In re Judicial Campaign Complaint Against O'Toole

141 Ohio St.3d 355

24 N.E.3d 1114

2014 Ohio 4046

In re Judicial Campaign Complaint Against O'TOOLE.

No. 2012–1653.

Supreme Court of Ohio.

Submitted Feb. 26, 2014.

Decided Sept. 24, 2014.

Mary L. Cibella, Cleveland, for complainant.

Berkman, Gordon, Murray & DeVan, J. Michael Murray, and Raymond V. Vasvari Jr., Cleveland, for respondent.

LANZINGER, J.

{¶ 1} This disciplinary action was brought against respondent, Colleen Mary O'Toole of Concord, Ohio, Attorney Registration No. 0053652, who was admitted to the practice of law in Ohio in 1991. Pursuant to Gov.Jud.R. II(5)(D), a five-member judicial commission found that O'Toole violated Jud.Cond.R. 4.3(A) while she was a 2012 judicial candidate for the Eleventh District Court of Appeals. The rule prohibits a judicial candidate from knowingly or recklessly conveying information about the candidate or the candidate's opponent that is false or that, if true, would deceive or mislead a reasonable person. O'Toole had served on the Eleventh District Court of Appeals from 2004 until 2011 but had been defeated for reelection in 2010 and was no longer an incumbent judge in 2012. Nevertheless, during the 2012 campaign she wore a name badge identifying herself as "Colleen Mary O'Toole, Judge, 11th District Court of Appeals" and referred to herself as "Judge O'Toole" on her campaign website. O'Toole defended her conduct on First Amendment grounds.

{¶ 2} For reasons that follow, we hold that the portion of Jud.Cond.R. 4.3(A) that prohibits a judicial candidate from conveying information concerning the judicial candidate or an opponent knowing the information to be false is not an overbroad restriction on speech and is not unconstitutionally vague. We also hold that the portion of Jud.Cond.R. 4.3(A) that prohibits a judicial candidate from knowingly or recklessly conveying information about the candidate or the candidate's opponent that, if true, would be deceiving or misleading to a reasonable person is unconstitutional as a violation of the First Amendment to the United States Constitution. We therefore sever this portion of the rule and find that O'Toole committed one rather than two violations. We still agree with the commission that a public reprimand is appropriate, however, and affirm the commission's order in part.

FACTS

{¶ 3} O'Toole was elected to the Eleventh District Court of Appeals of Ohio in 2004. She served until she was defeated in the May 2010 Republican primary and left the bench upon the expiration of her term in February 2011. In 2012, she sought another seat on the same appellate court and defeated an incumbent judge, Mary Jane Trapp, in the November 2012 general election. O'Toole began a new six-year term on the court on February 9, 2013.

{¶ 4} The complainant in this case, James B. Davis, filed a grievance with the Board of Commissioners on Grievances and Discipline against O'Toole in August 2012. He alleged that O'Toole had violated the Code of Judicial Conduct during her judicial campaign. Specifically, he alleged that certain campaign materials, including a photograph on the Ashtabula County Republican Party website of O'Toole wearing what appears to be a judicial robe, certain public statements, and a name tag that she wore to campaign events violated the prohibition against false or misleading statements under Jud.Cond.R. 4.3(A) and the prohibition against misrepresentations under former Jud.Cond.R. 4.3(F), now 4.3(G) (prohibiting a judicial candidate from misrepresenting the identity, qualifications, present position, or other fact of the candidate or the candidate's opponent).¹ He asserted that O'Toole's statements in these contexts were designed to mislead the voters to believe that she was an incumbent judge.

{¶ 5} O'Toole responded that the grievance should be dismissed on the grounds that Jud.Cond.R. 4.3 is unconstitutional, both facially and as applied to her, because the rule violates the First and Fourteenth Amendments to the United States Constitution. Nevertheless, a probable-cause panel of the board found that probable cause existed to file a complaint with respect to three of Davis's claims and certified them to the board.² On instruction from the probable-cause panel, the secretary of the board prepared and certified a three-count formal complaint against O'Toole, and a panel of the board was appointed to hear the matter. O'Toole moved to dismiss the complaint, again arguing that Jud.Cond.R. 4.3(A) and (F) are unconstitutional. That motion was denied.

{¶ 6} At a hearing on September 18, 2012, the panel took testimony from O'Toole, the complainant, and three additional witnesses and received 26 exhibits. The panel found that there was insufficient evidence that O'Toole had posted, published, circulated, or distributed the challenged materials that appeared on the Ashtabula County Republican Party website and therefore recommended that the first count of the complaint that alleged a violation of Jud.Cond.R. 4.3(F) be dismissed.

{¶ 7} The panel did find, however, that O'Toole had violated Jud.Cond.R. 4.3(A) in the two remaining counts. With respect to Count Two, the panel found that O'Toole violated Jud.Cond.R. 4.3(A) by posting misleading statements on her campaign website about herself and her previous term on the Eleventh District Court of Appeals worded to give the impression that she was an incumbent judge. And with respect to Count Three, the panel determined that the badge O'Toole wore during her campaign and at the hearing that read "Colleen Mary O'Toole, Judge, 11th District Court of Appeals" would lead a reasonable person to believe that she was still a sitting judge. The panel also expressed great concern that O'Toole had insisted, even at her disciplinary hearing, that she remained a judge despite the fact that she had lost her bid for reelection and her term had ended.

{¶ 8} The panel recommended that O'Toole be ordered to pay a fine of $1,000, the costs of the proceedings, and $2,500 of the reasonable and necessary attorney fees that the complainant incurred in bringing his grievance and prosecuting the formal complaint. The panel further recommended that she be ordered to modify her website to include the date that her service as a judge ended, to remove any reference to herself as "Judge O'Toole" from the website, and to stop wearing the name badge identifying herself as a judge.

{¶ 9} A five-judge commission appointed by this court pursuant to Gov.Jud.R. II(5)(D) reviewed the panel's report and issued an interim order that O'Toole immediately cease and desist from referring to herself as "Judge O'Toole" on her website, www.otooleforjudge.com, that she add to her website the date that her judicial service ended, and that she cease and desist from wearing the challenged name badge or any other name badge that identified her as a judge. In re Judicial Campaign Complaint Against O'Toole, 133 Ohio St.3d 1405, 2012-Ohio-4635, 975 N.E.2d 1025.

{¶ 10} O'Toole objected to the panel's report, renewing her constitutional challenges to Jud.Cond.R. 4.3(A), alleging that there was insufficient evidence to prove that her statements were untrue, deceptive, or misleading to a reasonable person and arguing that the panel's recommendation regarding the payment of $2,500 toward the complainant's attorney fees was arbitrary and capricious. The commission, however, found that O'Toole's objections were not well taken and concluded that the panel had not abused its discretion, because the record supported its findings that O'Toole had violated Jud.Cond.R. 4.3(A) with respect to Counts Two and Three of the complaint.³ See Gov.Jud.R. II(5)(D)(1). Based on these findings, the commission publicly reprimanded O'Toole, fined her $1,000, and ordered her to pay the costs of the proceedings and $2,500 of the reasonable and necessary attorney fees of complainant James B. Davis. Id.

{¶ 11} Pursuant to Gov.Jud.R. II(5)(E), O'Toole now appeals the sanction to us, alleging that Jud.Cond.R. 4.3(A) violates the First and Fourteenth Amendments to the United States Constitution, both on its face and as applied to her, and that the rule is overbroad and vague. Alternatively, she argues that the sanctions imposed by the commission are the result of passion and prejudice, that they are unsupported by the record, and that they should therefore be reversed by this court.

{¶ 12} O'Toole also filed a motion to stay the sanctions imposed against her. We granted the motion in part and stayed the five-judge commission's order that she pay a $1,000 fine, $2,530.82 in costs, and $2,500 in attorney fees pending our disposition of her appeal. In re Judicial Campaign Complaint Against O'Toole, 133 Ohio St.3d 1481, 2012-Ohio-5282, 978 N.E.2d 206.

CONSTITUTIONALITY OF JUD.COND.R. 4.3(A)

{¶ 13} O'Toole challenges Jud.Cond.R. 4.3(A) on its face, arguing that it does not satisfy strict scrutiny, that it is overbroad, and that it is unconstitutionally vague.

{¶ 14} This court has exclusive authority to regulate the practice of law in Ohio. See Ohio Constitution, Article IV, Sections 2 (B)(1)(g) and 5 (B); Melling v. Stralka, 12 Ohio St.3d 105, 107, 465 N.E.2d 857 (1984). Pursuant to that authority, we promulgated the Ohio Code of Judicial Conduct. The code "establishes standards for the ethical conduct of judges and judicial candidates" and "provide[s] a basis for regulating their conduct through disciplinary agencies." Jud.Cond.R., Preamble [3]; see id., Application 1(A) (only Canon 4 applies to judicial candidates). It is intended "to provide guidance" and to "assist judges in maintaining the highest standards of judicial and personal conduct." Id.

{¶ 15} Before evaluating O'Toole's conduct, we must resolve her constitutional challenge to Jud.Cond.R. 4.3 by examining its language. See United States v. Williams, 553 U.S. 285, 293, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) ("it is impossible to determine whether a statute reaches too far without first knowing what the statute covers"); ...