In re Judicial Campaign Complaint Against Falter (Slip Opinion) , 2021 Ohio 1705 ( 2021 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re Judicial Campaign Complaint Against Falter, Slip Opinion No. 2021-Ohio-1705.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2021-OHIO-1705IN RE JUDICIAL CAMPAIGN COMPLAINT AGAINST FALTER.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as In re Judicial Campaign Complaint Against Falter, Slip
Opinion No. 2021-Ohio-1705.]
Judges—Judicial campaigns—Misconduct—Jud.Cond.R. 4.3(A) prohibits judicial
candidates from knowingly or recklessly disseminating false information
about opponents—Candidate’s erroneous statements regarding when and
why opponent had moved to county violated Jud.Cond.R. 4.3(A)—Public
reprimand affirmed.
(No. 2020-0407—Submitted January 13, 2021—Decided May 20, 2021.)
APPEAL from the Order of the Judicial Commission of the Supreme Court.
__________________
Per Curiam.
{¶ 1} Respondent, Karen Kopich Falter, of Cincinnati, Ohio, Attorney
Registration No. 0066770, was admitted to the practice of law in Ohio in 1996.
Pursuant to Gov.Jud.R. II(5)(D), a five-judge commission concluded that while
Falter was a judicial candidate in 2020, she committed two violations of
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Jud.Cond.R. 4.3(A), which prohibits a judicial candidate from disseminating
campaign material about an opponent either knowing that it is false or in reckless
disregard of whether or not it is false. The commission publicly reprimanded Falter
and ordered her to pay a $1,000 fine and the costs of the proceedings. Falter appeals
the commission’s sanction. For the reasons explained below, we affirm.
Background
{¶ 2} In March 2017, former Governor John Kasich appointed Curt
Hartman—the complainant in this disciplinary action—to a vacant seat as a judge
of the Hamilton County Court of Common Pleas. Hartman was later defeated in
the November 2018 general election.
{¶ 3} In 2020, Hartman and Falter were opponents in the Republican
primary for a different seat on the Hamilton County Court of Common Pleas.1 In
February of that year, Falter’s campaign committee sent to 202 Republican voters
a letter stating that Hartman had “moved to Hamilton County 3 years ago to take a
judicial appointment from Governor John Kasich in March, 2017.” (Underlining
sic.) The letter additionally stated that Falter had grown up in Hamilton County,
had served for 23 years as a public servant in the county, and was recommended by
the Hamilton County Republican Party Judicial Screening Committee.
{¶ 4} Hartman filed a judicial-campaign grievance against Falter with the
Board of Professional Conduct. Pursuant to Gov.Jud.R. II(5)(B), a probable-cause
panel of the board found that probable cause existed to file a formal complaint, and
the board’s director certified a complaint charging Falter with two violations of
Jud.Cond.R. 4.3(A). The complaint alleged that in Falter’s campaign letter, she
made statements about when and why Hartman had moved to Hamilton County that
she either knew were false or that she had made with a reckless disregard of whether
or not they were false.
1. Hartman won the primary election but was defeated in the November 2020 general election.
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{¶ 5} The matter proceeded to a hearing before a three-member panel of the
board. Hartman, Falter, and one of Falter’s campaign consultants testified. Based
on the hearing evidence, the panel found that Falter’s statements about Hartman in
her letter were false: Hartman had moved to Hamilton County in May 2014 with
the goal of running for a seat in the Ohio General Assembly, not—as Falter had
alleged—in 2017 in order to obtain a judicial appointment in that same year. And
according to the panel, a check of public records would have easily shown that
Falter’s allegations were untrue. Yet Falter, the panel found, made no effort to
confirm the truthfulness of her allegations against Hartman and instead chose to
rely on statements from her campaign consultants and “what was essentially
courthouse and party-insider gossip or rumors” about when and why Hartman had
moved to Hamilton County. The panel determined that Falter had acted with
reckless disregard as to whether or not the statements in her letter were false and
that she had therefore violated Jud.Cond.R. 4.3(A). The panel recommended that
she be publicly reprimanded and ordered to pay a $1,000 fine and the costs of the
proceedings.
{¶ 6} A five-judge commission appointed by this court pursuant to
Gov.Jud.R. II(5)(D)(1) reviewed the record of the proceedings, the panel’s report,
Falter’s objections to the report, and Hartman’s responses to her objections. In
April 2020, the commission found that the panel had not abused its discretion and
that the record supported its findings by clear and convincing evidence. 158 Ohio
St.3d 1458, 2020-Ohio-1413, 142 N.E.3d 680. The commission therefore publicly
reprimanded Falter, fined her $1,000, and ordered her to pay the costs of the
proceedings.
{¶ 7} Pursuant to Gov.Jud.R. II(5)(E), Falter appeals, arguing that we
should dismiss the charges against her or, in the alternative, vacate the public
reprimand.
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Falter’s Objections to the Commission’s Findings of Misconduct
{¶ 8} Falter sets forth five objections to the commission’s findings that she
violated Jud.Cond.R. 4.3(A). For ease of analysis, we will address the issues posed
by her objections out of order.
New York Times Co. v. Sullivan
{¶ 9} Jud.Cond.R. 4.3 provides:
During the course of any campaign for nomination or
election to judicial office, a judicial candidate, by means of
campaign materials, including sample ballots, advertisements on
radio or television or in a newspaper or periodical, electronic
communications, a public speech, press release, or otherwise, shall
not knowingly or with reckless disregard do any of the following:
(A) 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.
{¶ 10} The primary issue in this appeal is whether Falter distributed her
letter “with a reckless disregard of whether or not it was false” for purposes of
Jud.Cond.R. 4.3(A). In her first objection, Falter argues that this language
incorporates the actual-malice standard established in New York Times Co. v.
Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny.
Under that standard, Falter asserts, a false statement must have been made with a
specific mental state. She also asserts that “reckless disregard” as to a statement’s
“truth or falsity” is a term of art that requires “ ‘sufficient evidence to permit the
conclusion that the [maker of the statement] in fact entertained serious doubts as to
the truth of his publication,’ ” Varanese v. Gall, 35 Ohio St.3d 78, 80, 518 N.E.2d
4January Term, 2021
117 (1988), quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20
L.Ed.2d 262 (1968), or to permit the conclusion that there was “a high degree of
awareness of its probable falsity,” Varanese at 80. Falter claims that because there
was no evidence presented that she entertained serious doubt as to the truth of her
statements about Hartman, she lacked the necessary mens rea “required by
Jud.Cond.R. 4.3(A) and the First Amendment.”
{¶ 11} Falter is correct that Jud.Cond.R. 4.3(A) requires a specific mens rea.
In In re Judicial Campaign Complaint Against O’Toole, 141 Ohio St.3d 355, 2014-
Ohio-4046, 24 N.E.3d 114, we affirmed the constitutionality of the portion of
Jud.Cond.R. 4.3(A) at issue in this case and concluded that it requires “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),” id. at ¶ 41.
{¶ 12} We disagree, however, with Falter’s assertion that Jud.Cond.R.
4.3(A) incorporates the subjective actual-malice definition employed in public-
figure defamation cases. Although the language of Jud.Cond.R. 4.3(A) resembles
the actual-malice standard established in New York Times Co. v. Sullivan, id. at 280
(defining “actual malice” as acting “with knowledge that [the statement] was false
or with reckless disregard of whether it was false or not”), there are important
differences between the interests served by defamation law and those served by
ethical rules for judges and judicial candidates. As the Supreme Court of Michigan
concluded, the subjective actual-malice standard is inappropriate in this context and
adopting it “ ‘would immunize accusations, however reckless or irresponsible, from
censure as long as the attorney uttering them did not actually entertain serious
doubts as to their truth.’ ” In re Chmura, 461 Mich. 517, 543, 608 N.W.2d 31(2000), quoting In re Holtzman, 78 N.Y.2d 184, 192, 573 N.Y.S.2d 39, 577 N.E.2d
30 (1991). Instead, the determination whether a judicial candidate recklessly
disregarded the truth or falsity of campaign material is an objective one.
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{¶ 13} We previously determined that an “objective version” of the actual-
malice test applies in attorney-discipline proceedings arising from a lawyer’s false
statements impugning the integrity of a judge. We explained:
“Defamation actions seek to remedy an essentially private wrong by
compensating individuals for harm caused to their reputation and
standing in the community. Ethical rules that prohibit false
statements impugning the integrity of judges, by contrast, are not
designed to shield judges from unpleasant or offensive criticism, but
to preserve public confidence in the fairness and impartiality of our
system of justice.”
***
* * * [T]he state’s compelling interest in preserving public
confidence in the judiciary supports applying a standard in
disciplinary proceedings different from that applicable in
defamation cases. Under the objective standard, an attorney may
still freely exercise free speech rights and make statements
supported by a reasonable factual basis, even if the attorney turns
out to be mistaken.
(Citations omitted.) Disciplinary Counsel v. Gardner, 99 Ohio St.3d 416, 2003-
Ohio-4048, 793 N.E.2d 425, ¶ 29, 31, quoting Standing Commt. on Discipline of
the United States Dist. Court for the Cent. Dist. of California v. Yagman, 55 F.3d
1430, 1437 (9th Cir.1995).
{¶ 14} Similar reasoning applies here. The purpose of this proceeding is
not to compensate any person for injuries to his or her reputation. Rather, sanctions
against judges and judicial candidates for violating Canon 4 of the Code of Judicial
Conduct “inform the public of the self-regulating nature of the legal profession and
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enhance public confidence in the integrity of judicial proceedings.” O’Toole, 141
Ohio St.3d 355, 2014-Ohio-4046, 24 N.E.3d 114, at ¶ 64. “Ohio has a compelling
interest in promoting and maintaining an independent judiciary, ensuring public
confidence in the independence, impartiality, integrity, and competence of judges,
and ensuring that the conduct of judicial candidates furthers, rather than impairs,
these interests.” Id. at ¶ 29.
{¶ 15} In addition, the limits on a judicial candidate’s speech are not
necessarily coextensive with the limits of the First Amendment. The United States
Supreme Court has recognized that “[s]tates may regulate judicial elections
differently than they regulate political elections, because the role of judges differs
from the role of politicians.” Williams-Yulee v. Florida Bar, 575 U.S. 433, 446,
135 S.Ct. 1656, 191 L.Ed.2d 570 (2015); see also Disciplinary Counsel v.
Tamburrino, 151 Ohio St.3d 148, 2016-Ohio-8014, 87 N.E.3d 158, ¶ 17 (noting
that First Amendment principles in other contexts do not apply “to disciplinary
sanctions for knowingly false or recklessly false statements by judicial
candidates”); O’Toole at ¶ 22-29.
{¶ 16} Thus, Ohio’s interest in preserving public confidence in the integrity
of its judiciary supports applying a standard in judicial-candidate-discipline
proceedings different from that applicable in defamation cases. And an objective
standard for determining violations of Jud.Cond.R. 4.3(A) strikes a balance
between a judicial candidate’s First Amendment rights and the state’s compelling
interests. Falter’s argument in this case fails to account for the fact that “judicial
elections fundamentally alter the constitutional calculus,” Platt v. Bd. of Commrs.
on Grievances and Discipline of the Ohio Supreme Court, 894 F.3d 235, 267 (6th
Cir.2018). Therefore, whether Falter subjectively had serious doubts about the
truth of her allegations is not the sole determinative factor in analyzing whether she
acted with the requisite mens rea. We accordingly overrule this objection.
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The alleged ambiguity of Jud.Cond.R. 4.3(A)
{¶ 17} In her fifth objection to the misconduct findings, Falter argues that
if the actual-malice standard of New York Times Co. v. Sullivan is inapplicable,
Jud.Cond.R. 4.3(A) “does not provide notice” of what it prohibits and “encourages
arbitrary enforcement.” Falter therefore requests that we “find that Jud.Cond.R.
4.3(A) is ambiguous and dismiss the charges.”
{¶ 18} Jud.Cond.R. 4.3(A) is not ambiguous; it “applies to specific
communications made by judicial candidates under narrowly defined
circumstances.” O’Toole, 141 Ohio St.3d 355, 2014-Ohio-4046, 24 N.E.3d 1114,
at ¶ 41. As noted above, to violate Jud.Cond.R. 4.3(A), the judicial candidate must
have acted with a specific mental state as to the campaign material’s accuracy:
either knowing the information was false or with a reckless disregard of whether or
not it was false. A judicial candidate acts knowingly if he or she has “actual
knowledge of the fact in question,” although a person’s knowledge may be inferred
from circumstances. Jud.Cond.R. 4.6(G). A 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. Negligently made false statements or negligent misstatements
are not prohibited by the rule.
{¶ 19} In determining whether a judicial candidate acted with the requisite
mens rea for purposes of Jud.Cond.R. 4.3(A), we consider factors similar to those
used when determining whether a lawyer has violated Prof.Cond.R. 8.2(a) by
making a statement that the lawyer either knew was false or made “with reckless
disregard as to its truth or falsity” concerning the integrity of a judicial officer. We
look to the nature of the candidate’s statements and the context in which they were
made to determine whether the candidate had a reasonable factual basis for making
them. Disciplinary Counsel v. Gallo, 131 Ohio St.3d 309, 2012-Ohio-758, 964
N.E.2d 1024, ¶ 19; accord Disciplinary Counsel v. Marshall, 142 Ohio St.3d 1,
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2014-Ohio-4815, 27 N.E.3d 481, ¶ 59 (“In determining whether an attorney has
knowingly or recklessly made false statements concerning the integrity of a judicial
officer, we consider whether the attorney had a reasonable factual basis for making
the statements”).
{¶ 20} Determining whether a judicial candidate made a false statement
with reckless disregard of its truth or falsity may require weighing evidence and
assessing witness credibility—as in any other attorney-discipline case. But
contrary to Falter’s position, that process does not make enforcement of
Jud.Cond.R. 4.3(A) “arbitrary.” In O’Toole, we affirmed the constitutionality of
the portion of Jud.Cond.R. 4.3(A) at issue in this case, id. at ¶ 41, and Falter has
failed to sufficiently explain why this language is ambiguous.
The evidence supporting the violations
{¶ 21} Falter argues in her third objection that even if the standard set forth
in New York Times Co. v. Sullivan is inapplicable, the charges should be dismissed
because she did not act recklessly. According to Falter, she relied on reputable
campaign consultants—not gossip—when she included the statements about
Hartman in the letter. She similarly argues in her fourth objection that because she
relied on her consultants, the record lacked clear and convincing evidence of a
Jud.Cond.R. 4.3(A) violation.
{¶ 22} Upon our review of the record, we agree with the commission that
the record supports the panel’s findings that Falter violated Jud.Cond.R. 4.3(A).
{¶ 23} At the panel hearing, Hartman testified that he moved from Clermont
County to Hamilton County in May 2014. He submitted records from the Hamilton
County Auditor’s office and the Hamilton County Board of Elections showing that
he purchased a condominium in Hamilton County in May 2014, registered to vote
and cast a provisional ballot in Hamilton County in May 2014, and voted in every
Hamilton County election since May 2014. Hartman also testified that he moved
to Hamilton County to be closer to his Cincinnati legal practice and to potentially
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run for a seat in the Ohio General Assembly, although he later decided against it.
In 2016, he learned about the judicial vacancy on the Hamilton County Court of
Common Pleas and was appointed to the open seat in 2017. Thus, Hartman
testified, both of Falter’s statements about his move—that he moved to Hamilton
County in 2017 and that he did so for the purpose of taking a judicial appointment—
were false.
{¶ 24} Falter admitted that she had personally typed the February 2020
campaign letter stating that Hartman had “moved to Hamilton County 3 years ago
to take a judicial appointment from Governor John Kasich in March, 2017.”
(Underlining sic.) She also admitted that prior to sending the letter, she had not
researched Hartman’s voting history or his property ownership. And she admitted
that her statements about Hartman turned out to be untrue.
{¶ 25} As her defense, Falter claimed that the information in her letter came
from her campaign consultants and that she expected the consultants to ensure the
accuracy of her campaign messages. But Falter also testified that she did not know
how her consultants allegedly knew this information about Hartman and that she
never specifically asked them to confirm the accuracy of the allegations or to
research his voting history. And one of Falter’s campaign consultants testified that
the letter was “technically one of [Falter’s] projects;” that at the time the letter was
being prepared, he did not know when Hartman had moved to Hamilton County;
that he did not know where some of the information in the letter came from; and
that although there had been discussions about the validity of Hartman’s residency,
there was “never really a specific time given nor did [the consultants] actually do
the full research on it.” The campaign consultant also testified that he had reviewed
Falter’s letter for “grammatical errors,” and he explained that “when a client does
something on their own, I trust that they have good knowledge of what they’re
putting in there,” especially when his consulting firm had no part in creating the
campaign material.
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{¶ 26} Similar to her argument on appeal, Falter also testified that she did
not rely on rumors when she prepared the campaign letter. But when Falter was
asked whether she had done anything to verify her allegation regarding the reason
Hartman had moved to Hamilton County, she responded that it was “common
knowledge within the legal system.” Falter learned of this common knowledge,
she testified, through conversations with “different people within the Republican
Party” and over lunch with assistant prosecutors who had practiced before Hartman
when he was a judge. In attempting to further explain the basis for this knowledge
about Hartman, Falter stated that the talk of the legal community was that Hartman
had “moved from Clermont County to Hamilton County to be eligible to take an
appointment” and that it was “just the common discussion of why Mr. Hartman
ended up in Hamilton County.”
{¶ 27} Based on this testimony, the panel concluded that Falter “chose to
believe what was essentially courthouse and party-insider gossip or rumors without
making any effort to check the truthfulness of the allegation.” The panel also found
that Falter’s contract with her consultants did not expressly require them to do “fact
checking” of her campaign materials. Because Falter’s statements were the type
that must be verified and because she failed to take any action to do so, the panel
concluded that she acted with reckless disregard of whether or not the statements
were false.
{¶ 28} To be sure, the panel heard conflicting testimony. But similar to
attorney-discipline proceedings, “it is of no consequence that the * * * findings of
fact are in contravention of [the] respondent’s or any other witness’s testimony.
‘Where the evidence is in conflict, the trier of facts may determine what should be
accepted as the truth and what should be rejected as false.’ ” Disciplinary Counsel
v. Zingarelli, 89 Ohio St.3d 210, 217, 729 N.E.2d 1167 (2000), quoting Cross v.
Ledford, 161 Ohio St 469, 478, 120 N.E.2d 118 (1954). And “[u]nless the record
weighs heavily against a hearing panel’s findings, we defer to the panel’s credibility
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determinations, inasmuch as the panel members saw and heard the witnesses
firsthand.” Cuyahoga Cty. Bar Assn. v. Wise, 108 Ohio St.3d 164, 2006-Ohio-550,
842 N.E.2d 35, ¶ 24.
{¶ 29} The record here does not weigh heavily against the panel’s findings.
Falter made a pointed attack against her election opponent, citing a specific date
and intention. Her accusations, however, were false, and as the panel and
commission found, a cursory search of public records would have revealed that her
allegations were untrue. Yet Falter made no effort to verify her statements.
Although she now argues that she relied on her consultants to fact-check her letter,
one of her consultants provided contrary testimony at the hearing and described the
letter as Falter’s “project.” Considering the specific factual nature of her
statements, verification of them was necessary. She should have personally
confirmed the accuracy of her allegations or ensured that her consultants had done
so. A judicial candidate cannot avoid discipline by claiming that she merely
repeated statements from her campaign consultants without taking some action to
ensure the accuracy of those statements or to inquire about the credibility of the
sources.
{¶ 30} In the end, Falter had no reasonable basis to include her allegations
about Hartman in her letter and chose to ignore the risk that they were false. By
repeating gossip about her election opponent without making any effort to verify
the accuracy of her allegations, she acted with a reckless disregard of whether or
not her statements were false.
The truth or falsity of Falter’s statements
{¶ 31} Falter argues in her second objection that the charges should be
dismissed because her allegations against Hartman were “substantially true” and
that any inaccuracies were immaterial. Specifically, she asserts that it was
immaterial whether Hartman moved in 2014 or 2017, because the purpose of her
letter was to identify him as a “carpetbagger” and the facts regarding Hartman’s
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move support the gist of that characterization. She also argues that her letter was
immaterial because only a fraction of the Hamilton County electorate received it.
{¶ 32} We need not determine whether, as Falter contends, Jud.Cond.R.
4.3(A) incorporates a “materiality test.” Falter’s statements about Hartman were
false and material to the campaign: she claimed that he moved to Hamilton County
three years after he actually did and for the purpose of filling a judicial vacancy that
did not exist at the time he moved. Her statements were not reasonably susceptible
to a truthful interpretation. In addition, it is irrelevant under Jud.Cond.R. 4.3(A)
whether she distributed the letter to 200 or 2,000 voters, and 202 households in a
primary election is not an insignificant number of voters.
{¶ 33} “However much or however little truth-bending the public has come
to expect from candidates for political jobs, ‘[j]udges are not politicians,’ and a
‘State’s decision to elect its judiciary does not compel it to treat judicial candidates
like campaigners for political office.’ ” Winter v. Wolnitzek, 834 F.3d 681, 693 (6th
Cir.2016), quoting Williams-Yulee, 575 U.S. at 437-438, 135 S.Ct. 1656, 191
L.Ed.2d 570. We overrule this objection.
{¶ 34} Having overruled Falter’s objections to the commission’s findings
of misconduct, we affirm the commission’s conclusion that she committed two
violations of Jud.Cond.R. 4.3(A). The rules in Canon 4 “are intended to ensure that
judges and judicial candidates campaign in a way that fosters and enhances respect
for, and confidence in, the judiciary.” O’Toole, 141 Ohio St.3d 355, 2014-Ohio-
4046, 24 N.E.3d 1114, at ¶ 25. Falter violated both the plain language of the rule
and the purpose behind it.
Falter’s Objections to the Commission’s Sanction
{¶ 35} In addition to challenging the commission’s misconduct findings,
Falter argues that the public reprimand should be vacated. “On an appeal of a
commission’s order of sanctions, our review is limited to whether the commission
abused its discretion.” O’Toole at ¶ 61. “ ‘A decision constitutes an abuse of
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discretion when it is unreasonable, arbitrary, or unconscionable.’ ” Moll, 135 Ohio
St.3d 156, 2012-Ohio-5674, 985 N.E.2d 436, at ¶ 17, quoting State ex rel. Ebbing
v. Ricketts, 133 Ohio St.3d 339, 2012-Ohio-4699, 978 N.E.2d 188, ¶ 13.
{¶ 36} In reviewing whether the commission abused its discretion, we
consider the purpose of sanctions. We have often recognized that “the primary
purpose of disciplinary sanctions is not to punish the offender, but to protect the
public.” Disciplinary Counsel v. O’Neill, 103 Ohio St.3d 204, 2004-Ohio-4704,
815 N.E.2d 286, ¶ 53; see Disciplinary Counsel v. Farris, 157 Ohio St.3d 527,
2019-Ohio-4810, 138 N.E.3d 1134, ¶ 17. But in judicial-candidate-discipline
proceedings, we have also explained that the purpose of sanctions is to inform other
judicial candidates of the seriousness of such misconduct and to deter similar
violations in future elections. See O’Toole at ¶ 64. “[T]he public’s faith in the
disciplinary proceedings against judges and judicial candidates is fostered by
sanctions that reflect the unique injuries on the public by judges and judicial
candidates who are not truthful in the information they disseminate.” Id.{¶ 37} The commission determined that a public reprimand was appropriate
because merely ordering Falter to pay a fine and costs would not serve the
deterrence purpose of a sanction. Falter raises two objections to the public
reprimand.
Aggravating and mitigating factors
{¶ 38} Falter first argues that the commission erred by failing to consider
the aggravating and mitigating factors listed in Gov.Bar R. V(13). Falter
acknowledges that the hearing panel considered those factors, but she additionally
argues that the panel misapplied them. For example, she argues that the panel failed
to give her mitigating credit for retracting her statements about Hartman after she
learned that they were inaccurate.
{¶ 39} With respect to Falter’s argument about the commission, we hold
that the commission did not err by omitting consideration of the aggravating and
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mitigating factors in its order. Gov.Jud.R. II(5) provides that “a grievance that
alleges a violation by a judicial candidate of Canon 4 of the Code of Judicial
Conduct during the course of a campaign for judicial office shall be brought,
conducted, and disposed of in accordance with this rule and Gov.Bar R. V, as
modified by this section.” (Emphasis added.) Gov.Jud.R. II(5)(D)(1) requires the
commission to review the hearing panel’s report. If the commission “concludes the
record supports the hearing panel’s finding that a violation of Canon 4 has occurred
and there has been no abuse of discretion by the hearing panel, the commission may
enter an order that includes one or more of the following:” a disciplinary sanction,
a cease-and-desist order, a fine, an assessment of costs, or an assessment of attorney
fees. Nothing in Gov.Jud.R. II(5) required the commission to also independently
weigh the aggravating and mitigating factors applicable in other attorney-discipline
cases.
{¶ 40} With respect to the hearing panel’s findings, we commend Falter for
issuing a retraction letter shortly after Hartman’s campaign notified her that the
letter was inaccurate. But that fact does not mean that her public reprimand should
be vacated. Nor has she established that the panel’s weighing of the other
aggravating or mitigating factors should have any impact on her sanction.
The public reprimand
{¶ 41} Falter next argues that her disciplinary sanction should be vacated
because she “has been sufficiently reprimanded in public.” She claims that
although she quickly retracted her campaign letter, she received negative media
attention, which culminated in her loss in the primary election. With her objections,
Falter submitted screenshots of social-media posts criticizing her for the false
campaign letter. She argues that in light of the damage to her reputation, the
commission’s public reprimand was excessive.
{¶ 42} Gov.Jud.R. II(5)(C)(3) provides for a formal hearing before a
hearing panel and there is no provision in Gov.Jud.R. II(5) for the introduction of
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additional evidence when the proceedings are in this court on appeal. Similar to
other attorney-discipline cases, we would consider accepting additional evidence at
this late stage only in the most exceptional circumstances. See Lorain Cty. Bar
Assn. v. Weir, 156 Ohio St.3d 566, 2019-Ohio-2151, 130 N.E.3d 275, ¶ 13. No
exceptional circumstances exist here that would allow Falter to introduce evidence
for the first time in her objections. Nor has she otherwise established why alleged
critical comments in the media or on social media could somehow substitute for a
public reprimand from this court.
{¶ 43} We therefore overrule Falter’s two additional objections to the
public reprimand. Falter has not established that the commission acted in an
unreasonable, arbitrary, or unconscionable manner. A public reprimand is in line
with other cases in which judicial candidates have violated Jud.Cond.R. 4.3(A).
See O’Toole, 141 Ohio St.3d 355, 2014-Ohio-4046, 24 N.E.3d 1114; Moll, 135
Ohio St.3d 156, 2012-Ohio-5674, 985 N.E.2d 436. And the sanction will serve as
a deterrent to prevent other judicial candidates from knowingly or recklessly
disseminating false information during their campaigns. See O’Toole at ¶ 64.
Conclusion
{¶ 44} Because we overrule Falter’s objections to the commission’s
misconduct findings and because the commission did not abuse its discretion in
issuing sanctions against Falter for her violations of Jud.Cond.R. 4.3(A), we affirm
the commission’s order.
Order affirmed.
O’CONNOR, C.J., and GALLAGHER, POWELL, HALL, DONNELLY, and
BRUNNER, JJ., concur.
STEWART, J., concurs in judgment only, with an opinion.
SEAN C. GALLAGHER, J., of the Eighth District Court of Appeals, sitting for
KENNEDY, J.
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January Term, 2021
STEPHEN W. POWELL, J., of the Twelfth District Court of Appeals, sitting
for FISCHER, J.
MICHAEL T. HALL, J., of the Second District Court of Appeals, sitting for
DEWINE, J.
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STEWART, J., concurring in judgment only.
{¶ 45} I agree with the per curiam opinion’s holding that an objective, rather
than a subjective, standard applies in determining whether a candidate for judicial
office has violated Jud.Cond.R. 4.3(A). I also agree that in this case, respondent,
Karen Kopich Falter, did not have a reasonable factual basis for the statements she
published about her opponent, Curt Hartman. I nevertheless concur in judgment
only, because I think it is important to acknowledge that the test we are using to
determine whether a false statement was published with “a reckless disregard of
whether or not it was false” under Jud.Cond.R. 4.3(A) is in fact a negligence test.
{¶ 46} We are ruling that Falter violated Jud.Cond.R. 4.3(A) when she
published information that she gathered from speaking with her campaign
consultants and with members of the bar without undertaking to fact-check it. She
could have easily discovered the correct information by checking the county
auditor’s website to see when Hartman had purchased a condominium in Hamilton
County and by checking Hartman’s voting records. At bottom, the reason for this
court’s conclusion that Falter violated Jud.Cond.R. 4.3(A) is that she failed to act
as a prudent judicial candidate would have acted when she failed to diligently
investigate the information before publishing it. In other words, Falter negligently
published false information. See, e.g., Willoughby Hills v. Cincinnati Ins. Co., 9
Ohio St.3d 177, 180, 459 N.E.2d 555 (1984), quoting Embers Supper Club, Inc. v.
Scripps-Howard Broadcasting Co., 9 Ohio St.3d 22, 457 N.E.2d 1164 (1984),
syllabus, modified on other grounds, Lansdowne v. Beacon Journal Publishing Co.,
32 Ohio St.3d 176, 512 N.E.2d 979 (1987) (plurality opinion) (the negligence
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SUPREME COURT OF OHIO
standard asks “ ‘whether the defendant acted reasonably in attempting to discover
the truth or falsity or defamatory character of the publication’ ”). The per curiam
opinion’s insistence that “[n]egligently made false statements or negligent
misstatements are not prohibited by” Jud.Cond.R. 4.3(A), majority opinion at ¶ 18,
cannot therefore be reconciled with the fact that this court has adopted and applied
an objective-reasonableness test.
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Finney Law Firm, L.L.C., and Christopher P. Finney, for complainant.
Isaac, Wiles, Burkholder & Teetor, L.L.C., Donald C. Brey, and Matthew
R. Aumann, for respondent.
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