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Part of Judicial Conduct Rule Unconstitutional, Violates Free Speech

Image of Eleventh District Court of Appeals Judge Colleen O'Toole

Judge Colleen O’Toole of the Eleventh District Court of Appeals.

Image of Eleventh District Court of Appeals Judge Colleen O'Toole

Judge Colleen O’Toole of the Eleventh District Court of Appeals.

The Ohio Supreme Court today found that part of a rule governing the conduct of candidates running for judge is unconstitutional.

In an opinion written by Justice Judith Ann Lanzinger, the court held that the portion of Jud.Cond.R. 4.3(A) that prohibits a judicial candidate from conveying true information about the candidate or the candidate’s opponent that is nevertheless deceiving or misleading to a reasonable reader violates the candidate’s constitutional right to free speech. The court severed this part of the rule from the Code of Judicial Conduct.

In addition, the court affirmed the public reprimand of Colleen M. O’Toole by a court-appointed commission reviewing the matter for wearing a name badge stating that she was a judge. At that time, she was not a judge but was running for a spot on the Eleventh District Court of Appeals. But the court dismissed a charge concerning language that appeared on her campaign website in light of ruling that the related judicial conduct rule is unconstitutional.

O’Toole served as a judge in the Eleventh District from 2004 to February 2011. In 2012, she ran again for judge on the same court and subsequently won the election.

Before the election, a grievance was filed against O’Toole for certain campaign activities. A five-judge commission appointed by the Ohio Supreme Court found that statements posted on O’Toole’s campaign website were misleading and worded to give the impression she was a sitting judge in 2012. The commission also concluded that a name badge she wore during her campaign, which read “Colleen Mary O’Toole, Judge, 11th District Court of Appeals,” left the impression that she was still a judge at that time.

The commission publicly reprimanded O’Toole and also ordered her to pay a $1,000 fine, the costs of the proceedings, and $2,500 in attorney fees.

O’Toole appealed to the Ohio Supreme Court, in part challenging the constitutionality of Jud.Cond.R. 4.3(A).

Rule 4.3 provides standards for communications by candidates during campaigns for judicial office. Justice Lanzinger noted that “section (A) restricts two categories of speech by judicial candidates such as O’Toole: (1) speech conveying false information about the candidate or her opponent and (2) speech conveying true information about the candidate or her opponent that nonetheless would deceive or mislead a reasonable person.”

The rule is a content-based regulation protected by the First Amendment to the U.S. Constitution, Justice Lanzinger explained. To prove that the rule is constitutional, she added, the government must show that the regulation serves a compelling state interest, and the rule must be narrowly tailored to meet that interest.

The court stated that the Code of Judicial Conduct, including this rule, is designed to promote and maintain an independent, fair, and impartial judiciary and to ensure public confidence in the judicial system – both compelling state interests.

After pointing out that lies do not add to a robust political atmosphere and are not protected by the First Amendment in the same way that truthful statements are, Justice Lanzinger wrote, “The portion of Jud.Cond.R. 4.3(A) that limits a judicial candidate’s false speech made during a specific time period (the campaign), conveyed by specific means (ads, sample ballots, etc.), disseminated with a specific mental state (knowingly or with reckless disregard) and with a specific mental state as to the information’s accuracy (with knowledge of its falsity or with reckless disregard as to its truth or falsity) is constitutional.”

“However, the latter clause of Jud.Cond.R. 4.3(A) prohibiting the dissemination of information that ‘if true,’ ‘would be deceiving or misleading to a reasonable person’ is unconstitutional because it chills the exercise of legitimate First Amendment rights,” she concluded. “This portion of the rule does not leave room for innocent misstatements or for honest, truthful statements made in good faith but that could deceive some listeners.”

Under its constitutional authority to regulate the practice of law, Justice Lanzinger wrote that the court today “narrow[s] Jud.Cond.R. 4.3(A) to provide that no candidate for judicial office shall knowingly or with reckless disregard do any of the following: ‘Post, publish, broadcast, transmit, circulate, or distribute information concerning the judicial candidate or an opponent, either knowing the information to be false or with a reckless disregard of whether or not it was false.’ The remaining language in Jud.Cond.R. 4.3(A), ‘or, if true, that would be deceiving or misleading to a reasonable person,’ is severed.”

The court then determined that O’Toole violated the conduct rule by wearing a badge claiming she was a judge during a time when she did not hold judicial office. The court agreed with the commission that a public reprimand for the misconduct was appropriate.

“This intentional misrepresentation is not protected speech under the First Amendment,” Justice Lanzinger reasoned. “By repeatedly calling herself a judge when she was not, O’Toole undermined public confidence in the judiciary as a whole.”  

However, the allegation that O’Toole’s website was crafted in a way to mislead readers into thinking she was a sitting judge running for reelection is dismissed, given the language that has been severed from the judicial conduct rule, Justice Lanzinger explained.

The court also lifted an earlier stay on the imposition of the fine, costs, and attorney fees.

Justice Lanzinger’s opinion was joined by Chief Justice Maureen O’Connor, Justice Terrence O’Donnell, Justice Judith L. French, Judge Vernon Preston of the Third District Court of Appeals, and Judge Patrick Fischer of the First District Court of Appeals. Judge Preston served in place of Justice Sharon L. Kennedy, and Judge Fischer filled in for Justice William M. O’Neill. Justices Kennedy and O’Neill both recused themselves from the case.

Justice Paul E. Pfeifer concurred in the majority’s judgment except for the award of $2,500 in attorney fees. He noted that the original complaint was filed by a friend of O’Toole’s political opponent in the 2012 election and included 12 counts of alleged misconduct. Nine counts were dropped before the hearing conducted by a disciplinary panel, and one was dismissed after the hearing.

The judicial commission ordered O’Toole to pay $2,500 in attorney fees based on two violations of the judicial conduct rules. Because the court has found that O’Toole committed only one violation, Justice Pfeifer would cut the attorney fees in half, to $1,250.

2012-1653. In re Judicial Campaign Complaint Against O'Toole, Slip Opinion No. 2014-Ohio-4046.

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