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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 1274

## Text

(\) 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

1i

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,
6

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

iv

i
}

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

3

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

4

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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

5

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,

6

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

8

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i

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

9

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.

10

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:

11

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).

12

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

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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

£3

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.

14

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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

15

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

16

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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.

17

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.

18

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

19

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

20

APPENDIX

21

BEFORE THE BOARD OF COMMISSIONERS
ON
GRIEVANCE AND DISCIPLINE
OF
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

3
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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

4

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

5

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

7

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

8

"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

9

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.

10

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

11

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

12

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.

13

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,

14

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

15

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

16

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.

17

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

18

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

19

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

ON
GRIEVANCE AND DISCIPLINE
OF
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

21

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

22

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)

23

(knowingly or recklessly circulating
false statements concerning a candidate
to promote the defeat of the candidate).

24

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

25

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.

26

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

27

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

28

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

29

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

(c) the broadcasting,
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

30

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

31

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

32

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.

(c) he knows that he,
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:

33

(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.

34

(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;

(c) "financial interest" means
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

33

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.

36

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:

(c) (i) For merit cases, 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 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

37

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

38

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.

39

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.

40

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

41

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

42

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.

43

(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;

(c) a judge or a member of his
family residing in his household may
accept any other gift, bequest, favor, or

44

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

45

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.

46

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

47

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1 Fo Ame tik te. ¥

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eS ei a Se BAP BLAST RAR cael BEM

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

48

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

49

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

50

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.

51

a

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

52

"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;

(c) should not make pledges or
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

53

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

54

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

55

——

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

56

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

57

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

58

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.

59

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

60

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.

61

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

62

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.

63

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

64

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

65

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)

66

(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

67

[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

68

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

69

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

70

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

72

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

73

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

74

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

75

Se

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

76

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

77

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.

78

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.

I

[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

79

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.

80

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.

Il

[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:

81

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.

82

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 la

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0555%3A1. Public record. Not legal advice.