of the self-regulating nature of the legal profession and enhance public confidence in the integrity of judicial proceedings. See, e.g., In re Judicial Campaign Complaint Against Beery, 2009-Ohio-113. We believe that the public‘s faith in the disciplinary proceedings against judges and judicial candidates is fostered by sanctions that reflect the unique injuries inflicted on the public by judges and judicial candidates who are not truthful in the information they disseminate. In re Judicial Campaign Complaint Against Per Due, 98 Ohio St.3d 1548, 2003-Ohio-2032, 787 N.E.2d 10 (“The purpose of sanctions is to inform other judicial candidates of the seriousness of such violations and to deter future similar misconduct. A sanction that may result in effective deterrence best serves the public interest and the profession“).
{65} We affirm the commission‘s order in part, finding that O‘Toole‘s conduct during her judicial campaign violated
{66} The next question is the appropriate sanction. The closest case for comparison is Moll, 135 Ohio St.3d 156, 2012-Ohio-5674, 985 N.E.2d 436.
{68} We held that Moll had violated
{69} O‘Toole criticizes Moll for calling herself a magistrate when it had been five years since she had held that position. But O‘Toole fails to appreciate that she herself continued to use the title of judge more than a year after she was defeated in a primary election and her judicial term had expired. Moll‘s misconduct involved a knowing or reckless omission of limiting language in one flyer distributed by her campaign while O‘Toole‘s misconduct was knowing, calculated, and continuous. Thus, O‘Toole‘s conduct was more egregious than Moll‘s and arguably could support a sanction even greater than that imposed by the commission. We find no abuse of discretion in this case, for there is no evidence that the commission acted in an unreasonable, arbitrary, or unconscionable manner. We further find that the sanction will deter other judicial candidates from knowingly or recklessly disseminating false information during their judicial campaigns.
{70} Accordingly, we affirm the order of the commission publicly reprimanding O‘Toole for her misconduct as charged in Count Three, but that portion of the order finding misconduct as charged in Count Two is reversed, and Count Two is dismissed. We lift the stay on the enforcement of monetary sanctions and order O‘Toole to pay the fine, costs, and attorney fees imposed by the five-judge commission within 30 days of the date of this order.
Order affirmed in part and reversed in part.
O‘CONNOR, C.J., and O‘DONNELL, PRESTON, FRENCH, and FISCHER, JJ., concur.
PFEIFER, J., concurs in part and dissents in part.
VERNON L. PRESTON, J., of the Third Appellate District, sitting for KENNEDY, J.
PATRICK F. FISCHER, J., of the First Appellate District, sitting for O‘NEILL, J.
PFEIFER, J., concurring in part and dissenting in part.
{72} Colleen Mary O‘Toole exercised her right to appeal the decision of the five-judge commission in this case, and this court today holds that the rule she was charged with violating,
{73} The complainant is himself responsible for most of the attorney fees expended in this case. He originally filed a 12-count grievance against O‘Toole. The three-member probable-cause panel dropped nine of those counts at the probable-cause stage. One of the three remaining counts that were litigated at the panel hearing was dismissed by the panel after that hearing. Still another is dismissed by this court today. Would the case have even proceeded if the badge charge-the only legitimate charge in the complaint-had been the only one raised?
{74} Attorney fees were unnecessarily expended in this case. Three weeks before the grievance was filed in her case, the majority of a commission of 13 appellate judges found that
{75} I agree with the majority that O‘Toole should not have worn the same name badge she had worn when she was a sitting appellate court judge. But as a violation of
{77} O‘Toole has already paid a steep price, suffering public censure, which this court has determined today was only partly deserved. But that is the way of
{78} And that is just as James B. Davis, the complainant, would have it, because he was working as the alter ego of O‘Toole‘s opponent, Mary Jane Trapp. Davis, a longtime friend of Trapp and her husband, Mike Apicella, testified that Trapp and her husband “primarily drafted” the original grievance. He testified that since he had filed the grievance, his interactions with Trapp were “an almost constant process.” He testified that Trapp and her husband selected the attorneys to be used in the case and that it was his expectation that he would be reimbursed for any attorney fees he would have to pay. Apicella had even driven
{79} The five-judge commission ordered O‘Toole to pay $2,500 of the attorney fees of her political opponent, based on its conclusion that O‘Toole had committed two violations. Since O‘Toole did commit one violation, I would find that the five-judge commission did not abuse its discretion in imposing a sanction of attorney fees. However, since the commission found two violations when there was only one, I would order the award of attorney fees to be reduced to $1,250.
Mary L. Cibella, for complainant.
Berkman, Gordon, Murray & DeVan, J. Michael Murray, and Raymond V. Vasvari Jr., for respondent.