Judicial Candidate Don’t Need No Stinking Badges

Kathleen Maloney reports on a decision filed by the Ohio Supreme Court

The Ohio Supreme Court today found  that part of a rule governing the conduct of candidates running for judge is  unconstitutional.

In an opinion written by Justice  Judith Ann Lanzinger, the court held that the portion of Jud.Cond.R. 4.3(A)  that prohibits a judicial candidate from conveying true information about the  candidate or the candidate’s opponent that is nevertheless deceiving or  misleading to a reasonable reader violates the candidate’s constitutional right  to free speech. The court severed this part of the rule from the Code of  Judicial Conduct.

In addition, the court affirmed  the public reprimand of Colleen M. O’Toole by a court-appointed commission reviewing  the matter for wearing a name badge stating that she was a judge. At that time,  she was not a judge but was running for a spot on the Eleventh District Court  of Appeals. But the court dismissed a charge concerning language that appeared on  her campaign website in light of ruling that the related judicial conduct rule  is unconstitutional.

O’Toole served as a judge in the  Eleventh District from 2004 to February 2011. In 2012, she ran again for judge  on the same court and subsequently won the election.

Before the election, a grievance was filed  against O’Toole for certain campaign activities. A five-judge commission appointed  by the Ohio Supreme Court found that statements posted on O’Toole’s campaign  website were misleading and worded to give the impression she was a sitting  judge in 2012. The commission also concluded that a name badge she wore during  her campaign, which read “Colleen Mary O’Toole, Judge, 11th District Court of  Appeals,” left the impression that she was still a judge at that time.

The commission publicly  reprimanded O’Toole and also ordered her to pay a $1,000 fine, the costs of the  proceedings, and $2,500 in attorney fees.

O’Toole appealed to the Ohio  Supreme Court, in part challenging the constitutionality of Jud.Cond.R. 4.3(A).

Rule 4.3 provides standards for  communications by candidates during campaigns for judicial office. Justice  Lanzinger noted that “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.”

The rule is a content-based  regulation protected by the First Amendment to the U.S. Constitution, Justice  Lanzinger explained. To prove that the rule is constitutional, she added, the  government must show that the regulation serves a compelling state interest,  and the rule must be narrowly tailored to meet that interest.

The court stated that the Code of  Judicial Conduct, including this rule, is designed to promote and maintain an  independent, fair, and impartial judiciary and to ensure public confidence in  the judicial system – both compelling state interests.

After pointing out that lies do  not add to a robust political atmosphere and are not protected by the First  Amendment in the same way that truthful statements are, Justice Lanzinger  wrote, “The portion of Jud.Cond.R. 4.3(A) that limits a judicial candidate’s false speech made during a specific time  period (the campaign), conveyed by specific means (ads, sample ballots, etc.),  disseminated with a specific mental state (knowingly or with reckless  disregard) and with a specific mental state as to the information’s accuracy  (with knowledge of its falsity or with reckless disregard as to its truth or  falsity) is constitutional.”

“However, the latter clause of  Jud.Cond.R. 4.3(A) prohibiting the dissemination of information that ‘if true,’  ‘would be deceiving or misleading to a reasonable person’ is unconstitutional  because it chills the exercise of legitimate First Amendment rights,” she  concluded. “This portion of the rule does not leave room for innocent  misstatements or for honest, truthful statements made in good faith but that  could deceive some listeners.”

Under its constitutional  authority to regulate the practice of law, Justice Lanzinger wrote that the court  today “narrow[s] Jud.Cond.R. 4.3(A) to provide that no candidate for judicial  office shall knowingly or with reckless disregard do any of the following: ‘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.’ The  remaining language in Jud.Cond.R. 4.3(A), ‘or, if true, that would be deceiving  or misleading to a reasonable person,’ is severed.”

The court then determined that  O’Toole violated the conduct rule by wearing a badge claiming she was a judge  during a time when she did not hold judicial office. The court agreed with the  commission that a public reprimand for the misconduct was appropriate.

“This intentional  misrepresentation is not protected speech under the First Amendment,” Justice  Lanzinger reasoned. “By repeatedly calling herself a judge when she was not,  O’Toole undermined public confidence in the judiciary as a whole.”  

However, the allegation that  O’Toole’s website was crafted in a way to mislead readers into thinking she was  a sitting judge running for reelection is dismissed, given the language that  has been severed from the judicial conduct rule, Justice Lanzinger explained.

The court also lifted an earlier  stay on the imposition of the fine, costs, and attorney fees.

Justice Lanzinger’s opinion was joined  by Chief Justice Maureen O’Connor, Justice Terrence O’Donnell, Justice Judith  L. French, Judge Vernon Preston of the Third District Court of Appeals, and Judge  Patrick Fischer of the First District Court of Appeals. Judge Preston served in  place of Justice Sharon L. Kennedy, and Judge Fischer filled in for Justice  William M. O’Neill. Justices Kennedy and O’Neill both recused themselves from  the case.

Justice Paul E. Pfeifer concurred  in the majority’s judgment except for the award of $2,500 in attorney fees. He  noted that the original complaint was filed by a friend of O’Toole’s political  opponent in the 2012 election and included 12 counts of alleged misconduct.  Nine counts were dropped before the hearing conducted by a disciplinary panel,  and one was dismissed after the hearing.

The judicial commission  ordered O’Toole to pay $2,500 in attorney fees based on two violations of the  judicial conduct rules. Because the court has found that O’Toole committed only  one violation, Justice Pfeifer would cut the attorney fees in half, to $1,250.

2012-1653. In re Judicial  Campaign Complaint Against O’Toole, Slip  Opinion No. 2014-Ohio-4046.

View oral argument video of this case.

(Mike Frisch)