Judicial Campaign “Misquote” Sanctionable
The Illinois Review Board has rejected a First Amendment challenge and recommended a censure of a judicial candidate for statements made in the campaign.
In 2012, Respondent ran for the office of Circuit Judge in the 20th Judicial Circuit. His opponent was Associate Judge Vincent J. Lopinot. At first he planned to run a positive campaign. However, he learned that Judge Lopinot’s campaign was allegedly considering turning to negative tactics by publishing an article against Respondent about a prior charge of an “offensive battery”. Respondent had read the Seventh Circuit opinion in Woidtke v. St. Clair County, id. He then, along with his campaign manager, decided to respond by sending out a flyer that contained the following language:
Rodney Woidtke spent 12 years in prison for a murder HE DID NOT COMMIT. (Source: People v. Woidtke, No. 5-99-0331, 5th District, 26 April 2000)
Because ?.
Supervising Public Defender VINCENT J. LOPINOT and his Assistant, Brian Trentman, “were NEGLIGENT in the representation of Mr. Woidtke in a 1989 criminal proceeding that resulted in his wrongful conviction of murder of Audrey Cardenas.” (Source: Woidtke v. St. Clair County, St. Clair County Public Defenders Office, Brian K. Trentman and Vincent Lopinot, No. 02-4223, May 2003)
Next to the above statement, Respondent placed a picture of Lopinot with the word “NEGLIGENT” in white with a red background underneath the picture. Respondent sent the flyer to 75,000 to 100,000 people. Despite the mailing of the flyer, Respondent lost the election to Judge Lopinot.
The above language was taken from the Seventh Circuit opinion but was not an accurate quotation. The opinion actually read in the opening paragraphs of the opinion, “In Count I, Mr. Woidtke alleged that Attorney Trentman and his supervisor, Attorney Judge Lopinot, had been negligent in their representation of Mr. Woidtke in a 1989 criminal proceeding that resulted in his conviction.” Respondent does not deny that he misquoted the Seventh Circuit opinion.
The Board
We conclude that the Hearing Board’s finding that Respondent intentionally made the false statement in the flyer is not against the manifest weight of the evidence. Respondent admitted that he assisted in designing and writing the contents of the mailer and that he approved its design and contents. Respondent admitted at hearing that he reviewed the various court opinions regarding the Woidtke matter prior to completing the mailer. He did not act in haste. The Hearing Board rejected Respondent’s testimony that he believed the mailer accurately quoted the Seventh Circuit opinion as “incredible and false.” Respondent had no objective information from which he could have concluded that Lopinot supervised Trentman in regard to the Woidtke case. The Hearing Board, who had the benefit of listening to the witnesses, concluded Respondent deliberately and intentionally changed the language of the quotation to create a false impression. The evidence supports this finding.
The Board found that recent U.S. Supreme Court precedent supported its First Amendment position
Respondent argues that Rules 8.2(a), 8.2(b) and 8.4(c) are unconstitutional as applied to his conduct. He contends that his statements constitute political speech and are protected by the First Amendment even if the statements are knowingly false. We disagree. Respondent has failed to direct our attention to any cases which have concluded that all statements made during a judicial, or any other, election, regardless of their truth or falsity, are protected speech under the First Amendment to the United States Constitution or any State Constitution.
The United States Supreme Court has never ruled Rules 8.2(a), 8.2(b) or 8.4(c) unconstitutional. Similarly, the United States Supreme Court has never held that knowingly false statements by a judicial candidate against an opponent have First Amendment protection. Even in the most recent case cited by Respondent, United States v. Alvarez, 567 U.S. ___, 132 S.Ct. 2537 (2012), the Supreme Court pointed out that there are situations in which knowingly or recklessly made false statements are not protected under the First Amendment, citing Garrison v. Louisiana, 379 U.S. 64 (1964) where an appellate district attorney was convicted of defamation for making disparaging statements about the judiciary. See also, Williams-Yulee v. The Florida Bar, 575 U.S. ___ (2015)(Court found that a Florida rule prohibiting judicial candidates from personally soliciting campaign contributions did not violate the First Amendment given the State’s interest in preserving the integrity of the judiciary).
(Mike Frisch)