Petition for Writ of Certiorari — Gardner v. Office of Disciplinary Counsel

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031005 JAN 6 2004

: No. 03-Q65ice OF THE CLERK

‘

IN THE

Supreme Court of the United States

MARK J. GARDNER,

Petitioner,

OFFICE OF DISCIPLINARY COUNSEL,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME CourRT OF OHIO

PETITION FOR A WRIT OF CERTIORARI

JAMES A. VOLLINS

4779 Litchfield Drive

Richmond Heights, OH 44143

(216) 731-9984

Attorney for Petitioner

185060 ce

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

QUESTIONS PRESENTED

1. Whether Disciplinary Rule 8-102(B), as

authoritatively interpreted by the Supreme Court of Ohio in

Office of Disciplinary Counsel v. Gardner, 99 Ohio St. 3d

416 (2003), violates the First and Fourteenth Amendments

of the United States Constitution?

2. Whether Petitioner’s rights under the First and

Fourteenth Amendments of the United States Constitution

were violated when his license to practice law was suspended

for an alleged violation of Disciplinary Rule 8-102(B)?

TABLE OF CONTENTS

Page

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Table of Cited Authorities ...............: tages 1V

Table of Appendices ........0.sccccesvenecess Vil

i | er eerrrrrr rrr res ee ree l

Statement of Jurisdiction ..:........seeccces0- ]

Constitutional Provisions and Rule Involved ..... 1]

Selene OF De CON «jo od ieee edesxeeeees 2

Reasons for Granting the Petition .............. 6

I. Review Is Warranted Because The

“Reasonable Attorney” Standard Adopted

By The Ohio Supreme Court Chills

Constitutionally Protected Speech Of

Attorneys And Their Clients ............. 9

A. The “Reasonable Attorney” Standard

Chills Constitutionally Protected Speech

Bocause Ris VAG 2... sccndevcseas 10

B. The “Reasonable Attorney” Standard

Chills Constitutionally Protected Speech

Because It Is Overbroad ..... eG 12

——————wOE———

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Contents

Page

Il. Review Is Warranted Because The

“Reasonable Attorney” Standard Adopted By

The Ohio Supreme Court Is Not Narrowly

Tailored To Promote A Compelling

Government Interest .......5..---2eee0- 16

Ill. Review Is Warranted In Order To Uniformly

Define The Parameters Of Protected Political

Speech For Attorneys Under The First And

Fourteenth Amendments ............++++ 20

A SE ee ee 21

cecnitemcinceme etait stein

TABLE OF CITED AUTHORITIES

Page

Cases:

Aptheker v. Secretary of State, 378 U.S. 500 (1964)

eT Pre re re re hee ree Ok Or tee 12

Bridges v. Califorxia, 314 U.S. 252 (1940) ....... 17

City of Cleveland v. Kimball, 1999 Ohio App. LEXIS

ee ft) Sewer ere ere Sree 3

City of Lakewood v. Cirino, 2001 WL 91225

| | ee rs re re 3, 11

Florida Bar v. Ray, 797 So. 2d 556 (Fla. 2001), cert.

den. sub nom., Ray v. Florida Bar, 535 U.S. 930

SE 0 obxkn esd das eee eh Osaaesse tener 20

Garrison v. Louisiana, 379 U.S. 64 (1964) ....... 9,13

Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991)

LTTE ee re ee ee Ter re eT TP oye S, 12, 13

Grayned v. City of Rockford, 408 U.S. 104 (1972) ... 10

In re Graham, 453 N.W.2d 313 (Minn. 1990) ..... 20

In re Holtzman, 577 N.E.2d 30 (N.Y. 1991), cert.

den. sub nom., Holtzman v. Grievance Committee

for Tenth Judicial District, 502 U.S. 1009 (1991)

Cited Authorities

Page

In re Sawyer, 360 U.S. 622 (1959) ......22++ 005s 6

In re Topp, 925 P.2d 1113 (Idaho 1997), cert. den.

sub nom., Topp v. Idaho Bar, 520 U.S. 1155 (1997)

eo eals Chae ea Te ss ee 20

New York Times v. Sullivan, 376 U.S. 254 (1964) .. passim

Office of Disciplinary Counsel v. Gardner, 99 Ohio

St. FE S1G CD) «oc eres ceca nvansesenas passim

Pennekamip v. Florida, 328 U.S. 331 (1946) ...... 15

Richmond Newspapers, Inc. v. Virginia, 448 U.S.

tC. |) reese hyo 9

Shapero vy. Kentucky Bar Association, 486 U.S. 466

te) PPR OPC eeT ECE E oe ee 9

State ex rel. Oklahoma Bar Association v. Porter,

766 P.2d 958 (Okla. 1988) .......---. eee eee 19

Wood v. Georgia, 370 U.S. 375 (1962) .......--- 20

Zwickler v. Koota, 389 U.S. 241 (1967) .......-. 12

i’ Cited Authorities

| Page

United States Constitution:

SS ESTE Te TCT Tee TET eT Te Tee passim

Fourteenth icine Prey Sere ee Terr ry passim

Statute:

fs ad 3 ie 1

Rules:

Disciplinary Rule 1-102(A)(5) ................. 4

Disciplinary Rule 1-102(A)(6) ................. +

ee ia 4

Disciplinary Rule 8-102(B) .............. i, 2, 4, 3, F3

Other Authority:

Charles N. Sevilla, The Role of Lawyers and The

Search for Truth in the Criminal Justice System:

_ Criminal Defense Lawyers and the Search for

Truth, 20 Harvard J.L. & Public Policy 519 (1997)

vil

TABLE OFAPPENDICES

Appendix A — Opinion Of The Supreme Court Of

Ohio Decided August 13, 2003 ......-.--.---

Appendix B — Findings Of Fact, Conclusions Of

Law And Recommendation Of The Board Of

Commissioners On Grievances And Discipline Of

The Supreme Court Of Ohio .........--+-++

Appendix C — Reconsideration Entry Of The

Supreme Court Of Ohio, Denied On October 8,

Sere Were rir ee es a

Appendix D — Motion For Reconsideration Or In

The Alternative, To Certify A Conflict To The Ohio

Supreme Court In The Court Of Appeals For The

Eighth Appellate District, Cuyahoga County, Ohio

Dated February 9, 2001 .......-.-- ee eee eee

Appendix E — Letter From Judge Kenneth R.

Spanagel To Charles W. Kettlewell ...........

Page

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OPINION BELOW

Petitioner seeks review of the Ohio Supreme Court's

opinion reported at Office of Disciplinary Counsel v. Gardner,

99 Ohio St. 3d 416 (2003), and reproduced at Appendix A.

STATEMENT OF JURISDICTION

On August 13, 2003, the Ohio Supreme Court issued an

opinion and order suspending Petitioner Mark Gardner’s

license to practice law in the State of Ohio. (Appendix A).

On August 21, 2003, Petitioner timely filed a motion for

reconsideration and a new hearing. On October 8, 2003, the

Ohio Supreme Court denied Petitioner’s motion for

reconsideration. (Appendix C). Petitioner evokes the Court’s

jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS

AND RULE INVOLVED

The First and Fourteenth Amendments of the

Constitution of the United States of America:

Amendment I

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people

peaceably to assemble, and to petition the

Government for a redress of grievances.

Amendment XIV

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. No State shall make

or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction

the equal protection of the laws.

DR 8-102. STATEMENTS CONCERNING JUDGES

AND OTHER ADJUDICATORY OFFICERS.

* * *

(B) A lawyer shall not knowingly make false

accusations against a judge or other adjudicatory

office.

STATEMENT OF THE CASE

Petitioner Mark Gardner is an attorney. On August 13,

2003, the Ohio Supreme Court suspended Petitioner’s license

to practice law in the State of Ohio for accusations he made

about three appellate judges while representing Matthew

Cirino.'

1. Office of Disciplinary Counsel v. Gardner, 99 Ohio St. 3d 416

(2003) (Appendix A).

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Mr. Cirino was convicted of driving his car in violation

of a court ordered license suspension.” Mr. Cirino appealed

his conviction to the Eighth District Court of Appeals of Ohio.

Petitioner argued that Mr. Cirino’s conviction was unlawful

and had to be reversed because Mr. Cirino had never been

charged with driving his car in violation of a court ordered

suspension. The prosecutor conceded that Mr. Cirino had

been charged with a different crime, driving in violation of a

financial responsibility act (“FRA”) license suspension.

The court of appeals affirmed Mr. Cirino’s conviction.

In its opinion, the court of appeals failed to mention the

prosecution’s concession that Mr. Cirino had been charged

with a different crime. But the court of appeals quoted

Petitioner for the proposition that his client would have been

guilty of driving in violation of a court ordered suspension

had he been charged with that crime.

Petitioner filed a motion for reconsideration in the court

of appeals detailing the court of appeals’ error.’ The motion

2. City of Lakewood v. Cirino, 2001 WL 91225, *1 (8th Dist.

2001).

3. More specifically, Ohio law is clear that a defendant cannot

be convicted of a crime not identified in the traffic ticket. City of

Cleveland v. Kimball, 1999 Ohio App. LEXIS 1999, *3-4 (8th Dist.

1999). Petitioner argued that Mr. Cirino could not be convicted of

driving while under a court ordered suspension because he was only

ticketed for driving in violation of an FRA suspension. The court of

appeals rejected this argument, finding “[t]he mere fact that the ticket

also included the dates of the purported FRA suspension did not

prohibit the trial court from finding the appellant guilty of violating

his court ordered license suspension|[.]” City of Lakewood v. Cirino,

2001 WL 91225, *1. However, the ticket did not merely include

(Cont'd)

for reconsideration also accused the appellate judges of

prosecutorial “bias” and “dishonesty.” * The court of appeals

denied the motion for reconsideration.

After denying the motion for reconsideration, one of the

appellate judges, The Honorable Judge Michael Corrigan,

sent a copy of Petitioner’s motion for reconsideration to

Ohio Disciplinary Counsel for review. Disciplinary Counsel

charged Petitioner with four ethical violations based solely

upon the content of the motion for reconsideration:

(1) engaging in discourteous conduct degrading to the tribunal

in violation of DR 7-106; (2) engaging in conduct reflecting

upon his fitness to practice law in violation of DR 1-102(A)(5);

(3) interfering with the proper administration of justice in

violation of DR t-102(A)(6); and (4) knowingly making a

false accusation against a judge in violation of DR 8-102(B).°

Petitioner steadfastly refused to admit that he had

knowingly made a false accusation against a judge. A three

attorney panel of the Board of Commissioners on Grievances

and Discipline of the Supreme Court of Ohio (the “Board”)

held an evidentiary hearing to determine whether Petitioner

(Cont’d)

“the dates of the FRA suspension.” Rather, the dates of the FRA

suspension were written in a pre-printed line on the ticket labeled

“suspension type.” (Appendix D, Motion for Reconsideration).

4. Motion for Reconsideration, p. 1, Appendix D.

5. Disciplinary Counsel withdrew the charges relating to

Petitioner’s alleged unfitness to practice law and interference with

the proper administration of justice. There was no evidence to support

either of those charges. Petitioner stipulated that he had been

discourteous.

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had “knowingly made a false accusation against a judge.”

DR 8-102(B). Petitioner was the only witness who testified

at the disciplinary hearing. Petitioner testified that he and

his client honestly believed that the appellate court judges

had ignored the law and skewed the facts, wrote a dishonest

opinion, and unjustly affirmed his client’s conviction.

Petitioner also expressed his view that the appellate judges

were biased in favor of the prosecution. Petitioner explained

in detail the lege] and factual basis for his accusations.

The Board determined that Disciplinary Counsel had

proven by clear and convincing evidence that Petitioner

knowingly made a false accusation about a judge in violation .

of DR 8-102(B). The Board recommended that Petitioner be

publicly reprimanded and suspended from the practice of law

for a period of six months, with all six months stayed on the

condition of no further violations. But the Board failed to

identify any specific false accusation (although it listed all

of the claimed offending statements), the rationale for its

finding, or what standard it applied in concluding that

Respondent had “knowingly” made a false accusation against

a judge. (Reproduced at Appendix B). No court in Ohio had

ever addressed the legal standard by which an attorney could

be sanctioned under DR 8-102(B).

Petitioner filed objections to the Board’s findings of fact

and recommendations in the Ohio Supreme Court. Petitioner

argued that he could not be sanctioned for “knowingly making

a false accusation against a judge” because he honestly and

sincerely believed that all of the accusations he and his client

made were true. Petitioner further argued that imposition of

the Board’s recommended sanction would violate his rights

under the First and Fourteenth Amendments of the United

States Constitution.

On August 13, 2003, the Ohio Supreme Court found that

Petitioner had knowingly made a false accusation against a

judge and suspended his license to practice law in the State

of Ohio. (Appendix A). The Ohio Supreme Court did not

find that Petitioner actually “knew” that his accusations were

false. The Ohio Supreme Court explained that the sincerity

of Petitioner’s beliefs and his state of mind when making

the accusations were wholly irrelevant: “we hold that an

attorney may be sanctioned for making accusations of judicial

impropriety that a reasonable attorney would believe are

false.” Gardner, 99 Ohio St. 3d at 423 (Appendix A)

(emphasis supplied). The Ohio Supreme Court rejected the

“actual malice” standard adopted by the Court in New York

Times y. Sullivan, explaining that its “reasonable attorney”

standard was justified in order to promote the “state’s

compelling interest in preserving public confidence in the

judiciary[.]” Jd. at 432.

Petitioner moved the Ohio Supreme Court for

reconsideration and a new hearing. Among other arguments,

Petitioner claimed that he was entitled to a new hearing under

the Fourteenth Amendment of the United States Constitution

in light of the new standard adopted by the Ohio Supreme

‘Court. On October 8, 2003, the Ohio Supreme Court denied

Petitioner’s motion for reconsideration and a new hearing.

(Appendix C).

REASONS FOR GRANTING THE PETITION

- Review of the Ohio Supreme Court’s decision in

Office of Disciplinary Counsel v. Gardner is warranted in

order to resolve an important constitutional question that the

Court has not squarely addressed. In Jn re Sawyer, 360 U.S.

622, 635 (1959), the Court recognized that “the public

;

attribution of honest error to the judiciary is not cause for

professional discipline in this country.” However, the Court has

never authoritatively determined whether and under what

, circumstances, if any, a State can discipline an attorney for

publicly accusing a judge of official misconduct.

Courts make errors. We want to believe that all of these

errors are the result of honest mistakes. But sometimes improper

biases or other nisconduct cause erroneous and unjust decisions.

The public undoubtedly has the right to hear allegations of

judicial misconduct. In Ohio, judges are elected. The free

expression of ideas is essential to the electoral process. Elected

government officials should not be shielded from criticism or

accusations of misconduct. Of course, attorneys are in the best

position to inform the public about the conduct of judges given

their education, training and constant dealings with the courts.

Hence, unduly chilling or suppressing the free speech rights of

attorneys shields the judiciary from effective criticism to the

detriment of the public and the electoral process. Attorneys must

be given sufficient latitude to make accusations of judicial

misconduct. Attorneys must also be given a clear and narrowly

tailored standard to determine the acceptable bounds of judicial

criticism under the First Amendment. Accordingly, the

determination of whether and under what circumstances, if any,

an attorney may be disciplined by a State for accusing a judge

of official misconduct is an important constitutional issue that

is worthy of the Court’s review.

The “reasonable attorney” standard adopted by the Ohio

Supreme Court chills speech critical of the judiciary that is

unquestionably protected under the First and Fourteenth

Amendments because it is impermissibly vague and overbroad.

Moreover, the “reasonable attorney” standard is not

narrowly tailored to meet a compelling state interest. No State

should be allowed to suppress political speech in order to

preserve the public’s confidence in any branch of the

government, including the judiciary. =

In addition, states courts have adopted a number of

different tests to answer this important First Amendment

issue. Like the “reasonable attorney” standard adopted by

the Ohio Supreme Court, the majority of these state and

federal court standards refuse to consider the sincerity of the

speaker’s beliefs, and reject in whole or in part the “actual

malice” standard adopted by the Court in New York Times v.

Sullivan.

For any and all of these reasons, an authoritative answer

from this Court is warranted in order to prevent the continued

suppression of attorney speech about matters of significant

public concern.

The need for review is especially important in this case

given Petitioner’s role as defense counsel:

The Framers of our Constitution knew that

without someone to remind the system of its

paramount dedication to the rule of law and human

dignity, liberty would exist only at state

sufferance. The Constitution thus preserves an

important role for defense attorneys, who . . . must

constantly goad the state to do the right thing.°

6. Charles N. Sevilla, The Role of Lawyers and The Search for

Truth in the Criminal Justice System: Criminal Defense Lawyers and

the Search for Truth, 20 Harvard J.L. & Public Policy 519 (1997),

p. 523.

Petitioner’s license to practice law was suspended because

he bravely spoke out against the judges who he genuinely

believed had issued a dishonest opinion. A free society does

not punish it citizens for doing what Petitioner did, even if

they are an attorney.

I. Review Is Warranted Because The “Reasonable

Attorney” Standard Adopted By The Ohio Supreme

Court Chills Constitutionally Protected Speech Of

Attorneys And Their Clients

Speech critical of public officials, including judges, is

undeniably entitled to the most stringent protections under

the First and Fourteenth Amendments of the United States

Constitution. Gentile v. State Bar of Nevada, 501 U.S. 1030,

1034-35 (1991) (“There is no question that speech critical

of the exercise of the State’s power lies at the very center of

the First Amendment.”); Shapero v. Kentucky Bar

Association, 486 U.S. 466, 490 (1988) (O’Conner, J.,

dissenting) (“Political speech, we have often noted, is at the

core of the First Amendment’).’

As discussed below, the “reasonable attorney “ standard

adopted by the Gardner Court will suppress constitutionally

protected criticism of the judiciary because it is

impermissibly vague and overbroad. Gardner, 99 Ohio

St. 3d 416 at 423.

7. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575

(1980) (“It would be difficult to single out any aspect of government

of higher concern and importance to the people than the manner in

which criminal trials are conducted.”); Garrison v. Louisiana, 379

U.S. 64, 75 (1964) (“speech concerning public affairs is more than

self-expression; it is the essence of self-government”).

A. The “Reasonable Attorney” Standard Chills

Constitutionally Protected Speech Because It Is

Vague

Vague laws offend several important values. First,

... [vJague laws may trap the innocent by not

providing fair warning. Second, if arbitrary and

discriminatory enforcement is to be prevented,

laws must provide explicit standards for those who

apply them. A vague law impermissibly delegates

basic policy matters to policemen, judges, and

juries for resolution on an ad hoc and subjective

basis, with the attendant dangers of arbitrary and

discriminatory application. (footnotes omitted.).

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

When a vague statute “abut[s] upon sensitive areas of First

Amendment freedoms,” it “operates to inhibit the exercise

of [those] freedoms.” /d. at 109. Uncertain meanings

inevitably lead citizens to “steer far wider of the unlawful

zone ... than if the boundaries of the forbidden areas were

clearly marked.” Jd.

The “reasonable attorney” standard offends all of the

constitutional values underlying the vagueness doctrine.

There is no clear explanation of the standard in Gardner.

Reasonable attorneys often disagree. In the instant case,

The Honorable Judge Kenneth R. Spanagel, Parma Ohio

Municipal Court, provided Disciplinary Counsel with a letter

in support of Petitioner’s character wherein he expressed his

belief that the court of appeals had erred in affirming

Mr. Cirino’s conviction:

As a 15 year Judge with experience in traffic law,

a teacher of traffic laws across the State and as

one of the primary designers of the UTT Ticket

Form, which was the prime subject of the

Appellate case, I think that I am highly

knowledgeable as to the facts of the Appellate

Case. I have read the Decision, even before any

disciplinary proceedings were commenced.

Although I am restricted in my own ability to

comment as to Judicial Decisions, it is my

personal opinion that the Decision made by the

Court of Appeals was wrong and I certainly would,

at a minimum, have written a strong dissent. This

is not to either praise or condemn Mark for the

language of his Motion; I realize the Members of

the Board of Commissioners must focus more on

Mark’s conduct as opposed to the underlying

reason for the conduct, but I would suggest that

the Board might first look at the original case, the

Appellate Decision, and perhaps examine the law

themselves as to whether or not they feel the

Appellate Decision was correct. I think this may

be important to give the members of the Board

some perspective as to where Mark stood as a

lawyer. (Appendix E).

Further, the standard adopted by the Gardner Court is

based upon the subjective determinations of elected state

court judges, who are considering the reasonableness of

accusations of official misconduct levied against other elected

judges. The potential for discriminatory enforcement of the

“reasonable attorney” standard is present. In the instance case,

there was no expert testimony from which the beliefs of a

“reasonable attorney” could be determined. Disciplinary

Counsel offered no evidence concerning the correctness of

the decision in Cirino and the reasonableness of Petitioner’s

;

accusations that the appellate court had acted dishonestly

other than his subjective beliefs. Based upon this record, the

Supreme Court found that Petitioner had violated the

“reasonable attorney” standard without an additional

evidentiary hearing under the new standard. Gardner, 99 Ohio

St. 3d at 424 (“we have reviewed the court of appeals’ opinion

for evidence of bias and corruption and see nothing that could

possibly be characterized as anything other than error,

if that.”) (Appendix A). Indeed, after announcing the

“reasonable attorney” standard, the Ohio Supreme Court

denied Petitioner’s motion to remand the matter for further

hearings based upon the new standard. (Appendix C).

B. The “Reasonable Attorney” Standard Chills

Constitutionally Protected Speech Because It Is

Overbroad

An overbroad regulation offends the constitutional

principle that a governmental purpose to control or prevent

activities subject to state regulation may not be achieved by

means which “sweep unnecessarily broadly and thereby

invade the area of protected freedoms.” Zwickler v. Koota,

389 U.S. 241, 250 (1967). Hence, a regulation is overbroad

if it prohibits constitutionally protected speech, even if its

terms are clear and precise. Aptheker v. Secretary of State,

378 U.S. 500, 508-09 (1964). These same principles apply

to attorney speech. Gentile, 501 U.S. at 1034 (“[O]ur cases

recognize that disciplinary rules governing the legal

profession cannot punish activity protected by the First

Amendment, and that the First Amendment protection

survives even when the attorney violates a disciplinary rule

he swore to obey when admitted to the practice of law.”).

The standard adopted by the Gardner Court prohibits

constitutionally protected speech in at least four

constitutionally significant ways. First, truthful accusations

of judicial misconduct can never be abridged by any state

law. Garrison v. Louisiana, 379 U.S. 64, 74 (1964) (“Truth

may not be the subject of either civil or criminal sanctions

where discussion of public affairs is concerned” even if the

speaker is an attorney). The Gardner standard impermissibly

prohibits truthful criticism of the judiciary when

“a reasonable attorney” would believe that the criticism is

false. Gardner, 99 Ohio St. 3d 416 at 423. In other words, an

attorney may be sanctioned in Ohio for telling the truth if a

“reasonable attorney” would believe that the statements are

false.

A public censure for professional misconduct serves to

discredit the censured attorney as well as his beliefs. In its

opinion, the Ohio Supreme Court explained that even a first

violation of DR 8-102(B) requires a “an actual suspension

from the practice of law.” Gardner, 99 Ohio St. 3d 416 at

424. Repeated violations will lead to permanent disbarment.

Given this clear admonition, an attorney who is aware of

what he honestly and genuinely believes is official

misconduct will surely be deterred from speaking out when

faced with the possibility of losing his license to practice

law because a “reasonable attorney” would reach a different

conclusion. The Court should grant this petition to ensure

that truthful accusations of judicial misconduct are not

suppressed by an overbroad standard regulating speech

which, by its express terms, penalizes truthful accusations

of judicial misconduct.

Second, negligently made false accusations of judicial

misconduct have constitutional value and merit protection

under the First Amendment. See, e.g., New York Times v.

Sullivan, 376 U.S. at 272 (“Cases which impose liability for

erroneous reports of political conduct of officials reflect the

obsolete doctrine that the governed must not criticize their

governors”). Accordingly, state laws having the potential to

suppress negligently made accusations of judicial misconduct

remove important and valuable speech from the market place

of ideas, even though those ideas may be false. Jd.

The standard adopted by the Ohio Supreme Court

punishes false accusations of judicial misconduct that are

negligently made in violation of the First Amendment.

Gardner, 99 Ohio St. 3d 416 at 423 (imposing sanctions based

upon a “reasonable attorney” negligence standard).

The Ohio Supreme Court justified the negligence standard

based upon the premise that attorneys have a duty to

“be certain” that there accusations of judicial misconduct

are correct. Gardner, 99 Ohio at. 3d at 424. However, in

New York Times v. Sullivan, 376 U.S. 254, 274 (1964), the

Court explained that “[a] rule compelling the critic of official

misconduct to guarantee the truth of all of his factual

assertions ... leads to comparable self-censorship.”

The Court should grant the instant petition to prevent the

suppression of negligently made false accusations of judicial

misconduct.

The Ohio Supreme Court’s “reasonable attorney”

standard is overbroad in a third constitutionally significant

way because it effectively diminishes the First Amendment

rights of represented litigants in any court proceeding.

Petitioner’s client, Matthew Cirino, believes that his

conviction was wrongfully affirmed by a biased court.

Petitioner expressed his and his client’s views in the motion

for reconsideration. Of course, Mr. Cirino could not be

subjected to any civil or criminal sanction for expressing

those same views himself absent a showing of actual malice

under New York Times. Punishing a criminal defense attorney

such as Petitioner for advancing his client’s claims of j udicial

misconduct under a negligence standard will deter attorneys

from making these claims. In turn, criminal defendants will

be deprived of their First Amendment right to criticize the

government in an effective manner, through an attorney

trained in making legal arguments, and at a meaningful time,

during the judicial proceedings. In short, any attorney, and

especially a criminal defense attorney like Petitioner, should

be permitted to say as much as his client can say when it

comes to criticizing the government during a judicial

proceeding.

Lastly, the “reasonable attorney” standard is overbroad

because it prohibits speech concerning pending judicial

proceedings without proof that the speech interfered with

the administration of justice. Gentile, 501 U.S. 1030, 1075

(attorneys should refrain from speech that is substantially

likely to interfere with the fair administration of justice).

In Pennekamp v. Florida, 328 U.S. 331, 348-49 (1946), the

Court explained:

What is meant by clear and present danger to a

fair administration of justice? No definition could

give an answer. Certainly this criticism of the

judge’s inclinations or actions in these pending

nonjury proceedings could not directly affect such

administration. The criticism of their actions could

not affect his ability to decide the issues. Here

there is only criticism of judicial action already

taken, although the cases were still pending on

other points or might be revived by rehearings.

For such injuries, when the statements amount to

defamation, a judge has such remedy in damages

for libel as do other public servants.

Petitioner’s accusations of bias and dishonesty did not

adversely affect the administration of justice. Disciplinary

Counsel found that there was no evidence to support the

charge that Petitioner had interfered with the administration

of justice. That charge was withdrawn. The dissent in Gardner

reached the same conclusion. Gardner, 99 Ohio St. 3d at 434

(Pfeifer, J., dissent) (““Certainly, a motion for reconsideration

would receive about as much scrutiny from the public if it

were written on the wind.”).

In sum, review is warranted in order to prevent the

Gardner decision from chilling constitutionally protected

speech.

II. Review Is Warranted Because The “Reasonable

Attorney” Standard Adopted By The Ohio Supreme

Court Is Not Narrowly Tailored To Promote A

Compelling Government Interest

This Court’s precedent establishes that laws abridging

political speech may be upheld only to the extent that they

are narrowly tailored to promote a compelling governmental

interest. The Gardner Court held that attorneys may be

disciplined for criticizing the judiciary under a less rigorous

standard than would apply to non-lawyers in order to promote

the “state’s compelling interest in preserving public

confidence in the judiciary[.]” Gardner, 99 Ohio St. 3d at

423.

However, bolstering or preserving public confidence in

the judiciary is not a legitimate, let alone compelling,

governmental interest. In Bridges v. California, 314 U.S. 252,

270-71 (1940), the Court explained:

The assumption that respect for the judiciary can

be won by shielding judges from published

criticism wrongly appraises the character of

American public opinion. For it is a prized

American privilege to speak one’s mind * * * on

all public institutions. And an enforced silence,

however limited, solely in the name of preserving

the dignity of the bench, would probably engender

resentment, suspicion, and contempt much more

than it would enhance respect.

Likewise, in New York Times v. Sullivan, 376 U.S. 254, 272-

73, the Court stated:

Injury to official reputation affords no more

warrant for repressing speech that would

otherwise be free than does factual error. Where

judicial officers are involved, this Court has held

that concern for the dignity and reputation of the

courts does not justify the punishment ... of

criticism of the judge or his decision. This is true

even though the utterance contains ‘half-truths’

and ‘misinformation.’ Such repression can be

justified, if at all, only by a clear and present

danger of the obstruction of justice. (citations

omitted).

Indeed, if preserving the public’s confidence in the

judiciary were a compelling state interest, laws prohibiting

truthful accusations of judicial misconduct could be passed

without violating the First Amendment because truthful

accusations of judicial misconduct would clearly erode the

public’s confidence in the judiciary more than false or

unreasonable accusations. The First Amendment was not

implemented to preserve the public’s faith in government

officials through enforced silences. On the contrary, the First

Amendment promotes public confidence in the government

and its officials through the unfettered dissemination of ideas.

In addition, the standard adopted by the Ohio Supreme

Court is not narrowly tailored to meet the state’s purported

compelling interest in preserving the public’s confidence in

the judiciary. An attorney in Ohio may now be disbarred for

“making accusations of judicial impropriety that a reasonable

attorney would believe are false.” But there is no factual basis

to conclude that such unreasonable accusations of judicial

misconduct would have any adverse impact upon the public’s

perception of or confidence in the judiciary. The Ohio

Supreme Court cited no empirical data or study to support

its assumption concerning the impact of such accusations.

Logic leads to a different conclusion than the one reached

by the Ohio Supreme Court. It is far more likely that

accusations of judicial impropriety that a “reasonable

attorney” would deem false will have no adverse impact upon

the public’s perception of the judiciary, particularly when

every “reasonable attorney” could dispel any suspicions

created by the unreasonable accusations with truthful speech.

In short, more speech — not the suppression of speech — is

adequate to advance the state’s interest.

Conversely, an unreasonable accusation of judicial

misconduct could adversely affect the public’s perception of

the judiciary only if the accusation were deemed credible

and believed by Ohio’s citizens. Suppressing political speech

because it may be believed by some segment of the public,

however small that segment may be, removes important

speech from the marketplace of ideas. The Gardner decision

seems to be based upon the erroneous premise that non-

attorneys are simply incapable of determining for themselves

which ideas are worthy of belief when assessing accusations

of judicial misconduct made by attorneys. Petitioner believes

otherwise.

The Ohio Supreme Court also reasoned that attorney

speech must more be rigidly circumscribed than those of other

citizens because of an attorney’s legal education and training.

However, political speech cannot be regulated simply because

it will be effective. New York Times, 376 U.S. at 273

(“Criticism of their official conduct does not lose its

constitutional protection merely because it is effective

criticism and hence diminishes their official reputations”);

(State ex rel. Oklahoma Bar Association v. Porter, 766 P.2d

958, 968-69 (Okla. 1988) (“In keeping with the high trust

placed in this Court by the people, we cannot shield the

judiciary from the critique of that portion of the public most

perfectly situated to advance knowledgeable criticism[.]”).

Thus, the Court has never articulated a First Amendment

standard based upon the speaker’s level of education or

persuasiveness. The Court would surely reject the suggestion

that a college graduate with a political science degree should

be held to a different, more restrictive standard under the

First Amendment. Likewise, the Court would surely find

repugnant any suggestion that political pundits like

Tim Russet or Rush Limbaugh must be more cautious in their

public statements about government officials because of their

education, years of experience and ability to persuade so

many people. Lawyers should not be treated differently.

Bottom line, speech cannot be restricted simply because of

the speaker’s ability to persuade.

In sum, attorneys are in the best position to comment

upon the official conduct of judges. Attorneys accusations

of judicial misconduct should not be suppressed to protect

or bolster the public’s perception of the judiciary. The public

should be allowed to decide for themselves which accusations

about their elected government officials are true.

III. Review Is Warranted In Order To Uniformly Define

The Parameters Of Protected Political Speech For

Attorneys Under The First And Fourteenth

Amendments

The Court has the “ultimate responsibility to define the

limits of State power regarding freedom of speech[.]” Wood

v. Georgia, 370 U.S. 375, 382 (1962). The First Amendment

applies to all attorneys equally, but there is no uniform

standard for determining the permissible manner in which

an attorney can criticize the judiciary under the First and

Fourteenth Amendments without being sanctioned or

disbarred. Gardner, (noting varied approach and split among

the states and federal circuit courts); see also Florida Bar v.

Ray, 797 So. 2d 556, 559 (Fla. 2001), cert. den. sub nom.,

Ray v. Florida Bar, 535 U.S. 930 (2002); In re Topp, 925

P.2d 1113 (Idaho 1997), cert. den. sub nom., Topp v. Idaho

Bar, 520 U.S. 1155 (1997) (negligence standard); Jn re

Holtzman, 577 N.E.2d 30, 32 (N.Y. 1991), cert. den. sub

nom., Holtzman v. Grievance Committee for Tenth Judicial

District, 502 U.S. 1009 (1991) (applying an objective version

of the actual malice standard); Jn re Graham, 453 N.W.2d

313, 320 (Minn. 1990) (applying an objective version of the

actual malice standard).

Some state courts completely reject the actual malice

standard adopted by the Court in New York Times v. Sullivan.

Other courts purport to apply the actual malice standard in

name only. The Gardner decision further diminishes the First

Amendment rights of attorneys, requiring only a showing of

negligence, and threatens to chill core political speech.

Review of the Ohio Supreme Court’s decision is warranted

to protect the First Amendment from erosion.

CONCLUSION

The Court should grant this writ to decide whether and

under what circumstances a state may discipline an attorney

for accusing a judge of official misconduct. There is no

uniform standard among the states or federal courts

addressing this important constitutional question. Equally

important, the “reasonable attorney” standard adopted by the

Ohio Supreme Court in Gardner chills core political speech

in order to promote an illegitimate state interest, the

protection of the judiciary’s reputation. At the very least, the

writ should be granted to reverse and remand the decision in

Gardner.

Respectfully submitted,

JAMES A. VOLLINS

4779 Litchfield Drive

Richmond Heights, OH 44143

(216) 731-9984

Attorney for Petitioner

APPENDIX

APPENDIX A — OPINION OF THE SUPREME

COURT OF OHIO DECIDED AUGUST 13, 2003

SUPREME COURT, JANUARY TERM, 2003

[99 Ohio St.3d]

Opinion Per Curiam

OFFICE OF DISCIPLINARY COUNSEL V. GARDNER.

[Cite as Disciplinary Counsel v. Gardner,

99 Ohio St.3d 416, 2003-Ohio-4048.]

Per Curiam.

Respondent, Mark J. Gardner of Cleveland, Ohio,

Attorney Registration No. 0061172, was admitted to the

practice of law in Ohio in May 1993. On August 13, 2001,

relator, Disciplinary Counsel, filed a complaint charging

respondent with several violations of the Code of Professional

Responsibility, including DR 7-106(C)(6) (engaging in

undignified or discourteous conduct which is degrading to a

tribunal) and 8-102(B) (knowingly making a false accusation

about a judge). A panel of the Board of Commissioners on

Grievances and Discipline heard the matter and, based on

stipulations and respondent’s testimony, made findings of

fact and conclusions of law and recommended a sanction.

The record establishes that in 2001, respondent appealed

to the Court of Appeals for the Eighth District on behalf of a

client convicted of driving under a court-ordered license

suspension. Respondent challenged the conviction as a denial

of due process, arguing that his client had not received

sufficient notice of the crime with which he had been charged.

Appendix A

Respondent essentially acknowledged that his client was

guilty of driving in violation of a court order; however, he

maintained that the police officer had mistakenly charged

his client with driving in violation of Ohio’s Financial

Responsibility Act (“FRA”), a crime of which his client was

not guilty. The court of appeals affirmed the conviction.’

In a motion seeking reconsideration or, in the alternative,

certification of the case as a conflict to this court, respondent

accused the panel that decided his client’s appeal of being

dishonest and ignoring well-established law. He declared

that the panel had issued an opinion so “result driven” that

“any fair-minded judge” weuld have been “ashamed to attach

his/her name” to it. He then added that the panel did not give

“a damn about how wrong, disingenuous, and biased its

opinion is.”

1. During the trial and appeal, respondent emphasized that the

crimes of driving under a court ordered license suspension and driving

under an FRA license suspension were different subsections of the

general ordinance prohibiting driving under suspension. He argued

that his client had actually been charged with the “wrong” crime

because the charging officer had identified only the general ordinance

on the client’s ticket, the officer had described the suspension as

“FRA,” and the officer’s trial testimony suggested that he had

intended to charge the client with an FRA suspension violation.

On the authority of Barberton v. O’Connor (1985), 17 Ohio St.3d

218, 17 OBR 452, 478 N.E.2d 803, paragraph two of the syllabus,

the court of appeals held that the client was sufficiently charged

because the general ordinance noted on the ticket allowed the client

with “reasonable inquiry” to know exactly the charge against him.

Lakewood v. Cirino (Feb. 1, 2001), Cuyahoga App. No. 78057, 2001

WL 91225, appeal not allowed (2001), 92 Ohio St.3d 1414, 748

N.E.2d 547.

Appendix A

Throughout the several pages that followed, respondent

inveighed against the panel, contrasting it with “fair-minded

Ohio appellate districts” and stating that “[n]o matter how

bad [the] panel wants to skew or ignore the facts,” it could

only conclude that his client had been improperly charged.

He lamented that “honesty and truth [were] damned” in

the panel’s opinion and that the panel’s “desire to be ‘tough

on crime’ [had] blind[ed] it to basic law and fairness.”

Respondent then posed these questions: “Why does this panel

only apply the law as a hammer to crush citizens and not as

a shield to protect their basic rights?” and “Is having a

prosecutorial bent [so] hard to let go of that truth must be

cast aside to achieve a particular result?”

Respondent went on to accuse the panel of having

“distorted the truth” and having “manufactured a gross and

malicious distortion.” His discussion continued:

“Wouldn’t it be nice if this panel had the basic decency

and honesty to write and acknowledge these simple unques-

tionable truths in its opinion? Would writing an opinion that

actually reflected the truth be that hard? Must this panel’s

desire to achieve a particular result upholding a wrongful

conviction of a man who was unquestionably guilty of an

uncharged offense-necessarily justify its own corruption of

the law and truth? Doesn’t an oath to uphold and follow the

law mean anything to this panel?

“Ts that claim that ‘We are a nation of laws, not men’

have any meaning after reading the panel’s decision? Can't

this panel have the decency to actually address-rather than

to ignore—the cases cited by [the client] which demonstrate

Appendix A

beyond any doubt that he was convicted of an offense he

was never charged with having violated?

“In this case, beyond the ignored concepts of the law

and truth, lies that of policy. As a policy matter, is this court

really encouraging all officers in the Eighth District to charge

a generic statute—or Chapter or Title—and not the particular

offense they are accusing a citizen of violating? In the name

of God, WHY? What is so difficult with a police officer doing

his job in an intelligent manner? Why must this panel bend

over backwards and ignore well established law just to

encourage law officers to be slovenly and careless? In State

v. Homan (2000), 89 Ohio St.3d 421 [732 N.E.2d 952],

didn’t the Ohio Supreme Court just state that officers actually

have to follow the rules strictly? Doesn’t that mean anything

to this panel?

“Perhaps, if this panel is not strong enough to admit its

obvious prosecutorial bias in its opinion, it will discover the

internal fortitude to certify this matter to the Ohio Supreme

Court under Rule IV of the Rules of Practice of the Supreme

Court of Ohio.” |

The board’s panel found, consistent with the parties’

stipulation, that respondent had violated DR 7-106(C)(6).

The panel also found respondent in violation of DR 8-102(B)

by clear and convincing evidence.

In recommending a sanction, the panel considered

that respondent had no previous record of discipline and

had apologized for the manner in which he expressed his

frustration about the affirmance of his client’s conviction.

Appendix A

Respondent also recognized during the hearing that his

response to the court of appeals’ opinion was neither

appropriate nor professional. However, while respondent

professed to understand the need to challenge judicial

decisions only in an appropriate manner, he confirmed his

continued belief that the court of appeals during his client’s

appeal had skewed and ignored the facts, disregarded honesty

and truth, and violated their oaths to decide cases fairly and

impartially.

The panel recommended the sanction suggested by the

parties—that respondent be publicly reprimanded for the

cited misconduct. The board adopted the findings that

respondent violated DR 7-106(C)(6) and 8-102(B), but

rejected the panel’s sanction. The board recommended, based

on his “outrageous behavior toward a tribunal,” that

respondent be suspended from the practice of law for a period

of six months, with all six months stayed on the condition

that he commit no further violations of the Disciplinary Rules.

In objections, to the board’s finding that he violated

DR 8-102(B) and its recommendation, respondent argues that

his accusations are federally protected free speech because

they are opinions and thus immune from disciplinary

measures in the same way that mere opinions are not

actionable in defamation. He also argues that even if his

attacks were capable of being proved true or false, relator

nevertheless failed to prove that respondent knowingly

made “false” accusations for the purpose of DR 8-102(B).

We review these arguments to determine whether

respondent’s statements, which specifically accuse the

appellate court panel of prosecutorial bias and corrupting

| |

Appendix A

the law in order to sustain an unlawful conviction, may be

disciplined as professional misconduct.

The First Amendment

The United States Supreme Court has held that “[iJt is

unquestionable that in the courtroom itself, during a judicial

proceeding, whatever right to ‘free speech’ an attorney has

is extremely circumscribed. * * * Even outside the

courtroom, a majority of the Court in two separate opinions

in the case of Jn re Sawyer, 360 U.S. 622 [79 S.Ct. 1376, 3

L.Ed.2d 1473] (1959), observed that lawyers in pending cases

were subject to ethical restrictions on speech to which an

ordinary citizen would not be.” Gentile v. Nevada State Bar

(1991), 501 U.S. 1030, 1071, 111 S.Ct. 2720, 115 L.Ed.2d

888. See, also, In re Disciplinary Action Against Garaas

(N.D.2002), 652 N.W.2d 918, 925. An attorney’s speech may

be sanctioned if it is highly likely to obstruct or prejudice

the administration of justice. Gentile at 1075, 111 S.Ct. 2720,

115 L.Ed.2d 888. These narrow restrictions are justified by

the integral role that attorneys play in the judicial system,

which requires them to refrain from speech or conduct that

may obstruct the fair administration of justice. Id. at 1074,

Ill S.Ct. 2720, 115 L.Ed.2d 888.

Thus, attorneys may not invoke the federal constitutional

right of free speech to immunize themselves from even-

handed discipline for proven unethical conduct. Jn re Sawyer

(1959), 360 U.S. 622, 646, 79 S.Ct. 1376, 3 L.Ed.2d 1473

(Stewart, J., concurring in result). The First Amendment does

not shield an attorney from discipline for falsely suggesting

“unseemly complicity” by the judiciary in unlawful or unethical

Appendix A

practices. Id. at 633, 79 S.Ct. 1376, 3 L.Ed.2d 1473. Such

false statements, whether by attorneys or others, enjoy no

constitutional protection when they are made with knowledge

of their falsity or reckless disregard for their truth. Garrison

v. Louisiana (1964), 379 U.S. 64, 75, 85 S.Ct. 209,

13 L.Ed.2d 125. Although neither Sawyer nor in Jn re

Snyder (1985), 472 U.S. 634, 105 S.Ct. 2874, 86 L.Ed.2d

504, definitively so held, all of the justices who participated

in those decisions assumed or stated that a lawyer’s false

accusations of criminal conduct directed against named

judges could be the basis for discipline. Jn re Palmisano

(C.A.7, 1995), 70 F.3d 483, 487. “Even a statement cast

in the form of an opinion (‘I think that Judge X is dishonest’)

implies a factual basis, and the lack of support for that

implied factual assertion may be a proper basis for a penalty.”

Id. at 487, citing Milkorich v. Lorain Journal Co. (1990),

497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1. While Milkovich

is a defamation case not involving attorney discipline,

it demonstrates that the First Amendment does not protect

any individual who knowingly makes false statements

or expresses opinions that imply false statements of fact.

In re Complaint Against Harper (1996), 77 Ohio St.3d 211,

673 N.E.2d 1253.

Thus, the First Amendment does not insulate an attorney

from professional discipline even for expressing an opinion,

during court proceedings, that a judge is corrupt when

the attorney knows that the opinion has no factual basis or iS

reckless in that regard. Respondent's contention that his

statements are protected as unverifiable opinions is incorrect.

Milkovich rejected the premise that the First Amendment

mandates an inquiry into whether a statement is one of

Appendix A

opinion or of fact. Id. at 18-19, 110 S.Ct. 2695, 111 L.Ed.2d 1.

Accordingly, the United States Constitution offers respondent

no protection.

Section 11, Article I, Ohio Constitution

This court has never addressed the question of whether

the Free Speech Clause of the Ohio Constitution, Section

11, Article I, forbids imposing discipline on an attorney

for criticizing a judge during a pending court proceeding.

DR 8-102(B) specifically permits such discipline where a

lawyer knowingly makes a false accusation against a judge.

Section 11 states:

“Every citizen may freely speak, write, and publish his

sentiments on all subjects, being responsible for the abuse

of the right; and no law shall be passed to restrain or abridge

the liberty of speech * * *.”

The tension between Section 11 and DR 8-102(B) lies

at the heart of this case. Under Ohio law, speech that may

violate DR 8-102(B) may be otherwise protected by the state

Constitution. When the statement in question cannot

reasonably be interpreted by the ordinary reader as stating

actual facts about an individual, the statement is protected

as the free expression of opinion under Section 11. Harper,

77 Ohio St.3d at 229, 673 N.E.2d 1253; McKimm v. Ohio

Elections Comm. (2000), 89 Ohio St.3d 139, 144, 729 N.E.2d

364. Thus, the Ohio Constitution goes beyond the federal

Constitution in that certain false statements of opinion are

protected. This protection exists as a separate and

independent guarantee ancillary to freedom of expression and

Appendix A

requires a reviewing court to determine whether the language

in question is fact or opinion. Vail v. Plain Dealer Publishing

Co. (1995), 72 Ohio St.3d 279, 649 N.E.2d 182, certiorari

denied (1996), 516 U.S. 1043, 116 S.Ct. 700, 133 L.Ed.2d

657; Wampler v. Higgins (2001), 93 Ohio St.3d 111, 117-118,

752 N.E.2d 962. The test for deciding whether a statement is

fact or opinion is an objective one based on a totality of

circumstances and on the specificity, verifiability, general

context, and social context of the words used. Id. at 126,

752 N.E.2d 962; McKimm, 89 Ohio St.3d at 145, 729 N.E.2d

364.

In re Complaint Against Judge Harper, 77 Ohio St.3d

211, 673 N.E.2d 1253, employed this distinction to publicly

reprimand a judge for airing a campaign advertisement that

falsely accused her judicial opponent of being associated with

dishonest lawyers intent upon corrupting the legal system.

Although the Harper court did not explicitly apply the

totality-of-circumstances test for distinguishing fact from

opinion, the accusation in that case was sufficiently specific

and weighed in favor of sanction. The advertisement in effect

charged the judge’s opponent with a crime—conspiring to

fix cases.

To accuse a court of appeals of affirming a conviction

out of prosecutorial bias and corruption is no less specific.

Such allegations are charges of criminal or unethical activity

and, therefore, constitute classic examples of statements

having a well-defined meaning. Wampler, 93 Ohio St.3d at

128, 752 N.E.2d 962, citing Ollman v. Evans (C.A.D.C.1984),

750 F.2d 970, 979-980. Accord Standing Commt. on

Discipline, U.S. Dist. Court, Cent. Dist of Calif v. Yagman

10a

Appendix A

(C.A.9, 1995), 55 F.3d 1430, 1440 (statements that can

reasonably be understood as imputing specific criminal or

other wrongful acts are not entitled to constitutional

protection merely because they are phrased in the form of an

opinion). Ali-gations of criminal or ethical misconduct are

also readily capable of being proved or disproved.

Moreover, allegations of corruption made in documents

filed in court, unlike allegations raised in a political

campaign, are not what the average reader would reasonably

consider to be an opinion. A courtroom is not a forum for

personal or political grandstanding, and the attorneys who

practice in it “possess, and are perceived by the public as

possessing, special knowledge of the workings of the judicial

branch of government” State ex rel. Oklahoma Bar Assn. v.

Porter (Okla.1988), 766 P.2d 958, 969. Lawyers’ statements

made during court proceedings are “likely to be received as

especially authoritative.” Gentile, 501 U.S. at 1074, 111 S.Ct.

2720, 115 L.Ed.2d 888. Thus, in the context of his motion

and that appeal, respondent’s statements are reasonably

understood to be factual assertions of the appellate court’s

corruption and prosecutorial bias.

Accordingly, we reject respondent’s contention that his

attacks against the court of appeals represented any sort of

“thetorical hyperbole” or “imaginative expression” for which

he might escape sanction. Harper, 77 Ohio St.3d at 229; 673

N.E.2d 1253, quoting Milkovich, 497 U.S. at 20, 110 S.Ct.

2695, 111 L.Ed.2d 1. Nor could respondent’s accusations be

“ “loosely definable’ ” or “ ‘variously interpretable’ ” as his \

criticism of the law as applied by the panei. Wampler,

93 Ohio St.3d at 128, 752 N.E.2d 962, quoting Ollman,

lla

Appendix A

750 F.2d at 980. Accord Jn re Sawyer, 360 U.S. at 634, 79

S.Ct. 1376, 3 L.Ed.2d 1473. Respondent charged with

“crystal clarity,” Wampler, 93 Ohio St.3d at 129, 752 N.E.2d

962, that the panel’s affirmation of his client’s conviction

resulted not from error, but from prosecutorial bias and

corruption. For this offense against the integrity and

impartiality of the court of appeals and the judicial system,

he may be held responsible. Harper, 77 Ohio St.3d at 229,

673 N.E.2d 1253.

Knowledge

DR 8-102(B) provides that a lawyer “shall not knowingly

make false accusations against a judge or other adjudicatory

officer.” Respondent claims that this prohibition required

relator to prove that his accusations of prosecutorial bias and

corruption were false and that he sub) ectively knew that they

were false. Relator urges us to apply an objective test.

Respondent advocates the “actual malice” standard

applicable in defamation cases under New York Times Co. v.

Sullivan (1964), 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686;

Bose Corp. v. Consumers Union of U.S., Inc. (1984), 466

U.S. 485, 511, 104 S.Ct. 1949, 80 L.Ed.2d 502, fn. 30.

At least three states have used the actual-malice standard in

attorney discipline cases, that is, they have framed the issue

as whether the lawyer uttered the statement with knowledge

that the statement was false or with reckless disregard as to

its truth. If no knowledge or recklessness is found, these

courts have declined to discipline lawyers for accusing judges

in public of bias. See In re Green (Colo.2000), 11 P.3d 1078,

1085; Oklahoma Bar Assn. v. Porter, 766 P.2d 958; Ramsey

12a

Appendix A

v. Bd. of Professional Responsibility (Tenn.1989), 771 S.W.2d

116, certiorari denied (1989), 493 U.S. 917, 110 S.Ct. 278,

107 L.Ed.2d 258. Similarly, in Butler v. Alabama Judicial

Inquiry Comm. (Ala.2001), 802 So.2d 207, the court modified

an overbroad judicial canon by incorporating the

actual-malice test for judicial campaign speech.

We, however, agree with the majority of courts that have

addressed this issue and adopt “an objective standard to

determine whether a lawyer’s statement about a judicial

officer is made with knowledge or reckless disregard of

its falsity.” Annotated Model Rules of Professional Conduct

(4th Ed.1999) 566, Rule 8. This standard assesses an

attorney’s statements in terms of “ ‘what the reasonable

attorney, considered in light of all his professional functions,

would do in the same or similar circumstances’ * * * [and]

focuses on whether the attorney had a reasonable factual basis

for making the statements, considering their nature and the

context in which they were made.” Yagman, 55 F.3d at 1437,

quoting United States Dist Court, E. Dist of Wash. v. Sandlin

(C.A.9, 1993), 12 F.3d 861, 867. Accord In re Chmura (2000),

461 Mich. 517, 608 N.W.2d 31; In re Disciplinary Action

Against Graham (Minn.1990), 453 N.W.2d 313, 321-322,

certiorari denied sub nom. Graham v. Wernz (1990), 498 U.S.

820, 111 S.Ct. 67, 112 L.Ed.2d 41; Jn re Westfall (Mo.1991),

808 S.W.2d 829; 837; and Jn re Holtzman (1991), 78 N.Y.2d

184, 192-193, 573 N.Y.S.2d 39, 577 N.E.2d 30, certiorari

denied sub nom. Holtzman v. Tenth Judicial Dist. Grievance

Commt. (1991), 502 U.S. 1009, 112 S.Ct. 648, 116 L.Ed.2d

665.

13a

Appendix A

“As the Court of Appeals of New York observed in

Holtzman, supra., at 192, 573 N.Y.S.2d 39, 577 N.E.2d 30,

adopting a subjective standard would immunize all

accusations, however reckless or irresponsible, from censure

as long as the attorney uttering them did not actually entertain

serious doubts as to their truth * * *.’ The state’s interest in

protecting the public, the administration of justice, and the

legal profession supports applying a different standard in

disciplinary proceedings.” Chmura, 461 Mich. at 543, 608

N.W.2d 31, quoting Sandlin, 12 F.3d at 867.

Yagman, 55 F.3d at 1437-1438, further explained why

an “objective version” of the actual-malice test is permissible

in the context of disciplinary proceedings:

“(There are significant differences between the interests

served by defamation law and those served by rules of

professional ethics. Defamation actions seek to remedy an

essentially private wrong by compensating individuals

for harm caused to their reputation and standing in the

community. Ethical rules that prohibit false statements

impugning the integrity of judges, by contrast, are not

designed to shield judges from unpleasant or offensive

criticism, but to preserve public confidence in the fairness

and impartiality of our system of justice. See In re Terry,

271 Ind. 499 [502], 394 N.E.2d 94, 95 (1979); In re Graham,

453 N.W.2d 313, 322 (Minn.1990).

“Though attorneys can play an important role in exposing

problems with the judicial system, see Oklahoma ex rel.

Oklahoma Bar Assn v. Porter, 766 P.2d 958, 967 (Okla.1988),

false statements impugning the integrity of a judge erode

14a

Appendix A

public confidence without serving to publicize problems

that justifiably deserve attention. * * * [A]n obj ective malice

standard strikes a constitutionally permissible balance

between an attorney’s right to criticize the judiciary and the

public’s interest in preserving confidence in the judicial

system: Lawyers may freely voice criticisms supported by a

reasonable factual basis even if they turn out to be mistaken.”

(Emphasis added.)

We similarly conclude that the state’s compelling interest

in preserving public confidence in the judiciary supports

applying a standard in disciplinary proceedings different from

that applicable in defamation cases. Under the objective

standard, an attorney may still freely exercise free speech

rights and make statements supported by a reasonable factual

basis, even if the attorney turns out to be mistaken. Accord

In re Chmura, 461 Mich. at 544, 608 N.W.2d 31. Accordingly,

we hold that an attorney may be sanctioned for making

accusations of judicial impropriety that a reasonable attorney

would believe are false.

Relator does not contest that it bore the burden of proof

on this issue. Thus, we determine that a reasonable attorney

would believe that respondent’s accusations were false.

Respondent obviously disagreed with the court of

appeals’ analysis and disposition of his client’s appeal.

But as relator aptly points out, he made no real inquiry

into the court’s integrity at all prior to launching his attacks,

even ignoring his law partner’s advice against making the

accusations of bias and corruption. A failure to investigate

charges of judicial impropriety when EC 8-6 admonishes

15a

Appendix A

attorneys to “be certain” that their criticism has merit

demonstrates reckless disregard for truth. This is particularly

true where, as here, the attorney proceeds against the advice

of a close colleague in whom he has previously shown

confidence.

Moreover, we have reviewed the court of appeals’

opinion for evidence of bias and corruption and see nothing

that could possibly be characterized as anything other than

error, if that. Respondent simply assumed that the judges had

conspired to defy their individual oaths to faithfully and

impartially discharge the duties incumbent on their respective

judicial offices to the best of their ability and understanding.

R.C. 3.23. He thereby violated DR 8-102(B).

Sanction

We find respondent in violation of DR 7-106(C) and

8-102(B). We also find that his misconduct warrants a more

serious sanction than that recommended by the board.

Unfounded attacks against the integrity of the judiciary

require an actual suspension from the practice of law.

Disciplinary Counsel v. West (1999), 85 Ohio St.3d 5, 706

N.E.2d 760 (18-month suspension, 12 months stayed on

conditions); Columbus Bar Assn. v. Hartwell (1988), 35 Ohio

St.3d 258, 520 N.E.2d 226 (one-year suspension).

Respondent is therefore suspended from the practice of law

in Ohio for a period of six months. Costs are taxed to

respondent.

Judgment accordingly.

l6a

Appendix A

Moyer, C.J., RESNICK, F.E. SWEENEY, BowMaN and O’Connor,

JJ., concur.

LUNDBERG STRATTON, J., concurs in part and dissents in part.

PFEIFER, J., dissents.

Donna Bowman, J., of the Tenth Appellate District, sitting

for Cook, J.

17a

Appendix A

LUNDBERG STRATTON, J., concurring in part and dissenting

in part.

I concur with the majority’s judgment and most of its

analysis. However, I do not believe that Section 11, Article I

of the Ohio Constitution and DR 8-102(B) are in conflict

because I do not believe that the Ohio Constitution protects

“false statements of opinion.”

The majority indicates that there is a conflict between

DR 8-102(B) and Section 11, Article I of the Ohio Constitution

because DR 8-102(B) prohibits “false accusations against a

judge” while the Ohio Constitution protects “certain false

statements of opinion.” I believe that the Ohio Constitution

protects opinions but not false statements of opinion.

In support of its position, the majority cites Jn re

Complaint Against Harper (1996), 77 Ohio St.3d 211, 229,

673 N.E.2d 1253, and McKimm v. Ohio Elections Comm.

(2000), 89 Ohio St.3d 139, 144, 729 N.E.2d 364. The cited

portion of McKimm merely holds that alleged defamatory

statements must be examined from a reasonable reader’s

perspective to distinguish fact from opinion. In Harper we

recognized that an opinion is often “ ‘rhetorical hyperbole,’ ”

which cannot reasonably be interpreted as stating actual facts.

Harper, 77 Ohio St.3d at 229, 673 N.E.2d 1253, quoting

Greenbelt Coop. Publishing Assn., Inc. v. Bresler (1970),

398 U.S. 6, 14, 90 S.Ct. 1537, 26 L.Ed.2d 6.

I believe that a false statement of opinion connotes

a deceitfulness that is absent in hyperbole. Accordingly,

a distinction must be drawn between statements that may be

18a

Appendix A

reasonably interpreted by the ordinary reader as stating actual

facts about an individual versus statements that can

reasonably be interpreted by the reader as a free expression

of an opinion only of the author. See Harper, 77 Ohio St.3d

at 229, 673 N.E.2d 1253; McKimm, 89 Ohio St.3d at 144,

729 N.E.2d 364. Stating that a “false statement of opinion”

is protected by the Ohio Constitution precariously and

unnecessarily blurs the line between a mere opinion, which

is protected by the Ohio Constitution, and a false statement

of fact, which is not always protected.

Accordingly, I believe that the better approach is to state

that the Ohio Constitution protects opinions, but not false

statements of opinion. Otherwise, I concur with the majority.

19a

Appendix A

PFEIFER, J., dissenting.

In Disciplinary Counsel v. Grimes (1993), 66 Ohio St.3d

607, 614 N.E.2d 740, a case involving a lawyer who made

an off-color reference about a judge to a newspaper reporter

and a smart-aleck remark to another judge in court, I dissented

from the majority’s decision to impose a public reprimand.

In Grimes, I wrote that the conduct at issue was out of

character and inconsequential, but also that “[o]ur legal

system relies upon vigorous advocacy, which occasionally

leads to spirited interplay between lawyers and judges” and

that we “ought not rule in a way that may affect that friction.”

66 Ohio St.3d at 610, 614 N.E.2d 740.

I feel much the same way about the respondent in this

case. By all accounts, his behavior was out of character.

Certainly, a motion for reconsideration in an appellate

court, while a public document, would receive about as much

scrutiny from the public if it were written on the wind.

The offending statements were between this attorney and the

bench, and were presented in such a way that only the bench

and opposing counsel would see them.

That being said, the disturbing thing about this case that

separates it from Grimes is that the comments here were not

made off-the-cuff in a moment of anger. They were written

down, edited, and presumably checked for spelling. The

attorney then made copies and filed his motion with the court.

At any time he could have thought better of his comments

and retracted them. It is a tried and true practice that the first

thing a lawyer should do with a fiery pleading or letter is to

file it under his or her pillow.

BPE SNS NEE ET

20a

Appendix A

The respondent here did not do that, or if he did sleep

on it, made a mistake in filing it with the court. He admits as

much, and thinks he deserves a public reprimand. I agree,

especially given the virtually nonpublic release of his

comments.

2la

APPENDIX B — FINDINGS OF FACT, CONCLUSIONS

OF LAW AND RECOMMENDATION OF THE BOARD

OF COMMISSIONERS ON GRIEVANCES AND

DISCIPLINE OF THE SUPREME COURT OF OHIO

BEFORE THE BOARD OF COMMISSIONERS

GRIEVANCES AND DISCIPLINE

THE SUPREME COURT OF OHIO

Case No. 01-76

In Re:

Complaint against

Mark J. Gardner

Attorney Reg. No. 0061172

Respondent,

Office of Disciplinary Counsel

Relator.

Findings of Fact, Conclusions of Law and

Recommendation of the Board of Commissioners on

Grievances and Discipline of the Supreme Court of Ohio

This matter was heard in Columbus, Ohio on April 24,

2002. The panel members were Bernard K. Bauer of Findlay,

Ohio, Dale K. Perdue of Columbus, Ohio, and Jonathan

Hollingsworth, Panel Chair, of Dayton, Ohio. None of the

panel members resides in the district from which the

complaint originated and none served on the probable cause

22a

Appendix B

panel that reviewed and certified the complaint. Respondent,

Marls J. Gardner, was represented by Charles W. Kettlewell

& Associates, specifically, Charles W. Kettlewell and Charles

J. Kettlewell. Jonathan Coughlan represented Relator.

PROCEDURAL BACKGROUND

On August 10, 2001, a Probable Cause panel of the Board

of Commissioners on Grievances and Discipline certified to

the Board the complaint of the Office of Disciplinary Counsel

against Respondent. The complaint, as filed with the Board

on August 13, 2001, was served on Respondent by certified

mail return receipt on August 16, 2001. On September 5,

2001, Respondent moved and the Board granted him leave

to October 5, 2001, in which to file his answer to Relator’s

complaint. On October 5, 2001, Respondent’s counsel entered

an appearance and requested an additional extension up to

and including November 5, 2001, which was granted by the

Board. On November 13, 2001, Respondent filed his answer.

No objection was made to the late filing of the answer.

In the complaint, Relator alleged that Respondent’s

conduct violated Disciplinary Rules 1-102(A)(5) [engaging

in conduct that is prejudicial to the administration of justice];

1-102(A)(6) [engaging in conduct that adversely reflects on

the lawyer’s fitness to practice]; 7-106(C)(6)[engaging in

undignified or discourteous conduct which is degrading to

the tribunal]; and 8-102(B)f knowingly making a false

accusation against a judge].

A substantial portion of this case was submitted to the

panel based on joint stipulations of the parties filed with the

23a

Appendix B

Board on April 24, 2002. In the joint stipulations, Relator

withdrew the allegations relating to DR 1-102(A)(5) and

DR 1-102(A)(6) on the basis that it could not make its

evidentiary burden. Respondent stipulated to a violation of

DR 7-106(C)(6). The matter left for determination by this

panel was whether Respondent’s conduct violated

DR 8-102(B) and the appropriate sanction for findings of

misconduct. A copy of the joint stipulations is attached hereto

and incorporated herein by reference as if fully rewritten.

FINDINGS OF FACT

On May 17, 1993, Respondent was admitted to the

practice of law in Ohio. At the time of the conduct involved

in this matter, Respondent had been practicing law for

approximately eight (8) years and had acquired a reputation

as a very good lawyer on Ohio’s traffic laws. A frequent

lecturer on this topic in Ohio, Respondent appears to have

earned the recognition from his peers for his knowledge on

the subject and his tenacity for championing his clients’

causes. It is the over zealous manner in which he championed

the cause of one client that brought Respondent before this

Board.

Respondent represented Matt A. Cirino at the trial level

and before the Eighth District Court of Appeals in City of

Lakewood v. Cirino, No. 78057, Feb, 1, 2001. Mr. Cirino

appealed his conviction on one count of driving while

under a Financial Responsibility Act (“FRA”) suspension

in violation of Lakewood Codified Ordinance 335.07.

The conviction was based on the following facts.

ey ee

24a

Appendix B

On April 18, 2000, Cirino was pulled over by a City of

Lakewood police officer after he was observed running a red

light. The police officer checked Cirino’s driving privileges

via a LEADS report which, at that time, did not indicate that

Cirino’s license was suspended because of his failure to

comply with Olio’s FRA. However, the LEADS report did

indicate a court suspei:si.a. When the officer issued the traffic

citation, he listed the City of Lakewood Codified Ordinance’s

numerical designation of “Section 335.07” without further

identifying by alphabetical reference any of the five

subsections of the ordinance. However, under the heading

of “Suspension Type,” the officer wrote the phrase: “FRA

4-27-99 - 4-27-02.”

At the criminal trial on April 18, 2000, Respondent

argued that since Cirino’s driver’s license was not under

an FRA suspension at the time of his arrest and citation,

his client must be found not guilty. Although the Lakewood

Municipal Court acknowledged “that the ticket was on the

FRA suspension,” the trial court nevertheless found Cirino

guilty of driving while under suspension and one count of

failure to obey a traffic control device.

In his appellate brief, Respondent argued constitutional

violations, asserting that since the traffic citation charged

his client with having violated the FRA suspension provision,

that the trial court was prohibited from finding him guilty of

a different, uncharged type of suspension. The Eighth District

Court of Appeals upheld the conviction. In its opinion,

the appellate court stated that since the officer did not list

any particular subsection of the Lakewood Ordinance on the

citation, the trial court was free to convict Cirino on the

25a

Appendix B

court-ordered suspension. Respondent filed a motion for

reconsideration of the appellate decision. In his motion for

reconsideration, Respondent asserted that the appellate court

panel that ruled on the Cirino appeal was dishonest and

ignored well-established law. He went on to say that the

panel’s opinion was so result driven that “any fair-minded

judge should be ashamed to attach his/her name to [it].”

He accused the panel of “not giving a damn about how wrong,

disingenuous and biased its opinion was.” Although

Respondent contended that many of his remarks were taken

out of context, the following statements are representative

of his attack on the appellate court and his opinion of

the panel:

a. not being fair-minded;

b. seeking to skew or ignore the facts;

c. disregarding honesty and truth,

d. being blind to basic law and fairness;

e. only applying the law as a hammer to crush citizens

and not as a shield for their basic rights;

f. casting aside the truth to achieve a particular result;

g. distorting the truth;

h. manufacturing a gross and malicious distortion;

i. lacking in basic decency and honesty;

26a

Appendix B

j. writing an opinion that failed to reflect the truth;

k. trying to achieve as a particular result the affirmance

of a wrongful conviction;

l. corrupting the law and the truth;

m. failing to abide by their oath to uphold and follow

the law;

n. bending over backward and ignoring well establish

(sic) law just to encourage law enforcement officers

to be slovenly and careless; and

o. having an obvious prosecutorial bias.

Respondent also invoked the name of God in making

his accusations against the appellate panel:

In this case, beyond the ignored concepts of the law and

truth, lies that of policy. As a policy matter, is this Court

really encouraging

all officers in the Eighth District to charge the

generic statute — or chapter or title — and not

the particular offense they are accusing a citizen

of violating? In the name of God, WHY?

27a

Appendix B

CONCLUSIONS OF LAW

Based on the foregoing facts, Relator initially charged

Respondent with violating Disciplinary Rules I-102(A)(5)

[engaging in conduct that is prejudicial to the administration

of justice]; I-102(A)(6) [engaging in conduct that adversely

reflects on the lawyer’s fitness to practice]; 7-1066(C)(6)

[engaging in un“ignified or discourteous conduct which

is degrading to the tribunal]; and 8-102(B)[knowingly

making a false accusation against a judge]. However, Relator

withdrew and the panel accepted the withdrawal of

the allegations of a violation of DR 1-102(A)(5) and

DR 1-102(A)(6). Therefore, the panel recommends a

dismissal of the allegations relating to DR 1-102(A)(5) and

DR 1-102(A)(6) on the basis that Relator has failed to prove

said violations by clear and convincing evidence.

Based on the findings of fact and the joint stipulation

of the parties, this panel finds that Relator has proven by

clear and convincing evidence that Respondent’s conduct

constitutes a violation of DR 7-106(C)(6) and DR 8-102(B).

MITIGATION

- Respondent is in good standing, cooperated fully with

Relator and has no other grievances against him. Moreover,

Respondent has expressed remorse for the manner in which

he chose to vent his frustrations about the adverse result for

his client, including writing a letter of apology to the appellate

panel. However, and despite his recognition of the need to

appropriately challenge judicial decisions, Respondent

continues to believe that he was right about the legal

28a

Appendix B

arguments made in the Cirino natter. This attitude casts a

shadow over the genuineness of Respondent’s expression of

remorse for the mariner in which he vented toward the

appellate court.

RECOMMENDATION

Relator and Respondent stipulate to a public reprimand

for the admitted violation. Finding no reason to oppose same,

this Panel adopts the recommended sanction of a public

reprimand.

BOARD RECOMMENDATION

Pursuant to Gov. Bar Rule V(6)(L), the Board of

Commissioners on Grievances and Discipline of the Supreme

Court of Ohio considered this matter on August 9, 2002.

The Board adopted the Findings of Fact and Conclusions of

Law. The Board, however, recommends that, based on the

Respondent’s outrageous behavior toward a tribunal, the

Respondent, Mark J. Gardner, be suspended from the practice

of law in the State of Ohio for a period of six months, with

all six months stayed on the condition of no further violations.

The Board further recommends that the cost of these

proceedings be taxed to the Respondent in any disciplinary

order entered, so that execution may issue.

Pursuant to the order of the Board of Com-

missioners on Grievances and Discipline of

The Supreme Court of Ohio, I hereby certify

the foregoing Findings of Fact, Conclusions of

Law, and Recommendations as those of the

Board.

29a

Appendix B

s/ Jonathan W. Marshal

JONATHAN W. MARSHAL, Secretary

Board of Commissioners on

Grievances and Discipline of

The Supreme Court of Ohio

30a

Appendix B

* * *

JOINT STIPULATIONS

Now come relator, Disciplinary Counsel, and respondent,

Mark Gardner, who hereby stipulate and agree to the

following facts and exhibits for submission to the panel:

1. Respondent, Mark J. Gardner, was admitted to the

practice of law in the state of Ohio on May 17, 1993.

2. Respondent is subject to the Rules for the Government

of the Bar and Code of Professional Responsibility.

3. Respondent represented Matt A. Cirino at the trial

level and before the Eighth District of Court of Appeals

in City of Lakewood v. Cirino, (No. 78057; Feb. 7, 2001).

Mr. Cirino appealed his conviction on one count of Driving

While Under a Financial Responsibility Act (FRA)

Suspension, in violation of Lakewood Codified Ordinance

335.07. (Exhibit A)

4. On April 18, 2000, Cirino was pulled over by a City

of Lakewood police officer after he was observed running a

red light.

5. The Lakewood officer checked Cirino’s driving

privileges via a LEADS report, which, at the time, did not

indicate that Cirino’s license was suspended for his failure

to comply with Ohio’s FRA. However, the LEADS report

did list a court suspension. (Exhibit B)

ee NERD TI ORES ETA

3la

Appendix B

6. The traffic citation (charging instrument) issued to

Cirino listed the City of Lakewood Codified Ordinance

numerical designation of “§335.07” without further

alphabetically identifying any particular subsection of the

five available. In the preprinted portion of the ticket labeled

“Suspension Type,” the arresting officer wrote the phrase,

“FRA 4-27-99 — 4-27-02.” (Exhibit C)

7. At the trial on April 18, 2000, respondent argued

that since Cirino’s driver’s license was not under an FRA

suspension at the time of his arrest, his client must be found

Not Guilty. Although the Lakewood Municipal Court

acknowledged “that the ticket was on the FRA suspension”

(Exhibit D, Trial Transcript p. 19), the trial court, nevertheless

found Cirino guilty of a driving while under suspension and

one count of failure to obey a traffic control device.

8. In his appellate brief respondent asserted, based upon

notice, due process issues, and case law, that since Mr. Cirino’s

citation charged him with having violated the FRA

suspension provision that the trial court was prohibited from

finding him guilty of a different, uncharged type of

suspension.

9. The conviction was upheld by the Eighth District

Court of Appeals. In its opinion the Eighth District Court of

Appeals stated that since the officer did not list any particular

subsection [(a), (b), (c), (d), or (e)] of Ordinance § 335.07

on the charging document, the trial court was free to convict

Cirino on the court-ordered suspension. (Exhibit E)

cei teenie iit

32a

Appendix B

10. After the decision by the Eighth District Court of

Appeals, respondent filed a motion for reconsideration, or

in the alternative, to certify a conflict to The Ohio Supreme

Court. (Exhibit F)

11 Respondent’s motion asserted, in general, and

sometimes specific terms, that the Eighth District Court of

Appeals panel (hereinafter “panel”) was dishonest and

ignored well-established law, and the panel’s opinion was

so result driven that “any fairminded judge should be

ashamed to attach his/her name to [it].”

12. Respondent accused the panel of “not giving a damn

about how wrong, disingenuous and biased its opinion was.”

13. Respondent’s motion for reconsideration (Exhi-

bit F) is the best evidence and speaks for itself, but to

summarize, it contains the following statements with respect

to the panel’s decision;

(a) not being fair-minded;

(b) seeking to skew or ignore the facts;

(d) being blind to basic law and fairness;

(e) only applying the law as a hammer to crush

citizens and not as a shield for their basic

rights;

33a

Appendix B

(f) casting aside the truth to achieve a particular

result;

(g) distorting the truth;

(h) manufacturing a gross and malicious

distortion;

(i) lacking in basic decency and honesty;

(j) writing an opinion that failed to reflect the

truth;

(k) trying to achieve as a particular result the

affirmance of a wrongful conviction;

(1) corrupting the law and the truth;

(m) failing to abide by their oath to uphold and

follow the law;

(n) bending over backward and ignoring well

establish (sic) law just to encourage law

enforcement officers to be slovenly and

careless; and

(m) having an obvious prosecutorial bias.

14. Respondent’s motion further stated:

In this case, beyond the ignored concepts

of the law and truth, lies that of policy. As a

34a

Appendix B -

policy matter, is this Court really encouraging

all officers in the Eighth District to charge the

generic statute — or chapter or title — and

not the particular offense they are accusing

a citizen of violating? In the name of God,

WHY? citing thereafter to State v. Homan

(2000) 89 Ohio St.3d 421. (Exhibit F)

MITIGATION AND AGGRAVATION

15. Respondent submits the following factors in mitigation:

(a) absence of prior disciplinary record; (b) absence of a

dishonest or selfish motive; (c) full and free disclosure to

disciplinary Board and cooperative attitude toward

proceedings; and (d) character and reputation testimony and

letters to be submitted at hearing. (Exhibit G) Respondent

admits that portions of his motion were grossly excessive

and should never have been published, for which he

apologizes.

16. There are not aggravating factors.

VIOLATIONS

17. Relator withdraws the allegations of violations

DR 1-102(A)(5) and DR 1-102(A)(6). Relator and respondent

agree and stipulate respondent’s conduct was in violation of

DR 7-106(C)(6) [engage in undignified or discourteous

conduct which is degrading to the tribunal.

18. Relator’s allegation that respondent’s conduct also

violated DR 8-102(8) [knowingly making a false accusation

against a judge] remains outstanding.

35a

Appendix B

SANCTION

19, Relator and respondent agree and stipulate that the

appropriate sanction is a public reprimand. Should the panel

find respondent’s conduct also violated DR 8-102(8) relator

and respondent stipulate that the appropriate sanction is a

public reprimand.

STIPULATED EXHIBITS

Exhibit A | Mr. Cirino’s August 18, 2000 appeal of his

conviction of Ordinance 335.07

Exhibit B LEADS Report

ExhibitC Traffic ticket charging driving while

suspended in Lakewood v. Cirino

Exhibit D April 18, 2000 City of Lakewood v. Matt A.

Cirino Trial Transcript

ExhibitE Eighth District Court of Appeals Journal

Entry and Order upholding Mr. Cirino’s

conviction

Exhibit F Mr. Gardner’s February 5, 2002 Motion for

Reconsideration, or in the Alternative, to

Certify a Conflict to the Supreme Court

ExhibitG Respondent’s Character Letters

36a

Appendix B

CONCLUSION

The above are stipulated to and entered into by agreement

by the undersigned parties on this 24 day of April, 2002.

Respectfully submitted,

CHARLES W. OFFICE DISCIPLINARY

KETTLEWELL & COUNSEL OF THE

ASSOCIATE SUPREME COURT OF OHIO

s/ Charles Kettlewell s/ Jonathan E. Coughlan

Charles W. Kettlewell Jonathan E. Coughla

(0016120) (0026424)

Charles J. Kettlewell Disciplinary Counsel

(0072448) - 175 South Third Street

150 East Wilson Bridge Columbus, Ohio 43215

Road, Suite 200 (614) 461-0256

Worthington, Ohio 43085 (614) 461-7205—Fax

(614) 436-2750

(614) 436-2865—Fax Relator

Counsel for Respondent,

Mark J. Gardner

s/ Mark J. Gardner

Mark J. Gardner (0061172)

Gardner and Kucharski

526 Superior Avenue, Suite 1130

Cleveland, Ohio 44114

Respondent

siihnsih sapacia tied Mee elnino edo +

37a

APPENDIX C — RECONSIDERATION ENTRY OF

THE SUPREME COURT OF OHIO,

DENIED ON OCTOBER 8, 2003

THE SUPREME COURT OF OHIO

Case No. 02-1461

Disciplinary Counsel,

Relator,

Mark J. Gardner,

Respondent.

RECONSIDERATION ENTRY

IT IS ORDERED by the Court that the motion for

reconsideration in this case be, and hereby is, denied.

s/ Thomas J. Moyer

Thomas J. Moyer

Chief Justice

38a

APPENDIX D — MOTION FOR RECONSIDERATION

ORIN THE ALTERNATIVE, TO CERTIFY A CONFLICT

TO THE OHIO SUPREME COURT IN THE COURT OF

APPEALS FOR THE EIGHTH APPELLATE DISTRICT,

CUYAHOGA COUNTY, OHIO DATED

FEBRUARY 9, 2001

IN THE COURT OF APPEALS,

EIGHTH APPELLATE DISTRICT

CUYAHOGA COUNTY, OHIO

APPEALS COURT NO. 78057

CITY OF LAKEWOOD

Plaintiff-Appellee

-vs-

MATT A. CIRINO,

Defendant-Appellant

MOTION FOR RECONSIDERATION OR

IN THE ALTERNATIVE, TO CERTIFY A CONFLICT

TO THE OHIO SUPREME COURT

Now comes Defendant-Appellant, by and through

undersigned counsel, and moves this panel to reconsider its

opinion issued on February 1, 2001, or in the alternative,

to certify a conflict between this panel’s opinion and that

rendered by another district to the Ohio Supreme Court.

The basis of this motion is that this panel’s opinion is

not only illogical, it is also dishonest. It is dishonest in that

39a

Appendix D

not only is well-established law being ignored, but also in

its recitation of the facts, and more significantly, the facts

omitted from the opinion. It is the most result-driven opinion

this attorney has ever read. It is an opinion that any learned

fair-minded judge should be ashamed to attach his/her

name to.

I don’t imagine this panel gives a damn about how wrong,

disingenuous and biased its opinion is. But there is indisputably

a conflict between this panel’s opinion and that of Clark

County Court of Appeals case of State v. Jackson (1992),

78 Ohio App.3d 479, where the 2" District ruled that a de

facto amendment from “driving under a court suspension”

in violation of R.C. §4507.02(D)(1) to “driving without

paying a reinstatement fee” in violation of R.C. §4507.02(C)

was improper and illegal.

Furthermore, this panel should — at this point in their

collective legal careers — understand that the UTT (also know

as a traffic ticket) is the charging document in all traffic

matters. According to the law — at least in fair-minded Ohio

appellate districts where this panel does not sit — the UTT is

the charging document that is supposed to place Defendants

on notice of exactly what offenses they have been accused

of having violated.

No matter how bad this panel wants to skew or ignore

the facts of this case, there is no question — no question —

that Mr. Cirino was charged with DUS-FRA and running a

traffic light. Why is there no question? Because that’s what

the ticket said!! Imagine that, the traffic ticket (i.e., charging

document) actually says that!! Isn’t that good enough for this

panel?

40a

Appendix D

The officer completing the traffic ticket actually wrote

down “Red Light” and “FRA 4-27-99 > 4-27-02.” He also

wrote down that he was charging Mr. Cirino with just two

offenses. Not three! Not four! Not all five of the DUS offenses

listed under L.C.O. §335.07. Or perhaps this panel actually

“honestly” believes that Mr. Cirino was charged with six

offenses, the five that are listed under L.C.O. §335.07 and

the red light offense? The officer did not write on the ticket

(i.e., did not allege) that Mr. Cirino with driving under a

court suspension. Honestly. Read the traffic ticket issued to

Mr. Cirino. Or doesn’t this panel care about this fact?

Well then, exactly what type of DUS offense did Mr. Cirino

reasonably believe he was charged with having violated?

Could it possibly be the one that was spelled out for him on ;

the ticket by the arresting officer, i.e., FRA 4-27-99 2 4-27-

02?, and that he was actually prosecuted for (but not

convicted of)? No. Banish the thought. Actually reading

the words written by the charging officer on the ticket to see f

what offense you’re charged with would have been both

stupid and dishonest of Mr. Cirino. Right? Isn’t that this

panel’s legal theory?

re ee eer te One Mobo er

Apparently, according to this esteemed panel, actually

reading the plain English written on the traffic ticket would

constitute unreasonable and perhaps even irrational action.

Better that Mr. Cirino would have pulled out dice and

assigned various uncharged offenses to each number

(1 = murder; 2 = DUI, 3 = sexual imposition, etc) and just

roll it. Whatever number comes up, best three out of five,

that’s the offense Mr. Cirino will defend himself on. Charging

document be damned!! Explicit language be damned.

Honesty and truth be damned. After all, a traffic ticket is just

a JV—LS

4la

Appendix D

a bunch of letters, words and numbers strewn together that

does not mean anything. Right? :

Mr. Cirino, as well as defense counsel, knew that he was

charged with DUS-FRA, and not DUS-Court Suspension.

It said so on the traffic ticket. The arresting officer knew he

was charging Mr. Cirino with DUS-FRA, which is why he

wrote under Type of Suspension, “FRA: 4-27-99 > 4-27-

02.” This fact is born out from his testimony. The prosecutor

likewise knew he was prosecuting a DUS-FRA case, that’s

why in his direct examination of the officer he presented

evidence exclusively addressing Mr. Cirino’s FRA situatior

In fact, the prosecutor actually admitted that Mr. Cirino was

in fact charged with DUS-FRA at oral argument before this

panel!! Of course, this fair and non-prosecutorial minded

panel ignored that quote, but was able to summon up the

courage to quote defense counsel that “if [Mr. Cirino] was

charged under driving under a court suspension, there’s little

doubt he would be found guilty.” How fair. How completely

neutral and just of this panel. And by the way, even the irial

judge knew that Mr Cirino was charged with DUS-FRA,

which is why he said on the record, “The ticket was on a

FRA suspension.” (Trial transcript page 19, lines 22 &23)

So why in the name of truth and decency can’t this panel

acknowledge what everyone else knows is the simple

unquestionable truth? Mr. Cirino was charged with a DUS-

FRA and not a DUS-Court Suspension. Is this panel’s desire

to be “tough on crime” blinding it to basic law and fairness?

Why does this panel only apply the law as a hammer to crush

citizens and not as a shield to protect their basic rights?

Is having a prosecutorial bent that hard to let go of that the

truth must be cast aside to achieve a particular result?

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Appendix D

This panel distorted the truth — yes, it manufactured a

gross and malicious distortion — when it wrote “In the present

case, contrary to the assertion of the appellant, the appellant

was not charged with a violation of section 335.07(a) of the

Lakewood Codified Ordinances.” This panel knows — as does

everyone else associated with this case — what Mr. Cirino

was charged with. Or perhaps this panel is now sanctioning

police officers charging citizens with a violation of “Chapter

4511.” Why specify what the offense is? Let the accused do

all the work. Right? That makes good sense. It’s also fair,

right? Check the “satisfied” box on the Due Process and

Notice requirements. Better yet, all officers should now just

write on the UTT that a violation of “Title 45” occurred.

That’s the way to do it. Right?

Wouldn’t it be nice if this panel had the basic decency

and honesty to write and acknowledge these simple

unquestionable truths in its opinion? Would writing an

opinion that actually reflected the truth be that hard? Must

this panel’s desire to achieve a particular result — upholding

a wrongful conviction of a man who was unquestionable

guilty of an uncharged offense — necessarily justify its own

corruption of the law and truth? Doesn’t an oath to uphold

and follow the law mean anything to this panel?

Is-‘that claim that “We are a nation of laws, not men”

have any meaning after reading this panel’s decision? Can’t

this panel have the decency to actually address — rather than

to ignore — the cases cited by Mr. Cirino which demonstrate

beyond any doubt that he was convicted of an offense he

was never charged with having violated?

43a

Appendix D

In this case, beyond the ignored concepts of the law and

truth, lies that of policy. As a policy matter, is this court really

encouraging all officers in the Eighth District to charge the

generic statute — or Chapter or Title — and not the particular

offense they are accusing a citizen of violating? In the name

of God, WHY? What is so difficult with a police officer doing

his job in an intelligent manner? Why must this panel bend

over backwards and ignore well established law just to

encourage law enforcement officers to be slovenly and

careless? In State v. Homan (2000), 89 Ohio St.3d 421, didn’t

the Ohio Supreme Court just state that officers actually have

to follow the rules strictly? Doesn’t that mean anything to

this panel?

Perhaps, if this panel is not strong enough to admit its

obvious prosecutorial bias in its opinion, it will discover the

internal fortitude to certify this matter to the Ohio Supreme

Court under Rule IV of the Rules of Practice of the Supreme

Court of Ohio.

Ever So Respectfully Submitted,

Mark Gardner, Atty. Reg.

#0061172

Gardner & Kucharski

526 Superior Avenue, Suite 1130

The Leader Building

Cleveland, OH 44114

Ph. 216.696.9800

Fax 216.696.2200

44a

APPENDIX E — LETTER FROM JUDGE KENNETH

R. SPANAGEL TO CHARLES W. KETTLEWELL

JUDGE KENNETH R. SPANAGEL

PARMA MUNICIPAL COURT

5555 POWERS BOULEVARD

PARMA, OHIO 44134

440-887-7473

Mr. Charles W. Kettlewell

150 East Wilson Bridge Road

Suite 200

Worthington, Ohio 43085

Re: No. 01-76 — Disciplinary Counsel, Relator

vs. Mark J. Gardner, Respondent

Dear Mr. Kettlewell:

I am writing you this letter pursuant to the subpoena

received by me to provide character information to the Board

of Commissioners with regard to the above-captioned matter.

I am aware of the constraints which I, as a Judge, am permitted

to write such letters and do so pursuant to the subpoena.

I was aware of the Motion filed by Mr. Gardner as well as

the Decision in Eighth District Case Number 78057 prior to

my being made aware of these disciplinary proceedings.

I am aware that this letter may be reviewed by the Board of

Commissioners with regard to Mark’s disciplinary

proceeding.

I am not sure how many years I have known Mark, but it

would have to be somewhere between 6 to 10 years. I have

known Mark as a defense and plaintiff’s lawyer in my Court,

45a

Appendix E

as well as a student in CLE that he teaches, as well as jointly

teaching with him on CLE on a wide range of topics of traffic

law. I also know of Mark through his work as an expert where

he has testified in my Court on alcohol related traffic

violations, as he has been trained in the NHTSA Field

Sobriety Tests. His dedication to the law and justice is one

of the highest I’ve seen in any lawyer I have known either

personally or professionally in my 27 year legal career. Some

of this, I believe, stems from heritage and the upbringing of

his family, with a strong sense of the rightness of the law

and government. I believe Mark is before the Board of

Commissioners at this time because of the zeal that he has

for the law and what he believes to be right.

As a 15 year Judge with experience in traffic law, a

teacher of traffic law across the State and as one of the

primary designers of the UTT Ticket Form, which was the

prime subject matter of the Appellate Case, I think that I am

highly knowledgeable as to the facts of the Appellate Case.

I have read the Decision, even before any disciplinary

proceedings were commenced. Although I am restricted in

my own ability to comment as to Judicial Decisions, it is my

personal opinion that the Decision made by the Court of

Appeals was wrong and I certainly would, at a minimum,

have written a strong dissent. This is not to either praise or

condemn Mark for the language of his Motion; I realize the

Members of the Board of Commissioners must focus more

on Mark’s conduct as opposed to the underlying reason for

the conduct, but I would suggest that the Board might first

look at the original case, the Appellate Decision, and perhaps

examine the law themselves as to whether or not they feel

the Appellate Decision was correct. I think this may be

46a

Appendix E

important to give the members of the Board some perspective

as to where Mark stood as a lawyer. There is no question

that his comments in the Motion were both zealous and

inflammatory; the question before the Board is whether or

not his actions rise to a violation of the Disciplinary Rules,

which I know Mark holds in the highest regard and deeply

respects.

I have inquired of the Board and have learned from their

office the four specific Disciplinary Rules which he is alleged

to have violated. To the extent that I would render my own

opinion of Mark’s conduct, I wish to comment based upon

each particular rule. I believe that his conduct was not

prejudicial to the administration of justice under DR 1-

102(A)5. Certainly his comments, though inflammatory, did

not effect the outcome of the Appellate Decision, as the

Motion was a Post Ruling Motion. Although I think Mark

realized that a Motion for Reconsideration might not be

granted, his Motion for a Certification of Conflict to the

Supreme Court appears to have, at a minimum, merit for

consideration by the panel. Perhaps as to this Rule the best

adage might be that Mark sought an appropriate relief for

his client, but the words he used in going about it were not

the appropriate way to do it. The key question would be,

were his words prejudicial to the administration of justice?

Regardless of the language, the Appellate panel had three

options presented to it — grant reconsideration, certify a bona

fide conflict, or deny the Motion in total. If anything, Mark’s

language could be considered as being prejudicial to his

client, to the extent that they would anger the members of

the panel. However, I believe that Mark, although upset with

the Court’s Ruling, did it in a manner which was appropriate,

although his language was extreme.

47a

Appendix E

As to the allegations regarding DR 1-102(A)6, I do not

think that in any way Mark’s conduct in any way adversely

reflects on his fitness to practice law. Mark’s record as a

lawyer, teacher, prosecutor, judicial candidate, and person

reflect in his entire legal career, not only his fitness to

practice, but his superior commitment to the practice of law.

My opinion is that this is an example of a situation which

we have all faced as practitioners, that being unhappy with a

Decision of a Court, and in this situation, outraged at what

he felt what was a major incorrect Decision. Like any of us,

we could confine our frustration to the corridors of the

Courthouse, complaining at a cocktail hour, or privately

complaining to fellow lawyers behind closed doors. Would

any of those actions serve the benefit of his client, to which

he still owes a duty to engage in the best legal work for his

client? I do not think so. I do not think Mark should be

applauded for his approach to the Court regarding a Decision

unfavorable to him. He did, however, take the appropriate

legal step by filing the appropriate Motion. It would be my

opinion the best way to contemplate whether or not Mark

violated this rule would be to place any one of us into his

shoes and for us to consider what would have been the most

appropriate action to take to represent our client zealously.

Mark is also charged with a violation of DR 7-106(C)

(et. seq.), Although DR refers to undignified or discourteous

conduct, I will accept that the language in a Motion could

constitute conduct within the realm of this Rule, although

the flow of DR 7-106 it would appear to relate more to

conduct as opposed to language. I have seen Motions and

Briefs at times which certainly raise inflammatory language

between parties and counsel, but have not seen previous

48a

Appendix E

situations where inflammatory statements were directed to

the Court. If in fact those words were undignified or

discourteous, I again think it is necessary to understand the

frustrations which Mark may have had to this particular

Decision. In all of the time I have known Mark, I have never

seen him at any time demonstrate anything other than a

deepest respect for all judicial persons and proceedings.

I have seen Mark’s zeal in the defense of his clients and the

passion with which he takes client’s cause, especially when

he sees a need for justice to be done. In every case that Mark

has had-before my Court, I have been impressed by his

professionalism and his thoroughness in the criminal justice

process, as compared to many lawyers before my Court who

seem more result driven to resolve a case as quickly and

reasonably as possible and move on, even where a legitimate

issues that could have been raised for their clients that were

not. The language of his Motion was perhaps discourteous,

but they reflected Mark’s own frustration in a Decision he

felt was wrong.

As to the last alleged violation, under DR 8-102(B),

although Mark’s language was inflammatory, and I’m sure

offensive to the panel, I do not believe his comments were

intended or meant to make any accusations to a Judge. His

comments, though less than appropriate, did not accuse any

one of the Judges of any wrong doing or violation of either

the Code of Judicial Conduct or the Ethical Considerations

or Disciplinary Rules we all follow as lawyers. As I stated

earlier in this letter, although Mark probably should not have

made the comments he did, ! know Mark well enough to

know that Mark is not a person who routinely or regularly

flies off the handle, or makes disparaging remarks to either

49a

Appendix E

lawyers of the Court regarding other lawyers or members of

the judiciary. Although I have never heard him practice before

an Appellate body, I know of his arguments both in Appellate

Courts and the Supreme Court where his professionalism and

preparation demonstrate his fitness to practice law.

| As I stated earlier, there are very few lawyers I know or

have known who I have been more impressed with than

Mark’s commitment to the justice system, the practice of law,

and the interest of his clients. Since the potential of sanction

may range from no sanction to disbarment, this is a very

serious proceeding, and I take the writing of this letter very

seriously. For the Board of Commissioners to recommend

any sanctions to the Supreme Court that would limit or affect

Mark’s continuing right to practice law would be a disservice

to the practice of law and the citizens of this State. As a

prosecutor, Mark ensures that criminal justice is served on

behalf of the State in the jurisdiction in which he serves as

- prosecutor. As a practitioner, Mark serves the interest of many

Defendants, some of who probably cannot afford the high

level of representation which he gives, but which he does so

in every case. As a teacher, Mark shares knowledge with

lawyers across the State for their individual improvements

in their own individual practices. Mark has a total

commitment to the practice of and the betterment of justice

in this State. I would hope that the Board of Commissioners

considers all of these factors when weighing their

deliberations and their determination of the case.

In the event that you have any further questions, you

may feel free to contact me at 440-887-7473.

50a

Appendix E

Very truly Yours,

s/ Kenneth R. Spanagel

Judge Kenneth R. Spanagel

Parma Municipal Court

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.