In re Judicial Campaign Complaint Against Moll

[Cite as In re Judicial Campaign Complaint Against Moll, 135 Ohio St.3d 156, 2012-Ohio-

5674.]

IN RE JUDICIAL CAMPAIGN COMPLAINT AGAINST MOLL.

[Cite as In re Judicial Campaign Complaint Against Moll, 135 Ohio St.3d 156,

2012-Ohio-5674.]

Judicial candidate—Code of Judicial Conduct—Gov.Jud.R. II(5)(E)—Former

magistrate’s use of robe and title in campaign flyer.

(No. 2012-1186—Submitted October 23, 2012—Decided December 6, 2012.)

APPEAL from the Order of the Judicial Commission of the Supreme Court.

__________________

Per Curiam.

{¶ 1} Respondent, Jeanette M. Moll of Zanesville, Ohio, Attorney

Registration No. 0066786, was admitted to the practice of law in Ohio in 1996.

Moll was a candidate for Judge of the Fifth District Court of Appeals of Ohio for

the six-year term beginning February 11, 2013.1 A five-member judicial

commission appointed by this court concluded that the record supported the

finding of a panel of the Board of Commissioners on Grievances and Discipline

that Moll had violated several provisions of Canon 4 of the Code of Judicial

Conduct, and Moll appeals. Moll also contests the commission’s imposition of a

cease-and-desist order, a $1,000 fine, attorney fees of $2,500, and costs as

sanctions premised upon her violations of the Code of Judicial Conduct. We

agree with the commission that the finding of professional misconduct is

supported by the record and affirm the sanctions imposed by the commission.

Facts

{¶ 2} The secretary of the board charged Moll in a three-count complaint

with multiple violations of the Code of Judicial Conduct. The panel of three

1. Moll won in the primary election but lost in the general election.

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board members held a hearing on the matter and made findings of fact and

conclusions of law. The panel found that Moll had committed the violations of

the Code of Judicial Conduct charged in the first count of the complaint, which

related to her use of a campaign flyer, but dismissed the charges in the second and

third counts because of the lack of clear and convincing proof. The panel

recommended that the commission issue interim and permanent orders that Moll

immediately and permanently cease using the campaign flyer specified in the first

count. The panel also recommended that Moll be assessed a fine of $1,000 and

the costs of the proceeding but that the fine be stayed on condition of no further

violations of the Code of Judicial Conduct relating to judicial-campaign conduct.

{¶ 3} On July 31, 2012, the commission issued the recommended cease-

and-desist order. 132 Ohio St.3d 1489, 2012-Ohio-3440, 971 N.E.2d 965. Both

Moll and complainant filed objections to the panel’s report. On August 30, 2012,

the commission affirmed the hearing panel’s finding that Moll had committed

multiple violations of the Code of Judicial Conduct. 132 Ohio St.3d 1505, 2012-

Ohio-3952, 973 N.E.2d 273. The commission ordered Moll to pay a $1,000 fine

and the costs of the proceeding and to pay complainant $2,500 in attorney fees.

Id.

{¶ 4} This cause is now before the court on Moll’s appeal of the

commission’s order pursuant to Gov.Jud.R. II(5)(E).

Analysis

Scope of Appeal

{¶ 5} In her appeal from the commission’s sanctions, Moll argues that

the commission erred in determining that the record supports the hearing panel’s

findings that she violated Canon 4 of the Code of Judicial Conduct. Complainant

contends that the court cannot address this argument because it is outside the

scope of this appeal.

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January Term, 2012

{¶ 6} Under Gov.Jud.R. II(5)(E), a candidate charged with a violation of

Canon 4 of the Code of Judicial Conduct during a campaign for judicial office

“may appeal a sanction issued by the commission to the Supreme Court” after the

commission has upheld the panel’s finding of misconduct.

{¶ 7} A determination of the propriety of the commission’s holding that

the record supports the hearing panel’s finding and that no abuse of discretion

occurred is permitted under Gov.Jud.R. II(5)(E). Because the commission’s

issuance of sanctions is premised on Moll’s violations of Canon 4, determination

of the propriety of the sanctions necessarily includes consideration of whether the

violations are supported by the record. If not, no sanctions would have been

permissible.

Finding of Misconduct—Campaign Materials Including

Photograph of Judicial Candidate in a Robe without Specification

that Candidate Is Not Currently a Judge or Magistrate

{¶ 8} The commission determined that the record supports the hearing

panel’s finding that Moll violated Canon 4 of the Code of Judicial Conduct, which

precludes a judge or judicial candidate from engaging in political or campaign

activity that is inconsistent with the independence, integrity, or impartiality of the

judiciary. This case involves Moll’s use of a campaign flyer that gave prospective

voters the misleading impression that she was currently serving in an elected or

appointed judicial office.

{¶ 9} On the front page of the flyer, below the heading entitled, “Jeanette

Moll for Judge,” Moll is depicted in a photograph wearing a judicial robe. No

text accompanies the photograph to indicate whether Moll was a current or former

judge or magistrate. The back of the flyer lists bullet points for Moll’s education

and experience, including a notation of “Magistrate, Guernsey County,” without

specifying whether she currently held that position or the dates she served in that

position. Moll served as a magistrate for the Guernsey County Court of Common

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Pleas from 1997 to 2007, so she was not a magistrate at the time the flyer was

distributed.

{¶ 10} The commission agreed with the hearing panel that Moll’s

campaign flyer contained information that was either knowingly false or made

with reckless disregard of whether it was false or, if true, that would be deceiving

or misleading to a reasonable person, in violation of Jud.Cond.R. 4.3(A)

(prohibiting a judicial candidate from circulating or distributing information

concerning a judicial candidate, either knowing the information to be false or with

reckless disregard of whether it was false or, if true, that would be deceiving or

misleading to a reasonable person), that the campaign flyer implied that Moll was

currently in an office that she does not hold, in violation of Jud.Cond.R. 4.3(C)

(prohibiting a judicial candidate from knowingly or with reckless disregard using

in campaign materials the title of an office not presently held by the judicial

candidate in a manner that implies that the judicial candidate does currently hold

that office), and that the campaign flyer misrepresented Moll’s current position as

a private practitioner, in violation of Jud.Cond.R. 4.3(F) (prohibiting a judicial

candidate from knowingly or with reckless disregard using campaign materials

that misrepresent the candidate’s present position).

{¶ 11} The commission did not err in determining that the record supports

the hearing panel’s determination that Moll’s campaign flyer violated

Jud.Cond.R. 4.3(A), (C), and (F). In this context, a judicial candidate acts

“knowingly” if the result is probable, and the candidate acts “recklessly” if the

result is possible and the candidate chooses to ignore the risk. See In re Judicial

Campaign Complaint Against Michael, 132 Ohio St.3d 1469, 2012-Ohio-3187,

970 N.E.2d 970; In re Judicial Campaign Complaint Against Emrich, 75 Ohio

St.3d 1517, 665 N.E.2d 1133 (1996). Compare State ex rel. Oster v. Lorain Cty.

Bd. of Elections, 93 Ohio St.3d 480, 487, 756 N.E.2d 649 (2001) (defining the

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term “knowingly” for purposes of election statute according to its ordinary and

common meaning that one is aware of existing facts).

{¶ 12} Moll was aware that it was possible that her campaign flyer could

mislead or deceive a reasonable person that she currently serves as a judge or

magistrate. Moll testified at the panel hearing that the campaign flyer was

prepared with her personal knowledge and approval. She attended a judicial

candidates seminar in 2011, and upon completion, she certified her understanding

of the requirements of the Code of Judicial Conduct. The seminar materials

included the full text of Jud.Cond.R. 4.3, a list of the board’s advisory ethics

opinions, including Advisory Opinion 2003-8 (Dec. 5, 2008), which addresses the

“[u]se of a title and the appearance in a robe by a magistrate running for judicial

office,” and case summaries and opinions, including In re Judicial Campaign

Complaint Against Lilly, 117 Ohio St.3d 1467, 2008-Ohio-1846, 884 N.E.2d

1101.

{¶ 13} In Lilly, the misconduct included a candidate’s appearance in a

judicial robe although she was not an incumbent judge at the time. Moll used the

same photograph in other campaign materials with accompanying language

specifying the dates that she had served as magistrate, but she did not use this

limiting language in the pertinent campaign flyer. And although she claims that a

reasonable person would view her statement on the back of the flyer that states

“Magistrate, Guernsey County” to be a chronological, resume-style listing that

indicated that she was currently a private practitioner, her resume included the

dates she had served in the positions she has held, including her tenure as

magistrate. Moll also admitted that the flyer did not indicate whether she could

have held the positions of magistrate and private practitioner at the same time.

{¶ 14} As the commission determined, the board’s conclusion that Moll

violated Jud.Cond.R. 4.3 is consistent with precedent. See Lilly, 131 Ohio St.3d

1515, 2012-Ohio-1720, 965 N.E.2d 315 (judicial candidate violated Jud.Cond.R.

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4.3 by, among other things, using campaign literature displaying photograph of

candidate in judicial robe, without any qualification that the candidate was not

currently a judge).

{¶ 15} Moreover, Moll’s reliance on a judicial commission’s 7-6 decision

in In re Judicial Campaign Grievance Against O’Neill, 132 Ohio St.3d 1472,

2012-Ohio-3223, 970 N.E.2d 973, to claim that Jud.Cond.R. 4.3 is

unconstitutional is misplaced. The decision in O’Neill is limited to Jud.Cond.R.

4.3(C) and is further restricted to the rule’s application to that respondent under

the facts of that case. Id. In addition, the disclaimer of “former judge” was

prominent in the campaign advertisement at issue in O’Neill. By contrast, this

case involves Jud.Cond.R. 4.3(A) and (F) in addition to (C), and the campaign

flyer contained no accompanying text specifying that Moll was a former

magistrate.

{¶ 16} Therefore, the commission correctly affirmed the hearing panel’s

finding that Moll violated Jud.Cond.R. 4.3(A), (C), and (F).

Sanction

{¶ 17} Moll next contends that the commission erred in imposing

sanctions of a $1,000 fine, the costs of the proceeding, and $2,500 in attorney

fees. Pursuant to Gov.Jud.R. II(5)(D)(1), if the commission concludes that the

record supports the hearing panel’s finding that a violation of Canon 4 has

occurred and that the panel has not abused its discretion, it has the discretion to

enter an order that includes one or more of the specified sanctions, including a

disciplinary sanction, a fine imposed against the respondent, an assessment

against the respondent of the costs of the proceeding, and an assessment against

the respondent of the reasonable and necessary attorney fees incurred by the

complainant in prosecuting the grievance. See Miller v. Miller, 132 Ohio St.3d

424, 2012-Ohio-2928, 973 N.E.2d 228, ¶ 28 (use of the word “may” denotes the

granting of discretion). Therefore, on an appeal of the commission’s order of

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sanctions, our review is limited to whether the commission abused its discretion.

“A decision constitutes an abuse of discretion when it is unreasonable, arbitrary,

or unconscionable.” State ex rel. Ebbing v. Ricketts, 133 Ohio St.3d 339, 2012-

Ohio-4699, 978 N.E.2d 188, ¶ 13.

{¶ 18} The commission did not abuse its discretion in issuing the

sanctions here. Unlike the case relied on by Moll, In re Judicial Campaign

Complaint Against Keys, 80 Ohio Misc.2d 1, 671 N.E.2d 1124 (1996), to support

her claim that any violation was unintentional, there was no unintentional use by a

third party of Moll’s name in the campaign flyer. Instead, there is clear and

convincing evidence that Moll made and approved the flyer and that her

violations of Jud.Cond.R. 4.3 in doing so were either knowingly or recklessly

committed. Given that the complainant submitted an affidavit of attorney

expenses in the sum of $21,121.51 to the commission, we are not persuaded that

the commission’s assessment of $2,500 in attorney fees as part of the sanction

constitutes an abuse of its broad discretion in fashioning a remedy commensurate

with the ethical misconduct committed by Moll in her judicial campaign.

{¶ 19} Nor do the remaining sanctions establish that the commission acted

in an unreasonable, arbitrary, or unconscionable manner. The primary purpose of

these sanctions is to protect the public, and the imposition of fines, costs, and

attorney fees acts as a deterrent against similar behavior by judicial candidates

who may attempt to mislead or deceive prospective voters in the future. See

Disciplinary Counsel v. O’Neill, 103 Ohio St.3d 204, 2004-Ohio-4704, 815

N.E.2d 286, ¶ 53 (“the primary purpose of disciplinary sanctions is not to punish

the offender, but to protect the public”); 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”).

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Conclusion

{¶ 20} Because the commission did not abuse its discretion in issuing

sanctions against Moll for her violations of Jud.Cond.R. 4.3, we affirm the order

of the commission.

Order affirmed.

O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,

LANZINGER, and MCGEE BROWN, JJ., concur.

CUPP, J., not participating.

__________________

Shumaker, Loop & Kendrick, L.L.P., and David F. Axelrod; and Sue Ann

Reulbach, for complainant.

Jeanette M. Moll, pro se.

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