In re Sherron

151 Ohio St.3d 1445

87 N.E.3d 215 (Table)

2011 Ohio 8116

IN RE JUDICIAL CAMPAIGN COMPLAINT AGAINST James Emmett SHERRON

Case No. 2017–1567

Supreme Court of Ohio.

December 4, 2017

CASE ANNOUNCEMENTS

MISCELLANEOUS ORDERS

BEFORE THE COMMISSION OF FIVE JUDGES APPOINTED BY THE SUPREME COURT OF OHIO

ORDER OF THE COMMISSION OF JUDGES

This matter came to be reviewed by a commission of five judges appointed by the Supreme Court of Ohio on November 7, 2017, in accordance with Gov.Jud.R. II(5)(D)(1) and R.C. 2701.11. The commission members are Judge David Gormley, chair; Judge Kathleen Giesler; Judge Cynthia Rice; Judge Mark Wiest; and Judge Timothy Williams.

Procedural History

On October 9, 2017, complainant Melynda Cook Howard filed a judicial-campaign grievance against respondent, James Emmett Sherron, a candidate for the Middletown Municipal Court, with the Board of Professional Conduct. On October 16, 2017, complainant Marilyn Hatfield also filed a judicial-campaign grievance with the board. After a review by a probable-cause panel of the board under Gov.Jud.R. II(5)(B), the director of the board filed a formal complaint containing the following two counts against respondent:

Count I: Respondent violated Jud.Cond.R. 4.3(1) when he knowingly or with reckless disregard posted material that stated he is licensed to practice in all federal courts, when he is not, in fact, so licensed.

Count II: Respondent violated Jud.Cond.R. 4.3(C) when his campaign committee knowingly or with reckless disregard distributed materials for a fundraiser to support "Middletown Municipal Court Judge James Sherron" when, in fact, Respondent was not the current municipal court judge. The formal complaint was heard by a hearing panel of the board on November 1, 2017, and the panel issued a report of its findings, conclusions, and recommendations on November 6, 2017. In the report, the hearing panel recommended that respondent be required to a pay a fine of $200 for his violation of Jud.Cond.R. 4.3(1), a fine of $600 for his violation of Jud.Cond.R. 4.3(C), and the costs of the proceedings. The commission was provided with the record certified by the board and a transcript of the November 1, 2017, proceedings before the hearing panel. Additionally, counsel for both respondent and complainants informed the commission that the parties had waived any objections to the hearing panel's finding and recommendations. On November 17, 2017, the commission conducted a telephone conference during which it deliberated on this matter.

Commission Opinion

As Gov.Jud.R. II(5)(D)(1) directs, the commission is charged with reviewing the record to determine whether that record supports the findings of the hearing panel and whether there has been an abuse of discretion by the panel. As discussed in this opinion, having reviewed the record made before the board hearing panel and the report of the hearing panel, the commission unanimously holds that there was no abuse of discretion by the hearing panel and that the record supports the panel's findings that respondent violated Jud.Cond.R. 4.3(C) and (I) as alleged in Counts I and II of the complaint.

Definitions

Both counts against respondent require a finding that respondent acted "knowingly" or "with reckless disregard." The meanings of these terms are established by the Code of Judicial Conduct and case law. Specifically, Jud.Cond.R. 4.6(G) defines "knowingly" as meaning "actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances." Additionally, a judicial candidate "acts 'recklessly' if the result is possible and the candidate chooses to ignore the risk." In re Judicial Campaign Complaint Against Moll, 135 Ohio St.3d 156, 2012–Ohio–5674, 985 N.E.2d 436, ¶ 11.

Count I

Jud.Cond.R. 4.3(1) prohibits a judicial candidate from knowingly or with reckless disregard making "a false statement concerning the professional, occupational, or vocational licenses held by a judicial candidate, or concerning any position a judicial candidate held for which he or she received a salary or wages."

The commission agrees with the hearing panel that a violation of Jud.Cond.R. 4.3(1) has been established by clear and convincing evidence. The record indicates that during the course of the judicial campaign and as a candidate for judicial office, respondent knowingly disseminated campaign material that included a false statement of fact concerning the professional licenses he holds, namely, his admission to "all Federal Courts." Additionally, respondent included the false statement in the campaign materials with reckless disregard as to its truth or falsity.

Count II

Jud.Cond.R. 4.3(C) prohibits a judicial candidate from knowingly or with reckless disregard using "the title of a public office or position immediately preceding or following the name of the judicial candidate, when the judicial candidate does not hold that office or position." The commission agrees with the hearing panel that a violation of Jud.Cond.R. 4.3(C) has been...