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

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(\) supreme Court, U.S.

FILED

961612 APR 4 1997

NO. QGRIGE OF THE CLERK

In The

Supreme Court of The United States

October Term 1996

SARA J. HARPER

Petitioner,

vs.

OFFICE OF DISCIPLINARY COUNSEL,

THE SUPREME COURT OF OHIO, ET AL.,

Respondents.

Petition For A Writ of Certiorari

From The Supreme Court of

The State of Ohio

PETITION FOR WRIT OF CERTIORARI

Sara J. Harper

Mark A. McClain, Of Counsel

1677 East 40th Street

Cleveland, Ohio 44103

(216) 881-1220

QUESTION PRESENTED FOR REVIEW

Whether the constitutional rights to

freedom of speech and due process of law

allow a state supreme court to punish a

judicial candidate for statements made

during a political campaign when the

statements made were not false.

TABLE OF CONTENTS

PAGE NOS.

Question Presented for Review .... i

Table Gf AuUGROCItiGs «.. 2. eckson iii

Cimino DRO on 6 cose eine ee webes 1

Statement of Jurisdiction ........ 1

Statutory Provisions Involved .... 2

Statement OF Che CMOS 6.6 66 skdw ns =

Reasons for Allowance of the Writ 8

CCFO oo 3 a ew be eee eee 18

Certificate of Service .....css«<« 20

BRWONGAS 2 oi soe Sts wee we sees 21

a+ See

TAPLE OF AUTHORITIES

PAGE NOS.

COURT CASES

Connally v. General Construction Co., 269

a ee EE a Sb a eg a 6S nie 16

ee es SOU CAPR) se wc eee eaters 9, 18

Hoffman Estates v. Flipside, Hoffman

Estates, 455 U.S. 489 (1981).... 14, 15

In re Complaint Agaisnt Harper, 77 Ohio

St.3da 211, 673 N.E.2d 1253 (1996).. 3, 4,

In re Primus, 460 U.S. 412, 98 S.Ct. 1893

Kolendar v. Lawson, 461 U.S. 352, 357-

BaTiO Fe gp Coe ae a ee 17

Landmark Communications, Inc. v.

wires. £35 0.8. 829 (3978)... 1715, 16

Leonardson v. City of East Lansing, 896

ee A BARR C3 ORES ty Sa | a er 14,

16, 18

Standing Committee v. Yagman,

Boar eee teem eS. 2998S)... evan 15

iii

U. S. v, Wunsch, 54 F.3d 579 (9th Cir.

LSE dew a Kako wee ee CREE ODL 15, 18

STATUTES AND CODES

Ohio Code of Judicial Conduct (1973)

Cue Ss Ose See ees 3 |

RN we ee ee seta 3 |

Ce a a alee eee 8% Oca 3, 6-9,

14-16

Rouen a a ea 0 a oe ae ee 11-13

Ce Tee ew bow ees 2; ey)

9, 14-16

Ce Fees eg a ba ra 3-11

American Bar Association Model Code of

Judicial Conduct (1972) and (1990)

cade eae ek ES eee eS ee S25 B39

B. Garner, A Dictionary of Modern Legal

Te 5 RR Fos ne wd ok ee ee LZ, 14

L. Milord, The Development of the ABA

JUGLCLAL Code; 1992 22.5.6 66s 10

}

OPINION BELOW

In Re Complaint Against Harper, 77 Ohio

St.3d 211, 673 N.E.2d 1253 (1996)

STATEMENT OF JURISDICTION

The Ohio Supreme Court issued a

December 5, 1996 written opinion (App.

62) and subsequently a December 26, 1996

Order (App. § 18) imposing a public

reprimand against Petitioner.

Upon motion by Petitioner, this

Court granted a 30 day leave until April

4, 1997, for which to file a Petition for

Writ of Tertiorari.

This Court has jurisdiction over

this matter pursuant to 28 U.S.C. section

1257 which grants this Honorable Court

the power to review by writ of certiorari

final judgments rendered by the highest

court of a state when the validity of a

state statute is challenged on the ground

that it is repugnant to the United States

Constitution.

STATUTORY AND CONSTITUTIONAL PROVISIONS

The First Amendment to the United

States Constitution:

Congress shall make no law...

abridging the freedom of

speech, or of the press....

The Fourteenth Amendment to the

United States Constitution:

[NJor shall any State deprive

any person of life, liberty, or

property, without due process

GS 408i in.

Ohio Code of Judicial Conduct

(Effective December 20, 1973, Including

Amendments Received through July 15,

1994) (See App. 25).

STATEMENT OF THE CASE

This petition seeks review of a

December 5, 1996 Supreme Court of Ohio

decision (App. 62) and December 26, 1996

Order (App. 18) that imposed a public

reprimand against Petitioner Judge Sara

J. Harper. The public reprimand was

imposed against the sitting state court

of appeals judge due to the content of a

television commercial that she approved

for broadcast during the 1994 Supreme

Court of Ohio election. The commercial

contained true information about the

source of campaign funds raised by the

incumbent opponent, but was found to have

violated canons of judicial conduct due

to alleged "implied" untruths (App. 108).

On June 5, the 1995 The Board of

Commissioners on Grievance and Discipline

of the Supreme Court of Ohio filed a

Complaint and Certificate against

Petitioner alleging that she violated

Canons 1, 2A, 7(B)1(a) and (c), and

7(C)9. (App. 21, Complaint; App. 25, Code

of Judicial Conduct, Including Amendments

Received through July is, 1994).

Petitioner responded to the Complaint and

Certificate denying any violations and

alleging that her speech was protected

under the First Amendment of the United

States Constitution. Petitioner further

alleged that the canons of judicial

conduct that Petitioner allegedly

violated were vague and overbroad and

constituted a violation of her due

process rights under the Fourteenth

Amendment of the United States

Constitution.

In its December 5, 1996 opinion, the

Ohio Supreme Court determined that no

constitutional rights were violated

(App. 86-111).

The State of Ohin’s Code of Judicial

Conduct (hereinafter referred to as "Ohio

Code") became effective on December 20,

1973, and was adopted from the American

Bar Association’s 1972 model Code of

Judicial Conduct (hereinafter referred to

as "Model Code"). Each canon = and

accompanying text of the 1972 Model Code

and the 1973 Ohio Code uses the word

"should," in describing a judge’s

obligations under the canons. Within the

context of those versions of the Code,

the Preface interpreted "should" as

mandatory :

This code, consisting of

Statements of norms denominated

canons, the accompanying text

setting forth specific rules, and

adn

;

}

the commentary, states the standards

that judges should observe. The

canons and text establish mandatory

standards unless otherwise

indicated.

However, the Code of Judicial

Conduct in effect at the time that the

commercial was aired was an amended

version of the 1973 Code. The Code had

been amended to introduce the word

"shall" in describing some duties.

Petitioner was charged with violations of

canons that used both "should" and

"shall." Petitioner responded to the

Charges by claiming various defenses,

among them were that the canons that she

was alleged to have violated are

flagrantly and patently facially

overbroad and vague, and are

unconstitutional as applied.

On March 5, 1996 the members of a

panel of the Board of Commissioners on

Grievances and Discipline of the Supreme

Court of Ohio recommended to the Board

that all charges against Petitioner be

dismissed:

[T]he panel does not believe, in the

circumstances of this case, where

clear and convincing evidence of the

falsity of the television ad is

missing, that the television ad is

SO egregious as to warrant a formal

Sanction under the broadly written

general Canons governing judicial

conduct."

(App. 13, June 14, 1996 Amended Findings

of Fact, Conclusions of Law, And

Recommendation of The Board of

Commissioners On Grievances And

Discipline Of The Supreme Court of Ohio,

Case No. 95-38).

In spite of the recommendations of

the panel, the Board of Commissioners on

Grievances and Discipline of the Supreme

Court of Ohio recommended to the Ohio

Supreme Court that Petitioner be publicly

reprimanded for violations of Canon

7B(1) (a) and Canon 2(A).

Canon 2A states:

A judge should respect and comply

with the law and should conduct

himself at all times in a manner

that promotes public confidence in

the integrity and impartiality of

the Judiciary.

Canon 7B, entitled "Campaign

Conduct", states:

(1) An incumbent judge, or a

candidate for judicial office:

(a) should maintain the

dignity appropriate to

judicial office;

On December 5, 1996, the Ohio

Supreme Court issued its opinion

accepting the recommendation of the

Board, and issuing a public reprimand

against Petitioner for violating Canon

2(A) and Canon 7B(1)(a). The court

determined that even though the campaign

funding allegations were literally true,

various inferences arose out of the

wording of the commercial, and _ the

inferences were not true. The court

therefore issued its Order of reprimand

on December 26, 1996 (App. 18)

REASONS FOR ALLOWANCE OF WRIT

This Court should accept this case

for consideration because the issues

presented herein are of great

constitutional import, great general

interest, and are ones for which guidance

from this Honorable Court is sorely

needed. The issue of whether a state can

restrict the First Amendment free speech

rights of a judicial candidate based not

on the truthfulness of the words, but on

the an unstated alleged implication, has

not been addressed by this Court.

The granting of the writ in this

case would be particularly helpful to

defining First Amendment free speech and

due process rights. The canons of

judicial conduct at issue in this case

are ones taken directly from the ABA

Model Code, which is in wide use

throughout the various states. Further,

the context in which the speech at issue

was made, addressing the issue of

campaign financing of judicial campaigns,

shows that this case is timely and ripe

for consideration. Where political speech

is at issue, disciplinary rules are

subject to exacting scrutiny under the

First Amendment. In re Primus, 460 U.S.

412, 98 S.Ct. 1893 (1958).

A. UNCONSTITUTIONAL AS APPLIED - THE

DIFFERENCE BETWEEN SHALL AND

SHOULD

As applied in this case, Canons 2 (A)

and 7(B)1)(a) are unconstitutional as

applied to truthful speech because The

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Supreme Court of Ohio fails to use the

words according to their reasonable and

ordinary definition. Such a use cannot

put Petitioner on notice that she has a

mandatory obligation under the canons.

Within the context of the Ohio Code,

the distinction between the words "shali"

and "should" is consistent with the

ordinary meanings of the words, and as

the words are used in the ABA Model Code.

"Shall" means mandate. "Should" means

hortatory. It is widely accepted that

word use | ae statute . should be

consistent with the word’s meaning so as

not to confuse the reader. Gentile v.

State Bar of Nevada, 501 U.S. 1030, 1051

(1991).

By initially adopting the language

of the American Bar Association’s 1972

Model Code, and later amending the

language of the Ohio Code piecemeal, the

Supreme Court of Ohio created judicial

canons that create different levels of

judicial accountability. With respect to

canons 2A and 7(B)1(a), the text of the

Ohio Code indicate that the language is

aspirational and therefore the canons

cannot be used to prosecute.

Originally, the 1973 Ohio Code

mirrored the 1972 ABA Model Code. In

those versions, the word "should" was

interpreted to mean that everywhere the

word was used, the duties outlined in the

various canons were mandatory, and a

judge was subject to disciplinary

prosecution for a failure to uphold those

duties. In both the 1972 Model Code and

the subsequent 1973 Ohio Code, the word

"should" was the only word used when

describing a duty. Otherwise, the word

"may" was used to indicate that a judge

was permitted to engage in certain

activities.

However, in 1990 the ABA amended the

Model Code to reduce confusion caused by

the 1972 Model Code’s singular use of the

word "should" as a mandate. This was

necessary because the word commonly

expresses mere appropriateness as opposed

to a mandate. The 1990 Model Code

included a Preamble which clearly

differentiated between the words "shall"

and "should:"

When the text uses "Shall" or "shall

not," it is intended to impose

binding obligations the violation of

which can result in disciplinary

action. When "should" or "should

not" is used, the text is intended

as hortatory and as a statement of

what is or is not appropriate

conduct but not as a binding rule

under which a judge may _ obe

disciplined.

The 1990 Model Code’s Preamble

language was used to "avoid the

misunderstanding that had at times

occurred in the past with the use of the

term ‘should’ in the 1972 Code to express

mandatory standards." L. Milord, The

Development of the ABA Judicial Code,

American Bar Association 1992, at 8.

wnien sen wns knee

After the 1973 Ohio Code was

implemented, the Supreme Court of Ohio

amended its code. However, instead of

amending consistent with the previous use

of the word "should," it added the use of

the word "shall" along with the word

"should" when describing the various

duties and aspirations. (App. 37, Special

Division[s] (C) [and D] of Canon 3 of the

Code of Judicial Conduct for the Members

of the Supreme Court of Ohio; App. 56,

Canon 7C].

The amended Preface of the Ohio Code

does not indicate that every canon and

text establish mandatory standards, the

violation of which subjects a judge to

prosecution. Instead, the Preface states

that "[t]he canons and text establish

mandatory standards unless indicated

otherwise." (App. 25). Therefore, the

words of the canons distinguish what is

mandatory from what is not.

Consistent with the Preface, the

canons use words that indicate varying

degrees of accountability. The canons and

accompanying text contain the auxiliary

verbs "shall," "must", "should," and

"may," which span the _ range from

mandatory to permissive. Accordingly, and

consistent with the Preface, the choice

of auxiliary verb indicates which

sections constitute a mandate and which

do not.

Whereas no one will dispute that the

verb "may" is permissive, it is also

undisputed that the verb "shall"

indicates a mandate:

shall. A. In Legislation. This

overworked auxiliary verb invariably

denotes an imperative rather than

futurity when it appears in

DRAFTING. Pitfalls await especially

the statute drafter who is not

familiar with some of the niceties

of this word, however.

1. And may. The word shall

ordinarily connotes ianguage of

command. [Cites omitted]. May is

permissive; it merely states what is

allowed.

B. Garner, A Dictionary of Modern Legal

Usage 502 (1987).

Consistent with these definitions,

the word "shall" in the Ohio Code

indicate "mandatory." The word "should,"

however, indicates an obligation less

forceful than a mandate:

ought to; should. Ought should be

reserved for expressions of

necessity, duty or obligation;

should, the weaker word, expresses

mere appropriateness, suitability,

or fittingness.

B. Garner, A Dictionary of Modern Legal

Usage, p. 396 (1987)].

Concomitantly, it is even more

unreasonable to interchange two words

with different meanings, "shall" and

"should," and use them as if they convey

the same meaning. For example, in the

Ohio Code Canon 3 included sections C and

D that apply to judges (App. 37).

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alle Bidhhg REA A gE or SI teh Aad 5 Ak Bote We eres,

PSA DD Eh lS WAPI BE SIAL IPPC CE VAN

"Special Divisions C and D" set a higher

standard under the same circumstances for

Ohio Supreme Court Justices. Section C(1)

States that a judge "should" disqualify

himself from a case under certain

specified circumstances. Special Division

Cis, applicable to justices only,

includes some of the same circumstances

under which a judge should consider

disqualification, and sets a higher

Standard for justices, stating that a

justice "shall" disqualify himself under

the same and similar circumstances as

included in Section C(1).

Another example of the difference

between "shall" and "should" within the

Ohio Code is apparent in comparing

Special Division (C(1) and Special

Division C(2). Subsection C(1) imposes on

justices a mandatory "shall" duty to

disqualify themselves when impartiality

may be questioned. However, Subsection

C(2) imposes a lesser "should" standard

when justices are urged to control the

actions of immediate family members when

those actions may affect the appearance

of impartiality.

It is reasonable to apply the

"shall" standard in Special Section C(1)

because a justice can control her own

actions and investments. The lesser

"Should" standard is reasonable in

Special Section C(2) because a justice

reasonably can only aspire to control the

actions of family members.

In this case, contrary to the

Supreme Court of Ohio’s statement, the

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Ohio Code uses both "shall" and "should."

Canons 2A and 7B(1)(a) both use the

auxiliary verb "should" instead of

"Shall." In context, the usage of

"Shouid" indicates that judges should

aspire to act accordingly. Therefore, to

prosecute Petitioner under a canon that

is not mandatory infringes upon her

constitutional right to free speech and

her right to due process under the law.

The normal reasonable interpretation

and plain meaning of the words of canons

2A and 7B(1)(a), consistent with the

Preface of the Ohio Code, the Preface of

the 1972 Model Code, the Preamble to the

1990 Model Code, and A Dictionary of

Legal Usage, cited above, indicates that

the word "should" as used in the Ohio

Code is merely hortatory. Given the

strict scrutiny standard to be followed

when First Amendment rights are involved,

this Court should accept this case for

review.

B. THE CANONS ARE FACIALLY OVER-

BROAD AND VAGUE.

The canons that Petitioner is

charged with violating are facially

overbroad and vague. As drafted, the

canons reach a significant amount of

constitutionally protected conduct and

may cause persons to refrain from

constitutionally protected speech or

expression for fear of violating the

overreaching canons. Hoffman Estates v.

Flipside, Hoffman Estates, 455 U.S. 489,

494-495 (1981); Leonardson v. City of

East Lansing, 896 F.2d 190, 195 (6th Cir.

‘

1990); United States v. Wunsch, 54 F.3d

579, 586 (9th Cir. 1995).

(1) OVERBROAD

A law is overbroad when a law may be

clear, but it prohibits constitutionally

protected conduct. Inasmuch as Canons 2A

and 7B(1)(a) generally require that a

judge must conduct herself in a manner

that makes the judiciary look good, these

canons patently and flagrantly inhibit

First Amendment right, and are therefore

unconstitutionally overbroad. Hoffman

Estates, at 495. Requiring a judge to

protect the integrity of the judiciary

may prevent that person from making

truthful statements that may be

informative to the public such as in this

case, yet harmful to the reputation of

the judiciary.

The mere prohibition against making

knowingly false statements are not

unconstitutional. However, these canons

as drafted also act to prevent the

uttering of all statements which, though

truthful, may not portray the judiciary

or a particular judge in a favorable

light. Such a prohibition is

unconstitutional. Landmark

Communications, Inc. v. Virginia, 435

u.8. 829, 841-42 (1978) ; Standing

Committee v. Yagman, 55 F.3d 1430, 1438

(9th Cir. 1995) .

It is an admirable goal to maintain

public confidence in the judiciary by

placing the judiciary in the best

possible light. However, neither the

State’s interest in protecting the

reputation of its judges, nor its

interest in maintaining the institutional

integrity of its courts is sufficient to

justify the punishment of true

Statements. See, Landmark, at 841.

This overbreadth is substantial and is

patently and flagrantly violative of a

speaker’s right to due process of law.

(2) VAGUE

A law is void on its face if it is

SO vague that persons of common

intelligence must guess at its meaning

and differ as to its application.

Leon a. OS S36. A ral

Construction Co... 269 8.8. 385, 391

(1926). The canons under which Petitioner

was prosecuted is patently and flagrantly

unconstitutional because they deny the

speaker fair notice of the standard of

conduct to which she is to be held

accountable. These vague canons also

leave the parameters of enforcement to

the state’s discretion and_ thereby

invites arbitrary, discriminatory and

overzealous enforcement.

Under the circumstances of this

case, the loose usage of "shall" and

"should," along with the vague language

of "promoting public confidence" and

"Maintaining the dignity" of the

judiciary make canons 2A, and 7B(1) (a)

patently vague. The use of the word

"should" gives no indication to the

reader that the cited canons are anything

but hortatory. Additionally, given the

vague notions of promoting public

confidence in the integrity of the

judiciary, the regulated would have no

idea when comments pass from the

permissible, to the permissible but

frowned on, to the forbidden.

This claim is supported by the

recommendation of the Disciplinary

Board’s own panel that recommended that

all disciplinary charges against

Petitioner be dismissed:

[T]he panel does not believe, in the

circumstances of this case, where

clear and convincing evidence of the

falsity of the television ad is

missing, that the television ad is

so egregious as to warrant a formal

sanction under the broadly written

general Canons governing judicial

conduct."

(App. 13). These vague concepts can only

call for subjective value judgments from

enforcers when determining whether these

canons have been violated, and leads to

discriminatory enforcement of the canons:

The prohibition against vague

regulations of speech is based in

part on the need to eliminate the

impermissible risk of discriminatory

enforcement. Kolendar v. Lawson, 461

U.S. 352, 357-358, 361 (1983). The

question is not whether discriminat

ory enforcement occurred here. The

question is whether the rule is so

imprecise that discriminatory

enforcement is a real possibility.

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

1030, 1051 (1991); Leonardson, at 196,

198.

In United States v. Wunsch, 54 F.3d

579, 586 (9th Cir. i995), the Ninth

Circuit considered the constitutionality

of a California code of professional

conduct. The court held that a provision

requiring attorneys to "abstain from all

offensive personality" was

unconstitutionally vague because it would

be impossible to know what behavior was

prohibited. The Court further found that

given the vagueness of the language,

discriminatory enforcement was a real

possibility, and the language was likely

to have a chilling effect on

constitutionally protected speech.

Similarly, in this case, the vague

language in the canons at issue can only

have the same unconstitutional result in

violation of Petitioner’s right to

freedom of speech and due process under

the law.

CONCLUSION

For the reasons set forth above, the

Court’s standards for granting certiorari

are satisfied and Petitioner therefore

requests that her Petition be granted.

Respectfully submitted,

S ; rper, unsel of Record

Mark A. Clain #0013148, Of Counsel

1677 East 40th Street

Cleveland, Ohio 44103

(216) 881-1220

Attorneys for Petitioner

CERTIFICATE OF SERVICE

I hereby certify that the foregoing

Petition for Certiorari was sent by

ordinary U. S. Mail this 4th day of

April, 1997, to:

Betty Montgomery

Attorney General

for the State of Ohio

30 East Broad Street

17th Floor State Office Tower

Columbus, Ohio 43215-3428

Mark 4 : McClain

APPENDIX

BEFORE THE BOARD OF COMMISSIONERS

GRIEVANCE AND DISCIPLINE

THE SUPREME COURT OF OHIO

Case No.

95-38

In re:

Complaint against:

AMENDED

FINDINGS

OF FACT AND

CONCLUSIONS

OF LAW, AND

RECOMMEND -

ATIONS

OF THE

BOARD OF

)

JUDGE SARA J. HARPER, )

)

) COMMIS

)

ATTORNEY REGISTRATION,

0023730

POD PE ODE SPOT LEO EN Eee nek ot ST ees

Respondent,

SIONERS ON

GRIEVANCES

AND DISCI

PLINE OF

THE SUPREME

COURT OF

ae a

DISCIPLINARY COUNSEL,

an Oe aS he” ae mW we.

Relator

;

On March 5, 1996, this matter came

to be heard in Columbus, Ohio. The

members of the panel from the Board of

Commissioners on Grievances and

Discipline of the Supreme Court of Ohio

were Dino Gianuglou, Esq., Larry Seward

and Richard S. Milligan, Esq., chairman

of the panel. None of the panel members

resides in the appellate district in

which Respondent practices and non served

on the probable cause panel reviewing

this matter.

The Respondent, Judge Sara J.

Harper, wasS represented by Harold F.

Craig, III and Alvin E. Matthews.

Present for the hearing was the

Respondent, Judge Sara J. Harper.

I. FINDINGS OF FACT

Sara J. Harper is a judge in the

Ohio Court of Appeals for the Eighth

Appellate District. On two different

occasions Judge Harper has sat on the

Cleveland Municipal Court. In 1976 and

again in 1980, Judge Harper was a

candidate for the Ohio Supreme Court.

Judge Harper has also run on one occasion

for Judge of the Cuyahoga County Domestic

Relations Court. In 1994, she became a

judicial candidate for the Ohio Supreme

Court running against Justice Alice Robie

Resnick.

For the 1994 election, Judge Harper

had set up her own campaign committee

with her sister as chairperson. In

addition, the Ohio Republican Party

established a committee called "Supreme

Court ‘94" to work for the election of

two candidates for the Supreme Court, one

of which was respondent. The funds

available to Judge Harper’s own campaign

committee were limited. In the fall of

1994, the Republican Party "Supreme Court

‘94" Committee suggested to Judge Harper

that it wanted to produce and air a

campaign commercial featuring Judge

Harper. In the fall, a camera crew came

to Cleveland and filmed Judge Harper

working in her office.

Nothing more of the campaign

commercial was heard by Judge Harper

until she was called to attend a meeting

on October 31, 1994 in Columbus, Ohio.

Present at the meeting were Judge George

W. Trumbo (Respondent’s husband), Robert

Bennett (chairman of the Ohio Republican

Party) and John Brown (director of

"Supreme Court ‘94"). For the first time,

Judge Harper viewed the television

campaign commercial. According to Judge

Harper, she expected to see footage from

the filming which took place in Cleveland

earlier that fall. Instead, she was

Shown a commercial with the following

audio:

On Ohio’s Supreme Court, on

Justice has a problem--it’s

money. Most of Resnick’s money

comes from just one place: The

plaintiffs’ lawyers who sue,

sue, sue -- over $300,000.00

just from them. This small

group of suing lawyers wants

Resnick, with her liberal

rulings, to make it easier for

them to collect millions in

fees. It’s time for a change

to Judge Sara Harper ma

recommended, endorsed, highly

rated, 20 years as a judge,

Marine Corps Lieutenant

Colonel. Judge Sara Harper.

None of the film taken earlier in

October at her offices was used in the

commercial. Instead, the video included

a photograph of a check in the amount of

$300,000.00 from "the law firm of Sue &

Sue" and signed "Cheatem Good". This

check was pictured next to a photograph

of Justice Resnick. Footage in the

commercial also included yellow page ads

of two pictured but unnamed Ohio

attorneys. The implication was that the

depicted lawyers represented plaintiffs.

Uncontroverted testimony during the

hearing demonstrated that neither

attorney had received prior notice of the

use of their telephone advertisement, nor

had they provided their consent.

Evidence was presented that one of the

depicted lawyers, a workers compensation

specialist, had donated one thousand,

thirty-eight dollars to the campaign of

Justice Resnick.

At the time Judge Harper reviewed

the ad, she requested that it be changed

to include her middle initial which she

considered to be an important part of her

identity and prior campaign

advertisements. This was never done.

Judge Harper had never before used a

television campaign ad. She acknowledged

that the hard-hitting, critical nature of

the ad was unlike any campaign

advertisement she had ever used. Her

other campaign ads were solely related to

her own qualifications and abilities.

With eight days remaining before the

election, Judge Harper approved the

airing of the ad. The television

advertisement can only be properly

understood by viewing it. (See Exhibit

"A" attached).

The $300,000.00 figure used in the

advertisement was a product of research

conducted by the Ohio Republican Party.

The number was arrived at by comparing

the Judge Resnick campaign finance

reports filed in 1994 with members of the

Ohio Academy of Trial Lawyers, their

relatives and political action committees

associated with the Ohio Academy of Trial

Lawyers. One hundred and fifteen

thousand dollars in funds were received

from political action committees

associated with the Ohio Trial Lawyers.

Twenty-five thousand dollars was received

from relatives of the Ohio Academy of

Trial Lawyers member, and $166,000.00 was

received from actual members of the Ohio

Academy of Trial Lawyers. The total

funds calculated to have been received

from the three groups was $306,000.00.

the accuracy of these compilations was

not challenged at the hearing.

II. CONCLUSION OF LAW

The Respondent was charged with

violating five Judicial Canons: Canon 1

(failing to observe and enforce high

Standards of conduct so that’ the

integrit, and independence of the

judiciary may be preserved); Canon 2A

(failing to conduct herself so as to

promote public confidence in the

integrity and impartiality of the

judiciary); Canon 7B(1) (a) (failing to

Maintain the dignity appropriate to

judicial office) ; Canon 7B(1) (c)

(announcing her views on disputed legal

or political issues or misrepresenting

facts); and, Canon 7C(9) (knowingly or

recklessly circulating false statements

concerning a candidate to promote the

defeat of the candidate) .

A. Canon 7C(9). Knowingly or

recklessly circulating false statements

concerning a candidate to promote the

defeat of the candidate.

At the time the television

advertisement was created and played on

television, Canon 7C(9) read as follows:

C. Campaign Guidelines. No incumbent

judge or candidate for judicial

office during the course of any

campaign for nomination or election

to judicial office, by means of

campaign materials, including sample

ballots, an advertisement on radio

or television or in a newspaper or

periodical, a public speech, press

release, or otherwise, shall

purposely do any of the following:

x«x*

(9) Post, publish, circulate, or

distribute a written or printed

false statement, either knowing the

same to be false or with reckless

disregard of whether it was false or

not, concerning a candidate that is

designed to promote the election,

nomination, or defeat of the

candidate.

To provide a violation of 7C(9)

Relator must demonstrate by clear and

convincing evidence that the

advertisement contained statements that

Respondent knew were false or that she

made the statements with reckless

disregard of their falsity. The panel

finds that Relator has not met this

burden.

Testimony was received from Bret

Thomas Buerck, a Republican Party

employee who complied the campaign

contribution research. He testified that

the contributions to the Resnick campaign

from members of the Ohio Academy of Trial

Lawyers, their families and Ohio Academy

of Trial Lawyers (OATL) public action

committees totalled $306,000.00. No

effort was made by Relator to contest the

computation.

Relator argues that Respondent’s

advertisement stated that Justice Resnick

received more than $300,000.00 just from

plaintiffs’ lawyers is false, since

$25,000.00 of the contributions came from

OATL family members. It is argued by

respondent that family contributions are

the functional equivalent of

contributions by the lawyers themselves.

the panel is loath to base a finding of

misconduct on such a fine distinction,

comfortably made in hindsight, for an

advertisement produced in the waning days

of a very hotly contested statewide

election. Respondent had not proved by

clear and convincing evidence that the ad

was untruthful in this respect.

While one could argue the

truthfulness of other assertions in the

éd, i.e. "Justice Resnick [could] make it

easier for [plaintiffs’ lawyers] to

collect millions in fees", these

Statements are general in nature and not

of sufficient particularity in this case

to rise to the level of knowing

falsehoods.

It is clear that this matter is less

about false statements than maintaining

the dignity, integrity and independence

of the courts and legal system. As

Justice Resnick herself testified, her

complaint was filed not because false

Statements were made about her but

because the advertisement did not

"promote public confidence in the

integrity and impartiality of the

judiciary and legal profession."

(Transcript, pg. 183).

Judge Harper testified that she

believed the commercial to be hard-

hitting but truthful. She relied for the

truthfulness of the ad upon her review of

the campaign contribution research

conducted by the Republican Party.

Relator was unsuccessful in proving by

clear and convincing evidence that Judge

Harper knew the statements in the ad were

false or published them with reckless

disregard for their falsity.

The panel recommends the claimed

violation of Canon 7C(9) be dismissed.

B. Canon 7B(1)(c). "An incumbent

judge, or a candidate for judicial

office:...(c) should not make pledges or

promises of conduct in office other than

the faithful and impartial performance of

the duties of the office; amnounce his or

her views on disputed legal or political

issues; or misrepresent his or her

identity, qualifications, present

position, or other facts."

Canon 7B(1) (c) contains three

essential prohibitions: (1) no announcing

views on disputed legal or political

issues; (2) no pledges of conduct in

office other than the faithful and

impartial performance of the duty; and

(3) no misrepresentation of one’s

identity, qualifications, position, or

other similar fact. Relator alleged that

Judge Harper violated Canon 7B(1) (c) by

the inferences from the ad about

plaintiffs’ lawyers, the effect of

campaign contributions on judicial

decision making, liberal rulings, and

large attorney fee awards. Relator

claims that these negative statements or

inferences constitute a pronouncement of

Opinion by Judge Harper on legal and

political issues in contravention of the

Canon. While not condoning the nature of

content of the inferences to be drawn

from this ad, the panel does not find by

Clear and convincing evidence that they

constitute statements of opinion

Sufficiently specific to violate the

Canon. Accordingly, the panel recommends

that the claim of violation of Canon

7B(1)(c) be dismissed.

Ge Canon 7B(1)(a) A judge or

candidate for judicial office should

maintain the dignity appropriate to

judicial office.

Canon 1 Failing to observe and

enforce high standards of conduct so that

the integrity and independence of the

judiciary may be preserved.

Canon 2(A) Failing to conduct

herself so as to promote public

confidence in the integrity and

impartiality of the judiciary.

These three Canons will be

considered together since they all are

general in nature and do not prescribe

specific conduct.

a: Judicial Canon 7B(1) (a)

Canon 7B(1) (a) provides in pertinent

part:

(1) an incumbent judge, or a

candidate for judicial office: (a) should

maintain the dignity appropriate to

judicial office...

The allegation has been made that the

television advertisement used in Judge

Harper’s campaign is violative of the

dignity appropriate to judicial office.

Respondent has vehemently argued that the

dignity standard cannot constitutionally

be applied to her in the context of this

campaign commercial given the core

protections for political speech

contained in the First Amendment to the

United States Constitution. Respondent

likewise argues that the dignity standard

is impermissibly vague in that if fails

to describe with sufficient particularity

the conduct that is proscribed by the

Code. Relator’s own expert witness

testified during the hearing that the

word "dignity is a vague word, difficult

to use in discipline cases. (Transcript,

pm. 152, 156.)

The panel does not believe that

advertisement of Judge Harper is

representative of the dignity to which

Judge ought to aspire in Ohio. However,

in the absence of specific misconduct

proscribed by the rules, the panel cannot

find by clear and convincing evidence

that the conduct of Judge Harper in

consenting to the airing of this

advertisement rises to the level of a

violation of Canon 7B(1) (a). The

allegation therefore should be dismissed.

ms Judicial Canon 1 and 2A

Canon 2 provides:

An independent and honorable

judiciary is indispensable to

justice in our society. A

judge should participate in

establishing, maintaining, and

enforcing, and shou

ld himself observe, high standards of

conduct so that the integrity and

independence of the judiciary may be

preserved. The provisions of this Code

Should be construed and applied to

further that objective.

Canon 2A provides:

A judge should respect and

comply with the law and should

conduct himself at all times in

a manner that promotes public

confidence in the integrity and

impartiality of the judiciary.

Like Canon 7B(1) (a), Canon 1 and 2A

are general in nature. Given the core

political speech protection of the First

Amendment to the Constitution, the lace

of conduct violative of specific

prohibition in the Canons, and the nature

and context of this advertisement, the

panel does not believe it appropriate in

this unique case to find violations of

the most general and aspirational of all

the Judicial Canons. The panel therefore

recommends the dismissal of allegations

charging a violation of Canon 1 and 2A.

Conclusion of the Panel

Ohio has chosen to have judicial

candidates compete in election for

judicial office. With that choice comes

the expectation that candidate will

engage in activity to convince the

electorate that they and not’ their

opponent should be elected to office.

There is a tension between campaign

activity to create an informed electorate

and the constraints imposed bay the

Judicial Canons. In evaluating alleged

misconduct in this setting it is

necessary to weigh the gravity of the

claimed violation with the practical

reality of a heated campaign for public

office.

The Judge Sara J. Harper campaign

advertisement should not have been aired.

Judicial candidates are responsible for

the campaign advertisements produced and

shown in their behalf and have a duty to

conform them to the requirements. of the

Judicial Canons. (See new Judicial Canon

7F.) However, the panel does not believe,

in the circumstances of this case, where

clear and convincing evidence of the

falsity of the television ad is missing,

that the political advertisement is so

egregious as to warrant a formal sanction

under the broadly written general Canons

governing judicial conduct.

Deliberations by the Board

The Board proceeded to hear the

report of the panel chair, Richard

Milligan, and consider the panel’s

recommendation for dismissal. As part of

the report and its deliberations, Board

members viewed a video tape of the

campaign television advertisement in

question. Board members Trimboli,

Greene, Webb, Rathman and Evans abstained

from voting or participating in the

deliberations.

First a vote was taken on the

hearing panel’s recommendation to dismiss

this matter in its entirety. The motion

failed upon recorded vote.

After further discussion a motion

was made and properly seconded to find a

violation of Canon 7B(1) (a). This motion

Carried upon a vote of the Board. f

motion was also presented to find a

violation of Canon 2(A). This motion

passed by a vote of the Board. The Board

next unanimously approved of the balance

of the panel’s report dismissing charges

based on violations of Canon 1 and Canon

7B(1) (c) and 7C(9).

The Board found that the campaign

advertisement was reviewed by the

Respondent before it was publicly aired

and that under the Ohio Code of Judicial

Conduct and Canon 7 , Judge Harper was

responsible and accountable for that

decision. While the dollar amount of

contributions received was true, taking

the campaign advertisement as a whole,

the Board felt it undermined public

confidence in the integrity and impartial

decision-making of one justice. In

directly suggesting to Ohio voters that a

justice’s decisions were influenced by

the receipt of campaign contributions,

the advertisement established a lack of

dignity appropriate to judicial office.

The television advertisement in question

sent an unfounded message to Ohio voters.

In picturing a phony check from the law

firm of "Sue and Sue" signed by "Cheatem

Good" combined with the text of the

advertisement, it was reasonable to

conclude that:

(1) Certain lawyers are dishonest.

(2) Ome justice is associated with

those lawyers.

(3) There is something improper

about lawyers contributing to a judicial

campaign.

(4) A justice appears to be the

captive of one class of litigants, group

of lawyers, or special interest.

In fact these implications are not

true or Respondent has no information or

evidence at hand to support the innuendos

(see Respondent’s affidavit)

Therefore the airing of this

commercial undermined public confidence

in the integrity and impartiality of the

judiciary. by authorizing its use in the

campaign, the Respondent failed to

maintain the dignity appropriate to

judicial office.

The Board’s sanction serves the

State’s interest in protecting the good

reputation of its judiciary and in

assuring the integrity and professional

conduct of the judiciary.

The Respondent has presented no

argument or constitutional claim that

gives a judicial candidate the right to

openly denigrate the Court or an

individual justice in the eyes of the

public. Based on the foregoing the Board

voted to recommend the imposition of the

public reprimand for Respondent for the

acts of campaign misconduct in violation

of Canon 7B(1) (a) and Canon 2(A).

RECOMMENDATION

Pursuant to Gov. Bar Rule V(6) (1),

the Board of Commissioners on Grievances

and Discipline of the Supreme Court of

Ohio considered this matter on June 14,

1996. The Board adopted the Findings of

Fact, Conclusions of Law consistent with

its deliberations. The Board recommends

pursuant to Gov. Bar Rule V(6) (L) that

the Respondent, Judge Sara J. Harper, be

publicly reprimanded. The board further

recommends that the costs 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

Commissioners 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.

THE SUPREME COURT OF OHIO

DISCIPLINARY COUNSEL,

1996

TERM

CASE

NO.96-

1551

Relator,

Vv.

ORDER

JUDGE SARA J. HARPER,

Respondent.

ee ee ee ee ee eee ee”

On July 2, 1996, the Board of

Commissioners on Grievances and

Discipline filed its Amended Final Report

in this Court recommending that pursuant

to Rule vV, Section 6(B) (5) of the

Supreme Court Rules for the Government of

the Bar of Ohio the respondent, Judge

Sara J. Harper, be publicly reprimanded.

Respondent filed objections to _ said

Amended Final Report, and this cause was

considered by the Court. On

consideration thereof,

IT IS ORDERED AND ADJUDGED by this

Court that pursuant to Gov. Bar R. V,

Sec. 6(B) (5), and consistent with the

opinion rendered herein respondent, Judge

Sara J. Harper, Attorney Registration

Number 0023730, be publicly reprimanded,

and this entry shall constitute the

public reprimand, provided however, that

Should the respondent, Judge Sara J.

Harper, be found guilty of subsequent

misconduct, this public reprimand shall

be considered as a factor that my justify

an increase in the degree of discipline

to be imposed for subsequent misconduct.

IT Is FURTHER ORDERED that

respondent be taxed the costs of these

proceedings in the amount of One Thousand

Ninety-One Dollars and Seventy-One Cents

($1,091.71), which costs shall be payable

to this Court by certified check or money

order on or before 90 days from the date

of this order. It is further ordered

that if these costs are not paid in full

on or before 90 days from the date of

this order. It is further ordered that

if these costs are not paid in full on or

before 90 days from the date of this

order, interest at the rate of 10% per

annum shall accrue on the balance of

unpaid Board costs, effective 90 days

from the date of this order, respondent

may be found in contempt and may be

Suspended until costs, including any

accrued interest, are paid in full.

IT IS FURTHER ORDERED, sua sponte,

that all documents filed with this Court

in this case shall meet the filing

requirements set forth in requirements as

to form, number, and timelines of

filings.

IT IS FURTHER ORDERED, sua sponte,

that service shall be deemed made on

respondent by sending this order, and all

other orders in this case, by certified

mail to the most recent address

respondent has given to the attorney

registration office.

IT IS FURTHER ORDERED that the Clerk

of this Court issue certified copies of

this order as provided for in Gov. Bar R.

V, Sec. 8(D) (1), that publication be

made as provided for in Gov. Bar R. V,

Sec. 8(D) (2), and that respondent bear

the costs of publication.

re Tee Se ee ee ee ee ee ee Tee

BEFORE THE BOARD OF COMMISSIONERS

DISCIPLINARY COUNSEL,

175 SOUTH THIRD STREET

SUITE 280

COLUMBUS, OHIO 43215

Relator

GRIEVANCE AND DISCIPLINE

THE SUPREME COURT OF OHIO

In re: ) Case No.:

) 95-38

)

Complaint against: )

)

) COMPLAINT

JUDGE SARA J. HARPER, ) AND

EIGHTH DISTRICT COURT OF ) CERTIFICATE

APPEALS )

1 LAKESIDE AVENUE ) (RULE V OF

Cleveland, Ohio 44113 ) THE SUPREME

CLEVELAND, OHIO 44113 ) COURT RULES

) FOR THE

) GOVERNMENT

) OF THE BAR

Respondent ) OF OHIO.)

)

Now comes the Relator and alleges

that Judge Sara Juanita Harper, an

Attorney at Law, duly admitted to the

practice of law in this State of Ohio is

guilty of the following misconduct:

zs Respondent, Sara Juanita

Harper, was admitted to the practice of

law in Ohio on August 21, 1952. At all

times relevant hereto, Respondent served

as a judge on the Ohio Court of Appeals

for the Eighth Appellate District.

Respondent is subject to the Code of

Professional Responsibility, the Code of

Judicial Conduct, the Supreme Court Rules

for the Government of the Bar and the

Supreme Court Rules for the Government of

the Bar and the Supreme Court Rules for

the Government of the Judiciary.

as During the 1994 election

campaign, Respondent was a judicial

candidate for the Ohio Supreme Court. In

connection with that judicial campaign,

Respondent and her judicial campaign

commercial is attached hereto and

incorporated by reference herein as

Exhibit A.

a. The campaign commercial

suggested that Respondent’s campaign

opponent, Justice Alice Robie Resnick,

received substantial financial

contributions from plaintiffs’ trial

lawyers, and as a consequence, would

necessarily be beholden to them. The

audio portion of the campaign commercial

indicated the following:

On Ohio’s Supreme Court, one Justice

has a problem--it’s money. Most of

Resnick’s money comes from just one

place: the plaintiffs’ lawyers who

sue, sue, sue--over $300.000.00 just

from them. This small group of

suing lawyers wants Resnick, with

her liberal rulings, to make it

easier for them to collect millions

in fees. It’s time for a change to

Judge Sara Harper--recommended,

endorsed, highly rated, 20 years as

a judge, Marine Corps Lieutenant

Colonel. Judge Sara Harper.

4. The visual portion of the

campaign commercial depicted, inter alia,

a check in the amount of $300,000.00 from

"the law firm of Sue & Sue" and signed

"Cheatem Good." The check was payable to

Justice Resnick, implying that the check

was payable to Justice Resnick and/or her

campaign. Further pictured in the

campaign commercial, were the telephone

directory advertisements of two (2)

unnamed Ohio attorneys whose

advertisements suggested that they

represented Plaintiffs, further creating

the impression that Justice Resnick

decided cases in favor of lawyers who

contributed to her judicial campaign.

Neither of said attorneys, Michael D.

Dorf, Esq. nor Samuel G. Bolotin, Esq.,

had consented to the use of their

telephone directory advertisements for

this purpose.

ms Respondent is charged with

violating the Code of Judicial Conduct as

follows: Canon 1 (failing to observe and

enforce high standards of conduct so that

the integrity and independence of the

judiciary may be preserved); Canon 2A

(Failing to conduct herself so as to

promote public confidence in the

integrity and impartiality of the

judiciary); Canon 7B(1) (a) (failing to

Maintain the dignity appropriate to

judicial office) ; Canon 7B(1) (c)

misrepresenting facts); and, Canon 7C(9)

(knowingly or recklessly circulating

false statements concerning a candidate

to promote the defeat of the candidate).

CODE OF JUDICIAL CONDUCT

Effective December 20, 1973

Including Amendments Received Through

July 15, 1994

PREFACE

This Code, consisting of statements

of norms denominated canons, the

accompanying text setting forth specific

rules, and the commentary, states the

standards that judges should observe. The

canons and text establish mandatory

standards unless otherwise indicated.

, CANON 1

A JUDGE SHOULD UPHOLD THE INTEGRITY

AND INDEPENDENCE OF THE JUDICIARY

An independent and honorable

judiciary is indispensable to justice in

our society. A judge should participate

in establishing, maintaining, and

enforcing, and should himself observe,

high standards of conduct so that the

integrity and independence of the

judiciary may be preserved. The

provisions of this Code should be

construed and applied to further that

objective.

CANON 2

A JUDGE SHOULD AVOID IMPROPRIETY AND

THE APPEARANCE OF IMPROPRIETY IN

ALL HIS ACTIVITIES

A. A judge should respect and comply

with the law and should conduct himself

at all times in a manner that promotes

public confidence in the integrity and

impartiality of the judiciary.

B. A judge should not allow his

family, social, or other relationships to

influence his judicial conduct or

judgment. He should not lend the prestige

of his office to advance the private

interests of others; nor should he convey

or permit others to convey the impression

that they are in a special position to

influence him. He should not testify

voluntarily as a character witness.

Commentary

Public confidence in the judiciary

is eroded by irresponsible or improper

conduct by judges. A judge must avoid all

impropriety and appearance of

impropriety. He must expect to be the

subject of constant public scrutiny. He

must therefore accept restrictions on his

conduct that might be viewed as

burdensome by the ordinary citizen and

should do so freely and willingly.

The testimony of a judge as a

character witness injects the prestige of

his office into the proceeding in which

he testifies and may be misunderstood to

be an official testimonial. This Canon,

however, does not afford him a privilege

against testifying in response to an

official summons.

CANON 3

A JUDGE SHOULD PERFORM THE DUTIES OF HIS

OFFICE IMPARTIALLY AND DILIGENTLY

The judicial duties of a judge take

precedence over all his other activities.

Judicial duties include all the duties of

his office prescribed by law. In the

performance of these duties, the

following standards apply:

A. Adjudicative responsibilities.

(1) A judge should be faithful to

the law and maintain professional

competence in it. He should be unswayed

by partisan interests, public clamor, or

fear of criticism.

(2) A judge should maintain order

and decorum in proceedings before him.

(3) A judge should be patient,

dignified, and courteous to litigants,

jurors, witnesses, lawyers, and others

with whom he deals in his official

capacity, and should require similar

conduct of lawyers, and of his staff,

court officials, and others subject to

his direction and control.

Commentary

The duty to hear all proceedings

fairly and with patience is not

inconsistent with the duty to dispose

promptly of the business of the court.

Courts can be efficient and business-like

while being patient and deliberate.

(4) A judge should accord to every

person who is legally interested in a

proceeding, or his lawyer, full right to

be heard according to law, and, except as

authorized by law, neither initiate nor

consider ex parte or other communications

concerning a pending or impending

proceeding. A judge, however, may obtain

the advice of a disinterested expert on

the law applicable to a proceeding before

him if he gives notice to the parties of

the person consulted and the substance of

the advice, and affords the parties

reasonable opportunity to respond.

Nothing contained herein, however, shall

preclude a judge from non-substantive ex

parte communications on procedural

matters and matters affecting prompt

disposal of the business of the court.

Commentary

The proscription against

communications concerning a proceeding

includes communication from lawyers, law

teachers, and other persons who are not

participants in the proceeding, except to

the limited extent permitted. It does not

preclude a judge from consulting with

other judges, or with court personnel

whose function is to aid the judge in

carrying out his adjudicative

responsibilities.

An appropriate and often desirable

procedure for a court to obtain the

advice of a disinterested expert on legal

issues is to invite him to file a brief

amicus curiae.

(5) A judge should dispose promptly

of the business of the court and give

appropriate attention to the guidelines

set forth in the rules of superintendence

promulgated by the Supreme Court of Ohio.

Commentary

Prompt disposition of the court’s

business requires a judge to devote

adequate time to his duties, to be

punctual in attending court and

expeditious in determining matters under

submission, and to insist that court

officials, litigants and their lawyers

cooperate with him to that end

(6) (a) A judge should abstain from

public comment about a pending or

impending proceeding in any court, and

should require similar abstention on the

part of court personnel subject to the

direction and control. This subsection

does not prohibit judges from making

public statements in the course of their

official duties or from explaining for

public information the procedures of the

court.

(b) A justice or judge shall

not knowingly disclose or cause to be

disclosed, without appropriate

authorization, information regarding the

probable or actual decision in a case or

legal proceeding pending before a court,

including the vote of a justice, judge,

or court in a case pending before the

Supreme Court, a court of appeals, or a

panel of judges of a trial court, prior

to the announcement of the decision by

the court oor journalization of an

opinion, entry, or other document

reflecting that decision under either of

the following circumstances:

Commentary

"Court personnel" does not include

the lawyers in a proceeding before a

judge. The conduct of lawyers is

governed by DR7-107 of the Code of

Professional Responsibility.

(7) A trial judge or appellate court

should permit:

(a) the use of electronic or

photographic means for the presentation

of evidence, for the perpetuation of a

record or for other purposes of judicial

administration;

(b) the broadcasting,

televising, recording, or photographing

of investitive, ceremonial, or

naturalization proceedings; and

televising, recording, and taking of

photographs in the courtroom by news

media during sessions of the court,

including recesses between sessions,

under the following conditions:

(i) permission should be expressly

granted in advance in writing by the

trial judge or appellate court pursuant

ENE OT eee

to such conditions as the judge or

appellate court and superintendence rules

of the Supreme Court may prescribe;

(ii) the trial judge or appellate

court determines, upon consideration of a

request for permission for the

broadcasting, televising, recording, or

taking of photographs in the courtroom in

a particular case, that the broadcasting,

televising, recording, and taking of

photographs would not distract

participants or impair the dignity of the

proceedings or otherwise materially

interfere with the achievement of a fair

trial or hearing therein;

(iii) the filming, videotaping,

recording, or taking of photographs of

victims or witnesses who object thereto

shall not be permitted;

(iv) the filming, videotaping,

recording, or taking of photographs of

jurors shall not be permitted.

B. Administrative responsibilities

(1) A judge should diligently

discharge his administrative

responsibilities, maintain professional

competence in judicial administration,

and facilitate the performance of the

administrative responsibilities of other

judges and court

officials.

(2) A judge should encourage his

staff and court officials subject to his

direction and control to observe the

standards of fidelity and diligence that

apply to him.

(3) A judge should take or initiate

appropriate measures against a judge or

lawyer for unprofessional conduct of

which the judge may become aware.

(4) A judge should not- make

unnecessary appointments. He should

exercise his power of appointment only on

the basis of merit, eliminating nepotism

and favoritism. He should not approve

compensation of appointees beyond the

fair value of services rendered.

Commentary

Appointees of the judge include

officials such as referees,

commissioners, special masters,

receivers, guardians, appraisers and

personnel such as clerks, secretaries,

bailiffs and all other court employees

and appointees. Consent by the parties to

an appointment or an award of

compensation does not relieve the judge

of the obligation prescribed by this

subsection.

C. Disqualification

(1) A judge should disqualify

himself in a proceeding in which his

impartiality might reasonably be

questioned, including but not limited to

instances where:

(a) he has a personal bias or

prejudice concerning a party, or personal

knowledge of disputed evidentiary facts

concerning the proceeding;

(b) he served as a lawyer in

the matter in controversy, or a lawyer

with whom he previously practiced law

served during such association as a

lawyer concerning the matter, or the

judge or such lawyer has been a material

witness concerning it;

Commentary

A lawyer in a governmental agency

does not necessarily have an association

with other lawyers employed by that

agency within the meaning of this

subsection; a judge formerly employed by

a governmental agency, however, should

disqualify himself in a proceeding if his

impartiality might reasonably be

questioned

because of such association.

individually or as a fiduciary, or his

Spouse or minor child residing in his

household, has a substantial financial

interest in the subject matter in

controversy or in a party to the

proceeding, or any other interest that

could be substantially affected by the

outcome of the proceeding;

(d) he or his spouse, or a

person within the third degree of

relationship to either of them, or the

spouse of such a person:

(i) is a party to the proceeding, or

an officer, director, or trustee of a

party;

(ii) is acting as a lawyer in the

proceeding;

Commentary

The fact that a lawyer in a

proceeding is affiliated with a law firm

with which a lawyer-relative of the judge

is affiliated does not of itself

disqualify the judge. Under appropriate

circumstances, the fact that "his

impartiality might reasonably be

questioned" under Canon 3C(1), or that

the lawyer-relative is

known by the judge to have an interest in

the law firm that could be "substantially

affected by the outcome of the

proceeding" under Canon 3C(1) (d) (iii) may

require his disqualification.

(iii) is known by the judge to have

an interest that could be substantially

affected by the outcome of the

proceeding;

(iv) is to the judge’s knowledge

likely to be a material witness in the

proceeding.

(2) A judge should inform himself

about his personal and fiduciary

financial interests, and make a

reasonable effort to inform himself about

the personal financial interests of his

spouse and minor children residing in his

household.

(3) For the purposes of this

section:

(a) the degree of relationship

is calculated according to the civil law

system;

Commentary

According to the civil law system,

the third degree of relationship test

would, for example, disqualify the judge

if his or his spouse’s father,

grandfather, uncle, brother, or niece’s

husband were a party or lawyer in the

proceeding, but would not disqualify him

if a cousin were a party or lawyer in the

proceeding.

(b) "fiduciary" includes such

relationships as executor, administrator,

trustee, and guardian;

ownership of a legal or equitable

interest, however small, or a

relationship as director, advisor, or

other active participant in the affairs

of a party, except that:

(i) ownership in a mutual or common

investment fund that holds securities is

not a "financial interest" in such

securities unless the judge participates

in the management of the fund;

(ii) an office in an educational,

religious, charitable, fraternal, or

Civic organization is not a "financial

interest" in securities held by the

organization;

(iii) the proprietary interest of a

policy holder in a mutual insurance

company, of a depositor in a mutual

Savings association, or a similar

proprietary interest, is a "financial

interest" in the organization only if the

outcome of the proceeding could

substantially affect the value of the

interest;

(iv) ownership of government

securities is a "financial interest" in

the issuer only if the outcome of the

proceeding could substantially affect the

value of the securities.

D. Remittal of disqualification

A judge disqualified by the terms of

Canon 3C(1)(c) or Canon 3C(1)(d) may,

instead of withdrawing from the

proceeding, disclose on the record the

basis of his disqualification. If, based

on such disclosure, the parties and

lawyers, independently of the judge’s

participation, all agree in writing that

the judge’s relationship is immaterial or

that his financial interest is

insubstantial, the judge is no longer

disqualified, and may participate in the

proceeding. The agreement, signed by all

parties and lawyers, shall be

incorporated in the record of the

proceeding.

a a

Commentary

This procedure is designed to

Minimize the chance that a party or

lawyer will feel coerced into = an

agreement. When a party is not

immediately available, the judge without

violating this section may proceed on the

written assurance of the lawyer that his

party’s consent will be subsequently

filed.

SPECIAL PROVISIONS FOR MEMBERS OF

THE SUPREME COURT OF OHIO

C. Disqualification

(1) A justice shall disqualify

himself or herself in a proceeding in

which the justice’s impartiality might

reasonably be questioned, including but

not limited to instances where:

knows’ that, individually or as a

fiduciary, the justice or the justice’s

spouse or minor child residing in the

justice’s household, has a financial

interest in the subject matter in

controversy or in a party to the

proceeding, or any other interest that

could be substantially affected by the

outcome of the proceeding.

(ii) For miscellaneous motions,

motions to certify, or similar matters,

the justice knows that, individually or

as a fiduciary, the justice or the

justice’s spouse or minor child residing

in the justice’s household, has a

substantial financial interest in the

subject matter in controversy or in a

party to the proceeding that could be

substantially affected by the outcome of

the proceeding.

(a4) The justice or the justice’s

spouse, or a person within the third

degree of relationship to either of them,

or the spouse of such a person:

(i) is a party to the proceeding, or

an officer, director, or trustee of a

party;

(ii) is acting as a lawyer in the

proceeding;

(iii) is known by the justice to

have an interest that could be

substantially affected by the outcome of

the proceeding;

(iv) is to the justice’s knowledge

likely to be a material witness in the

proceeding.

(2) A justice should keep informed

about the justice’s personal financial

interests of the justice’s spouse and

minor children residing in the justice’s

household.

D. Remittal of disqualification

A justice disqualified by the terms

of Canon 3C(1)(c) or Canon 3C(1)(d) may,

instead of withdrawing from the

proceeding, disclose on the record the

basis of disqualification. If, based on

such disclosure, the parties and lawyers,

independently of the justice’s

participation, all agree in writing that

the justice’s relationship is immaterial

or that the justice’s disqualification

should be waived, the justice is no

longer disqualified, and may participate

in the proceeding. The agreement, signed

by all parties and lawyers, shall be

incorporated in the record of the

proceeding.

CANON 4

A JUDGE MAY ENGAGE IN ACTIVITIES TO

IMPROVE THE LAW, THE LEGAL SYSTEM,

AND THE ADMINISTRATION OF JUSTICE

A judge, subject to the proper

performance of his judicial duties, may

engage in the following quasi-judicial

activities, if in doing so he does not

cast doubt on his capacity to decide

impartially any issue that may come

before him:

A. He may speak, write, lecture,

teach, and participate in other

activities concerning the law, the legal

system, and the administration of

justice.

B. He may appear at a public hearing

before an executive or legislative body

or official on matters concerning the

law, the legal system, and the

administration of justice, and he may

otherwise consult with an executive or

legislative body or official, but only on

matters concerning the administration

of justice.

C. He may serve as a member,

officer, or director of an organization

or governmental agency devoted to the

improvement of the law, the legal system,

or the administration of justice. He may

assist such an organization in raising

funds and may participate in their

management and investment, but should not

personally participate in public fund

raising activities. He may make

recommendations to public and private

fund-granting agencies on projects and

programs concerning the law, the legal

system, and the administration of

justice.

Commentary

As a judicial officer and person

specially learned in the law, a judge is

in a unique position to contribute to the

improvement of the law, the legal system,

and the administration of justice,

including revision of substantive and

procedural law and improvement of

Criminal and juvenile justice. To the

extent that his time permits, he is

encouraged to do so, either independently

or through a bar association, judicial

conference, or other organization

dedicated to the improvement of the law.

Extra-judicial activities are

governed by Canon 5.

CANON 5

A JUDGE SHOULD REGULATE HIS

EXTRA-JUDICIAL ACTIVITIES TO MINIMIZE THE

RISK OF CONFLICT WITH HIS JUDICIAL DUTIES

A. Avocational Activities. A judge

May write, lecture, teach, and speak on

non-legal subjects, and engage in the

arts, sports, and other social and

recreational activities, if such

avocational activities do not detract

from the dignity of his office or

interfere with the performance of his

judicial duties.

Commentary

Complete separation of a judge from

extra-judicial activities is neither

possible nor wise; he should not become

isolated from the society in which he

lives.

B. Civic and Charitable Activities.

A judge may participate in civic and

charitable activities that do not reflect

adversely upon his impartiality or

interfere with the performance of his

judicial duties. A judge may serve as an

officer, director, trustee, or non-legal

advisor of an educational, religious,

charitable, fraternal, or civic

organization not conducted for’. the

economic or political advantage of its

members, subject to the following

limitations:

(1) A judge should not serve if it

is likely that the organization will be

engaged in proceedings that would

ordinarily come before him or will be

regularly engaged in adversary

proceedings in any court.

(2) A judge should disqualify

himself in any case in which the decision

could affect any organization which he

serves as either an officer or member of

the board.

Commentary

The changing nature of some

organizations and of their relationship

to the law makes it necessary for a judge

regularly to reexamine the activities of

each organization with which he is

affiliated to determine if it is proper

for him to continue his relationship with

it. For example, in many jurisdictions,

charitable hospitals are now more

frequently in court than in the past.

Similarly, the boards of some legal aid

organizations now make policy decisions

that may have political significance or

imply commitment to causes that may come

before the courts for adjudication.

(3) A judge should not solicit funds

for any educational, religious,

charitable, fraternal, or civic

organization, or use or permit the use of

the prestige of his office for that

purpose, except he may participate as a

member in solicitations limited to

members of an educational, religious,

charitable, fraternal or civic

organization of which he is a member, and

he may be listed as an officer, director,

or trustee of such an organization. He

wre ee a ee

should not be a speaker or the guest of

honor at an organization’s fund raising

events, but he may attend such events.

(4) A judge may serve on the board

of directors or trustees of such an

organization even though it has the

responsibility for approving investment

decisions.

Commentary

A judge’s participation in an

organization devoted to quasi-judicial

activities is governed by Canon 4.

C. Financial Activities. (1) A judge

should refrain from financial and

business dealings that tend to reflect

adversely on his impartiality, interfere

with proper performance of his judicial

duties, exploit his judicial position, or

involve him in frequent transactions with

lawyers or persons likely to come before

the court on which he serves.

(2) Subject to the requirements of

subsection (1), a judge may hold and

manage investments, including real

estate, and engage in other remunerative

activity, but should not serve as an

officer, director, manager, advisor, or

| employee of any business.

Commentary

The Effective Date of Compliance

provision of this Code qualifies this

subsection with regard to a judge engaged

in a family business at the time this

Code becomes effective.

(3) A judge should manage his

investments and other financial interests

to minimize the number of cases in which

he is disqualified. As soon as he can do

so without serious financial detriment,

he should divest himself of investments

and other financial interests that might

require frequent disqualification.

(4) Neither a judge nor a member of

his family residing in his household

should accept a gift, bequest, favor, or

loan from anyone except as follows:

(a) a judge may accept a gift

incident to a public testimonial to him,

not to exceed $100 in value; books

supplied by publishers on a complimentary

basis for official use; or an invitation

to the judge and his spouse to attend a

bar-related function or activity devoted

to the improvement of the law, the

legal system, or the administration of

justice;

(b) a judge or a member of his

family residing in his household may

accept ordinary social hospitality; a

gift, bequest, favor, or loan from a

relative; a wedding or engagement gift; a

loan from a lending institution in its

regular course of business on the same

terms generally available to persons who

are not judges; or a scholarship or

fellowship awarded on the same terms

applied to other applicants;

family residing in his household may

accept any other gift, bequest, favor, or

loan only if the donor is not a party or

other person whose interests have come or

are likely to come before him, and, if

its value exceeds $100, the judge reports

it in the same manner as he reports

compensation in Canon 6C.

Commentary

This subsection does not apply to

contributions to a judge’s campaign for

judicial office, a matter governed by

Canon 7.

(5) For the purposes of this section

"member of his family residing in his

household" means any relative of a judge

by blood or marriage, or a person treated

by a judge as a member of his family, who

resides in his household.

(6) A judge is not required by this

Code to disclose his income, debts, or

investments, except as provided in this

Canon and Canons 3 and 6.

Commentary

Canon 3 requires a judge to

disqualify himself in any proceeding in

which he has a substantial financial

interest and to advise counsel where he

or his family have any financial interest

in the proceedings; Canon 5 requires a

judge to refrain from engaging in

business and from financial activities

that might interfere with the impartial

performance of his judicial duties; Canon

6 requires him to report all compensation

he receives for activities outside his

judicial office. A judge has the rights

of an ordinary citizen, including the

right to privacy of his financial

affairs, except to the extent that

limitations thereon are required to

safeguard the proper performance of his

duties. Owning and receiving income from

investments do not as such affect the

performance of a judge’s duties.

(7) Information acquired by a judge

in his judicial capacity should not be

used or disclosed by him in financial

dealings or for any other purpose not

related to his judicial duties.

D. Fiduciary Activities. A judge

should not serve as the executor,

administrator, trustee, guardian, or

other fiduciary, except for the estate,

trust, or person of a member of his

family, and then only if such service

will not interfere with the proper

performance of his judicial duties.

"Member of his family" includes a spouse,

child, grandchild, parent, grandparent,

or other relative or person with whom the

judge maintains a close familial

relationship. As a family fiduciary a

judge is subject to the following

restrictions:

(1) He should not serve if it is

likely that as a fiduciary he will be

engaged in proceedings that would

ordinarily come before him, or if the

estate, trust, or ward becomes involved

in adversary proceedings in the court on

which he serves or one under its

appellate jurisdiction.

Commentary

The Effective Date of Compliance

provision of this Code qualifies this

subsection with regard to a judge who is

an executor, administrator, trustee, or

other fiduciary at the time this Code

becomes effective. :

(2) While acting as a fiduciary a

judge is subject to the same restrictions

on financial activities that apply to him

in his personal capacity.

Commentary

A judge’s obligation under this

Canon and his obligation as a fiduciary

may come into conflict. For example, a

judge should resign as trustee if it

would result in detriment to the trust to

divest it of holdings whose retention

would place the judge in violation of

Canon 5C(3).

E. Arbitration. A judge should not

act as an arbitrator or mediator.

F. Practice of Law. Full-time

judges, including those persons

designated as judges in the Compliance

section of this Code, should not practice

law. Part-time judges, including those

persons designated in the Compliance

section of this Code, may practice law

subject to the restrictions in the

Compliance section of this

Code. The judge or judges under whom a

particular referee, or other such officer

of a judicial system, serves are charged

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with the responsibility of securing the

referee’s compliance with the Code. That

does not eliminate the particular

referee’s responsibility for compliance.

G. Extra-Judicial Appointments. as

judge should not accept appointment to a

governmental committee, commission, or

other position that is concerned with

issues of fact or policy on matters other

than the improvement of the law, the

legal system, or the administration of

justice. A judge, however, may represent

his country, state, or locality on

ceremonial occasions or in connection

with historical, educational, and

cultural activities.

Commentary

Valuable services have been rendered

in the past to the states and the nation

by judges appointed by the executive to

undertake important extra-judicial

assignments. The appropriateness of

conferring these assignments on judges

must be reassessed, however, in light of

the demands on judicial manpower created

by today’s crowded dockets and the need

to protect the courts from involvement in

extra-judicial matters that may prove to

be controversial. Judges should not be

expected or permitted to accept

governmental appointments that could

interfere with the effectiveness and

independence of the judiciary.

CANON 6

A JUDGE SHOULD REGULARLY FILE FINANCIAL

DISCLOSURE STATEMENTS REQUIRED BY

STATUTES AND REPORTS OF COMPENSATION

RECEIVED FOR QUASI-JUDICIAL AND

EXTRA-JUDICIAL ACTIVITIES

A judge may receive compensation and

reimbursement of expenses for the

quasi-judicial and extra-judicial

activities permitted by this Code, if the

source of such payments does not give the

appearance of influencing the judge in

his judicial duties or otherwise give the

appearance of impropriety, subject to the

following restrictions:

A. Compensation. Compensation

should not exceed a reasonable amount nor

should it exceed what a person who is not

a judge would receive for the same

activity.

B. Expense Reimbursement. Expense

reimbursement should be limited to the

actual cost of travel, food, and lodging

reasonably incurred by the judge and,

where appropriate to the occasion, by his

spouse. Any payment in excess of such an

amount is compensation.

C. Public Reports. A judge should

file annually the disclosure statement

required by R.C. 102.02 and a report of

the date, place, and nature of any

quasi-judicial or extra-judicial activity

for which he received compensation, and

the name of the payor and the amount of

Compensation so received for such

quasi-judicial or extra-judicial activity

with the Secretary of the Board of

Commissioners on Grievances and

Discipline of the Supreme Court of Ohio

Ca eae Ss ee. tle ee

and with the clerk of the court on which

he serves or for such activity in

multi-county judicial districts with

either the clerk of the court of his

county of residence or the clerk of the

court of the most populous county in such

district. The report required to be filed

with the Board of Commissioners on

Grievances and Discipline shall be filed

by April 15 of each year on forms

provided by the Board.

CANON 7

JUDGES AND JUDICIAL CANDIDATES SHOULD

REFRAIN FROM POLITICAL ACTIVITY

INAPPROPRIATE TO JUDICIAL OFFICE

A. Political Conduct in General

(1) An incumbent’ judge, or 8

candidate for judicial office, should

not;

(a) act as a leader or hold any

office in a political organization;

(b) make speeches for a political

organization or candidate at a political

meeting or publicly endorse a candidate

for public office.

Commentary

A candidate does not’ publicly

endorse another candidate for public

office by having his or her name on the

Same ticket or attending a fund raising

event for a candidate.

(2) Incumbent judges, and

candidates for judicial office, may

appear together in campaign

advertisements, but should not, in those

advertisements, endorse another judicial

candidate. Joint advertisements may be

paid for by the candidates or by a

political party.

Commentary

The commentary to Canon 7(A) (1) (b)

makes it clear that running on the same

ticket with another candidate for

political office is mot a public

endorsement . The exception in this

division allows candidates for judicial

office to appear together in

advertisements. The sharing of

advertisements by candidates is an

attempt to minimize the expense of

campaign advertising.

There are instances, however, in

which an advertisement goes beyond merely

being on the same ticket and becomes an

endorsement. Advertisements which focus

on candidates as an integrated team or

partnership begin to give the appearance

of an endorsement.

"Endorse" has been denied as "to

give approval of or support to"

Webster’s II New Riverside University

Dictionary (1984). An advertisement that

has candidates speaking in terms of

"our," "us," or "we" implies approval or

support and is prohibited. Joint

advertisement must maintain the

individual and independent nature of each

candidate’s campaign.

ies el eal ie

(3) An incumbent judge,* or a

candidate for judicial office, may attend

political gatherings and may identify

himself or herself as a member of a

political party. He or she may speak to

such political gatherings on his or her

own behalf when he or she is a candidate

for election or re-election.

(4) A judge should resign from

office when he or she becomes a candidate

either in a party primary or in a general

election for a nonjudicial office, except

that he or she may continue to hold

judicial office while being a candidate

for election to or serving as a delegate

in a state constitutional convention, if

the judge is otherwise permitted by law

to do so. "Candidate" means any

qualified person certified in accordance

with the provision of the Revised Code

for placement on the official ballot of a

primary, general, or special election to

be held in this state, or any qualified

person who represents himself or herself

to be a write-in candidate, or who

knowingly assents to such representation

by another at either a primary, general,

or special election to be held in this

state.

(5) a judge should not engage in

any other political activity except on

behalf of measures to improve the law,

the legal system, or the administration

of justice.

Commentary

For definition of the term

"candidate" as used in R.C. Sections

3517.08 to 3517.15 and 3517.99 governing

the collection, expenditure and reporting

of campaign contributions, see gS:

3517.01 (b) (3).

B. Campaign Conduct.

(1) An incumbent judge, or a

candidate for judicial office:

(a) should maintain the

dignity appropriate to judicial office;

(b) should discourage public

officials, appointees, or employees

subject to his or her direction or

control from soliciting or accepting

campaign fund contributions for him or

her;

promises of conduct in office other than

the faithful and impartial performance of

the duties of the office; announce his or

her views on disputed legal or political

issues; or misrepresent his ofr her

identity, qualifications, present

position, or other facts.

(2) An incumbent’ § judge, or. s

candidate for judicial office that is

filled by public election between

competing candidates, should not himself ~

solicit or accept campaign funds, but he

or she may establish a committee of

responsible persons to secure and manage

the expenditure of funds or his or her

campaign and to obtain public statements

of support for his or her candidacy. the

committee should not, directly or

indirectly, solicit or receive any

assessment, subscription, or contribution

for any political or personal purpose

whatsoever from any employee, appointee

of the court, or anyone who does business

with the court, but may solicit campaign

contributions from lawyers.

A candidate’s committee may begin

soliciting funds for his or her campaign

no earlier than 120 days before the first

Tuesday after the first Monday in May of

the year in which the general election,

in which case the solicitation of funds

may continue until 120 days after the

date of the election at which the defeat

occurred. In the case of death or

withdrawal of a candidate, the

solicitation of funds may continue until

such time as the funds solicited are

sufficient to pay the campaign debts and

obligations of the candidate incurred on

or before the date of death or

withdrawal, plus the costs of

solicitation incurred after the date of

death or withdrawal, but in no event

shall the solicitation of funds continue

beyond 120 days after the date of death

or withdrawal.

(a) The personal expenses of

judicial candidate paid for by the

candidate from his or her personal funds

shall not be considered as a contribution

or expenditure by the candidate for this

or her own campaign and shall not be

reported under this’ canon. Each

candidate for judicial office shall have

no more that one campaign committee for

purposes of receiving contributions and

making expenditures. No campaign

committee shall receive any contributions

or make any expenditures other than

through the campaign treasurer. The

campaign treasurer’ shall file all

statements required of a candidate or

campaign committee required by this

canon.

(b) Each judicial candidate shall,

not later than the date he or she becomes

a candidate, file a written statement

setting forth the full name and address

of the campaign treasurer with the clerk

of the court in which the candidate seeks

nomination or election to judicial

office. In judicial districts having

more that one county, such statement

shall be filed with the clerk of the

court of the most populous county of the

district. In the event that the office

of campaign treasurer shall become

vacant, the judicial candidate shall

promptly appoint a successor campaign

treasurer and file a statement to this

effect with the clerk of the court as

referred to herein.

Commentary

These restrictions shall not be

interpreted to prohibit a civic

organization, bar association, or duly

~-constituted and lawfully elected

political party organization from raising

funds and making expenditures in behalf

of judicial candidates which it has

decided to support. A candidate,

including an incumbent judge, may appear

——

before an editorial board of a newspaper

or a screening committee of a civic

organization, bar association, or

political organization for the purpose of

the publication or organization.

(3) A candidate, including an

incumbent judge, should not solicit or

receive any assessment, subscription, or

a contribution for any political or

personal purpose whatever from any

employee, -appointee of the court, or

anyone who does business with the court.

Commentary

Appointees of the court include

officials such as referees,

commissioners, special masters,

receivers, guardians, appraisers, and

personnel which as clerks, secretaries,

bailiffs, and all other employees and

appointees.

CS. Campaign Guidelines. No

incumbent judge or candidate for judicial

office during the course of any campaign

for nomination or election to judicial

office, by means of campaign materials,

including sample ballots, an

advertisement on radio or television or

in a newspaper or periodical, a public

speech, press release, or otherwise,

shall purposely do any of the following:

(1) Use the title of an office not

currently held by a candidate in a manner

that implies that the candidate does

currently hold that office, or use the

term "re-elect" when the candidate has

never been elected at a primary, general,

or special election to the office for

which he or she is a candidate.

Commentary

Whenever an incumbent judge is a

candidate for the same of different

judicial office, the title "judge" may be

used preceding the candidates’s name in

campaign materials and advertising. An

incumbent judge who is a candidate for

election to a different judicial office

may use the title "judge", provided that

its use does not imply that he or she

currently holds the office for which he

or she is a candidate. Any reference in

a candidate’s campaign materials to his

or her opponent, who is the incumbent in

the office being sought, shall include

the opponent’s title.

Whenever a candidate for a judicial

office is not currently a judge, the

title "judge" may appear only after of

below the candidate’s name in campaign

materials and advertising. In such

instances, words such as "elect" or

"yote" ‘must appear in prominent size

lettering before the candidate’s name, or

the word "for" must appear in prominent

size lettering between the candidate’s

name and the title "judge"

(2) Make a false statement

concerning the formal schooling or

training completed or attempted by a

candidate; a degree, diploma,

certificate, scholarship, grant, award,

prize of honor received, earned, or held

by a candidate; or the period of time

during which a candidate attended any

school, college, community technical

school, or institution;

(3) Make a false statement

concerning the professional,

occupational, or vocational licenses held

by a candidate, or concerning any

position the candidate held for which he

or she received a salary or wages;

(4) Make a false statement that a

candidate or public official has been

indicted or convicted of a theft offense,

extortion, or other crime involving

financial corruption or moral turpitude;

(5) Make a statement that a

candidate has been indicted for any crime

without disclosing the outcome of any

legal proceedings resulting from the

indictment ;

(6) Make a false statement that a

candidate or official has a record of

treatment or confinement for mental

disorder;

(7) Make-a false statement that a

candidate or official has been subjected

to military discipline for criminal

misconduct or dishonorably discharged

form the armed services;

(8) Falsely identify the source of

a statement, issue statements, either

knowing the same to be false or with

reckless disregard of whether is was

false or not, concerning a candidate that

is designed to promote the election,

nomination, or defeat of the candidate.

COMPLIANCE WITH THE CODE OF JUDICIAL

CONDUCT

Anyone, whether or not a lawyer, who

is an officer of a judicial system

performing judicial functions, including

an officer such as a referee in

bankruptcy, special master, court

commissioner, or magistrate, is a judge

for the purpose of this Code. All judges

should comply with this Code except as

provided below.

A. Part-Time Judge. A part-time

judge is a judge who serves on a

continuing or periodic basis, but is

permitted by law to devote time to some

other profession or occupation and whose

compensation for that reason is less than

that of a full-time judge. A part-time

judge:

(1) is not required to comply with

Canon 5C(2), D, E, F, and G, and Canon

6C, except that a part-time judge must

file the annual disclosure statement

required by R.C. 102.02;

(2) should not practice law in the

court on which he serves or in any court

subject to the appellate jurisdiction of

the court on which he serves, or act as a

lawyer in a proceeding in which he has

served as a judge or in any other

proceeding related thereto.

DLE GEG AIR LCC LAE E GY ESLOG IIT De

B. Judge Pro Tempore. A judge pro

tempore is a person who is appointed to

act temporarily as a judge.

(1) While acting as such, a judge

pro tempore is not required to comply

with Canon SC{2), {3}, BD, B F, and Cc,

and Canon 6C.

(2) A person who has been a judge

pro tempore should not act as a lawyer in

a proceeding in which he has served as a

judge or in any other proceeding related

thereto.

C. Retired Judge. A retired judge

who is eligible for recall to judicial

service should comply with all the

provisions of this Code except Canon

5C(2), D, E, G, and Canon 6C.

EFFECTIVE DATE OF COMPLIANCE

This Code is hereby made effective

December 20, 1973.

A person to whom this Code becomes

applicable should arrange his affairs as

soon as reasonably possible to comply

with it. In any event a non-incumbent who

has been elected to, is elected to, or

has been or is appointed to a judicial

position to which this Code is applicable

shall fully and completely comply with

the Code at the beginning of his term of

office. An incumbent judge shall

be in full compliance with all the

provisions of this Code no later than the

date upon which his next term of office

begins; provided, all judges must be in

full compliance with the provisions of

Canon 3B(4) no later than July 1, 1974.

673 N.E.2d 1253

(Cite as: 77 Ohio St.3d 211, 673 N.E.2d

1253)

In re COMPLAINT AGAINST Judge HARPER.

No. 96-1551.

Supreme Court of Ohio.

Submitted Sept. 3, 1996.

Decided Dec. 5, 1996.

Disciplinary proceedings were instituted

concerning advertisement run by judge

seeking election to Supreme Court. The

Supreme Court, Brogan, C.J., held that:

(1) where hearing panel did not order

dismissal of charges, but instead merely

recommended that the charges be

dismissed, it was proper for board to

review the matter; (2) it was not

necessary for disciplinary counsel to

offer evidence of public opinion polls or

testimony from witnesses who claimed to

have been misled in order to establish

that advertisement concerning

contributions received by the incumbent

diminished public confidence in the

judiciary; (3) all of the Judicial Canons

in the Code of Judicial Conduct, except

Canon 4, establish mandatory standards of

conduct for Ohio judges; (4) Canons

prohibiting conduct that diminishes

confidence in integrity of judiciary and

requiring judge to maintain dignity of

judicial office were not vague as applied

to advertisement; (5) Canons do not

prohibit truthful criticism, and they

thus are not overbroad; (6) statement in

judge’s campaign advertisement that a

small group of plaintiffs’ attorneys

wanted to retain the incumbent because

her liberal rulings made it easier for

them to collect large fees was statement

Of opinion; (7) statement was not

improper expression of opinion on

disputed legal matter; but (8) other

parts of advertisement improperly implied

that incumbent was associated with

attorneys who were somehow dishonest and

making improper contributions, and thus

were not constitutionally protected and

violated canons.

Respondent reprimanded.

Walsh, J., filed a concurring opinion.

[1] ATTORNEY AND CLIENT k57

45k57

Supreme Court, not disciplinary board,

makes the ultimate conclusion, both as to

the facts and as to the action, if any,

that should be taken with respect to

attorney’s conduct.

[2] ATTORNEY AND CLIENT k57

45k57

In disciplinary cases, board of

commissioners acts for and on behalf of

Supreme Court and, in doing so, it makes

recommendations as to the facts which

Should be found and the action which

Should be taken by Court, but Court has

full responsibility for determining what

the facts are and what action should be

taken on those facts.

Sb ER FER ERP PE IO Tee Eg

[3] ATTORNEY AND CLIENT k57

45k57

In assessing propriety of attorney’s

conduct and the appropriate sanction, if

any, Supreme Court is not bound by either

hearing panel’s or disciplinary board’s

conclusions as to fact or law.

[4] JUDGES k11(5.1)

227K11 (5.1)

Where hearing panel did not order

dismissal of charges against judge and

notify all interested parties, but

instead merely filed its findings and

recommended that the charges be

dismissed, it was proper for disciplinary

board to review the matter. Government

of the Bar Rule V, § 6(H, J).

[5] JUDGES k11(7)

227k11 (7)

It was not necessary for disciplinary

counsel to offer evidence of public

opinion polls or testimony from witnesses

who claimed to have been misled in order

to establish that judge’s campaign

commercial concerning contributions

received by the incumbent diminished

public confidence in the judiciary. Code

of Jud.Conduct, Canon 2, subd. A.

[6] JUDGES k11(4)

227k11 (4)

Objective standard should be applied to

prohibition on conduct by judge that

would diminish confidence in the

judiciary; inappropriate actions include

conduct which would appear to. an

objective observer to be not only

unjudicial but prejudicial to public

esteem for the judicial office.

[7] JUDGES k11(7)

227k11 (7)

Even if evidence that public confidence

in integrity and impartiality of the

judiciary was, in fact, undermined was

required in order to establish that

judge’s conduct had that effect, it was

presented by fact that attorney with no

apparent connection to parties saw

judge’s campaign advertisement and wrote

a letter of complaint to the Supreme

Court. Code of Jud.Conduct, Canon 2,

subd. A.

[8] JUDGES k11(2)

227k11 (2)

Language of the Canons of Judicial Ethics

prohibiting conduct’ that diminishes

confidence in integrity of judiciary and

requiring judge to maintain dignity of

judicial office is not merely hortatory

or advisory, even though they use the

word "should," rather than "shall." Code

of Jud.Conduct, Canon 2, subd. A.; Code

of Jud.Conduct, Canon 7, subd. B(1) (a)

(1994).

[9] JUDGES k11(2)

227k11 (2)

All of the Judicial Canons in the Code of

Judicial Conduct, except Canon 4,

establish mandatory standards of conduct

for Ohio judges. Code of Jud.Conduct,

Canon 4.

[10] STATUTES k47

361k47

Vague law impermissibly delegates basic

policy matters to policemen, judges, and

juries for resolution on ad hoc and

subjective basis, with the attendant

dangers of arbitrary and discriminatory

application. U.S.C.A. Const.Amend. 14.

[11] CONSTITUTIONAL LAW k42.2 (1)

92k42.2(1)

When the vice of a statute is its

vagueness, litigant asserting the

vagueness defense must demonstrate that

statute is vague as applied to the

litigant’s conduct without regard to its

potentially vague application to others.

U.S.C.A. Const.Amend. 14.

[12] CONSTITUTIONAL LAW k82 (4)

92k82 (4)

In the First Amendment area,

objectionable aspects of vagueness need

not depend upon the absence of fair

notice, for the First Amendment’s demand

for specificity is also a product of the

concern for a statute’s chilling effect.

U.S.C.A. Const.Amend. 1.

[13] CONSTITUTIONAL LAW k82 (11)

92k82 (11)

Canons prohibiting conduct that

diminishes confidence in integrity of

judiciary and requiring judge to maintain

dignity of judicial office were not vague

as applied to judge’s campaign

advertisements, which referred to

contributions to incumbent’s campaign, in

view of preexisting case law and

interpretive disciplinary board opinion.

U.S.C.A. Const.Amends. 1, 14; Code of

Jud.Conduct, Canon 2, subd. A.; Code of

Jud.Conduct, Canon 7, 14subd.- B(1) (a)

(1994).

[13] JUDGES k11(2)

227k11 (2)

Canons prohibiting conduct that

diminishes confidence in integrity of

judiciary and requiring judge to maintain

dignity of judicial office were not vague

as applied to judge’s campaign

advertisements, which referred to

contributions to incumbent’s campaign, in

view of preexisting case law _ and

interpretive disciplinary board opinion.

U.S.C.A. Const.Amends. 1, 14; Code of

Jud.Conduct, Canon 2, subd. A.; Code of

Jud.Conduct, Canon 7, subd. B(1) (a)

(1994).

[14] CONSTITUTIONAL LAW k82 (4)

92k82 (4)

Overbreadth challenge is predicated on

proposition that clear and precise

enactment may be overbroad in its reach

if it prohibits constitutionally

protected conduct ; in addressing

overbreadth challenge, crucial question

is whether the legislation sweeps within

its prohibitions what may not be punished

under the First Amendment. U.S.C.A.

Const .Amend. 1.

[15] CONSTITUTIONAL LAW k82 (4)

92k82 (4)

Overbreadth is avoided if regulation or

legislation in question may be narrowed

by reasonable construction, including

interpretation by the agency responsible

for enforcement. U.S.C.A. Const.Amend.

» Ep

[16] CONSTITUTIONAL LAW k90(3)

92k90 (3)

Speaker cannot be punished because of his

viewpoint or message unless ‘ino

restriction is necessary to promote a

compelling government interest. U.S.C.A.

Const .Amend. 1.

[17] CONSTITUTIONAL LAW k90(3)

92k90 (3)

Content-based restrictions receive high

level of judicial scrutiny and will be

upheld only if they are narrowly drawn to

achieve important or substantial

governmental interest that is unrelated

to the suppression of free expression.

U.S.C.A. Const.Amend. 1.

[18] JUDGES k11(2)

227k11 (2)

To the extent Canons of Judicial Ethics

are interpreted to prevent truthful

criticism of the judiciary, they are

unconstitutionally overbroad. U.S.C .A.

Const .Amend. 1.

[19] JUDGES k11(2)

227k11 (2)

Canons of Judicial Ethics do not prohibit

truthful criticism, so long as_ the

criticism is done fairly, accurately, and

upon facts, not false representations,

and they thus are not’ overbroad.

U.S.C.A. Const.Amend. 1.

[20] JUDGES k11(2)

227k11 (2)

There was nothing wrong with judge

informing the public that incumbent whom

she was challenging received substantial

contributions from_ special interest

group. Code of Jud.Conduct, Canon 2,

subd. A.; Code of Jud.Conduct, Canon 7,

subd. B(1) (a) (1994).

[21] JUDGES k11(2)

227k11 (2)

Statement in judge’s campaign

advertisement that a small group of

plaintiffs’ attorneys wanted to retain

the incumbent because her liberal rulings

made it easier for them to collect large

fees was statement of opinion.

[22] CONSTITUTIONAL LAW k90.1(5)

92k90.1(5)

Opinions are protected under the First

Amendment, but First Amendment protection

does not adhere to statements of opinion

that imply false assertions of fact.

U.S.C.A. Const.Amend. 1.

[23] JUDGES k11(2)

227k11 (2)

Statement in judge’s campaign

advertisement that a small group of

plaintiffs’ attorneys wanted to retain

the incumbent because her liberal rulings

made it easier for them to collect large

fees was not improper expression of

opinion on disputed legal matter. Code

of Jud.Conduct, Canon 7, subd. B(1) (a)

(1994).

[24] CONSTITUTIONAL LAW k90.1(1.2)

92k90.1(1.2)

Statements in judge’s campaign

advertisements concerning incumbent’s

receipt of contributions from association

of plaintiff’s attorneys and the

eee

incumbent’s rulings favoring

association’s positions improperly

implied that incumbent was associated

with attorneys who were somehow dishonest

and making improper contributions, and

thus were not constitutionally protected

and violated canons prohibiting conduct

that diminishes confidence in integrity

of judiciary and requiring judge to

Maintain dignity of judicial office.

U.S.C.A. Const.Amend. EF Code of

Jud.Conduct, Canon 2, subd. A.; Code of

Jud.Conduct, Canon 7, subd. B(1) (a)

(1994).

[24] JUDGES k11(2)

227k11 (2)

Statements in judge’s campaign

advertisements concerning incumbent’s

receipt of contributions from association

of plaintiff’s attorneys and the

incumbent’s rulings favoring

association’s positions improperly

implied that incumbent was associated

with attorneys who were somehow dishonest

and making improper contributions, and

thus were not constitutionally protected

and violated canons prohibiting conduct

that diminishes confidence in integrity

of judiciary and requiring judge to

Maintain dignity of judicial office.

U.S.C.A. Const.Amend. : Code of

Jud.Conduct, Canon 2, subd. A.; Code of

Jud.Conduct, Canon 7, subd. B(1) (a)

(1994).

**1255 *211 This matter is before a

panel of the Ohio Supreme Court serving

pursuant to Gov.Jud.R. I1I(4), for the

purpose of reviewing the amended findings

of fact, conclusions of law, and

recommendation of the Board of

Commissioners on Grievances and

Discipline of the Supreme Court ("board")

that Judge Sara J. Harper, Attorney

Registration No. 0023730, of Cleveland,

Ohio, be publicly reprimanded. [FN1] The

present disciplinary proceeding stems

from an advertisement approved by Judge

Harper during the course of her 1994

campaign for justice of the Supreme

Court. In that campaign, Judge Harper’s

opponent was incumbent Supreme Court

Justice Alice Robie Resnick.

FN1. This panel is composed of

appellate judges from each district,

with the exception of the Sixth and

Eighth Districts, which have

abstained.

Judge Harper has been involved in

numerous political campaigns over many

years, and has never been previously

disciplined, nor has she been cited for

prior disciplinary code violations. She

was initially appointed to the Cleveland

Municipal Court on December 31, 1970, ran

in the Ohio Republican Party primary in

1976 for the Ohio Supreme Court, and then

ran again in 1980 as the endorsed

Republican candidate for the Ohio Supreme

Court. Other than fourteen years in

private practice, Judge Harper has been a

judge either on the municipal bench or

the court of appeals, where she is

currently a judge, for twenty-two years.

In the 1994 campaign, Judge Harper was

again the endorsed Republican candidate

in the primary. In August 1994, she was

os BS oa Phenat en

VAS tite i

contacted by Robert Bennett, the Chairman

of the Ohio Republican Party, about

filming a commercial to be used in the

campaign. Shortly thereafter, Bennett

came to Cleveland and Judge Harper was

filmed in various poses at the Cuyahoga

County Courthouse. Nothing was disclosed

to her about the nature **1256 of the

projected campaign advertisement.

*212 Subsequently, on October 31, 1994,

Judge Harper came to Bennett’s office in

Columbus to view the video of the

proposed commercial. The video itself

begins with a group picture of Justices

of the Ohio Supreme Court, but in

succeeding frames, focuses on Justice

Resnick’s picture only. The audio

portion of the commercial states as

follows:

"On the Ohio Supreme Court, one Justice

has a problem. It’s money. Most of

Resnick’s money comes from just one

place, the plaintiff lawyers who sue,

sue, sue. Over $300,000.00 just from

them. This small group of suing lawyers

wants Resnick with her liberal rulings to

make it easier for them to collect

Millions in fees. It’s time for a change

to Judge Sara Harper. Recommended,

endorsed, highly rated, 20 years as a

Judge, Marine Corps Lieutenant Colonel.

Judge Sara Harper."

While the above text is playing, a

series of pictures appear. The first is

& group picture of the Justices of the

Ohio Supreme Court. In the next frame,

only Justice Resnick is featured, and the

accompanying text says, “Justice Has

Problem." The third frame again shows

Justice Resnick’s picture and repeats the

phrase "Justice Has Problem." However,

this time, the phrase "... It’s Money!"

is added. The fourth frame once more

features Justice Resnick’s picture, with

the caption, "Resnick’s Money." The

fifth frame of the ad is the same as the

fourth, except that a large check is

displayed, with the words "Trial Lawyers"

and " ‘Sue & Sue’ " on the top left-hand

corner of the check. In the portion of

the check where one would normally see

the dollar amourit in the figure "Over

$300,000.00," and the check is signed by

"Cheatem Good."

The next two frames of the ad state that

"Resnick’s Liberal Rulings Help Lawyers

Collect Millions." These frames also

picture individuals, next to what appear

to be ads making various claims, such as

"Experienced in recovering large money

awards," "NO FEE UNLESS YOU COLLECT," and

"No Fee if No Recovery."

After reviewing the ad, Judge Harper

approved its use, although she considered

the ad "hard-hitting," "not [her] style,"

and something she wouldn’t have done in

her hometown of Cleveland. Moreover, at

the time Judge Harper first saw the ad,

she had the ability to make corrections

and changes, but asked only that her

middle initial be added.

The information about campaign finances

in the ad was provided by Bret T. Buerck,

a researcher for the Ohio Republican

e" ms ae Pecans .

Party. According to the information he

compiled, Justice Resnick received for

her 1994 campaign a total of over

$3.7,000 from members of the Ohio Academy

of Trial Lawyers ("OATL"), the families

of OATL members, and political action

committees associated with OATL,

including ADOPT, which is the political

action committee for OATL. *213 OATL’s

mission statement indicates that it is a

group mainly interested in protecting the

interests of plaintiffs.

At the time she viewed the ad, Judge

Harper knew that money was an issue in

the political consciousness and that the

Ohio Supreme Court had appointed a

seventeen-member committee to look into

judicial elections and the financing of

campaigns. Although Judge Harper did not

have any particular decisions of Justice

Resnick in mind when viewing the

commercial, her opinion was that Justice

Resnick was a liberal and that she

(Harper), was a nonliberal. vudge Harper

explained that she did not think the ad

was unethical, nor did she feel the ad

was about Justice Resnick. . Her

interpretation of the "problem" referred

to in the commercial was the problem in

the judiciary of financing campaigns and

the perception the public has of judges.

Following Judge Harper’s approval, the

ad was aired on television a number of

times during the election. The ad was

rought to Justice Resnick’s attention,

and she viewed it on Wednesday, November

2, 1994. Justice Resnick was offended by

the ad and interpreted it as implying

either that she had personally taken

money or that justice was for sale.

After viewing the ad, Justice Resnick

received a letter from an attorney,

Michael Garth Moore, who had also been

offended **1257 by the ad. Consequently,

Justice Resnick forwarded Moore’s letter,

along with a cover letter, to

Disciplinary Counsel.

Both Moore and another attorney (whose

picture had been featured in the ad)

testified at the disciplinary hearing.

Moore is a trial lawyer and about ninety

percent of his practice consists of

representing injured parties and people

in employment discrimination cases.

Although Moore belonged to OATL, he did

not contribute to Justice Resnick’s 1994

campaign. The inference he drew from the

ad was that Justice Resnick changes her

rulings in order to collect money. As a

result of seeing the ad, he wrote a

letter to Chief Justice Moyer objecting

to the ad. The basis of Moore’s concern

was that if such campaign standards were

allowed, the public would be persuaded

even more than it is already that

lawyers, including those on the Supreme

Court, are unethical and dishonest.

Michael Dorf, whose picture appeared in

the ad, specializes in workers’

compensation cases for injured claimants

in the Toledo area. Dorf did not give

anyone permission to use his picture and

was offended by the ad for several

reasons, including the unauthorized use

of his photo, the use of his photo to

attack the court, and the fact that the

POE Se Ne OF ee Oe ee ee ee ee

ee ee ee tee

a ey ee ee ee eae ee ee

ae a

— a a? ee ee!

ad portrayed him in a negative light that

was inconsistent with his reputation.

Dorf also indicated that Justice Resnick

had never ruled in his favor in any case.

In addition to the two attorneys, both

Sides presented expert testimony from

attorneys who had developed expertise in

legal ethics as well as the area of

judicial and attorney disciplinary

matters.

“214 After receiving the complaint

against Judge Harper and investigating

the matter, the Disciplinary Counsel

submitted a complaint to the board on May

1, 1995, charging Judge Harper with

violating five Canons of the Code of

Judicial Ethics: Canon i (failing to

uphold the integrity and independence of

the judiciary), Canon 2A (failing to

conduct herself in a manner that promotes

public confidence in the integrity and

impartiality of the judiciary), Canon

7B(1) (a) (failing to maintain the dignity

appropriate to judicial office), Canon

7B(1)(c) (announcing views on disputed

legal or political issues or

misrepresenting facts), and Canon 7C(9)

(publishing or distributing a written or

printed false statement, knowing the

Statement to be false or with reckless

disregard of its falsity, concerning a

candidate). A hearing was held before a

three-member panel of the board on March

5, 1996, and elicited the testimony

recounted above.

After the hearing, the panel issued

findings of fact and a recommendation.

Concerning Canon 7C(9), the panel found

that relator had failed to establish that

OATL and the political action committees

associated with it had not made the

contributions as alleged by respondent.

Accordingly, the panel recommended

dismissal of this charge. Next, with

regard to Canon 7B(1)(c), the panel,

while not condoning the inferences in the

ad, found that the statements in the ad

were not sufficiently specific to violate

the Canon against announcing views on

disputed legal and political issues.

Thus, the panel also recommended

dismissal of this charge.

The remaining three violations were

considered together, as they were general

in nature and did not prescribe specific

conduct. In this context, the panel

again recommended dismissal, based on the

absence of specific misconduct and the

core political speech protections of the

First Amendment.

Upon review of the panel decision, the

board approved the portion of the panel

report recommending dismissal of charges

based on Canons 1, 7B(1)(c), and 7C(9).

However, the board concluded that

violations of Canons 2A and 7B(1) (a) had

occurred, because the ad as a whole

undermined public confidence in the

integrity and impartiality of Justice

Resnick. The board also found that the

ad portrayed a lack of dignity

appropriate to judicial office by

Suggesting to Ohio voters that a

justice’s decisions were influenced by

receipt of campaign contributions. In

particular, the board found that the ad

te es

raised the following impermissible

implications:

"(1) Certain lawyers are dishonest.

"(2) One justice is associated with

those lawyers.

"(3) There is something improper about

lawyers contributing to a judicial

campaign.

**1258 *215 "(4) A justice appears to be

the captive of one class of litigants,

group of lawyers, or special interest."

Accordingly, the board voted to

recommend imposition of a public

reprimand.

Geoffrey Stern, Disciplinary Counsel,

Alvin E. Mathews and Harold F. Craig III,

Assistant Disciplinary Counsel, Columbus,

for relator.

John C. Nemeth & Associates, John C.

Nemeth and David A. Herd, Columbus, for

respondent.

BROGAN, Chief Judge.

Respondent has objected to the board’s

recommendation, and raises the following

four propositions of law:

yh eS The Board of Commissioners

improperly reviewed this proceeding after

the unanimous panel recommendation of

dismissal.

ee a The Board of Commissioners

incorrectly found that Respondent’s

campaign television commercial undermined

public confidence in the judiciary, when

there was no evidence presented by

Relator indicating any effect on public

opinion or confidence.

"{III] Given Respondent’s core political

speech protections, under the United

States Constitution, Canons 7B(1) (a) and

2A of the Code of Judicial Conduct are

overbroad both facially and as applied to

Respondent, and are too vague to have

reasonably informed Respondent of what

conduct or speech is intended to be

precluded.

"{Iv] The Board oof Commissioners

improperly focused on the graphic art

display of an obviously facetious check

in reaching its recommendation, when such

display is afforded the same

constitutional protection as the rest of

Respondent’s speech."

With the above background in mind, we

now turn to consideration of the

propositions of law advanced by Judge

Harper.

[1] Before addressing the first

proposition of law, we note as a starting

point for analysis that the proper

Standard in disciplinary cases is that

the Supreme Court, not the board, "makes

the ultimate conclusion, both as to the

facts and as to the action, if any, that

Se eee ee ee

Saas

should be taken." Cincinnati Bar Assn.

v. Heitzler (1972), 32 Ohio St.2a 214,

220, 61 0.0.2d 451, 454, 291 N.E.2da 477,

482, certiorari denied (2973), 4123 U.S.

vey, 33 8.Ce. 2189, 36 %.84.24 €87-.

Specifically. as indicated in Heitzler:

*216 [2] [3] " ‘In cases of this kind,

the board of commissioners acts for and

on behalf of this court. In doing so, it

makes recommendations as to the facts

which should be found and the action

which should be taken by this court.

However, this court has full

responsibility for determining what the

facts are and what action should be taken

on those facts.’ " Id., quoting Mahoning

Cty. Bar Assn. v. Ruffalo (1964), 176

wnao. St. 263; 27 0.0.34 161, 199 N.E.2d

396.

Therefore, in assessing the propriety of

the conduct in question and the

appropriate sanction, if any, we are not

bound by either the panel’s or the

board’s conclusions as to fact or law.

Judge Harper’s first proposition is that

the board improperly reviewed this matter

after the panel unanimously recommended

dismissal. We do not agree. In this

context, Judge Harper’s contention is

that any disciplinary action must be

dismissed if a unanimous panel recommends

dismissal. However, under Gov.Bar R.

V(6)(H) and (I), the panel may order

dismissal if it finds the evidence

insufficient to Support a charge or it

may file its certified report of the

proceedings in accordance with Gov.Bar R.

V(6) (J). In the latter event, the board

then reviews the matter and may refer it

back to the panel for further evidence,

take evidence before the board, or

proceed on the certified report.

[4] In the present case, the panel did

not order dismissal and notify all

interested parties, including Judge

Harper’s local bar association, the bar

association of the county where the

complaint arose, and the Ohio State Bar

Association, as specified in Gov.Bar R.

V(6) (H). Instead, the panel filed its

findings and the board then proceeded on

the certified report, in accordance with

Gov.Bar R. V(6)(J). Moreover, as relator

has pointed **1259 out, the language used

by the panel did not order actions, but

merely recommended that the charges be

dismissed. Consequently, the board’s

review of this matter was proper, and

respondent’s first proposition is without

merit.

[5] In her second proposition of law,

Judge Harper argues that evidence of

public opinion must have been presented

before the board could find that the

television campaign undermined public

confidence in the judiciary. Again, we

disagree, concluding that evidence of

public opinion polls is not required to

establish a finding that a judge has

acted in a manner that diminishes public

confidence in the judiciary.

In this regard, Canon 2A provides:

OM SND Te Se eee Sad jt ee

"A judge should respect and comply with

the law and should conduct himself at all

times in a manner that promotes public

confidence in the integrity and

impartiality of the judiciary."

*217| The single authority cited to

Support Judge Harper’s position is

Ibanez v. Florida Dept. of Business &

Professional Regulation (1994), 512 U.S.

136, 114 S.Ct. 2084, 129 L.Ed.2d 118. In

that case, an attorney who was also a

certified public accountant was

Sanctioned by the state for using the

term "CFP" (certified financial planner)

next to her name in advertising. Id. at

“==, £49 8.4%. @2 2086, 229 1.26.24 at

125. The state’s position was that

although the attorney actually had

obtained the CFP designation, the use of

"CFP" misled the public into believing

that state approval and recognition

existed for the designation. 512 U.S. at

wees, £28 &.CE. at 2089, 129 2.86.24 at

127. In rejecting the state’s position,

the Supreme Court noted that in the

complete absence of any evidence of

deception, concern about the possibility

of deception in hypothetical cases is not

Sufficient to rebut the constitutional

presumption favoring disclosure over

concealment. 512 U.S. at cece, 414 §.Ct.

at 2090, 129 L.Ed.2d at 127-128.

Moreover, in a_ footnote, the court

further observed that no witness had

testified, nor had any evidence been

offered, that any member of the public

had been misled. 512 U.S. at ----, 114

S.Ct. at 2090, 129 L.Ed.2da at Lee, £8.

10.

We do not read these comments as

requiring the state to offer evidence of

public opinion polls, nor do we believe

that the state must offer testimony from

witnesses who claim to have been misled.

In reviewing Ibanez, the reason for the

Supreme Court’s statement is obvious.

Given the innocuous nature of the

initials "CFP," which has no objectively

deceptive connotation, evidence that the

public, in fact, was misled would have

been helpful. However, no such difficulty

presents itself in the case at hand,

Since the language used is’ readily

susceptible of interpretation by an

objective observer, without resort to

proof from members of the public.

As a further point, we note that our

examination of disciplinary cases from

this, as well as from other

jurisdictions, does not reveal the use of

public opinion polls or outside testimony

to establish violations pertaining to

public confidence in the judiciary. For

example, no evidence from the public or

Opinion surveys was required to establish

Canon 2A violations in Disciplinary

Counsel v. Mosely (1994), 69 Ohio St.3d

401, 632 N.E.2d 1287 (Canon 2A violation

found based on indictment and conviction

for grand theft based on acts while in

office), and Disciplinary Counsel v.

Campbell (1993), 68 Ohio St.3d 7, 62

N.E.2d 24 (Canon 2A violation found based

on complaints of unwelcome or offensive

sexual remarks and/or physical contact by

judge). Likewise, in Ohio State Bar Assn.

v. Mayer (1978), 54 Ohio St.2d 431, 8

0.0.3d 434, 377 N.E.2d 770, the court

concluded that references to a fellow

judge, among other things, as a liar, in

conversations and public meetings,

violated Canon 2A. There is no indication

in that case that any testimony or

evidence was taken from an outside

source, i.e., the general public.

*218 Also of interest are the comments

in Mayer construing R.C. 2701.12, then

Gov.Bar R. VI (relating to suspension of

judges for conduct that would bring the

judicial office into disrepute), and the

burden of proof required for a finding of

misconduct **1260 warranting suspension

or removal of a judge. [FN2] i

2701.12 lists several causes for removal

or suspension including "violation of

such of the canons of judicial ethics

adopted by the supreme court as would

result in a substantial loss of public

respect for the office." ee

2701.12(A) (1). In Mayer, the appellant

argued that the commission had erred in

applying a lesser standard of proof than

was appropriate. However, the Supreme

Court rejected this argument, agreeing

with the commission that the relator did

not need to prove that " ‘respondent’s

conduct would "in fact" result in a

substantial loss of public respect or

disrepute for the office,’ " i.e., there

was no need to prove actual loss of

public respect. (Emphasis in original .)

54 Ohio St.2d at 437-438, 8 0.0.3d at

437, 377 8.8.24 at 774. Moreover, the

evidence from which the commission and

the Supreme Court drew the findings of

Canon violations by clear and convincing

evidence was not, as we noted above,

dependent on testimony from members of

the public who stated that the actions in

question caused them to lose respect for

the judiciary.

FN2. The portion of Gov.Bar R. VI at

issue in Mayer uses the- same

lanqgiage as current Gov.Jud.R.

III(1) (C) (3), permitting removal or

suspension of judges for engaging in

conduct that would bring’ the

judicial office into disrepute.

[6] Applying this discussion to the

present case, what Judge Harper asks is

that we apply the "in fact" or "actual

loss" standard rejected in Mayer. This,

we believe, would be inappropriate. What

is apparent from the cases is that an

objective standard should be applied, or

in other words, inappropriate actions

include "conduct which would appear to an

objective observer to be not only

unjudicial but prejudicial to public

esteem for the judicial office."

(Citation omitted.) In re Inquiry

Concerning Baker (Miss.1988), 535 So.2d

47, 51. In reality, this is the standard

courts have applied, but perhaps have not

always specifically articulated, since

common sense dictates that where a

violation is subtle, more proof is

needed. Thus, the need for greater

evidence is obvious in Ibanez, as the

alleged violation hinged on the use of a

set of initials with no apparent improper

meaning. By the same token, objective

observers would agree, without further

proof, that confidence in the judiciary

is undermined when a judge is indicted on

several counts of grand theft while in

office and is convicted after a plea of

no contest to those charges. Mosely, 69

Ohio St.3d at 402, 632 N.E.2d at 1287.

[7] Based on the foregoing analysis, we

conclude that relator was not required to

submit evidence that public confidence in

the integrity and impartiality of the

judiciary was, in fact, undermined.

However, even if this type of proof were

*219 required, we find that relator has

met the burden. Specifically, Moore, an

attorney from Columbus with no apparent

connection to Justice Resnick, saw the ad

and wrote a letter of complaint to the

Supreme Court. Moore testified about his

reaction to -the ad, and the only

conclusion to be drawn from his testimony

is that he felt the ad was demeaning both

to lawyers and the judiciary.

Accordingly, we find respondent’s second

proposition of law to be without merit.

III

[8] In her third proposition of law,

Judge Harper contends that Canons

7B(1) (a) and 2A are overbroad facially

and as applied, and are too vague to have

reasonably informed her of what speech or

conduct was precluded. In support of

this proposition, Judge Harper makes

several additional points: (1) the

language of the Canons in question is

hortatory or advisory only, in view of

the use of the words "should," rather

than "shall"; (2) the state’s interest

in protecting the integrity of the

judiciary is insufficient to impose

restrictions on the right of free speech;

(3) under existing law, she can be

disciplined only if the statements in

question are false; and (4) the Canons

are overbroad, both facially, and as

applied. Each of these arguments will be

addressed separately.

First, with regard to the issue of the

mandatory nature of the Canons, we note

that the preface of the Canons indicates

that they "establish mandatory standards

unless otherwise indicated." In this

context, it is noteworthy that all the

Canons use the term "should" except Canon

4, which uses the term "may." We also

note that this court **1261 has

consistently applied the Canons in

question to the conduct of judges, which

illustrates that the Canons are felt to

be binding on the conduct and speech of

judges. See, e.g., Campbell, 68 Ohio

St.3d 7, 623 N.E.2d 24 (finding violation

of Canon 2A, among others). In that

case, the court made the following

comment :

"The Code of Professional Responsibility

and the Code of Judicial Conduct serve

many purposes. Foremost among them are

to ensure a legal system of the highest

caliber and to instill and maintain

public confidence in that system." 68

Ohio St.3d at 11, 623 N.E.2d at 27.

Additionally, in a case decided shortly

after the Canons of Judicial Ethics were

adopted in 1954, the Supreme Court noted

that it had declared the Canons " ’ * * *

binding upon all members admitted to

practice law in the state of Ohio.’ "

Mahoning Cty. Bar Assn. v. Franko (1958),

168 Ohio St. 17, 21, 5 0.0.2a 282, 284,

151 N.E.2d 17, 21, certiorari denied

(1959), 358 U.S. 932, 79 S.Ct. Sia, -3

L.Ed.2d 305. The Supreme Court then

commented:

"SO much has been said and written about

the honor, dignity, duties,

responsibilities and standard of conduct

generally expected of the legal

profession that to expound thereon here

would only be to repeat that which has

already been well *220 said many times.

The fact remains, however, that a person

who attains the honor and dignity of

being a member of the legal profession

necessarily renders himself subject to

the duties and responsibilities thereof."

168 Ohio St. at 22, 5 0.0.24 at 200, i523

N.E.2d at 22. The court further made

this observation:

"It follows that the requirement by the

Supreme Court of Ohio that attorneys who

are judges shall adhere to a specialized

code of ethics, i.e., the Canons of

Judicial Ethics, is in accord with the

legislative intent that the judges of

this state shall be persons who must

adhere to the highest possible standard

of ethical conduct." (Emphasis in

original.) 168 Ohio St. at as, $.9.0.24

at 285, 151 N.E.2d at 23. See, also,

Cuyahoga Cty. Bd. of Mental Retardation

v. Assn. of Cuyahoga Cty. Teachers of

Trainable Retarded (1975), 47 Ohio App.2d

28, 4 9.0.34 166, 3513 8.8.24 777

(concluding that use of term "should" in

Code of Judicial Conduct means that the

conduct is mandatory).

In Cuyahoga Cty. Bd. of Mental

Retardation, Chief Justice Leo Jackson of

the Cuyahoga County Court of Appeals

noted:

"In examining the Code of Judicial

Conduct it is apparent that while the

permissible guidelines are indicated by

the use of the word ‘may’ the mandatory

portions are set forth by the use of the

word ‘should.’ This is entirely

consistent with the plain meaning of a

word which expresses an obligation or

duty. See Black’s Law Dictionary (4th

ed. 1968); Webster’s New World

Dictionary (1963) ." 47 Ohio App.2d at

33, 1 0.0.34 at i171, 353. 8.8.26 a6 Tee.

[9] We therefore find that all of the

Judicial Canons in the Code of Judicial

Conduct, except Canon 4, establish

mandatory standards of conduct for Ohio

judges.

Having determined that the Canons are

binding on judges, the next question is

whether they impermissibly infringe on

rights protected by the First Amendment,

and whether they are constitutionally

deficient in failing to provide fair

notice of prohibited conduct to persons

subject to their purview. Intertwined

with these matters is the issue of

whether only false statements can be the

subject of discipline. Our analysis of

the Canons and the relevant

constitutional principles and authorities

has persuaded us that Canon 2A and

7B(1) (a), as well as their application in

this case, withstand scrutiny.

The wording of Canon 2A is set forth

above, and requires that judges conduct

themselves at all times in a manner

promoting public confidence in the

integrity and impartiality of the

judiciary. In addition, Canon 7B(1) (a)

states:

"An incumbent judge, or a candidate for

judicial office: (a) should maintain the

dignity appropriate to judicial office."

Specifically, respondent argues. that

these Canons are overbroad and vague,

both facially and as applied to her in

this case, because they seek to punish

*221 constitutionally protected speech,

including true statements that **1262 the

board viewed as reflecting adversely on

the character of Ohio’s judiciary.

"It is a basic principle of due process

that an enactment is void for vagueness

if its prohibitions are not clearly

defined. Vague laws offend several

important values. First, because we

assume man is free to steer between

lawful and unlawful conduct, we insist

that laws give the person of ordinary

intelligence a reasonable opportunity to

know what is prohibited, so that he may

act accordingly." Grayned v. Rockford

(1972), 408 U.S. 104, 108, 92 S.Ct. 2294,

2298-2299, 33 L.Bd.2d 222, 227.

[10] Vague laws may also trap the

innocent by not providing fair warning.

Papachristou v. Jacksonville (1972), 405

0.8. 156, 92 8.Ct. $39, 32 &.B6.26 110.

Thus, if arbitrary and discriminatory

enforcement is to be prevented, laws must

provide explicit standards for those who

apply them. Coates v. Cincinnati (1971),

402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d

214; Gregory v. Chicago (1969), 394 U.S.

221, 117-118, 89 &.Ct. 946, 950, 22

L.Ed.2d 134, 139- 140 (Black and Douglas,

JJ., concurring). 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. See Edwards v. South

Carolina (1963), 372 U.S. 229, 83 S.Ct.

680, 9 L.Ed.2d 697.

In view of the imprecision of language,

we can never expect complete certainty

from its use. It will always be true

that fertile legal "imagination can

conjure up hypothetical cases in which

the meaning of * * * [disputed] terms

will be in nice question." Am.

Communications Assn. v. Douds (195C), 339

U.S. 382, 412, 70 &.C&. 67a, SG8a, 94

L.8G. 925, 951i.

[11] When the vice of a statute is its

vagueness, the litigant asserting the

vagueness defense must demonstrate that

the statute in question iS vague as

applied to the litigant’s conduct without

regard to its potentially vague

application to others. Parker v. Levy

(2974), 427 0.6. 733, 94 Bee 2547,

eee

L.Ed.2d 439. A perfectly vague statute

is one which provides "[no] ascertainable

Standerd for inclusion and exclusion" and

thus is vague in all its applications.

4 Smith v. Goguen (1974), 415 U.S. 566,

; 578, 94 S.Ct. 1242, 1249, 39 L.Ed.2da 605,

615. For example, the ordinance in

Coates made it illegal for "three or more

persons to assemble * * * on any of the

Sidewalks * * * and there conduct

themselves in a manner annoying to

persons passing by." 402 U.S. at 611, 91

S.Ct. at 1686-1687, 29 L.Ed.2d at 216,

fn. 1. The "annoying" criterion is not

vague merely in the sense that it is "an

imprecise but comprehensible normative

standard"; instead, it specifies no

Standard at ali because cne may never

know in advance what "annoys some people

[but] does not annoy others." 402 U.S.

at 614, 91 S.Ct. at 1688, 29 L.Ed.2d at

217. As a matter of due process, a law

is void on its face if it is so vague

that persons "of common intelligence must

necessarily guess at its *222 meaning and

differ as to its application." Connally

v. Gen. Constr. Co. (1926), 269 U.S. 385,

: ova, S6 8.00... 126, i237, 96. 4.08. 327,

y 328.

[12] In the First Amendment area, the

objectionable aspects of vagueness need

not depend upon the absence of fair

notice, for the First Amendment’s demand

for specificity is also a product of the

3 concern for a statute’s chilling effect.

A "Those * * * sensitive to the perils

“posed by * * * indefinite language, avoid

the risk * * * only by restricting their

conduct to that which is unquestionably

safe. Free speech may not be _ so

| inhibited." Baggett v. Bullitt (1964),

377 U.S. 360, 372, 84 S.Ct. 2336, 2323,

12 L.Ed.2d eet 385-386. As a

consequence, the Supreme Court requires

more specificity of a statute potentially

applicable to expression sheltered by the

First Amendment than in other contexts.

Smith, 415 U.S. at 573, 94 S.Ct. at 1247,

39 L.Ed.2d at 612.

In the area of vagueness, we find

instructive the analytical framework set

forth in Parker. Parker involved, among

other things, a challenge to the

constitutionality of a regulation that

punished commissioned officers for

"conduct unbecoming an officer and a

gentleman." 417 U.S. at 738, 94 S.Ct. at

2553, 41 L.Ed.2d at 447. Among the

Statements made were comments’ that

Special Forces personnel were "liars and

thieves," **1263 "killers of peasants,"

and "murderers of women and children."

41.7 U.S. @& 733, 94 &.Ce. BG sea5, <3

L.Ed.2d at 448, fn. 6.

The vagueness challenge in Parker is

Similar to Judae Harper’s contention that

the word "dignity" in Canon 7B(1) (a) and

the content of the other Canons at issue

in this case are too vague to furnish any

appropriate means of guiding her conduct,

thereby leaving silence as the only safe

response. In Parker, the Supreme Court

rejected this argument, based on several

considerations. First, the court focused

on the fact that the military was a "

‘specialized community governed by a

separate discipline from that of the

Civilian.’ " (Citation omitted.) 417

U.S. at 744, 94 §.Ct. at 2556, 41 L.Ed.2d

at 451. Next, the court emphasized the

Military’s development of customs and

usages that imparted meaning to the

"seemingly imprecise" standards. 417

U.S. at 746-747, 94 S.Ct. at 2556, 41

L.50.20 at 452. Another pertinent

distinction was the regulation of broad

aspects of life unregulated in the

Civilian area, accompanied by sanctions

"more akin to administrative or civil

Sanctions than to civilian criminal

ones." 4i7 U.S. at 751, 94 §.Ct. at

2559, 41 L.Ed.2d at 455.

After making these observations, the

Supreme Court concluded the provisions in

the Uniform Code of Military Justice were

not void for vagueness, given prior

constructions that had narrowed their

meaning. 417 U.S. at 753-754, 94 S.Ct.

at 2560-2561, 41 L.Ed.2d at 456. The

court also commented that "further

content may be supplied even in these

areas by less formalized custom and

usage." 417 U.S. at 754, 94 §.Ct. at

2561, 41 L.Ed.2d at 457. Subsequent

lower court decisions have applied Parker

‘S reasoning in nonmilitary contexts.

See Davis v. *223 Williams (C.A.5, 1980),

617 F.2d 1100, certiorari denied (1980),

4463 0.8. 337, 103 8.Ct. 336, 66 1.84.24

160 (upholding constitutionality of fire

department regulation prohibiting conduct

prejudicial to good order), and Vorbeck

v. Schnicker (C.A.8, 1981), 660 F.2d

1260, certiorari denied (1982), 455 U.S.

Jaa, 202 8.00. 1278, 73. &..28 462

(declining jurisdiction because of lack

of actual case and controversy, while

indicating that police regulations, like

military regulations, are generally cast

in broad terms). But, cf., Bence v.

Breier {C.A.7,; 12974), S02 .26. 2385

certiorari denied (1975), 419 U.S. 1121,

95 S.Ct. 804, 42 L.Ed.2d 821.

In Davis, the court relied on both the

Parker decision and Arnett v. Kennedy

(1974), 416 U.S. 134, 94 S.Ct. 1633, 40

L.Ed.2d a5 (upholding the

constitutionality of civil service

regulation allowing removal or suspension

for "such cause as will promote the

efficiency of the service"). In Arnett,

the Supreme Court had previously

emphasized:

" ‘The root of the vagueness doctrine is

a rough idea of fairness. It is not a

principle designed to convert into a

constitutional dilemma the practical

difficulties in drawing criminal statutes

both general enough to take into account

a variety of human conduct and

sufficiently specific to provide fair

warning that certain kinds of conduct are

prohibited.’ " (Citation omitted.) 416

G.S. at 159-160, 94 §.Ct. at 1647, 40

L.Ed.2d at 36.

[13] Taking the above authorities into

account, we find nothing unfair in the

imposition of sanctions for violation of

either Canon 7B(1)(a) or 2A. First and

foremost, fair warning of the prohibited

conduct existed in the form of an

interpretative board opinion and

preexisting case law cited in the

opinion. Specifically, the board issued

an advisory opinion in 1989 in response

to the following question:

"How much negative criticism of an

incumbent judge is permissible before

such comments infringe on the dignity

appropriate to that judicial office?"

1989 Ohio Bd. Commrs. on Grievances and

Discipline, Op. 89-15. In response, the

board commented:

"The threshold test to apply is whether

the statements regarding an opponent are

indeed truthful. * * * Once this is

Satisfied, there is a further requirement

that the candidate must maintain the

dignity appropriate to the office being

sought. * * * This standard is not a

precise one to apply; instead, it

requires each candidate to exercise his

or her own personal and professional

judgment as to the implication and effect

of the proposed criticisms." Id. at 5.

The board then stated:

**1264 "Some criticism of an opponent

may be justifiable, as the Washington

Supreme Court has held: ‘{a] candidate

for judicial office has a right to

challenge an incumbent judge’s ability,

decisions and judicial conduct, but it

must be done *224 fairly, accurately and

upon facts, not false representations.’

In re Donahue [ (1978), 90 Wash.2d 173,

180], 580 P.2d 1093, 1097 [sic, Donohoe

"Furthermore, one commentator has stated

that ’ [i] running for judicial office, a

lawyer may criticize an incumbent judge

who is his opponent--but the criticism

must be well founded, on a high plane,

factual[,] and not personal.’ R. Wise,

Legal Ethics 21 (1966)." Id.

Additionally, like the military, fire

and police departments, and civil

service, the judiciary is a specialized

community governed by a specific

discipline and body of rules. Further,

Sanctions like public reprimands, that

are applied for violation of the Canons

of Judicial Ethics, are more civil or

administrative than criminal. Custom and

usage also aid in informing attorneys and

judges of appropriate conduct, as is

revealed through the Supreme Court’s

observation many years ago about the

knowledge of permissible conduct an

experienced attorney would possess. In

re Thatcher (1909), 80 Ohio St. 492, 669,

SS N.B. 39, 88.

Accordingly, because Canons 2A _ and

7B(1) (a) provided reasonable opportunity

for regulated persons to know what

conduct was prohibited, and were also

explicit enough to prevent arbitrary

enforcement, they are not subject to

attack under the vagueness doctrine.

[14] Next, with respect to overbreadth,

such a challenge is predicated on the

proposition that a "clear and precise

enactment may * * * be ‘overbroad’ if in

its reach it prohibits constitutionally

protected conduct." Grayned, 408 U.S. at

114, 92 S.Ct. at 2302, 33 L.Ed.2d at 231.

In addressing an overbreadth chailenge,

the "crucial question * * * is whether

the [legislation] sweeps within its

prohibitions what may not be punished

under the First * * * Amendment[ ]." 408

os Oe seewane, Sa 8.40. at 2302, 33

L.Ed.2d at 231.

[15] Overbreadth is avoided if the

regulation or legislation in question may

be narrowed by reasonable construction,

including interpretation by the agency

responsible for enforcement. See United

States Civ. Serv. Comm. v. Natl. Assn. of

Letter Carriers (1973), 413 U.S. 548,

580, 93 S.Ct. 2880, 2897-2898, 37 L.Ed.2d

796, 817 (rejecting overbreadth attack on

prohibition against employees’ taking

active part in political campaign, based

on, among other things, construction of

Statute by civil service commission and

availability of procedure by which

employee might obtain advice from the

commission about the meaning of the law).

See, also, e.g., Stretton v. Disciplinary

Bd. of Supreme Court of Pennsylvania

(C.A.3, 1991), 944 F.2d 137 (interpreting

Canon 7 narrowly and rejecting

overbreadth challenge).

The beginning focus for analysis in the

present context, then, is Ohio law and

any relevant interpretations of the board

of commissioners. At the outset, we

observe that many years ago, the Supreme

Court approved the right of attorneys to

criticize the judgments and conduct of

judges during an election campaign, but

*225 emphasized that the criticism must

be done in a decent and respectful

manner. See In re Thatcher (disbarring

attorney for comments made about judge

during reelection campaign) . In

Thatcher, the court rejected the

attorney’s free-speech claims, commenting

that "[{a]Jn attorney of more than twenty

years’ standing at the bar must be

presumed to know the difference between

respectful, fair, and candid criticism,

and scandalous abuse of the courts * *

*.* i6. at 669, 89 H.E. at 86.

The comments in Thatcher were obviously

more egregious than those in the present

case, but on the other hand, disbarment,

not simply a reprimand, was at issue. We

do note that among the objectionable

statements in Thatcher were allegations

to the effect that the judge would decide

cases in favor of persons who had

financed him politically. See id. at

571-576, 89 N.E. at 69-70.

At the time Thatcher was decided, Ohio

did not have canons of judicial ethics,

but they were subsequently adopted in

1954. In addition, Gov.Bar R. V(2) (C)

has been **1265 adopted, and affords

interested parties an opportunity to

obtain advice from the board about

proposed conduct. In this vein, the

board issued the advisory opinion

previously cited, which provided guidance

for candidates considering criticizing

opponents in an election campaign.

[16] [17] We recognize that a speaker

cannot be punished because of his or her

viewpoint or message unless the

restriction is necessary to promote a

compelling government interest. Simon &

Schuster, Inc. v. New York Crime Victims

Ba. {1992}, . 502 0.8. 105, i322 8.Ct. 301,

116 L.Ed.2d 476. Content- based

restrictions receive a high level of

judicial scrutiny and will be upheld only

if they are narrowly drawn to achieve "an

important or substantial governmental

interest [that] * * * is unrelated to the

Suppression of free expression." United

States v. O’Brien (1968), 391 U.S. 367,

S7?, 86 S.Ct. 1673, i675, 20 &.84.20 672,

680.

[18] [19] Although respondent agrees that

the state has a compelling interest in

protecting public confidence in the

integrity of the judiciary, she is not

willing to concede that this compelling

interest overrides her right to publish

truthful criticism of a Supreme Court

justice. She argues that to the extent

the Canons are interpreted to prevent

truthful criticism of the judiciary, they

are unconstitutionally overbroad. we

wholeheartedly agree, but also conclude

that the Canons do not prohibit truthful

criticism, so long as the criticism is

done fairly, accurately, and upon facts,

not false representations. Accordingly,

given the construction that truthful

criticism of the judiciary in a dignified

manner is not sanctionable, the Canons

are not overbroad.

While reaching this conclusion adverse

to respondent, we also stress’ that

criticism of the judiciary has an

important function in our society. For

example, in Bridges v. California (1941),

100

314 U.S. 252, 62 &.Ct. 190, 86 L.Ed. 192,

the United States Supreme Court reversed

the contempt convictions of a newspaper

*226 editor and a labor leader for their

remarks in editorials commenting on cases

pending in a state court. The court held

the convictions violated the First

Amendment, even though the substantive

evils asserted to support the contempt

convictions were disrespect for the

judiciary and disorderly and unfair

administration of justice. While we

recognize that Bridges is not directly on

point, we do find the following language

from the opinion worth emphasizing:

"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." 314

U.S. a 270-274, 62 8.Ce. 2 297. 86

L.Ed. at 207. Again, the Canons do not,

and should not preclude criticism of the

judiciary. However, that criticism must

be tempered in the manner outlined above.

Pertinent in this context is the case of

In re Kaiser (1988), 111 Wash.2d 275, 759

P.2d 392, in which the Washington Supreme

Court held that Canons 1, 2(A) and

7B(1) (a) were violated when an incumbent

judge made the following campaign

101

statements:

"JUDGE KAISER IS TOUGH ON DRUNK DRIVING

Will Roarty, the opponent, receives

the majority of his financial support

from drunk driving defense attorneys,

whose primary interests are getting their

clients off. * * *

"My opponent, Will Roarty, has received

the majority of his financial

contributions from drunk driving defense

attorneys. This is the only group

involved with Northeast District Court

not supporting my reelection.

"The point is clear, I am a tough,

no-nonsense judge and this group of

attorneys wants to prevent my

re-election." (Emphasis omitted in

part.) Id. at 278, 759 P.2d at 394-395.

The court found these statements

violative of the Canons because the

statements suggested that justice is for

sale and that certain defendants are not

entitled to a fair trial. The court

further found that the statements

regarding contributions by DWI defense

attorneys violated the Canons by calling

into **1266 question the integrity and

impartiality of the judiciary.

Specifically, the court stated:

"Judge Kaiser suggested that, if

elected, Roarty would not fairly and

impartially apply the law to Dwi

defendants. He suggested that certain

attorneys could and did buy favorable

treatment for their clients, a class of

102

defendants for whom there is little

public sympathy. He suggested there is

something improper about attorneys

contributing to a judicial campaign when,

of course, such contributions *227 are

entirely proper." Id. at 282, 759 P.2d

at 396. The court in Kaiser also found

that the Canons in question as applied to

Kaiser’s statement were constitutionally

valid because the statements had a direct

detrimental effect on the compelling

state interest of protecting the

integrity of the judiciary. Id. at 289,

759 P.2d at 400.

Additionally, in Berger v. Supreme Court

of C i0 (S.D.Ohio 1984), 598 F.Supp. 69,

the tederal district court rejected a

constitutional challenge to Canon

7B(1)(c), which at that time restricted

judges from announcing views on disputed

legal issues, pledging or promising

conduct in office, and making

misrepresentations. The court first

found a compelling state interest in

regulating this area, stating:

"Plaintiff does not dispute that the

state has a compelling interest in

assuring that its elected judges are

protected from untruthful criticism and

that judicial campaigns are run in a

manner so as not to damage the actual and

perceived integrity of state judges and

the bar; hence, the provision against

misrepresentation. Additionally:

{[’]Ours is an era in which members of the

judiciary often are called upon to

adjudicate cases squarely presenting

hotly contested social oor political

103

issues. The state’s interest in ensuring

that judges be and appear to be neither

antagonistic nor beholden to any

interest, party, or person is entitled to

the greatest respect.[’]" (Emphasis

added.) Id. at 75, quoting Morial v.

Louisiana Judiciary Comm. (C.A.5, 1977),

565 F.2d 295, 302.

The court then denied a request for

preliminary injunction, finding that the

regulation was necessary to achieve a

compelling interest, but was not so

unclear as to be attacked as void for

vagueness. Id.

"(T] here is practically universal

agreement that a major purpose of * * *

[the First] Amendment was to protect the

free discussion of governmental affairs,

* * * of course * * * fincluding]

discussions of candidates. Mills v.

Alabama (1966), 384 U.S. 214, 218, 86

S.Ct. 1434, 1437, 16 L.84é.2c 484, <466.*

"In a republic where the people are

sovereign, the ability of the citizenry

to make informed choices among candidates

for office is essential, for the

identities of those who are elected will

inevitably shape the course that we

follow as a nation." McIntyre v. Ohio

Elections Comm. (1995), 524 U.S. -+---,

--on, $385 &.€t. 2543, 2549; 232 L.Ed.2d

426, 439-440.

[20] We agree with the board that the

record establishes that members of the

Ohio Academy of Trial Lawyers as well as

political action committees associated

with the academy contributed in excess of

104

$300,000 to Justice Resnick’s 1994

campaign. There was nothing wrong with

the respondent’s informing the public

that Justice Resnick received substantial

contributions from this special interest

group. Those who wished to go to the

trouble could have examined Justice

Resnick’s campaign finance report filed

with the Secretary of State and come to

the same conclusion.

*228 [21] [22] [23] Further, the statement

in the advertisement that "[(T]his small

group of suing lawyers wants Resnick with

her liberal rulings to make it easier for

them to collect millions in fees" is an

expression of opinion by Judge Harper.

Opinions are protected under the First

Amendment. "However pernicious an opinion

may seem, we depend for its correction

not on the conscience of judges and

juries but on the competition of other

ideas." Gertz v. Robert Welch, Inc.

(1974), 418 U.S. 323, 339-340, 94 S.Ct.

2997, 3007, 41 &.834.24 789, 805. [{FH3]

By the same token, however, First

Amendment protection does not adhere to

statements of opinion that imply **1267

false assertions of fact. Milkovich v.

Lorain Journal Co. (1990), 497 U.S. 1,

28, 120 §.Ct. 2695, 2705, 133 &.36.268 i,

17. As will be noted below, some of the

Statements in the ad implied false

assertions of fact and were, therefore,

inappropriate.

FN3. Parenthetically, we note that

we also agree with the board that

J u d g e

Harper’s opinion did not violate

105

Canon 7B(1)(a), which prohibits

candidates from expressing an

opinion on a disputed legal issue.

In view of the preceding analysis, which

has revealed that Canons 2A and 7B(1) (a)

are neither overbroad nor void for

vagueness, we reject Judge Harper’s third

proposition.

[24] As a final argument, respondent

contends that the board improperly

focused on the display of an obviously

facetious check in reaching its

recommendation for a public reprimand.

We share the concerns expressed by the

board about the video, which shows a

check from the law firm of "Sue & Sue,"

and signed by "Cheatem Good." The check

was pictured above a photograph of

Justice Resnick. As was previously

noted, the board concluded that the

following reasonable conclusion followed

from the totality of the ad:

"(1) Certain lawyers are dishonest.

"(2) One justice is associated with

those lawyers.

"(3) There is something improper about

lawyers contributing to a judicial

campaign.

"(4) A justice appears to be the captive

of one class of litigants, group of

lawyers, or special interest."

106

Additionally, the board also concluded

that these implications were either

untrue or that Judge Harper had no

information to support the innuendoes.

We agree with this analysis. While the

First Amendment allows for " ‘rhetorical

hyperbole, ’ "the comments ine the

advertisement were reasonably susceptible

of *229 an improper meaning and were not

merely loose or figurative language.

Milkovich, 497 U.S. at 17, 110 S.Ct. at

2705, 111 L.Ed.2d at 16-17.

The United States Supreme Court has

recognized constitutional limits on the

type of speech which may be the subject

of state "defamation" actions. For

example, in Greenbelt Cooperative

Publishing Assn. v. Bresler (1970), 398

U.S. 6, 90 §.Ct. 1537, 26 L.Bd.2d 6, the

court held that statements that cannot

reasonably be interpreted as stating

actual facts about an individual are

protected, thus assuring that "public

debate will not suffer for lack of

‘imaginative expression’ or the

‘rhetorical hyperbole’ which has

traditionally added much to the discourse

of our Nation," Milkovich, 497 U.S. at

20, 110 &.Ct. at 2706, 111 L.Bd.2da at 19.

Therefore, in Greenbelt, the court

reasoned that "the most careless reader

must have perceived that the word

[blackmail] was no more than rhetorical

hyperbole, a vigorous epithet used by

those who considered [an opponent’s]

negotiating position extremely

unreasonable." 398 U.S. at 14, 90 S.Ct.

at 1542, 26 L.Ed.2d at 15. Likewise, in

Hustler Magazine, Inc. v. Falwell (1988),

107

~%:

pee

485 U.S. 46, 50, 108 S.Ct. 876, 879, 99

L.Ed.2d 41, 48, the Supreme Court held

that the First Amendment precluded

recovery under 4a state’s emotional

distress action for an ad parody which

"could not reasonably have been

interpreted as stating actual facts about

the public figure involved."

Applying these authorities to the

present case, a viewer of respondent’s

political advertisement would not

seriously believe that a law firm named

"Sue & Sue" exists, nor would he or she

believe there is actually a lawyer named

"Cheatem Good." A reasonable member of

the public could, nonetheless, have

concluded from the advertisement that

lawyers representing plaintiffs’

interests are dishonest and that these

dishonest lawyers desired Justice

Resnick’s re-election. However, contrary

to the inferences in the ad, lawyers

representing plaintiffs’ interests

provide a valuable contribution to the

public. To the extent the advertisement

suggested dishonest lawyers might find

comfort in Justice Resnick’s reelection,

it undermined public confidence in the

integrity and impartiality of the

judiciary. Furthermore, by authorizing

the advertisement, respondent failed to

maintain the dignity appropriate to her

judicial office.

We also agree with the board that the

advertisement suggested there was

something improper in lawyers’

contributing to a judicial campaign.

Again, this inaccurate representation

108

also undermined public confidence **1268

in the integrity and impartiality of the

judiciary.

Therefore, we find that by approving

this campaign advertisement, respondent

violated Canons 2A and 7B(1) (a).

Accordingly, we must publicly reprimand

the respondent. We do so, however, with

great

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