# Petition for Writ of Certiorari — Berger v. Supreme Court > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1237%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 490 U.S. 1108 ## Text a | No | ? Sve Pr % ANT wite 7 Supreme Court of the United States October Term, 1988 SANFORD J. BERGER Petitioner VS 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 i 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- ii 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. iv 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 vi 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 e 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. 2 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 3 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: (c) should not make pledges or prom- 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 4 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 5 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 6 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, 7 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 8 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 9 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. 10 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, 11 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- 12 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, 13 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 es 14 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 . + + . Y t kK 4 7 \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. Se 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 ee 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- 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. ee 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 SS 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1237%3A1. Public record. Not legal advice.