IN RE JUDICIAL CAMPAIGN COMPLAINT AGAINST FALTER.
Slip Opinion No. 2021-Ohio-1705
SUPREME COURT OF OHIO
May 20, 2021
2021-Ohio-1705
Nо. 2020-0407—Submitted January 13, 2021—Decided May 20, 2021.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In re Judicial Campaign Complaint Against Falter, Slip Opinion No. 2021-Ohio-1705.]
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. 2021-OHIO-1705
IN RE JUDICIAL CAMPAIGN COMPLAINT AGAINST FALTER.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In re Judicial Campaign Complaint Against Falter, Slip Opinion No. 2021-Ohio-1705.]
Judges—Judicial campaigns—Misconduct—
(No. 2020-0407—Submitted January 13, 2021—Decided May 20, 2021.)
APPEAL from the Order of the Judicial Commission of the Supreme Court.
{1} Respondent, Karen Kopich Falter, of Cincinnati, Ohio, Attorney Registration No. 0066770, was admitted to the practice of law in Ohio in 1996. Pursuant to
Background
{2} In March 2017, former Governor John Kasich appointed Curt Hartman—the complainant in this disciplinary action—to a vacant seat as a judge of thе Hamilton County Court of Common Pleas. Hartman was later defeated in the November 2018 general election.
{3} In 2020, Hartman and Falter were opponents in the Republican primary for a different seat on the Hamilton County Court of Common Pleas.1 In February of that year, Falter‘s campaign committee sent to 202 Republican voters a letter stating that Hartman had ”moved to Hamilton County 3 years ago to take a judicial appointment from Governor John Kasich in March, 2017.” (Underlining sic.) The letter additionally stated that Falter had grown up in Hamilton County, had served for 23 years as a public servant in the county, and was rеcommended by
{4} Hartman filed a judicial-campaign grievance against Falter with the Board of Professional Conduct. Pursuant to
{5} The matter proceeded to a hearing before a three-member panel of the board. Hartman, Falter, and one of Falter‘s campaign consultants testified. Based on the hearing evidence, the panel found that Falter‘s statements about Hartman in her letter were false: Hartman had moved to Hamilton County in May 2014 with the goal of running for a seat in the Ohio General Assembly, not—as Falter had alleged—in 2017 in order to obtain a judicial appointment in that same year. And according to the panel, a check of public records would have easily shown that Falter‘s allegations were untrue. Yet Falter, the panel found, made no effort to confirm the truthfulness of her allegations against Hartman and instead chose to rely on statements from her campaign consultants and “what was essentially courthouse and party-insider gossip or rumors” about when and why Hartman had moved to Hamilton County. The panel determined that Falter had acted with reckless disregard
{6} A five-judge commission appointed by this court pursuant to
{7} Pursuant to
Falter‘s Objections to the Commission‘s Findings of Misconduct
{8} Falter sets forth five objections to the commission‘s findings that she violated
New York Times Co. v. Sullivan
{9}
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 speeсh, 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.
{10} The primary issue in this appeal is whether Falter distributed her letter “with a reckless disregard of whether or not it was false” for purposes of
{11} Falter is correct that
{12} We disagree, however, with Falter‘s assertion that
{13} We previously determined that an “objective version” of the actual-malice test applies in attorney-discipline proceedings arising from a lawyer‘s false statements impugning the integrity of a judge. We explained:
“Defamation actions seek to remedy an essentially private wrong by compensating individuals for harm caused to their reputation and standing in the community. Ethical rules that prohibit false statements impugning the integrity of judges, by contrast, are not designed to shield judges from unpleasant or offensive criticism, but to preserve public confidence in the fairness and impartiality of our system of justicе.”
* * *
* * * [T]he state‘s compelling interest in preserving public confidence in the judiciary supports applying a standard in disciplinary proceedings different from that applicable in defamation cases. Under the objective standard, an attorney may still freely exercise free speech rights and make statements supported by a reasonable factual basis, even if the attorney turns out to be mistaken.
(Citations omitted.) Disciplinary Counsel v. Gardner, 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425, ¶¶ 29, 31, quoting Standing Commt. on Discipline of the United States Dist. Court for the Cent. Dist. of California v. Yagman, 55 F.3d 1430, 1437 (9th Cir.1995).
{14} Similar reasoning applies here. The purpose of this proceeding is nоt to compensate any person for injuries to his or her reputation. Rather, sanctions against judges and judicial candidates for violating Canon 4 of the Code of Judicial Conduct “inform the public of the self-regulating nature of the legal profession and enhance public confidence in the integrity of judicial proceedings.” O‘Toole, 141 Ohio St.3d 355, 2014-Ohio-4046, 24 N.E.3d 114, at ¶ 64. “Ohio has a compelling interest in promoting and maintaining an independent
{15} In addition, the limits on a judicial candidate‘s speech are not necessarily coextensive with the limits of the First Amendment. The United States Supreme Court has recognized that “[s]tates may regulate judicial elections differently than they regulate political elections, because the role of judges differs from the role of politicians.” Williams-Yulee v. Florida Bar, 575 U.S. 433, 446, 135 S.Ct. 1656, 191 L.Ed.2d 570 (2015); see also Disciplinary Counsel v. Tamburrino, 151 Ohio St.3d 148, 2016-Ohio-8014, 87 N.E.3d 158, ¶ 17 (noting that First Amendment principles in other contexts do not apply “to disciplinary sanctions for knowingly false or recklessly false statements by judicial candidates“); O‘Toole at ¶ 22-29.
{16} Thus, Ohio‘s interest in preserving public confidence in the integrity of its judiciary supports applying a standard in judicial-candidate-discipline proceedings different from that applicable in defamation cases. And an objective standard for determining violations of
The alleged ambiguity of Jud.Cond.R. 4.3(A)
{17} In her fifth objection to the misconduct findings, Falter argues that if the actual-malice standard of New York Times Co. v. Sullivan is inapplicable,
{18}
{19} In determining whether a judicial candidate acted with the requisite mens rea for purposes of
{20} Determining whether a judicial candidate made a false statement with reckless disregard of its truth or falsity may require weighing evidence and assessing witness credibility—as in any other attorney-discipline case. But contrary to Falter‘s position, that process does not make enforcement of
The evidence supporting the violations
{21} Falter argues in her third objection that even if the standard set forth in New York Times Co. v. Sullivan is inapplicable, the charges should be dismissed because she did not act recklessly. According to Falter, she relied on reputable campaign consultants—not gossip—when she included the statements about Hartman in the letter. She similarly argues in her fourth objection that because she relied on her consultants, the record lacked clear and convincing evidence of a
{22} Upon our review of the record, we agree with the commission that the record supports the panel‘s findings that Falter violated
{23} At the panel hearing, Hartman testified that he moved from Clermont County to Hamilton Cоunty in May 2014. He submitted records from the Hamilton County Auditor‘s office and the Hamilton County Board of Elections showing that he purchased a condominium in Hamilton County in May 2014, registered to vote and cast a provisional ballot in Hamilton County in May 2014, and voted in every Hamilton County election since May 2014. Hartman also testified that he moved to Hamilton County to be closer to his Cincinnati legal practice and to potentially run for a seat in the Ohio General Assembly, although he later decided against it. In 2016, he learned about the judicial vacancy on the Hamilton County Court of Common Pleas and was appointed to the open seat in 2017. Thus, Hartman testified, both of Falter‘s statements about his move—that he moved to Hamilton County in 2017 and that he did so for the purpose of taking a judicial appointment—were false.
{24} Falter admitted that she had personally typed the February 2020 campaign letter stating that Hartman had ”moved to Hamilton County 3 years ago to take a judicial appointment from Governor John Kasich in March, 2017.” (Underlining sic.) She also admitted that prior to sending the letter, she had not researched Hartman‘s voting history or his property ownership. And she admitted that her statements about Hartman turned out to be untrue.
{25} As her defеnse, Falter claimed that the information in her letter came from her campaign consultants and that she expected the consultants to ensure the accuracy of her campaign messages. But Falter also testified that she did not know how her consultants allegedly knew this information about Hartman and that she never specifically asked them to confirm the accuracy of the allegations or to research
{26} Similar to her argument on appeal, Falter also testified that she did not rely on rumors when she prepared the campaign letter. But when Falter was asked whether she had done anything to verify her allegation regarding the reason Hartman had moved to Hamilton County, she responded that it was “common knowledge within the legal system.” Falter learned of this common knowledge, she testified, through conversations with “different people within the Republican Party” and over lunch with assistant prosecutors who had practiced before Hartman when he was a judge. In attempting to further explain the basis for this knowledge about Hartman, Falter stated that the talk of the legal community was that Hartman had “moved from Clermont County to Hamilton County to be eligible to take an appointment” and that it was “just the common discussion of why Mr. Hartman ended up in Hamilton County.”
{27} Based on this testimony, the panel concluded that Falter “chose to believe what was essentially courthouse and party-insider gossip or rumors without making any effort to check the truthfulness of the allegation.” The panel also found that Falter‘s contract with her consultants did not expressly require them to do “fact checking” of her campаign materials. Because Falter‘s statements were the type that must be verified and because she failed to take any action to do so, the panel concluded that she acted with reckless disregard of whether or not the statements were false.
{28} To be sure, the panel heard conflicting testimony. But similar to attorney-discipline proceedings, “it is of no consequence that the * * * findings of fact are in contravention of [the] respondent‘s or any other witness‘s testimony. ‘Where the evidence is in conflict, the trier of facts may determine what should be accepted as the truth and what should bе rejected as false.‘” Disciplinary Counsel v. Zingarelli, 89 Ohio St.3d 210, 217, 729 N.E.2d 1167 (2000), quoting Cross v. Ledford, 161 Ohio St 469, 478, 120 N.E.2d 118 (1954). And “[u]nless the record weighs heavily against a hearing panel‘s findings, we defer to the panel‘s credibility determinations, inasmuch as the panel members saw and heard the witnesses firsthand.” Cuyahoga Cty. Bar Assn. v. Wise, 108 Ohio St.3d 164, 2006-Ohio-550, 842 N.E.2d 35, ¶ 24.
{29} The record here does not weigh heavily against the panel‘s findings. Falter made a pointed attack against her election opponent, citing a specific date and intention. Her accusations, however, were false, and as the panel and commission found, a cursory search of public records would have revealed that her allegations were untrue. Yet Falter made no effort to verify her statements. Although she now argues that she relied on her consultants to fact-check her letter, one of her consultants provided contrary testimony at the hearing
{30} In the end, Falter had no reasonable basis to include her allegations about Hartman in her letter and chose to ignore the risk that they were false. By repeating gossip about her election opponent without making any effort to verify the accuracy of her allegations, she acted with a reckless disregard of whether or not her statements were false.
The truth or falsity of Falter‘s statements
{31} Falter argues in her second оbjection that the charges should be dismissed because her allegations against Hartman were “substantially true” and that any inaccuracies were immaterial. Specifically, she asserts that it was immaterial whether Hartman moved in 2014 or 2017, because the purpose of her letter was to identify him as a “carpetbagger” and the facts regarding Hartman‘s move support the gist of that characterization. She also argues that her letter was immaterial because only a fraction of the Hamilton County electorate received it.
{32} We need not determine whether, as Falter contends,
{33} “However much or however little truth-bending the public has come to expect from candidates for political jobs, ‘[j]udges are not politicians,’ and а ‘State‘s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office.‘” Winter v. Wolnitzek, 834 F.3d 681, 693 (6th Cir.2016), quoting Williams-Yulee, 575 U.S. at 437-438, 135 S.Ct. 1656, 191 L.Ed.2d 570. We overrule this objection.
{34} Having overruled Falter‘s objections to the commission‘s findings of misconduct, we affirm the commission‘s conclusion that she committed two violations of
Falter‘s Objections to the Commission‘s Sanction
{35} In additiоn to challenging the commission‘s misconduct findings, Falter argues that the public reprimand should be vacated. “On an appeal of a commission‘s order of sanctions, our review is limited to whether the commission abused its discretion.” O‘Toole at ¶ 61. “‘A decision constitutes an abuse of discretion when it is unreasonable, arbitrary, or unconscionable.‘” Moll, 135 Ohio St.3d 156, 2012-Ohio-5674, 985 N.E.2d 436, at ¶ 17,
{36} In reviewing whether the commission abused its discretion, we consider the purpose of sanctions. We have often recognized that “the 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; see Disciplinary Counsel v. Farris, 157 Ohio St.3d 527, 2019-Ohio-4810, 138 N.E.3d 1134, ¶ 17. But in judicial-candidate-discipline proceedings, we have also explained that the purpose of sanctions is to inform other judicial candidates of the seriousness of such misconduct and to deter similar violations in future elections. See O‘Toole at ¶ 64. “[T]he public‘s faith in the disciplinary proceedings against judges and judicial candidates is fostered by sanctions that reflect the unique injuries on the public by judges and judicial candidates who are not truthful in the information they disseminate.” Id.
{37} The commission determined that a public reprimand was apрropriate because merely ordering Falter to pay a fine and costs would not serve the deterrence purpose of a sanction. Falter raises two objections to the public reprimand.
Aggravating and mitigating factors
{38} Falter first argues that the commission erred by failing to consider the aggravating and mitigating factors listed in
{39} With respect to Falter‘s argument about the commission, we hold that the commission did not err by omitting consideration of the aggravating and mitigating factors in its order.
{40} With respect to the hearing panel‘s findings, we commend Falter for issuing a retraction letter shortly after Hartman‘s campaign notified her that the letter was inaccurate. But that fact does not mean that her public reprimand should be vacated. Nor has she established that the panel‘s weighing of the other aggravating or mitigating factors should have any impact on her sanction.
The public reprimand
{41} Falter next argues that her disciplinary sanction should be vacated because she “has been sufficiently reprimanded in public.” She claims that although she quickly retracted her campaign letter, she received negative media attention, which culminated in her loss in the
{42}
{43} We therefore overrule Falter‘s two additional objections to the public reprimand. Falter has not established that the commission acted in an unreasonable, arbitrary, or unconscionable manner. A public reprimand is in line with other cases in which judicial candidates have violated
Conclusion
{44} Because we overrule Falter‘s objections to the commission‘s misconduct findings and because the commission did not abuse its discretion in issuing sanctions against Falter for her violations of
Order affirmed.
O‘CONNOR, C.J., and GALLAGHER, POWELL, HALL, DONNELLY, and BRUNNER, JJ., concur.
STEWART, J., concurs in judgment only, with an opinion.
SEAN C. GALLAGHER, J., of the Eighth District Court of Appeals, sitting for KENNEDY, J.
STEPHEN W. POWELL, J., of the Twelfth District Court of Appeals, sitting for FISCHER, J.
MICHAEL T. HALL, J., of the Second District Court of Appeals, sitting for DEWINE, J.
STEWART, J., concurring in judgment only.
{45} I agree with the per curiam opinion‘s holding that an objective, rather than a subjective, standard applies in determining whether a candidate for judicial office has violated
{46} We are ruling that Falter violated
Finney Law Firm, L.L.C., and Christopher P. Finney, for complainant.
Isaac, Wiles, Burkholder & Teetor, L.L.C., Donald C. Brey, and Matthew R. Aumann, for respondent.