Petition for Writ of Certiorari — Berger v. Supreme Court

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Supreme Court of the United States

October Term, 1988

SANFORD J. BERGER

Petitioner

THE SUPREME COURT OF OHIO, et al.

Respondents

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

BERGER & FERTEL

SANFORD J. BERGER, Counsel of Record

ROBERT M. FERTEL

Room 305, 1836 Euclid Avenue

Cleveland, Ohio 44115-2234

Phone: (216) 781-5950

Lawyers for the Petitioner, Berger

BROTHERS PRINTING CO., 2000 EUCLID AVE., CLEVELAND, OHIO (216) 621-6050

QUESTIONS PRESENTED

1. During an election campaign, does a Canon

of the Ohio Supreme Court's Code of Judicial

Conduct violate the First Amendment when it

permits disciplinary sanctions against judi-

cial candidates, who criticize their opponent

or unintentionally make a misstatement of

fact, without a requirement that such criti-

cisms or misstatements be made with “actual

malice" as established by this Court in New

York Times Co. v. Sullivan, 376 U.S. 255

(1964)?

2. Does such Canon constitute "content based"

discrimination in violation of the Equal Pro-

tection Clause of the Fourteenth Amendment

when it permits the sanctioning of judicial

candidates for criticisms or misstatements

without "actual malice," while all others who

criticize or make unintentional misstatements

during an election campaign are protected by

such “actual malice" standard?

3. Is a Section 1983 plaintiff, whose corol-

lary claim that he is entitled to an award of

attorney fees under a "catalyst" theory has

not been disproved, entitled to an eviden-

tiary hearing on the basis of his being a

putative owner of a benefit (an award of

attorney fees) who must be afforded an oppor-

tunity to prove his entitlement by virtue of

Perry v. Sindermann, 408 U.S. 593 (1972)?

4. Can a Section 1983 plaintiff who obtains

actual benefits for himself and his proposed

class as a direct result of a judicial opin-

ion resulting from his lawsuit (but which

opinion does not grant formal judicial relief)

be considered a "prevailing party" entitled

to an award of attorney fees?

PARTIES

From the outset of these proceeding

Sanford J. Berger has been the plaintiff and

appellant, while The Supreme Court of Ohio,

Angelo Gagliardo (Disciplinary Counsel), the

Board of Commissioners on Grievances’ and

Discipline of the Judiciary of The Supreme

Court of Ohio, and the State of Ohio have

been the defendants and appellees.

TABLE OF CONTENTS

Questions Presented i

Parties to the Proceedings Below iti

Index of Authorities vii

Opinions Below 2

Jurisdictional Statement 2

Constitutional Provisions Involved, etc. 2

Statement of the Case 3

Reasons for Granting the Writ 10

I. The First Amendment right of a judicial

candidate to uninhibitedly speak out, so

as to have an informed electorate, out-

weighs the state's interest in being

solitious about maintaining the sacrosanct

image of elected state judges by the judi-

cial imposition of “candidate lockjaw"

with sanctions for violation. 10

II. In a state judicial election, the

Equal Protection Clause is violated when

the only individuals "gagged" by the state

are the judicial candidates themselves. 19

III. A Section 1983 plaintiff, whose

catalyst claim has not been disproved,

is the putative owner of a corollary

Section 1988 benefit, and must be afforded

evidentiary hearing to prove his

entitlement thereto. 21

IV. Having effectively obtained actual

benefits for himself and the class he

sought to represent by judicial fiat, a

Section 1983 plaintiff is a “prevailing

party’ entitled to ana ward of attorney

fees even though he did not obtain formal

judicial relief. 25

Conclusion 29

Appendix:

Decision of the United States Court of

Appeals for the Sixth Circuit denying

rehearing en banc. (January 24, 1989) Al

Dissent to such rehearing en banc entered

on February 14, 1989 A3

Decision of the Court of Appeals entered

on October 31, 1988 AY

Order of the United States District Court

entered on August 3, 1987

Prior Order of the United States District

Court entered on September 14, 1984

Newspaper editorial, September 23, 1984

Canon 7(C)(9), Code of Judicial Conduct

Disciplinary Rule 8-102(A)and(B), Ohio's

Code of Professional Responsibility

A21

A35

A55

A56

A57

vii

INDEX OF AUTHORITIES

CASES

Berger v. Ohio Supreme Court, et al.,

598 F. Supp. 69 (S.D.,0hi0,1984) 2,25,26

Boos v. Berry,

iF , 108 S.Ct. 1157 (1988) 18

Brockett v. Spokane Arcades, Inc.,

472 U.S. 491 (1985) 17

Brown v. Hartlage, 456 U.S. 45 (1982) 12

Buckley v. Valeo, 424 U.S. 1 (1976) 11

Budinich v. Becton Dickinson and Co.,

Uses, 108 5.Ct. Tvl? (i968) 23

Carey v. Brown, 447 U.S.455 (1980) 19

Celotex Corp. v. Catrett,

47/7 U.S. 317 (1986) 23

City Council v. Taxpayers for Vincent,

466 U.S. /89 (1984) 16

Clark v. Jeter,

= Maes.» S08 S.Ct. 1910 (1988) 20

Loudermill v. Cleveland Board of Education,

844 F.2d 304 (C.A.6,1988), cert.

den'd _ U.S.__, 109 §.Ct. 377 (1988) 28

Eu v. San Francisco County Democtratic

Central Comm.,

Mies. g 0? US sh. 4251 (1969) 10

Harper v. Virginia Board of Elections,

383 U.S.663 (1966) 20

= viii

Hensley v. Eckerhart, 461 U.S. 424 (1983) 28

Hewitt v. Helms,

482 U.S. _, 107 S.Ct. 2672 (1987) 22,27

Hustler Magazine, inc. v. Falwell,

485 U.S. _, 108 S.Ct. 87/6 (1988) 12

Landmark Communications, Inc. v. Virginia,

435 U.S. 829 (19/8) 16

Nadeau v. Helgome, 581 F.2d 275

(C.A.1,19/8) 28

New York State Club Ass., Inc. v. New York

City, U.S. , 108 S.Ct. 2225 (1988) 16

New York Times v. Sullivan, 316 U.Ss232

(1964 ) 8,9,10,18

Perry v. Sindermann, 408 U.S. 593 (1972) a2

Police Department of Chicago v. Mosley,

408 U.S. 92 (1972) 19

Rhodes v. Stewart,

_U.S.__, 109 S.Ct. 202 (1988) 27

Riley v. National Federation of the Blind

of North Carolina,

__U.S.__, 108 S.Ct. 2667 (1988) iF

Savidge v. Fincannon, 836 F.2d 895

(C.A.5,1988) 24

Secretary of State of Maryland v. Joseph

H. Munson Co., 467 U.S. 947 (1984) 13

Shelton v. Tucker, 364 U.S. 479 (1964) 20

Tashjian v. Republican Party of Connecticut,

479 U.S. 208 (1986) 10

Virginia v. American Booksellers Ass.,Inc.,

U.S. » 108 3.Ct. O36 (1988) 13

White V. New Hampshire Department of

Employment Security, 455 U.S. 445 (1982) £3

CONSTITUTIONAL PROVISIONS

First Amendment \ oe Po re oe tee eae ey

Equal Protection Clause, Fourteenth

Amendment Sedan

OHIO RULES AND MISCELLANEOUS

Canon 7(B)(1)(c), Code of Judicial Conduct

of Ohio Supreme Court Lr ve ae be ee S Pe fe

Canon 7(C)(9), Code of Judicial Conduct

of Ohio Supreme Court Lage?

Rule 8-102(A)and(B), Code of Professional

Responsibility of Ohio Supreme Court 14,20

First Amendment Rights of Attorneys and

Judges in Judicial Election Campaigns,

47 Ohio State Law Review 201 (1986)

Elizabeth I. Kiovsky 26

Supreme Court of the United States

October Term, 1988

SANFORD J. BERGER

Petitioner

« 7; =

THE SUPREME COURT OF OHIO,et al.

Respondents

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

Sanford J. Berger petitions for a writ

of certiorari to review an order of the

United States Court of Appeals for the Sixth

Circuit denying a petition for rehearing en

banc, entered on January 24, 1989 in Case No.

87-3935, regarding a judgment entered by said

Court of Appeals on October 31, 1988 which

approved an order of the United States Dis-

trict Court for the Southern District of Ohio.

OPINIONS BELOW

The decision of the court of appeals

denying rehearing en banc on January 24, 1989

appears at A1l-2 infra. The dissent to such

denial for rehearing en banc, entered on

February 14, 1989, appears at A3-8 infra. The

decision of the court of appeals entered on

October 31, 1988 appears at A9-20 infra. The

August 3, 1987 order of the district court

appears at A21-33 infra. The prior order of

the district court entered on September 14,

1984 appears at A35-54 infra, and is reported

at 598 F. Supp. 69 (1984).

JURISDICTION

The jurisdiction of this Court is invo-

ked pursuant to §1254(1). The opinion below

was entered on January 24, 1989.

CONSTITUTIONAL AND OHIO JUDICIAL CODE

PROVISIONS INVOLVED

The First Amendment to the United States

Constitution states, in pertinent part:

Congress shall make no law respecting an

establishment of religion, i, oF

abridging the freedom of speech,

The Fourteenth Amendment to the United

States Constitution states, in pertinent part:

No state shall make or enforce any law

which abridges the privileges or immun-

ities of citizens of the United States;

-, nor deny to any person within its

jurisdiction the equal protection of the

laws.

Canon 7(B)(1)(c) of the Code of Judicial

Conduct, promulgated by the Supreme Court of

Ohio, states, in pertinent part:

B. Campaign Conduct

(1) A candidate, including an incumbent

judge, for a judicial office:

ises of conduct in office other than

the faithful and impartial performance

of the duties of the office; announce

his views on disputed legal or polit-

ical issues; or misrepresent his iden-

tity, qualifications, present position

or other fact.

STATEMENT OF THE CASE

In early 1984, the Petitioner (Berger)

had been a practicing attorney in Cuyahoga

County, Ohio for 32 years with extensive

experience in, and a critic of, the county

Domestic Relations Court. At that time, the

minority County Republican Party asked Berger

to run for Domestic Relations judge against

the incumbent Democrat; but it was precarious

for a Republican to run and possibly offend a

Democratic incumbent judge due to the Dis-

ciplinary Counsel of the 6-1 Democrat con-

trolled Ohio Supreme Court bringing quest-

ionable disciplinary charges against’ the

alleged offender. A41-44. A55 editorially

describes the prevailing partisan attitude of

the Ohio Supreme Court in 1984. Discipinary

Counsel justified his disciplinary charges on

the basis of Canon /7(B)(1)(c), which he

interpreted to mean that all a candidate was

allowed to state was his name, rank and

serial number.

Whereas Berger knew nis opponent better

than any endorsing newspaper or group, he

found that he, as well as all other Repub-

lican judicial candidates, were inflicted

with "judicial lockjaw'' from the outset of

their judicial campaigns, and whereas the

media and anyone else could freely criticize

judicial candidates, he and all other candi-

dates had been judicially "gagged." Because

of Disciplinary Counsel's prior actions,

Berger had a fear that if he tried to speak

with the electorate, he would be subjected to

disciplinary action - which fear was later

found to be reasonable by federal district

court Judge Robert Duncan. A44, infra.

Accordingly, on June 11, 1984, Berger

filed a class action complaint against the

Supreme Court of Ohio and its Disciplinary

Counsel; asking for declaratory and injunc-

tive relief, and contending that the subject

Canon was violative of the First Amendment

and the Equal Protection Clause. A hearing on

his Motion For A Preliminary Injunction was

held soon afterwards before federal district

judge Robert Duncan, with his Order following

on September 14, 1984. A34-54. Although Judge

Duncan's Opinion denied formal injunctive

relief, he said something therein that had

eee aa

never been said before regarding Ohio judi-

cial campaigns and the subject Canon:

The Court is not persuaded that this

provision prohibits criticisms of judi-

cial administrations and _ incumbents,

assuming such criticisms are not un-

truthful, or misleading. A49-50, infra.

Those words were immediately seized upon

by the Ohio Republican Party (after confer-

ring with Berger) and the previously timid

campaigns of the two Republican challengers

for seats on the Ohio Supreme Court took a

180 degree turn by becoming highly critical

of the Ohio Supreme Court, and their cam-

paigns were successful. So too, in 1986, the

Democratic Chief Justice was defeated by the

Republican challenger using the same hard-

hitting tactics.

On January 15, 1985, Berger filed his

Motions For Declaratory Judgment and For

Attorney Fees. The Respondents responded and

also filed a Motion For Summary Judgment; but

before all of these motions could be ruled

upon, Judge Duncan resigned, and a new judge,

the Hon. James Graham, was not appointed and

assigned to the case until much later in time.

On August 3, 1987 (nearly 3 years after

Judge Duncan's Opinion and the occurence of a

multitude of pertinent changes in the interim:

such as, a Republican majority Ohio Supreme

Court and the forced resignation of Discip-

linary Counsel), Judge Graham granted the

Respondents’ Motion For Summary Judgment.

A21-33, infra. He accepted Judge Duncan's

reasoning, and held that Canon 7(B)(1)(c) was

constitutional on its face because it did not

prohibit criticisms by judicial candidates

that were truthful and not misleading.

Judge Graham, without a hearing to up-

date what had happened during the preceding 3

years, overruled Berger's motions, including

his Motion For Attorney Fees, on the basis

that he had not demonstrated any changes as a

result of his lawsuit.

Berger then filed a Motion To Alter Or

Amend Judgment pursuant to F.R.C.P. 59(e) on

August 13, 1987, contending that the Canon

was unconstitutional because it permitted the

punishment of judicial candidates for criti-

cizing their opponents without requiring a

showing of “actual malice," as established in

New York Times v. Sullivan, 376 U.S. 255

(1964); and that he was not afforded an evi-

dentiary hearing to show that during the

preceding three years, the Respondents had

changed their conduct (or threatened conduct)

as a result of Judge Duncan's 1984 Opinion.

That motion was also overruled by Judge

Graham without a hearing.

On October 31, 1988, the Sixth Circuit

Court of Appeals affirmed Judge Graham's

judgment, but nowhere in their decision do

they discuss the "actual malice" requirement

of the New York Times case, even though it

had been briefed and orally argued. A9-20.

Berger then filed a Petition For Re-

hearing En Banc, wherein he complained that

the original panel did not address two of the

Issues presented to the court: namely, (1)

That the New York Times "actual malice"

standard be applied to the comments of Ohio

judicial candidates, and (2) That an eviden-

tiary hearing is required prior to the deter-

mination by a court as to whether or not a

litigant's lawsuit has caused a defendant to

alter his conduct based on the "catalyst"

theory. Said Petition was then overruled by

the Court of Appeals on January 24, 1989.

A1i-2, infra.

However, on February 14, 1989, one of

the Sixth Circuit judges, Judge Merritt,

filed a dissenting Opinion to the denial of

the Petition For Rehearing En Banc. A3-8,

infra. Therein, Judge Merritt argued that the

Canon was overbroad; prohibited any misrep-

resentation of a fact, no matter how innocent;

and, therefore, facially violated the First

Amendment due to the absence of an "actual

malice’ requirement.

REASONS FOR GRANTING THE WRIT

I. THE FIRST AMENDMENT RIGHT OF A JUDICIAL

CANDIDATE TO UNINHIBITEDLY SPEAK OUT, SO

AS TO HAVE AN INFORMED ELECTORATE, OUT-

WEIGHS THE STATE'S INTEREST IN BEING

SOLITIOUS ABOUT MAINTAINING THE SACRO-

SANCT IMAGE OF ELECTED STATE JUDGES BY

THE JUDICIAL IMPOSITION OF "CANDIDATE

LOCKJAW" WITH SANCTIONS FOR VIOLATION.

This Court has held that a state's power

to regulate elections does not extinguish its

responsibility to observe First Amendment

limitations. Tashjian v. Republican Party of

Conecticut, 479 U.S. 208,217 (1986).

More recently, this Court set down the

test to be applied in determining if a state

law regulating elections violates the First

Amendment. Eu v. San Francisco County Demo-

cratic Central Committee, 0.3 on” ee

U.S.L.W. 4251 (1989). The first determination

that must be made is whether the law burdens

First Amendment rights. If so, then secondly,

it must be determined whether the law serves

a compelling state interest, and is narrowly

tailored to serve that interest. 57 U.S.L.W.,

at p.4253.

The "[d]lebate on qualifications of can-

didates [is] integral to the system of govern-

ment established by our constitution." See

Buckley v. Valeo, 424 U.S. 1,14 (1976).

In 1987 and 1988, the lower courts held

that Canon 7(B)(1)(c) was not in violation of

the First Amendment becuase it does not pro-

hibit truthful and non-misleading criticisms

by Ohio judicial candidates. However, this

was the parroting of what Judge Duncan had

said for the first time in 1984. But, both

lower courts failed to consider that the

Canon contains no "actual malice" requirement

as established in New York Times v. Sullivan,

supra, although that issue was presented to

both lower courts.

This Court has held that the "actual

malice" requirement applies to criminal stat-

utes that punish conduct during election cam-

paigns. (But the ongoing threat of suspension

and disbarment are also onerous punishments

that can inhibit the free exercise of First

Amendment rights by judicial candidates).

Brown v. Hartlage, 456 U.S. 45 (1982), where

the following was said at page 56:

[the]. chilling effect of such absolute

accountability for factual misstatements

is incompatible with the atmosphere of

free discussion contemplated by the

First Amendment in the context of polit-

ical campaigns. (Citations omitted).

Although the state interest in protec-

ting the political process from distor-

tions caused by untrue and inaccurate

speech is somewhat different from the

state interest in protecting individuals

from defamatory falsehoods, the prin-

ciples underlying the First Amendment

remain paramount

The purpose of the "actual malice"

requirement is to prevent a "chilling effect"

on speech protected by the First Amendment.

Hustler Magazine, Inc. v. Falwell, 485 U.S.

, _, 108 S.Ct. 876,879 (1988).

There is a realistic danger that, in the

absence of an “actual malice" requirement,

judicial candidates will refrain from criti-

cizing their opponents rather than risk dis-

ciplinary charges being filed against them.

Secretary of State of Maryland v. Joseph H.

Munson Co., 467 U.S. 947,956 (1984).

Consequently, Canon 7(B)(1)(c) burdens

the First Amendment rights of Ohio judicial

candidates -- especially those who are not

running for Justice of the Ohio Supreme Court.

The Court of Appeals also held that the

Canon should be construed so as to avoid the

necessity of adjudicating the federal consti-

tutional question. But, the Canon must be

" of a limited construc-

"readily susceptible'

tion for the federal courts to apply it. See

Virginia v. American Booksellers Association,

___U.S.___,___,:108 S.Ct. 636,644 (1988).

In contrast, Canon 7(C)(9), (A56,infra),

prohibits judicial candidates from purposely

posting, publishing, circulating or distribu-

ting a written or printed false statement

either knowing the same to be false, or with

reckless disregard as to whether it was false

or not -- which is the equivalent of the

! tf .

‘actual malice requirement. see Judge

Merritt's comment at Ao, infra.

Additionally, Disciplinary Rule 8-102

A 1/1 C Nik O.. An ’ ae

(A)and(B) of the Ohio Supreme Court s Code of

Professional Responsibility, (A5/ , intra),

rohibits an atorney from knowingly making a

false statement f fact concerning the qual-

r1tions f 1 candidate for election or

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that can shoot down any judicial candidate,

and it matters little whether the gun is in

the hands of a Republican or Democratic Ohio

Supreme Ccurt.

In that respect, Judge Graham's 1987

Opinion held that Berger was no longer in

danger of being sanctioned under the Canon

due to the fact that since the filing of his

1984 action, there were now four new Justices

elected to the Ohic Supreme Court, and that

the Respondent Gagliardo is no longer the

Disciplinary Counsel. A29, infra. Hindsight

is grand, but the danger Berger faced in 1984

is hardly comparable to the latent situation

that existed in 1987 -- and besides, what if

Berger wants to run again, and the new Dis-

ciplinary Counsel doesn't like the idea of

his talking too much or saying what he may

personally consider to be wrong?

In answer, whether a statute may validly

be personally applied to a party before the

court, and others, it may nevertheless be so

overbroad that it "[m]lay inhibit the consti-

tutionally protected speech of third parties."

New York State Club Ass., Inc. v. New York

City, U.S...., <5 POG S$.C6.: 2225522353 (i966);

quoting from City Council v. Taxpayers for

Vincent, 466 U.S. 789,798 (1984) -- which is

the situation in the present case in that

Berger might have been safe in 1987, but

other present and future judicial candidates

will still be inhibited from speaking freely

due to the ever-present Canon. In that res-

pect, it should be remembered that Berger

brought his lawsuit as a class action seeking

to represent all Ohio judicial candidates,

but that certification was denied in 1987.

Moreover, judges are entitled to no more

immunity from criticism than are other public

officials. Landmark Communiciations, Inc. v.

Virginia, 435 U.S. 829, 842 (1978), so there

is no legitimate state interest justifying

the absence of an “actual malice" requirement

in the Canon.

As mentioned, Judge Graham's 1987 Opin-

ion was based on Judge Duncan's 1984 Opinion,

but the 1987 Opinion was rendered prior to

this Court's decision in Brockett v. Spokane

Arcades, Inc., 472 U.S. 491,503 (1985), which

held that an overbroad statute can be held

partially invalid. The Court of Appeals also

validated the Canon on the basis that it was

necessary to protect the dignity and integ-

rity of the judiciary.

However, fraudulent misrepresentations

of facts can be regulated, ... but the dis-

semination of ideas cannot be regulated to

prevent it from being unfair or unreasonable.

Riley v. National Federation of the Blind of

North Carolina, U.S. _ , , 108 S.Ct. 266/7,

2681 (1988) (Scalia, J., concurring in part

and concurring in judgment).

Nor is the Canon narrowly tailored to

serve the state's interest in protecting the

dignity of the judiciary, since a less re-

strictive alternative - an "actual malice"

standard is available. Boos v. Barry, _ U.S.

’

his

, 108 S.Ct. 1157,1168 (1988).

As Judge Merritt concluded at A/-8 of

dissenting Opinion, and after stating

that the Canon was overbroad:

Consideration of this case in light of

the actual holdings of the Supreme Court

on this matter leads me to the conclu-

sion that the panel has understated the

stringency of the review that we are

mandated to exercise, misread the chal-

lenged regulation, and failed to notice

a facial constitutional violation that

cuts directly into the premier First

Amendment interest - our’ ‘profound

national commitment to the principle

that debate on public issues should be

uninhibited, robust, and wide open [.]

New York Times Co. v. Sullivan, 3/76 U.S.

er pi oe

What is foreboding is that there are 3

new Republican Justices on the Ohio Supreme

Court

who personally took advantage of

Berger's work; knew the free speech oppres-

siveness of the Canon; and yet, the Canon

remains unchanged.

II. IN A STATE JUDICIAL ELECTION, THE EQUAL

PROTECTION CLAUSE IS VIOLATED WHEN THE

ONLY INDIVIDUALS "GAGGED" BY THE STATE

ARE THE JUDICIAL CANDIDATES THEMSELVES.

Both lower courts held that the Canon

does not deny Equal Protection because there

is a difference between elections for ju-

dicial officers and elections for legislative

and executive officials. But, it is only ju-

dicial candidates who can be punished for

misstatements of fact without the necessity

of a showing of "actual malice,"

while every-

one else who comments on a judicial contest

has the protection of the "actual malice"

test.

As such, the Canon contains "content

based" discrimination of speech by judicial

candidates in violation of the Equal Protec-

tion Clause. Carey v. Brown, 447 U.S. 455

(1980) and Police Department of Chicago v.

Mosley, 408 U.S. 92 (1972).

Additionally, First Amendment’ rights

constitute fundamental constitutional rights.

Shelton v. Tucker, 364 U.S. 479,488 (1960).

In Equal Protection cases concerning

fundamental constitutional rights, as herein,

strict judicial scrutiny (rather than the

rational relationship test) is applicable.

Clark v. Jeter, U.S. ., , 108 S.Ct. 2920,

1914 (1988) and Harper v. Virginia Board of

Elections, 383 U.S. 663,672 (1966).

A comparison of the challenged Canon

with Canon 7(C)(9), (A56,infra), and Discip-

linary Rules 8-102(A)and(B), (A57,infra),

will reveal that the objectionable Canon can-

not pass the strict scrutiny test due to its

restrictive prohibitions.

In essence, the ones who know the most

are the ones who can say the least!

III. A SECTION 1983 PLAINTIFF, WHOSE

"CATALYST" CLAIM HAS NOT BEEN DISPROVED,

IS THE PUTATIVE OWNER OF A _ COROLLARY

SECTION 1988 BENEFIT, AND MUST BE AFFOR-

DED AN EVIDENTIARY HEARING TO PROVE HIS

ENTITLEMENT THERETO.

Judge Graham's Opinion — dated Aug. 3,

1987; nearly 3 years after Judge Duncan's

precedent 1984 Opinion. The changes that

Judge Duncan's Opinion precipitated during

those 3 years were well known to any politi-

cal observer, but Berger's Motion For Attor-

ney Fees lay dormant from Jan. 15, 1985 until

he was surprised by Judge Graham's Opinion.

At no time was Berger afforded the opportun-

ity, by documentation or hearing, to present

any evidence as to the changes that evolved

as a proximate result of his lawsuit.

This Court has never determined when a

plaintiff, claiming that he is a "prevailing

party’ on a "catalyst" theory is entitled to

an evidentiary hearing on his Section 1988

®.

Motion For Attorney Fees. Yet, this Court has

held that a putative owner of a benefit must

be provided with an opportunity to prove his

entitlement. Perry v. Sindermann, 408 U.S.

593,603 (1972).

Herein, both lower courts found that

Berger had not demonstrated a change in the

conduct, or threatened conduct, of any of the

defendants as a direct result of his lawsuit.

Nice, but it's rather difficult to demon-

strate anything without being afforded the

opportunity.

A plaintiff can be considered as a "pre-

vailing party" entitled to an award of attor-

ney fees even when he does not obtain formal

judicial relief if his lawsuit caused the

defendant to change his conduct or threatened

conduct towards the plaintiff. Hewitt v.

Helms, 482 U.S. _, _, 107 S.Ct. 2672,26/76

(1987).

Additionally, the determination of an

award of attorney fees is collateral to, and

separte from, the decision on the merits of a

plaintiff's causes of action. White v. New

Hampshire Department of Employment Security,

455 U.S. 445,451 (1982) and Budinich v.

Becton Dickinson and Co., _U.S._, _, 108

S.Ct. 1747,1721 (1988).

Accordingly, Judge Graham's 1987 Order

granting the Respondents’ Motion For Summary

Judgment on the merits of Berger's claims for

relief cannot conclusively bar him from an

evidentiary hearing on the collateral issue

as to whether or not his lawsuit served as a

"catalyst" that caused a change of conduct or

threatened conduct of any of the Respondents

herein -- when that issue was hotly contested

in the pleadings before Judge Graham.

As in a Motion For Summary Judgment, the

Respondents had the burden of showing that

there was no genuine issue of fact as to

Berger's claim that his action acted as a

"catalyst." Celotex Corp. v. Catrett, 477

U.S. 317,323 (1986). The Respondents failed

to sustain that burden, and even Judge Graham

admitted at A29 that "Gagliardo is no longer

disciplinary counsel.”

Therefore, the issue as to whether or

not Berger's action was the proximate cause

of forbearance on the part of the Respondents

as a result of Judge Duncan's Opinion was

"intensely factual," infra, and even though

the court of appeals affirmed Judge Graham's

denial of Berger's Motion For Attorney Fees

without addressing the presented issue as to

whether or not an evidentiary hearing must be

afforded the putative owner of a claimed

benefit, nevertheless their avoidance of the

issue does not negate the recent position of

the Fifth rcuit Savidge \ Fincannon,

836 F.2d 898,905 1988), which hel that the

trial court err eciding the "intensely

factual" issue f causation without in

evidentiary Ne

IV. HAVING EFFECTIVELY OBTAINED ACTUAL BENE-

FITS FOR HIMSELF AND THE CLASS HE SOUGHT TO

REPRESENT BY JUDICIAL FIAT, A SECTION 1983

PLAINTIFF IS A “PREVAILING PARTY" ENTITLED TO

AN AWARD OF ATTORNEY FEES EVEN THOUGH HE DID

NOT OBTAIN FORMAL JUDICIAL RELIEF.

At A43-44 of Judge Duncan's Opinion, he

unequivocally states that:

Disciplinary Counsel is the individual

charged with investigating and prosecu-

ting judicial candiates for violations

of the Code of Judicial Conduct; there

has been a public manifestation, which

defendant Gagliardo has not disavowed,

of his belief that any criticism of an

incumbent judge in the course of a ju-

dicial campaign is a violation of the

Supreme Court s rules of judicial con-

duct; this understanding of the Judicial

Code has been reiterated by Disciplinary

Counsel in pleadings filed with the

Supreme Court of Ohio in Souers; and

Disciplinary Counsel has demonstrated a

readiness to initiate prosecution of

judicial candidates whose conduct he

considers to be inconsistent with such a

view of the Judicial Code. Given these

circumstances, it is fallacious to con-

clude that as a candidate for judicial

office plaintiff faces merely an ‘imag-

inary' threat of prosecution should he

follow through with his announced

intention to voice various criticisms of

the incumbent. To the contrary, his fear

of prosecution appears to be quite

reasonable.

Then later, at A49-50, Judge Duncan's

precedent statement that judicial candidates

(contrary to Disciplinary Counsel's position)

could criticize their opponents.

As such, Judge Duncan's words served as

a “red flag warning" to Disciplinary Counsel

not to institute any disciplinary charges

agaiust judicial candidates who criticized

their opponents, provided such criticisms

were truthful and not misleading.

Consequently, this was the injunctive

relief that Berger had originally sought,

albeit that it was given in a left-handed

manner. See First Amendment Rights of Attor-

neys and Judges in Judicial Election Cam-

paigns, 47 Ohio State Law Journal 201,205

(1986), Elizabeth I. Kiovsky. Also, the lead

newspaper editorial at A55.

Berger also obtained his requested

declaratory relief, albeit left-handedly,

when Judge Duncan cured the judicially in-

Oooo

flicted "lockjaw'' that had previously handi-

capped all Ohio judicial candidates by per-

mitting them to open their mouths for the

first time in Ohio history.

In Rhodes_v. Stewart, _U.S._, _, 109

S.Ct. 202,203 (1988), which was summarily

decided after the court of appeals decision

herein, it was held that two individual plain-

tiffs were not "prevailing parties" entitled

to an award of attorney fees despite their

having obtained a declaratory judgment be-

cause they did not obtain any actual benefits

from such judgment.

Also, in Hewitt v. Helms, supra, it was

held that a statement of law in a judicial

opinion was not the equivalent of a declara-

tory judgment, because the plaintiff did not

obtain any actual benefits from such state-

ment of law since the defendants were found

to be entitled to qualified immunity.

Therefore, it is the receipt of actual

benefits, rather than the mere obtaining of

rormal 1iclal reiier, tnat s tne keystone

in determining whether or not a plaintiff 1s

‘ 1 Rata ino narty’ +t at | | + an Award rn =

a yrevailing party entitled to an award ol

r r

attorney fees.

In actuality then, Berger did, in fact,

obtain actual relief for himself and _ the

members of the class he sought to represent,

even though he did not obtain formal judicial

relief. See our Loudermill v. Cleveland Board

of Education, 844 F.2d 304,313 (C.A.6,1988),

cert. den'd, U.S. __, 109 S.Ct. 377 (1988),

as he obtained nearly all the actual benefits

he sought in originally bringing his action.

In Hensley v. Eckerhart, 461 U.S. 424

(1983), this Court approved the definition of

a "prevailing party" established in Nadeau v.

Helgome, 581 F.2d 275,278 (CVA S16 7t 148s,

if the plaintiff "succeeds on any significant

issue in litigation which achieves some of

the benefits the parties sought in bringing

suit.'' (Emphasis)

Berger's action sufficiently opened the

First Amendment door that had been previously

nailed shut by the Respondents, and thereby

acually benefitted himself and the proposed

members of his class by correcting their

"lockjaw' predicaments. He also prevailed on

a significant issue when Judge Duncan placed

himself in the open doorway and implicitly

defied the Respondents to once again try to

nail that First Amendment door shut.

It is the omnipresence of Judge Duncan's

Opinion that keeps that First Amendment door

ajar in Ohio, and Berger now asks that this

Court fully swing open that door for all Ohio

judicial candidates.

CONCLUSION

For the foregoing reasons, this petition

for a writ of certiorari should be looked

upon favorably.

Respectfully submitted,

SANFORD J. BERGER, Counsel of Record

ROBERT M. FERTEL

Room 305, 1836 Euclid Ave.

Cleveland, Ohio 44115-2234

Phone: (216) 781-5950

BERGER & FERTEL, Petitioner's Lawyers

NO. 87-3935

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

SANFORD BERGER ()

Plaintiff-Appellant x

-vs - () ORDER

THE SUPREME COURT OF OHIO, ¢3

ET AL. ()

Defendants-Appellees ()

BEFORE: JONES and RYAN, Circuit Judges; and

HULL*, Chief Judge United States Dis-

trict Court

The Court having received a petition for

rehearing en banc, and the petition having

been circulated not only to the original

panel members but also to all other active

judges of this Court, and less than a major-

ity of the judges having favored the sugges-

tion, the petition for rehearing has been

referred to the original hearing panel.

The panel has further reviewed the peti-

tion for rehearing and concludes that the

issues raised in the petition were fully con-

sidered upon the original submission and

decision of the case. Accordingly, the

petition is denied.

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green

Leonard Green, Clerk

FILED

JAN 24, 1989

LEONARD GREEN, Clerk

*Hon. Thomas G. Hull sitting by designation

from the Eastern District of Tennessee

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

FEB 14 1989

LEONARD GREEN, Clerk

No. 87-3935

BERGER v. SUPREME COURT OF OHIO

MERRITT, Circuit Judge, dissenting from a

denial of en banc review.

I respectfully dissent from this Court's

refusal to reconsider en banc the First Amend-

ment issue in this case.

Petitioner Sanford J. Berger has made a

facial First Amendment challenge to a pro-

vision of the Ohio Code of Judicial Conduct

limiting the speech of candidates for state

judgeships. The provision reads as follows:

(1) A candidate, including an incumbent

judge, for a judicial office: :

of conduct in office other than the faith-

ful and impartial performance of the

duties of the office; announce his views

on disputed legal or political issues; or

misprepresent his identity, qualifications,

present position, or other fact.

Code of Judicial Conduct of Ohio Supreme

Court, Canon 7(B)(1)(c).

Berger evidently wished to state his views,

make pledges about reforms he would institute

if elected, and criticize the then current

administration of the state Domestic Rela-

tions Court.

Because he feared punitive application of

Canon 7(B)(1)(c) to him if he spoke out as he

wished,~ he sought a preliminary injunction

barring application of the Canon to him. He

lost in that bid, both before the District

Court and on appeal.

Canon 7(B)(1)(c) is an extremely far-

reaching prohibition on the political speech

of candidates for state judicial office. It

bars candidates from announcing their "views

on disputed or political issues," taking

within its sweep virtually any statement

about the state's political life that would

be relevant to voters in their effort to dis-

tinguish between candidates. Even more, it

bars candidates from misrepresenting, even by

an innocent mistake, any "fact."

Such a broad-ranging prohibition on polit-

ical speech runs directly afoul of decisive

Supreme Court precedent. First, the speech

of political candidates has repeatedly been

held to lie at the core of the values protec-

ted by the First Amendment.

Discussion of public issues and debate on

the qualifications of candidates are inte-

gral to the operation of the system of

government established by the Constitution.

The First Amendment affords the broadest

protection to such political expression in

order ‘to assure [the] unfettered inter-

change of ideas for the bringing about of

political and social changes desired by

the people.' Roth v. United States, 354

U.S. 476,484 (1957/7) ... As the Court

observed in Monitor Patriot Co. v. Roy,

401 U.S. 265,272 (19/1), “it can hardly be

doubted that the constitutional guarantee

has its fullest and most urgent applica-

tion precisely to the conduct of campaigns

for political office.'

Buckley v. Valeo, 424 U.S. 1,14-15 (1976).

Second, the Supreme Court has set its

highest standard of review for state regula-

tion of the speech of political candidates:

When a State seeks to restrict directly

the offer of ideas by a candidate to the

voters, the First Amendment surely re-

quires that the restriction be demonstra-

bly supported by not only a legitimate

state interest, but a compelling one, and

that the restriction operate without .un-

necessarily circumscribing protected

expression.

Brown v. Hartlage, 456 U.S. 45,53-54 (1982).

The panel opinion in the present case does

not cite any First Amendment precedent or

apply the proper standard. In particular, it

misses the significant overbreadth problem

posed by the Ohio Canon. The panel adopts

the District Court's reading that the Canon

"does not prohibit criticisms of judicial

administrations, or incumbents which are

untruthful or misleading." Berger v. Ohio

Supreme Court, No. 87-3935, slip op. at 4

(6th Cir. Oct. 31, 1988). That reading is

clearly incorrect. Canon 7(C)(9) is explic-

itly limited to knowing or reckless false-

hoods, but that is not the Canon which is

under challenge. Canon 7(B)(1)(c), which is

the subject of this litigation, explicitly

prohibits the misrepresentation of any "other

fact."" The Supreme Court was faced with a

campaign regulation that did just that in

Brown v. Hartlage, and there it said:

The chilling effect of such absolute

accountability for factual misstatements

in the course of political debate is incom-

patible with the atmosphere of free dis-

cussion contemplated by the First Amend-

ment in the context of political campaigns.

Brown v. Hartlage, 456 U.S. at 61. The

Supreme Court suggested that, in that context,

it would adopt the standard articulated in

New York Times Co. v. Sullivan, 376 U.S. 254

(1964), and allow regulation only of mis-

statements knowingly or recklessly made.

Brown v. Hartlage, 456 U.S. at 61-62.

Consideration of this case in light of the

actual holdings of the Supreme Court on this

matter leads me to the conclusion that the

panel has underestimated the stringency of

the review that we are mandated to exercise,

misread the challenged regulation, and failed

to notice a facial constitutional violation

that cuts directly into the premier First

Amendment interst -- our “profound national

commitment to the principle that debate

4 =

—

'@)

WY)

—

—_

—

uninhibited, robust

s - 7? at <7 ; —

and wide-open. New York Times

FILED

OCT 31 1988

LEONARD GREEN, Clerk

No. 8/-3935

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

SANFORD BERGER ()

Plaintiff-Appellant 4 ON APPEAL FROM

‘i+ ‘SHE UNITED STATES

() DISTRICT COURT

THE SUPREME COURT OF OHIO, (5 FOR THE

Et AL. () SOUTHERN

Defendants-Appellees () BESTE Lws, UF

OHIO

BEFORE: JONES and RYAN, Circuit Judges; and

HULL, Chief District Judge.*

Per Curiam. Sanford J. Berger, the plain-

tiff-appellant, filed this suit on June 11,

1984, in the United States District Court for

the Southern District of Ohio, seeking pre-

liminary and permanent injunctive relief and

a declaratory judgment holding Canon 7(B)(1)

("Canon 7 B(1)(c)" or “the Canon") unconsti-

tutional. The dustrict cou.t denied Berger's

motion for preliminary injunctive relief on

A10

September 14, 1984, Berger v. The Supreme

Court of Ohio et al., 598 F. Supp. 69 (S.D.

Ohio 1984) ("Berger I"), and granted summary

judgment in favor of ali the defendants on

August 3, 1987, Berger v. The Ohio Supreme

Court of Ohio et al., No. C2-84-1227, slip

op. (S.D. Ohio Aug.3,1987) ("Berger II"). On

August 13, 1987, Berger filed a motion for a

new trial or, in the alternative, to alter or

amend the judgment. When this motion was

denied, Berger timely filed his notice of

appeal to this court.

Upon consideration, we find no reason to

disturb the district court's judgment and

hereby affirm.

In 1984, when this lawsuit was filed,

Berger was a candidate for the office of

Judge of the Cuyahoga County Court of Common

Pleas, Division of Domestic Relations. Asa

part of his campaign, Berger wished to pub-

licly discuss his views, make certain pledges

A11

and promises regarding reform of practices of

the office he sought, and publicly criticize

what he preceived to be deficiencies in the

administration of the Domestic Relations

Court. see Berger I, 5398 F. Supp. at /2.

However, because Berger believed that such

comments were prohibited by Canon 7(B)(1)(c),

he filed a lawsuit seeking a preliminary

injunction preventing the enforcement of

Canon 7(B)(1)(c)'s provisions against him.

Berger named as defendants the Supreme Court

of Ohio, its Chief Justice and Justices,

Angelo Gagliardo, Disciplinary Counsel to the

Supreme Court of Ohio, and the Board of Com-

missioners on Grievances and Discipline of

the Judiciary.

The district court held that Berger was

not entitled to a preliminary injunction

since he had not shown he was likely to suc-

ceed on the merits of his case, i.e., he was

not likely to show that Canon 7(B)(1)(c) was

unconstitutional. In granting final summary

A12

judgment in favor of the defendants, the

district court concurred in the reasoning of

its earlier decision, holding that the Canon

could be interpreted so as to avoid constitu-

tional infirmities under the first and four-

teenth amendments to the United States Con-

stitution. The district court also denied

Berger's motion for attorney fees, holding

that he was not a "prevailing party" within

the meaning of 42 U.S.C. § 1988 (1982).

Berger appeals the district court's summary

judgment in favor of the defendants as well

as the denial of his request for attorney

fees.

The focus of this appeal is Canon 7(B)(1)

(1) A candidate, including an incumbent

judge, for a judicial office:

conduct in office other than the faithful

and impartial performance of the duties of

the office; announce his views on disputed

legal or political issues; or misrepresent

his identity, qualifications, present

position, or other fact.

A13

A candidate who violates this Canon is sub-

ject to disciplinary proceedings under the

Rules for the Government of the Judiciary of

Ohio.

Berger claims that the Canon impermissibly

infringes upon a judicial candidate's first

amendment rights to free speech. He further

claims that the Canon violates his right to

equal protection under the fourteenth amend-

ment because it applies only to candidates

for judicial office. Finally, Berger argues

that the Canon is void for vagueness. We

reject each of these contentions.

When the constitutional validity of a

statute is drawn in question, it is a car-

dinal principle that federal courts’ should

first determine whether a reasonable con-

struction of the statute may avoid the con-

stitutional question. See Ashwander v. TVA,

297 U.S. 288,348 (1936)(Brandeis, J. concur-

ring). When the constitutionality of state

A14

statutes has been questioned, this court has

noted that "state legislatures are presumed

by federal courts to have acted constitution-

ally in making laws." Hartford Fire Ins. Co.

v. Lawrence,Dykes,Goodenberger,Bower & Clancy

740 F.2d 1362,1366 (6th Cir.1984). Therefore,

state statutes which have not been authorit-

atively construed by state courts should be

interpreted by federal courts so as to avoid

constitutional questions. See Dale Baker

Oldsmobile v. Fiat Motors of North America,

Inc., 794 F.2d 213,221. (6th Cir.2984).

Although the instant case involves a consti-

tutional challenge to a judicially enacted

disciplinary rule, rather than a legislative

provision, the same principles which guide

our interpretation of state statutes are

applicable herein. Compare Middlsex Ethics

Comm. v. Garden State Bar Ass'n, 457 U.S. 423

(1982) (applying traditional abstention doc-

trine where the constitutionality of a judic-

ially enacted disciplinary rule is challenged).

A15

Applying this analysis to Canon 7(B)(1)(c),

which has not been authoritatively construed

by the Ohio Supreme Court, we conclude that

the Canon is not facially violative of the

first amendment. On its face, the Canon does

not infringe upon a candidate's first amend-

ment right to free speech because it "does

not prohibit criticisms of judicial adminis-

trations or incumbents which are not untruth-

ful or misleading." Berger II, slip op. at 4.

Rather, as the district court noted, "the

rule recognizes that judges are frequently

called to adjudicate cases squarely presen-

ting social and political issues," and seeks

to protect the state's compelling interest in

ensuring judicial integrity and impartiality.

Id. at 4-5. Since the Canon does not prohibit

a judicial candidate from running a truthful,

upright and vigorous campaign, we hold that

it does not violate the first amendment on

its face.

For similar reasons, we find that the

A16

Canon, as applied to Berger, does not violate

the first amendment. As we noted earlier,

Berger sought only to publicly discuss his

views and make certain pledges and promises

regarding reforms in the administration of

the Domestic Relations Court. See Berger I,

598 F.Supp. at 7/72. None of these acts neces-

sarily is prohibited by the Canon. Moreover,

Berger has produced no evidence showing that

he is in danger of being disciplined for

engaging in these activities. Id. at 75;

Berger II, slip op. at 2. Under these circum-

stances, Berger has not raised a _ genuine

issue of material fact as to whether the

Canon violates his first amendment rights.

Berger next contends that the Canon vio-

lates the equal protection clause of the

fourteenth amendment because it only applies

to candidates for judicial office. Although

the Canon does not single out judicial can-

didates for different treatment, we agree

A17

with the district court that "[t]he very pur-

pose of the judicial function makes inapprop-

riate the same kind of particularized pledges

and predetermined commitments that mark cam-

paigns for legislative and Honaiias oftica,”

Berger I, 598 F.Supp. at /6. See also Morial

v. Judiciary Comm'n, 565 F.2d 295,304-306

(5th Cir.1977), cert. denied 435 U.S. 1013

(1978). Because the state's compelling inter-

est in ensuring judicial integrity and impar-

tiality justifies the special restrictions

set forth in Canon 7B(1)(c), there is no

material factual dispute concerning Berger's

equal protection challenge and the defendants—

were entitled to judgment as a matter of law.

Ped. BR. Civ. PB. -S6Ce}.

Berger argues that Canon 7B(1)(c) violates

the due process clause of the fourteenth

amendment becuase it is void for vagueness.

The test for determining whether an enactment

is void for vagueness is whether the pro-

A18

vision gives a person of ordinary intelli-

gence a reasonable opportunity to know what

is prohibited. Grayned v. City of Rockford,

408 U.S. 104,108-109 (1972). The Supreme

Court has noted that "[t]he degreee of vague-

ness that the Constitution tolerates - as

well as the relative importance of fair

notice and fair enforcement - depends in part

on the nature of the enactment... and has

"expressed greater tolerance of enactments

with civil rather than criminal penalties

because the consequences of imprecision are

qualitatively less severe. Id. at 498-99.

Upon consideration, we agree with the dis-

trict court that Canon 7B(1)(c) is not imper-

missibly vague. Because the disciplinary

sanctions attendant upon a violation of the

Canon do not include criminal penalties, the

stringent notice requirements that are applic-

able in the criminal context do not apply

here. Moreover, while the language of the

Canon certainly leaves room for interpreta-

_——<<<«x«x«u<uKNxNne ee

A19

tion, we find that the rule adequately noti-

fies judicial candidates of what kinds of

speech and/or conduct are proscribed. There-

fore, we conclude that the district court

properly disposed of Berger's vagueness

challenge.

IIl.

Berger also contends that the district

court abused its discretion in denying his

request for attorney fees pursuant to 42

U.S.C. § 1988.

Under section 1988, only a "prevailing

party’ may recover attorney fees. The Supreme

Court has stated that a “prevailing party" is

one who "receive[s] at least some relief on

the merits of his claim..." Hewitt v. Helms,

107 S.Ct. 2672,2675 (1987). "[A] favorable

judicial statement of law in the course of

litigation that results in judgment against

the plaintiff does not siffice to render him

a “prevailing party" under section 1988. Id.

at 2677. Although the plaintiff's relief need

A20

not be judicially decreed to support a fee

award under section 1988, the plaintiff must

show that the defendant changed the behavior

of which he complained, because of the law-

suit, to support an award. Id. at 26/6.

In the case at bar, Berger obtained no

judicially decreed relief on the merits of

his claims. Moreover, as the district court

found, Berger has not demonstrated that the

defendants altered their conduct toward him

because of this lawsuit. See Berger II, slip

op. at 9. Under these circumstances, the

district court correctly determined that

Berger was not a "prevailing party" within

the meaning of 42 U.S.C. § 1988.

IV.

For the above stated reasons, we hereby

AFFIRM the judgment of the district court.

ISSUED AS MANDATE: February 1, 1989

COSTS: None

*Honorable Thomas G. Hull, United States

District Court for the Eastern Division of

Tennessee, sitting by designation.

A21

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Sanford J. Berger ()Case No. C2-84-1227

Plaintiff ¢ } JUDGE GRAHAM

Sane + FILED:

The Supreme Court of ‘) August 3, 1987

Ohio, et al. ()

Defendants ()

MEMORANDUM AND ORDER

Several motions are pending bfore the

court in the above case. The court will first

consider the motion of defendants for sunm-

mary judgment.

Summary judgment procedures are governed

by Rule 56, Fed. R. Civ. P., which provides:

The judgment sought shall be rendered

forthwith if the pleadings, depositions,

answers to interrogatories and admissions

on file, together with the affidavits, if

any, show that there is no genuine issue

as to any material fact.

Summary judgment will not lie if the dis-

pute about a material fact is genuine. Ander-

son v. Liberty Lobby, Inc., 54 U.S.L.W. 4755,

4757 (June 25, 1986). However, summary judg-

ment is appropriate if the opposing party

A22

fails to make a showing sufficient to estab-

lish the existence of an element essential to

that party's case. Celotex Corp. v. Catrett,

54 U.S.L.W. 4775,4777 (June 25, 1986).

The complaint herein, filed on June 11,

1984, is a suit under 42 U.S.C. §1983. Plain-

tiff at that time was a candidate for judi-

cial office in Cuyahoga County, Ohio. The

named defendants are the justices of the Ohio

Supreme Court, the disciplinary counsel for

the Ohio Supreme Court, the Board of Commis-

sionerts on Grievance and Discipline of the

Judiciary, the chairman and secretary of that

Board and the governor of the State of Ohio.

The subject of plaintiff's suit is Canon

7B(1)(c) of the Code of Judicial Conduct,

which provides:

(1) A candidate, including an incumbent

judge, for a judicial office:

conduct in office other than the faithful

and impartial performance of the duties of

the office; announce his views on disputed

legal or political issues; or misrepresent

his identity, qualifications, present

position, or other fact.

A23

A candidate who violates Canon 7B is sub-

ject to disciplinary proceedings under Rules

I and II of the Rules for the Government of

the Judiciary.

Plaintiff's complaint alleges that Canon

7B(1)(c) impermissibly infringes upon a

judicial candidate's First Amendment rights.

Plaintiff further claims that the Canon vio-

lates the Equal Protection Clause of the

Fourteenth Amendment in that non-judicial

candidates are not subject to similar restric-

tions. Plaintiff additionally asserts in his

supplemental brief in support of his motion

for a preliminary injunction that the Canon

is void for vagueness, thereby creating a

danger of censorship through selective enfor-

cement. Plaintiff requests injunctive and

declaratory relief prohibiting enforcement of

the canon and holding it to be unconstitu-

tional on its face and as applied.

Plaintiff has indicated that as a candi-

date for the Domestic Relations bench of

A24

Cuyahoga County, he would make pledges or

promises to reform certain practices of the

court relative to the management of cases,

such as personal participation by the judge

in the mediation of disputes. Plaintiff

desires to criticize the excessive use of

trial referees by the court. Plaintiff's Sup-

plemental Brief, p. 5).

This court's predecessor, Judge Robert M.

Duncan, had occasion to address plaintiff's

claims in connection with plaintiff's motion

for a preliminary injunction. Judge Duncan's

opinion is now published in Berger v. Ohio

Supreme Court of Ohio, 598 F.Supp. 69 (S.D.

Ohio 1984). In denying plaintiff's motion for

a preliminary injunction, Judge Duncan found

that plaintiff had failed to establish that

he was likely to succeed on the merits. This

court agrees with Judge Duncan's wellreasoned

analysis of plaintiff's claims and adopts

that analysis as being equally appropriate to

the resolution of the merits of the case.

A25

Plaintiff has failed to demonstrate that

Canon 7B(1)(c) is unconstitutional on its

face or as applied to him. The Canon's pro-

hibition against announcing views on legal or

political issues does not prohibit critcisms

of judicial administrations or incumbents

which are not untruthful or misleading. See,

In re Inquiry Relating to Baker, 218 Kan. 209

542 P.2d 701 (1975); Matter of Riley, 691

P.2d 695 (Ariz. 1984). Rather, the rule

recognizes that judges are frequently called

to adjudicate cases squarely presenting

social and political issues, and the state's

interest in ensuring that judges be and

appear to be neither antagonistic nor behol-

den to any interest or person is entitled to

the greatest respect. Morial v. Judiciary

Commission of the State of Louisiana, 565

F.2d 295,302 (5th Cir. 1977).

The Canon further prohibits making pledges

or promises of conduct in office other than

the faithful and impartial performance of the

A26

duties of the office. The Supreme Court has

recognized that some knids of promises made

by candidates to voters may be declared

illegal without constitutional difficulty.

Brown v. Hartlage, 456 U.S. 45 (1982). Judges

cannot, consistent with the proper exercise

of judicial powers, bind themselves to decide

particular cases in order to achieve a given

programmatic result. Morial, supra, at 303:

It is a serious accusation to charge a judi-

cial officer with making a politically mot-

ivated decision. Clements v. Fashing, 45

U.S. 957,968 (1982). In contrast, plaintiff

desires to make statements concerning reforms

he would institute in court procedures in the

event of his election. Plaintiff's proposed

promises relate to the faithful performance

of the duties of judicial office and are

expressly exempted from the scope of Canon

7BCL ICE?

The third provision in Canon 7B(1)(c) pro-

hibits misrepresentations of a candidate's

A2/7

identity, qualifications, present position or

other fact. However, demonstrable falsehoods

do not warrant the First Amendment protection

applied to truthful statements. New York

Times Co. v. Sullivan, 376 U.S. 254 (1964);

Brown v. Hartlage, supra, at 60; In re Dono-

hoe, 580 P.2d 1093 (Wash. 1978).

When a state seeks to restrict directly

the offer of ideas by a candidate to the

voters, the First Amendment requires that the

restriction be demonstrably supported by a

compelling state interest. Brown v. Hartlage,

supra, at 53. Nonetheless, it has long been

recognized that the states have a compelling

interest ii~cegulating the activities of

attorneys and judiciaft~officers. See, Gold-

farb v. Virginia State Bar, 42E—U.S. 773

(1975); Clements v. Fashing, supra; Morial |

Judiciary Comm. of the State of Louisiana,

supra. The State of Ohio has a compelling

state interest in assuring that judicial

campaigns are free of untruthful criticisms,

sree a

A28

Statements or promises which impugn the in-

tegrity and impartiality of the’ state's

judiciary. The interests of the state far

outweigh any intrusion upon the First Amend-

ment rights of judicial candidates occasioned

by Canon 7B(1)(c).

This court further finds that Canon 7B(1)

ness and the language of the provision is

sufficiently clear that there is no impermis-

sible risk of arbitrary enforcement. See,

Village of Hoffman Estates v. The Flipside,

Hoffman Estates, Inc., 455 U.S. 489 (1982).

Plaintiff has also failed to demonstrate

that Canon 7B(1)(c), by singling out judicial

candidates, violates the Equal Protection

Clause. The judiciary is a separate branch

under the Ohio Constitution, and a judge's

duties are distinct from that of other elec-

eee

ted or appointed officers. The state has a

complelling interest in maintaining the fair-

ness and neutrality of its judiciary in light

| eee

A29

of the nature of the judicial function. These

same considerations do not apply to candid-

ates for legislative or executive office who,

if elected, would be in a position to initi-

ate sweeping legislative or policy changes,

and who serve the special interests of their

constituents.

As a matter of law, Canon 7B(1)(c) is con-

stitutional on its face. Furthermore, plain-

tiff has not demonstrated that Canon 7 is

unconstitutional as applied to him. As Judge

Duncan noted in his decision, Berger v.

Supreme Court of Ohio, supra, at 75, the Ohio

Supreme Court has given no indication that it

would interpret the Canon to mean anything

more than it says on its face. Plaintiff has

produced no evidence that he is in danger of

prosecution under the Canon. In fact, the

court takes notice that since the filing of—

eRe a ey

this case, four new justices have been elec-

ted to the Ohio Supreme Court and defendant

Gagliardo is no longer disciplinary counsel.

A30

Plaintiff has submitted no evidence to indi-

cate that any member of the current Ohio

Supreme Court, disciplinary counsel or the

Board of Commissioners espouses an interpre-

tation of the Canon which would render its

application unconstitutional. The court finds

that no genuine issue of material fact exists

in the present case, and that defendants are

entitled to summary judgment.

Plaintiff has filed a motion for declara-

tory judgment to the effect that any discip-

linary proceeding instituted against a judi-

cial candidate for criticisms of his opponent

or the court that are truthful and not mis-

leading would constitute a violation of the

First and Fourteenth headddants. Plstati<t's >

\dments

Ay eae

. . Qe ag ee

__motionis-miot well taken.

This court lacks jurisdiction to authori-

tatively construe state legislation. United

States v. Thirty-seven Photographs, 402 U.S.

363,369 (1971). Ohio courts have the final

authority to interpret that state's legisla-

A31

tion. Brown v. Ohio, 432 U.S. 161 (1977). The

Ohio courts have yet to address or interpret

the provisions of Canon 7B(1)(c). In such a

situation, this court's role is confined to

examining the words of Canon 7b(1)(c) itself.

Coates v. City of Cincinnati, 402 U.S. 611,

614 (1971). The court has found that the

Canon is constitutional on its face and de-

clines to speculate that Ohio courts in the

future will engraft upon the rule some uncon-

stitutional meaning.

Plaintiff's motion for certification as a

class is moot in light of the court's ruling

on defendant's ik See ee Eleoat.

SP Leni FE has alse moved for attorney fees

under 42 U.S.C. §1988. Plaintiff claims that

by reason of Judge Duncan's order, defendants

were discouraged from instituting disciplin-

ary proceedings against judicial candidates

who criticized their opponents, and that

therefore plaintiff achieved some of the

benefits he sought in bringing the action.

A32

Plaintiff asserts that he is therefore a

"prevailing party" for purposes of an award

of attorney fees under §1988.

A plaintiff must receive some relief on

the merits of his claim before he can be said

to prevail, whether such relief be in the

form of a damage award, injunctive or declar-

atory relief, consent decree or settlement.

Hewitt v. Helms, 55-U.S.L.W. 4907 (June 19,

4987). None of these forms of relief are

present here. A favorable statement of law in

an otherwise unfavorable opinion does not

suffice to render the plaintiff a "prevailing

party." Id. at 4910. Plaintiff has not demon-

strated that the defendants in any way al-

tered what otherwise would have been their

conduct as to him. The fact that plaintiff

initially overestimated the nature of the

restrictions contained in Canon 7B(1)(c) and

was later reassured by the court's opinion

disagreeing with plaintiff's interpretation

is not sufficient to grant plaintiff "pre-

<&<@<<<eo& ™

A33

vailing party" status.

Whereupon, it is hereby ordered that

defendants' motion for summary judgment is

GRANTED. Plaintiff's motions for declaratory

judgment, certification of a class, and

attorney's fees are DENIFD. Judgment shall be

entered for the defendants.

/s/ James L. Graham

JAMES L. GRAHAM

United States District Judge

Date: August 3, 1987

A34

United States District Court

S.D. Ohio, E.D.

Sept. 14, 1984

Sanford J. Berger, Plaintiff

Vv.

The SUPREME COURT OF OHIO, et

al., Defendants

MEMORANDUM AND ORDER

DUNCAN, District Judge.

This matter is before the Court on plaintiff

Sanford Berger's motion for a preliminary

injunction preventing defendants from enfor-

cing the provisions of Canon 7B(1)(c) of the

Supreme Court of Ohio's Code of Judicial Con-

duct and Rules I and II of the Rules for the

Government of the Judiciary of Ohio. Plain-

tiff claims that the above mentioned provis-

ions deprive him of free speech in violation

of the First and Fourteenth Amendments to the

United States Constitution and of equal pro-

tection in violation of the Fourteenth Amend-

ment. The court's findings of fact and con-

clusions of law follow hereinafter.

A35

Defendants in this case are the Supreme

Court of Ohio, its Chief Justice and Justices,

Angelo Gagliardo, Disciplinary Counsel to the

Supreme Court of Ohio, and the Board of Com-

missioners on Grievances and Discipline of

the Judiciary. Defendant Supreme Court of

Ohio is responsible for the governance of the

bar of the State of Ohio including the dis-

ciplining of lawyers, judicial candidates,

and judges, see Ohio Constitution Art. IV

§$5(B), and in pursuance of that duty has

promulgated the Code of Judicial Conduct and

Rules for the Government of the Judiciary of

Ohio. Defendant Angelo Gagliardo is the Dis-

ciplinary Counsel of the Supreme Court of

Ohio and is responsible for investigating and

prosecuting disciplinary complaints against

judicial candidates and judges in Ohio. Defen-

dant Board of Comissioners on Grievances and

Discipline of the Judiciary hears grievances

against judges and judicial candidates and

refers misconduct and determinations to the

rome

Supreme Court for review and action.

Canon 7b(1)(c) of the Code of Judietal_

Conduct provides:

(1) A candidate, including an incumbent

judge, for a judicial office:...(c)should

not make pledges or promises of conduct in

office other than the faithful and impar-

tial performance of the duties of the

office; annopunce his views on disputed

legal or political issues; or misrepresent

his identity, qualifications, present

position, or other fact.

Rules I and II of the Rules for the Govern-

ment of the Judiciary of Ohio provide for

disciplinary action, including disbarment,

against members of the bar who violate the

rules of conduct of the Supreme Court of Ohio.

Plaintiff Berger is a candidate for the

office of Judge of the Cuyahoga County Court

of Common Pleas, Division of Domestic

Relations, and as such-has expressed a desire

to publicly discuss his views, and make cer-

tain pledges and promises, regarding reform

of practices in the office he seeks. More

specifically, plaintiff has manifested a

desire to publicly state as a judge in Cuya-

A37

hoga County that he would "first attempt to

have the parties who appear before him medi-

ate their disputes, without the presence of

their attorneys, in order to remove some of

the adversary affects (sic) of the divorce

system upon the litigants.” See Plaintiff's

Supplemental Brief in Support of His Motion

for Preliminary Injunction. Plaintiff also

desires to "criticize the excessive use of

trial referees by the court and that he would

hear most matters himself; or be able to

criticize traditional dehumanizing proce-

dures." Id. At the hearing on plaintiff's

motion, plaintiff reiterated his desire to

criticize what he perceives to be deficien- —

cies-in the current adainisteatios of domes-

tic relations law in Cuyahoga County and to

voice his views on needed reforms. Plaintiff

also stated at the hearing that he would like

to make publicly known his "philosophy" or

“platform.'

It is plaintiff's contention that Canon

——————

A38

7B(1)(c) not only prohibits judicial candi-

dates from making public statements about

pending cases, but also prohibits general

criticisms of the incumbent and/or the admin-

istration of the court, and pledges regarding

reform of judicial —practices. Indeed, it

appears to be plaintiff's view that pursuant.

to Canon 7B(1)(c) a candidate for judicial

office may not publicly state anything other

than that he will faithfully and impartially

perform the duties of the office. See Plain-

tiff's Motion for a Temporary Restraining

Order and Preliminary Injuctions, p.2. Plain-

tiff asserts that such a restriction on

speech violates his First and Fourteenth

Amendment rights. Alternatively, plaintiff

suggests that there are no _ ascertainable

standards as to what constitutes a statement

with regard to the "faithful and impartial

performance of one's duties in office."

Plaintiff maintains that the uncertain scope

of the rulé, in conjunction with the possible

A39

penalties for violation thereof, has_ the

effect of "chilling" his right of free speech.

Therefore, plaintiff asserts, the rule should

be declared unconstitutional on its face for

vagueness. See Plaintiff's Supplemental Brief

GO. 2

Finally, plaintiff contends that Canon 7

B(1)(c) denies him equal protection of the

law as guaranteed by the Fourteenth Amendment

to the United States Constitution because it

arbitrarily and without sufficent justifica-

tion, applies only to candidates for state

judicial, as opposed to legislative and

executive, positions.

As stated above, a hearing has been held

to determine whether a preliminary injunction

should issue.

Prior to turning to the question of

whether injunctive relief is warranted, how-

ever, the Court feels compelled to examine

two preliminary issues raised by defendants:

first, whether plaintiff has standing to

SEROTEC AIL: Pt i 8s ted Bt

Bees

A4O

bring suit, and second, whether the pendency

of a related proceeding before the Supreme

Court of Ohio warrants abstention in the case

at bar.

Standing

In their memorandum in opposition to plain-

tiff's motion, defendants state that at pres-~-

ent "no investigation of Plaintiff [by defen-

dants for violation of a rule of conduct] is

under way; in fact, defendants have not even

received any complaints concerning Plaintiff."

Defendants contend that until the state's in-

vestigative and enforcement powers are actu-

ally utilized, defendants have acted only in a

legislative capacity, and are thereby immune

from suit. See Supreme Court of Virginia v.

Consumers Union, 446 U.S. 719, 100 S.Ct. 1967,

64 L.Ed.2d 641 (1980). Defendants add that as

of yet plaintiff has not even outlined an

anticipated course of conduct with sufficient

clarity to create a potential case or contro-

versy for the court, much less given defen-

A41

dants cause to initiate an investigation. As a

result, defendants assert that plaintiff lacks

standing at this point to .challenge defendants

with regard to the constitutionality of Canon

7B(1)(c). The Court does not agree.

[1] Plaintiff has indeed outlined with

relative specificity a prefrred course of con-

duct in running for judicial office and has

clearly expressed a desire to make concrete

criticisms of the incumbent and current admin-

istration. For example, plaintiff wishes to

publicly criticize what he perceives to be the

current administration's overuse of referees

and to pledge to limit such use. Plaintiff has

also voiced a need for the administration to

encourage more parties to mediate their prob-

lems among themselves, without the presence of

attorneys.

[2] Nor does it appear that the threat to

plaintiff of prosecution under Canon

7B(1)(c) should he publicly issue the above

statements is purely “imaginary or specula-

CO —————

tive."" In his supplemental brie aintiff

notes an article from the Canto Repository

which purports to quote defendant Gagliardo,

in his capacity as Disciplinary Counsel, in

connection with another disciplinary proceed-

ing against a judicial candidate. Disciplinary

Counsel v. Hon. Loren E. Souers, Jr., Case

Number DD84-3, which also involves alleged

violations of Canon 7B(1)(c), is currently

pending before the Supreme Court of Ohio. The

article states:

He [Gagliardo] said even if Souers had been

correct in all of his allegations, he still

violated judicial canons that forbid can-

didates from challenging the records of

incumbents. ... He said candidates should

refer only to their background, awards they

have received and endorsements from groups

that support them.

See Plaintiff's Supplemental Brief, p.7 and

Exhibit "C" to that Brief, an article from the

Canton Repository. Defendant Gagliardo has not

attempted, in the case at bar, to disavow

those comments or object to their reported

scope or context. In fact, such a viewpoint of

’

A43

the scope of the Judicial Code of Conduct is

reiterated in Disciplinary Counsel's Brief in

Oppositi o Respondent's Objections to the

Findings of Fact which was he Souers

case. In that Brief, Disciplinary Counsel

makes clear that in his view the Code of Judi-

cial Conduct prohibits candidates for judicial

office from making comments that are critical

of the incumbent, regardless of the truth or

falsity of those allegations. To summarize,

Disciplinary Counsel is the individual charged

with investigating and prosecuting judicial

candidates for violations of the Code of Judi-

cial Conduct; there has been a public manifes-

tation, which defendant Gagliardo has not dis-

avowed, of his belief that any criticism of an

incumbent judge in the course of a judicial

campaign is a violation of the Supreme Court's

rules of judicial conduct; this understanding

of the Judicial Code has been reiterated by

Disciplinary Counsel in pleadings filed with

the Supreme Court of Ohio in Souers; and Dis-

A44

ciplinary Counsel has demonstrated a readiness

to initiate prosecution of judicial candidates

whose conduct he considers to be inconsistent

with such a view of the Judicial Code. Given

these circumstances, it is fallacious to con-

clude that as a candidate for judicial office

plaintiff faces merely an "imaginary" threat

of prosecution should he follow through with

his announced intention to voice various criti

cisms of the incumbent. To the contrary, his

fear of prosecution appears to be quite reason

able. Plaintiff need not expose himself to

actual prosecution to present a justiciable

controversy to this Court; the threat of pros-

ecution is enough. See Steffel vy. Thompson,

415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505

(1974) and Doran v. Salem Inn, ie .. G2: U.S.

344, 95 S.Ct. 2561, 45 £84.24 Ga&e (1975).

Preconduct challenges to the validity of laws

burdening First Amendment rights are among the

essential bulwarks of a system of free expres-

Sion. Morial v. Judiciary Commission of State

A45

of LA, 565 F.2d 295,298 (Sth Cir. 1977),

[3] Additionally, defendants are not in

this case shielded from suit by legislative

immuni inti seeks declaratory and in-

junctive relief from the threat of impending

investigation, prosecution and perhaps, sanc-

tion. Defendants are before the Court not in

any legislative Capacity, but in their capa-

city as investigators and enforcers. In such a

Capacity, legislative immunity does not apply.

See Supreme Court of Virginia v.- Consumer's

Union, supra.

It is, therefore, the Court's Opinion that

plaintiff has Standing to bring suit in this

case.

Abstention

Defendants have also brought the Souers

case to the Court's attention. Souers involves,

among other’ things, alleged violations of

Canon 7B(1)(c), and the respondent in that

case has raised First Amendment defenses. Def-

endants contend that the pendency of the

A46

Souers case warrants abstention by this Court

in the case at bar, under the Pullman doctrine.

see Railroad Commission of Texas v. Pullman Co

312 U.S. 496, 61 S.Ct. “Bag7"> 89 Lees ce ore

(1941), since the Supreme Court of Ohio in

Souers might interpret Canon 7B(1)(c) in such

a manner as to render unnecessary or substan-

tially modify the federal constitutional ques-

tions piresented in the case at bar.

[4] It is the Court's belief that absten-

tion is not, under the circumstances at hand,

appropriate. The abstention doctrine is not an

automatic rule applied whenever ae federal

court is faced with a doubtful issue of state

law; it rather invovles a discetionary exer-

cise of a court's equity powers. Baggett v.

Buititt, 3/7 U.S. 360,375," Geto eees ate see,

12 L.Ed.2d 377 (1964). Although most of the

issues posed by plaintiff are extant in Souers

Significant dissimilarities exist. Plaintiff

has questioned the meaning of the language

"pledges and promises of conduct in. office

A47

other than the faithful and impartial perfor-

mance of the duties of the office." The mean-

ing and constitutionality of this provision

does not appear to be before the Supreme Court

of Ohio in Souers, and it is, therefore,

unlikely that the court in that case will

resolve all of plaintiff's constitutional

concerns herein.

[5] Due to the imminency of the upcoming

election, and plaintiff's desire to obtain

some resolution of his concerns in time to

campaign accordingly, the Court is reluctant

to delay for an undue or indeterminate length

of time consideration of plaintiff's request

for a preliminary injunction. Such a delay may

be quite costly where the vagueness of a state

rule- or statute may inhibit the exercise of

First Amendment freedoms. Therefore, the Court

declines to abstain on the consideration of

plaintiff's request for a preliminary injunc-

tion against the enforcement of Canon 7b(1)(c)

and Rules I and II.

A48

Preliminary Injunctive Relief

To obtain preliminary injunctive relief

plaintiff must show (1) a strong or substan-

tial likelihood of success on the merits; (2)

irreparable injury; (3) that the issuance of a

preliminary injunction would not cause sub-

stantial harm to others; and (4) that the

public interest would be served by issuing a

preliminary injunction. Mason County Medical

Assn. v. Knebel, 563 F.2d 256,261 (6th Cir.

1977). No single factor is necessarily dispos-

itive; proper judgment entails a balancing of

all elements involved.

Likelihood of Success on the Merits

[6,7] Plaintiff's first obligation is to

convince the Court of a substantial likelihood

of his success on the merits. Plaintiff con-

tends that the enforcement of Canon 7B(1)(c)

deprives him of his First and Fourteenth

Amendment rights to freedom of speech. Plain-

tiff correctly states that although defendants

have a duty to regulate the conduct of the bar,

A49

as such regulations move closer to impairing

First Amendment rights, they must withstand a

higher level of scrutiny to pass constitu-

tional muster. Morial v. Judiciary Commission,

supra, 565 F.2d at 300. When a regulation

does run afoul of the First Amendment in a

significant or substantial manner, then courts

are obliged to invoke strict constitutional

scrutiny. Under such a test, the state must

show a compelling interest, to be achieved by

means that are closely drawn to avoid any un-

necessary abridgement. See First National Bank

of Boston v. Bellotti, 435 U.S. 7/765, 98 S.Ct.

1407, 55 L.Ed.2d 707 (1978).

[8] Canon 7B(1)(c) contains three prohibi-

tions: (1) announcing views on disputed legal

or political issues, (2) making pledges or

promises of conduct in office other than the

faithful and impartial performance of duties

in office, and (3) misrepresenting one's iden-

tity, qualifications, present position, or

other fact. The Court is not persuaded that

A50

this provision prohibits criticisms of judi-

cial administrations and incumbents, assuming

such criticisms are not untruthful or mislead-

ing. See the Supreme Court of Kansas' analysis

of this issue in In re Inquiry Relating to

Baker, 218 Kan. 209, 542 P.2d 701 (1975).

There is evidence in the record to suggest

that defendant Disciplinary Counsel maintains

an opinion to the contrary; however, Discip-

linary Counsel's position on the issue is

simply irrelevant for purposes of this Court's

inquiry into the constitutionality of Canon

7B(1)(c) - it is the province of the Supreme

Court of Ohio, not Disciplinary Counsel, to

authoritatively interpret and enforce the Ohio

Coae of Judicial Conduct. As of now, the

Supreme Court of Ohio has not given this Court

reason to believe that the Canon means any-

thing more than what it says on its face.

[9,10] Nor is the Court convinced of the

substantial likelihood of success of plain-

tiff's restrictive reading of the provision

A51

regarding pledges and promises. One of the

purposes of Canon 7B(1)(c) is to prohibit

candidates for judicial office from making

pledges or promises which appeal to prejudices

or special interests. Plaintiff Berger intends

to pledge, among other things, to increase the

judge's personal involvement in the adminis-

tration and resolution of cases, and to at-

tempt to encourage more direct dispute reso-

lution among the parties themselves. Pledges

such as these, the Court believes, relate to

the faithful performance of the duties of

judicial office, and are therefore expressly

exempted from the scope of Canon 7B(1)(c). Id.

Finally, plaintiff has not convinced the Court

of the existence of a substantial likelihood

that the intent and meaning of the provision

regarding campaign pledges is so unclear as to

render it properly subject to facial attack as

unconstitutionally void for vagueness. See CSC

—_—_——

v. Letter Carriers, 413 U.S. 548, 93 S.Ct.

2880, 37 L.Ed.2d 796 (1973).

————— eee.

A52

[11] The Court believes that even under a

standard of strict scutiny, the state's regu-

lation is necessary to achieve a compelling

state interest. Plaintiff does not dispute

that the state has a compelling interest in

assuring that its elected judges are protected

from untruthful criticism and that judicial

campaigns are run in a manner sc as not to

damage the actual and perceived integrity of

state judges and the bar; hence, the provision

against misrepresentation. Additionally:

Ours is an era in which members of the

judiciary often are called upon to adjudi-

cate cases squarely presenting hotly con-

tested social or political issues. The

state's interest in ensuring that judges be

and appear to be neither antagonistic nor

beholden to any interest, party, or person

is entitled to the greatest respect.

Morial, 565 F.2d at 302. Hence, the prohibi-

tions against announcing predetermined views

on disputed legal or political issues, and

against making pledges of conduct other than

those relating to the faithful and impartial

performance of duties in office. The Court

eas

A53

finds that plaintiff has not demonstrated a

substantial likelihood that these interests

are outweighed by whatever intrusion on the

First Amendment is caused by prohibiting judi-

cial candidates from making misleading or

fallacious statements or political pledges.

[12] The Court also is not persuaded by

plaintiff in this case that the singling out

of judge's campaign conduct vilates the equal

protection clause of the Fourteenth Amendment.

The very purpose of the judicial function

makes inappropriate the same kind of particu-

larized pledges and predetermined commitments

that mark campaigns for legislative and execu-

tive office. A judge acts on individual cases,

not broad programs. Canon 7B(1)(c) appears to

appropriately recognize this distinction

between candidates for judicial and for execu-

tive and legislative office. In short, plain-

tiff has not demonstrated a substantial likel-

ihood that the Canon denies judicial candi-

dates equal protection under the Fourteenth

SS...

A54

[13] The Court finds that plaintiff has not

persuasively demonstrated a substantial likel-

ihood of success on the merits of his claim

that Canon 7B(1)(c) is unconstitutional on its

face.

Nor has plaintiff domonstrated that irrep-

arable injury will occur to his interests

should the court decline to issue a prelimin-

ary injunction since plaintiff has not per-

suaded the Court that Canon 7B(1)(c) prohibits

the statements which plaintiff has expressed a

desire to make in the upcoming election.

Finally, the state has a compelling inter-

est, as explained above, in preventing the

occurrence of the kind of conduct to which

Canon 7B(1)(c) is addressed, and the public

would suffer great injury should the enforce-

ment of the Canon be enjoined.

Therefore, plaintiff's motion for a pre-

liminary injunction is DENIED.

(Cite as 598 F.Supp. 69 (1984))

A55

AKRON BEACON JOURNAL

Sunday, September 23, 1984

Editorials

The Ohio Supreme Court

and open public debate

OF COURSE the Ohio Supreme Court has the

right to regulate the activities of judicial

candidates in Ohio, as a federal judge affir-

med the other day.

But what neither the Supreme Court nor its

representatives have the right to do is to

gag judicial candidates. They cannot be neu-

tered and silenced by judicial fiat. A fed-

eral judge, Robert M. Duncan, of Columbus,

made that clear last week in his ruling that

there may be public criticism of judicial

candidates so long as it is based on fact.

Judge Duncan's ruling this supports free-

dom of expression, open politics and open

debate about the courts of Ohio. It was also

an embarrassing but proper slap at the dicta-

torial ways of the current Ohio Supreme Court.

A55a

That court, headed by Chief Justice Frank

Celebrezze, has given increasing appearance

of being both partisan and vindictive in its

exercise of administrative power. Its ap-

parent attempts to muzzle critics of its pro-

cedures and Opponents) of its political

friends were only the latest abuses.

Those who have questioned the Celebrezze

court's actions - especially lawyers who are

subject to the court's authority - have found

themselves subjected to unusual dictates. The

court has, for scant reason, stripped the

Ohio Bar Association of long-accepted roles

in Ohio legal activities.

Questions about such actions, or of the

actions of those-seen as political allies of

the chief justice, have brought the threat of

official sanctions. A prosecutor, for example

is under investigation and potentially dama-

ging discipline for criticizing the rulings

of a judge who is a candidate for the Supreme

Court, a Democratic candidate like the

A55b

Celebrezze court's ruling majority.

Concern expressed by the Ohio Bar Associ-

ation about the direction of the Celebrezze

court has brought the description of the

lawyers' organization by the court's official

spokesman as being "skunks" and liars. That

clearly was one of the least judicially-

tempered comments made by any state supreme

court in some years.

Judge Duncan's ruling was, in effect, a

warning to Ohio's highest court that even it

can go too far, and that even it can be sub-

jected to a higher authority. Such a warning,

given the drift of this court, has come none

too soon.

A56

OHIO'S CODE OF JUDICIAL CONDUCT

Canon 7(C)(9):

C. Campaign Guidelines. No incumbent judge or

candidate for judicial office during the

course of any campaign fer nominiation or

election to judicial office, by means of cam-

paign materials, including sample ballots, an

advertisement on radio or television or in a

newspaper or periodical, a public’ speech,

press release, or otherwise, shall purposely

do any of the following:

(9) Post, publish, circulate, or distribute a

written or printed false statement, either

knowing the same to be false or with reckless

disregard of whether it was false or not,

concerning a candidate that is designed to

promote the election, nomination, or defeat

of the candidate.

A57

OHIO'S CODE OF PROFESSIONAL RESPONSIBILITY

Disciplinary Rule 8-102(A)and(B):

DR 8-102. Statements Concerning Judges and

Other Adjudicatory Officers

(A) A lawyer shall not knowingly make false

staements of fact concerning the qualifica-

tions of a candidate for election or appoint-

ment to a judicial office.

(B) A lawyer shall not knowingly make false

accusations against a judge or other adjudi-

catory officer.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.