Cleveland Metro. Bar Assn. v. Morton (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Cleveland Metro. Bar Assn. v. Morton, Slip Opinion No. 2021-Ohio-4095.]
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-4095CLEVELAND METROPOLITAN BAR ASSOCIATION v. MORTON.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Cleveland Metro. Bar Assn. v. Morton, Slip Opinion No.
2021-Ohio-4095.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct,
including engaging in undignified or discourteous conduct that is
degrading to a tribunal, making a statement that a lawyer knows to be false
or with reckless disregard as to its truth or falsity concerning the
qualification or integrity of a judicial officer, and engaging in conduct that
is prejudicial to the administration of justice—One-year suspension with six
months stayed on condition of no further misconduct.
(No. 2020-1520—Submitted May 12, 2021—Decided November 23, 2021.)
ON CERTIFIED REPORT by the Board of Professional Conduct
of the Supreme Court, No. 2020-021.
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SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} Respondent, John Alex Morton, of Richmond Heights, Ohio,
Attorney Registration No. 0028021, was admitted to the practice of law in Ohio in
1975.
{¶ 2} In an April 2020 complaint, relator, Cleveland Metropolitan Bar
Association, alleged that Morton committed four ethical violations by making
improper statements that impugned the integrity of judicial officers in a document
filed in this court. Morton denied the charges and moved for dismissal of the
complaint and then for summary judgment, but both motions were overruled. The
matter proceeded to a hearing before a three-member panel of the Board of
Professional Conduct. Based on the evidence presented at the hearing, the panel
dismissed one alleged rule violation and found that Morton had committed three
others. The panel recommended that Morton be suspended from the practice of law
for one year with the entire suspension stayed on the condition that he commit no
further misconduct. The board adopted the panel’s findings of fact, conclusions of
law, and recommended sanction. Morton objects to the board’s findings of
misconduct and argues that the complaint should be dismissed. Relator objects to
the recommended sanction and urges us to suspend Morton from the practice of law
for six months with no stay.
{¶ 3} For the reasons that follow, we overrule Morton’s objections and
adopt the board’s findings of misconduct. We also sustain relator’s objection in
part and suspend Morton from the practice of law for one year with six months
stayed on the condition that he commit no further misconduct.
Misconduct
The Board’s Findings of Fact and Misconduct
{¶ 4} The conduct at issue in this case arises from Morton’s representation
of Fred P. Schwartz in his attempts to reduce the tax valuation of a parcel of real
property in Cuyahoga County.
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{¶ 5} Although Schwartz purchased the property for $5,000 in 2011, a
Cuyahoga County fiscal officer valued it at $126,800 for the 2011 tax year. After
the Cuyahoga County Board of Revision (“BOR”) and the Board of Tax Appeals
(“BTA”) affirmed the county’s valuation, Morton filed an appeal in this court. We
reversed and remanded the case with instructions that the $5,000 sale price be used
as the property’s value for the 2011 tax year. Schwartz v. Cuyahoga Cty. Bd. of
Revision, 143 Ohio St.3d 496, 2015-Ohio-3431, 39 N.E.3d 1223, ¶ 31-32
(“Schwartz I”). Schwartz and the county then agreed that the property would be
valued at $12,500 for the next three years.
{¶ 6} In 2015, the county fiscal officer valued the property at $107,900, and
Morton filed a complaint with the BOR seeking a valuation of $5,000. Morton
asked the BOR to order the systems administrator for the county fiscal office to
appear and testify about the methodology that the county used to determine the
property’s value. Without taking evidence from the systems administrator, the
BOR found that the 2011 sale price was too remote in time and retained the fiscal
officer’s valuation.
{¶ 7} Morton appealed the BTA’s decision to the Eighth District Court of
Appeals. See Schwartz v. Cuyahoga Cty. Bd. of Revision, 8th Dist. Cuyahoga No.
106659, 2018-Ohio-4712, ¶ 4-5 (“Schwartz II”). There, he asserted that the BOR
had improperly assigned the burden of proof to Schwartz and argued that because
he had submitted evidence that the property was sold for $5,000 in 2011, the burden
shifted to the BOR to present evidence to support the county’s valuation. Id. at
¶ 26. The court of appeals noted, however, that in Moskowitz v. Cuyahoga Cty. Bd.
of Revision, 150 Ohio St.3d 69, 2017-Ohio-4002, 78 N.E.3d 870, ¶ 9-10, this court
had held that the caselaw “unequivocally refutes” that burden-shifting argument.1
Schwartz II at ¶ 27. In Moskowitz, we reiterated our past holdings that the appellant
1. Morton was familiar with the decision because he had represented Moskowitz. Schwartz II at
¶ 28.
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bears the burden of demonstrating that the value it advocates is correct and that if
the appellant fails to carry that burden, the BTA may approve the taxing authority’s
assessment. Id. at ¶ 9, citing EOP-BP Tower, L.L.C. v. Cuyahoga Cty. Bd. of
Revision, 106 Ohio St.3d 1, 2005-Ohio-3096, 829 N.E.2d 686, ¶ 6, and Westlake
Med. Investors, L.P. v. Cuyahoga Cty. Bd. of Revision, 74 Ohio St.3d 547, 549, 660
N.E.2d 467 (1996). Because the county’s fiscal officer was presumed to carry out
his statutorily prescribed duties in good faith absent a showing to the contrary and
Schwartz did not challenge the BTA’s finding that he had failed to present any
evidence of the property’s 2015 value, the court of appeals held that the BTA’s
decision was reasonable and lawful. Schwartz II at ¶ 22-23, 32.
{¶ 8} Morton sought this court’s discretionary review of the Eighth
District’s decision. In a January 2019 memorandum in support of jurisdiction filed
in this court, Morton argued that Moskowitz was wrongly decided. He claimed that
in Moskowitz, this court adopted “its own unique standard for the burden of proof
in [real-property tax cases]” but that “it should have supported this assertion with
some solid case-law.” And “[b]ecause the Moskowitz Court could not do so, instead
it intentionally misstated the holding of each of the cases it cited, none of which
actually discussed the two parts of the burden of proof in valuation cases, i.e., the
burden of production of evidence and the burden of persuasion.” Morton also
criticized the court of appeals for accusing him of “being disingenuous in his critical
view of the BTA’s citation of [Fairlawn Assocs., Ltd. v. Summit Cty. Bd. of
Revision, 9th Dist. Summit No. 22238, 2005-Ohio-1951],” and he stated that
“[a]part from the BTA’s and court of appeals’ fabrication of the Fairlawn
decision”—purportedly to shield an assessing authority from any review of its
appraisal methods—“it defies common sense to conclude that the government
assessing authorities are not required to defend their initial determinations of
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value.”2 He then opined, “Only politicians committed to maximizing the revenue
of their political cronies could reach such a conclusion, and cite the Fairlawn
decision as the authority for same.”
{¶ 9} The overarching theme of Morton’s memorandum in support of
jurisdiction was that in Moskowitz, this court distorted its past holdings to achieve
its own political agenda. According to Morton, the Moskowitz decision “was based
upon politics, not law,” and “[t]he political goal of the Moskowitz Court was to
maximize government revenue, at the expense of the taxpayer, and his or her
Constitutional right to limited taxation.” After suggesting that Justice French had
“persistently and incorrectly maintained that this Court should defer to the
government” in property-valuation matters, Morton claimed that “Justices French
and Kennedy * * * showed a willingness to favor the government, at the expense
of the taxpayer and the Constitution, no matter how unreasonable the government’s
view of the true value of subject property.” “Also on the political agenda,” Morton
claimed, “was the promotion of the leadership of Justice French on this Court.”
{¶ 10} In support of those claims, Morton stated, “The most obvious
evidence of the political nature of the Moskowitz decision was the decision to delay
the decision until Justices Pfeifer and Lanzinger retired from the Court, and were
replaced by Justices Fischer and DeWine.” Moreover, he proclaimed,
“[r]esponsibility for the delay must be assigned to Chief Justice O’Connor, since it
would not have been tolerated without her approval.” On March 20, 2019, this
2. The court of appeals had found that the BTA cited Fairlawn for the proposition that “ ‘the burden
is placed upon the complainant, in this case the property owner, to bring forth sufficient evidence
that the value is something other than that which was initially assessed.’ ” Schwartz II at ¶ 31,
quoting the BTA decision. In contrast to Schwartz, the property owner in Fairlawn prevailed
because it had presented competent probative evidence in the form of an expert appraisal report
showing that the value of the property was less than the county’s assessed value and the board had
failed to rebut that evidence. Fairlawn at ¶ 15.
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court declined to accept jurisdiction over Schwartz’s appeal. Schwartz v. Cuyahoga
Cty. Bd. of Revision, 155 Ohio St.3d 1406, 2019-Ohio-944, 119 N.E.3d 434.
{¶ 11} Based on these statements, the board found that in a pleading before
this court, Morton had “voiced undignified and discourteous statements about
judges and justices who did nothing more than rule contrary to his client’s
position.” Based on Morton’s testimony that he made no investigation into these
matters and relied on the inferences he had drawn from the facts and the law, the
board found that he had “made no real inquiry into the judges’ and justices’
integrity prior to making these statements.” Citing Disciplinary Counsel v.
Gardner, 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425—which adopted an
objective standard to determine whether a lawyer’s statements about a judicial
officer were made with knowledge or reckless disregard of their falsity—the board
found that Morton had no reasonable factual basis for his allegations.
{¶ 12} Ultimately, the board concluded that instead of engaging in
legitimate commentary regarding the merits of the courts’ decisions, Morton had
attacked the judicial process and thereby violated Prof.Cond.R. 3.5(a)(6)
(prohibiting a lawyer from engaging in undignified or discourteous conduct that is
degrading to a tribunal), 8.2(a) (prohibiting a lawyer from making a statement that
the lawyer knows to be false or with reckless disregard as to its truth or falsity
concerning the qualifications or integrity of a judicial officer), and 8.4(d)
(prohibiting a lawyer from engaging in conduct that is prejudicial to the
administration of justice).
Morton’s Objections
{¶ 13} Morton raises four objections to the board’s findings of misconduct.
{¶ 14} First, Morton objects to the board’s denial of his motions to dismiss
the complaint against him, alleging that relator did not have standing to bring this
case against him because there was no grievant. He cites Ohioans for Concealed
Carry, Inc. v. Columbus, 164 Ohio St.3d 291, 2020-Ohio-6724, 172 N.E. 935, for
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the proposition that a plaintiff must allege a personal stake in the outcome of the
controversy that would entitle the plaintiff to have a court hear his case. But that
requirement has no application in the context of an attorney-discipline proceeding.
{¶ 15} Article IV, Section 2(B)(1)(g) of the Ohio Constitution grants this
court original jurisdiction over the admission to the practice of law, the discipline
of persons so admitted, and all other matters relating to the practice of law.
Pursuant to that jurisdiction, we have promulgated the Rules for the Government
of the Bar, including Gov.Bar R. V(12), which sets forth the procedures governing
attorney-discipline proceedings. “A disciplinary proceeding is instituted to
safeguard the courts and to protect the public from the misconduct of those who are
licensed to practice law, and is neither a criminal nor a civil proceeding.” In re
Judicial Campaign Complaint Against Carr, 76 Ohio St.3d 320, 322, 667 N.E.2d
956 (1996).
{¶ 16} In addition to authorizing the Office of Disciplinary Counsel or a
certified grievance committee to investigate grievances, Gov.Bar R. V(9)(C)(1)
provides that either of those entities “shall review and may investigate any matter
filed with it or that comes to its attention and may file a complaint pursuant to this
rule in cases where it finds probable cause to believe that misconduct has occurred.”
Citing that rule, we have rejected an attorney’s claim that disciplinary counsel
lacked investigative authority over an issue merely because it was not first raised
in a written grievance. See Disciplinary Counsel v. Oviatt, 155 Ohio St.3d 586,
2018-Ohio-5091, 122 N.E.3d 1246, ¶ 22. Because Gov.Bar R. V(9)(C)(1) also
expressly authorizes disciplinary counsel or a certified grievance committee to file
a complaint following such an investigation when they find probable cause to
believe that misconduct has occurred, we find that Morton’s first objection is
without merit.
{¶ 17} In his second and third objections, Morton challenges the board’s
reliance on Disciplinary Counsel v. Gardner, 99 Ohio St.3d 416, 2003-Ohio-4048,
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793 N.E.2d 425, and asserts that his statements constitute constitutionally protected
free speech. Specifically, Morton alleges that the legal underpinnings of Gardner
are unsound and that the objective test adopted in that case impermissibly punishes
false speech that is negligently made.
{¶ 18} In Gardner, we stated, “The United States Supreme Court has held
that ‘[i]t is unquestionable that in the courtroom itself, during a judicial proceeding,
whatever right to “free speech” an attorney has is extremely circumscribed,’ ” and
that “ ‘[e]ven outside the courtroom, a majority of the Court in two separate
opinions in the case of In re Sawyer, 360 U.S. 622, [79 S.Ct. 1376, 3 L.Ed.2d 1473]
(1959), observed that lawyers in pending cases were subject to ethical restrictions
on speech to which an ordinary citizen would not be.’ ” (Second set of brackets
added.) Gardner at ¶ 14, quoting Gentile v. Nevada State Bar, 501 U.S. 1030, 1071,
111 S.Ct. 2720, 115 L.Ed.2d 888 (1991). Relying on Gentile, we found that “[a]n
attorney’s speech may be sanctioned if it is highly likely to obstruct or prejudice
the administration of justice,” id., citing Gentile at 1075, and that those narrow
restrictions “are justified by the integral role that attorneys play in the judicial
system,” id., citing Gentile at 1074.
{¶ 19} We adopted “ ‘an objective standard to determine whether a
lawyer’s statement about a judicial officer is made with knowledge or reckless
disregard of its falsity.’ ” Gardner at ¶ 26, quoting American Bar Association,
Annotated Model Rules of Professional Conduct, Rule 8, at 566 (4th Ed.1999).
That standard looks to “ ‘ “what the reasonable attorney, considered in light of all
his professional functions, would do in the same or similar circumstances” * * *
[and] focuses on whether the attorney had a reasonable factual basis for making the
statements, considering their nature and the context in which they were made.’ ”
(Brackets and ellipses added in Yagman.) Id., quoting Standing Commt. on
Discipline of United States Dist. Court for Cent. Dist. of California v. Yagman, 55
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F.3d 1430, 1437 (9th Cir.1995), quoting United States Dist. Court for E. Dist. of
Washington v. Sandlin, 12 F.3d 861, 867 (9th Cir.1993).
{¶ 20} Morton contends that the concept that an attorney’s freedom of
speech is “extremely circumscribed” in the context of a judicial proceeding predates
the United States Supreme Court’s decisions in New York Times Co. v. Sullivan,
376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and Garrison v. Louisiana, 379
U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), and that those decisions
“substantially broadened an attorney’s rights to free speech when criticizing public
officials.” Sullivan permitted public officials to recover civil damages for
defamatory falsehoods regarding their official conduct that are made with “actual
malice,” which the court defined as acting “with knowledge that [the statement]
was false or with reckless disregard of whether it was false or not.” Id. at 270. And
the court in Garrison held that proof of actual malice is necessary to establish
criminal liability for defamation of a public official. Id. at 79. But neither of those
cases purported to apply that standard to disciplinary proceedings arising from an
attorney’s in-court speech. And contrary to Morton’s argument, both of those cases
predate the “extremely circumscribed” language of Gentile by nearly 30 years.
{¶ 21} In Gardner, 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.”
***
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* * * [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.
99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425, ¶ 29-31, quoting Yagman at
1437.
{¶ 22} We recently applied Gardner’s objective test to judicial-campaign
speech in In re Judicial Campaign Complaint Against Falter, 164 Ohio St.3d 457,
2021-Ohio-1705, 173 N.E.3d 484. There, we found that “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.” Id. at ¶ 16. Moreover, we found that because Jud.Cond.R.
4.3(A) requires a judicial candidate to act with a specific mental state, i.e., knowing
the information to be false or with a reckless disregard of whether it was false,
“[n]egligently made false statements or negligent misstatements are not prohibited
by the rule.” Id. at ¶ 18.
{¶ 23} An attorney acts knowingly if he or she has “actual knowledge of the
fact in question.” Prof.Cond.R. 1.0(g). And like a judicial candidate, an attorney
acts recklessly if a certain result is possible and the attorney chooses to ignore the
risk. See Falter at ¶ 18, citing In re Judicial Campaign Complaint Against Moll,
135 Ohio St.3d 156, 2012-Ohio-5674, 985 N.E.2d 436, ¶ 11. Here, contrary to
Morton’s arguments, it was not only possible—but true—that our decision in
Moskowitz was based on well-settled law. There were a record-high number of tax
appeals filed in this court in 2014 and 2015. But Morton chose to ignore the
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possibility that any delay in reaching a decision in the Schwartz appeal was
attributable to the high number of cases and acted with reckless disregard by
attributing political motives to our decision and what he perceived as delay in
reaching it. He admitted that he made no investigation and relied solely upon his
own interpretation of the facts in making his statements. These facts establish that
Morton acted with reckless disregard for the truth of his accusations. Based upon
the foregoing, we overrule Morton’s second and third objections.
{¶ 24} In his fourth objection, Morton contends that the board erred in
finding that his statements violated Prof.Cond.R. 3.5(a)(6) and 8.4(d) for two
reasons. We have already rejected Morton’s argument that his statements were
protected speech. His final argument is that the board failed to cite sufficient
caselaw to support its findings of misconduct. But we have routinely found that
attorneys have violated Prof.Cond.R. 3.5(a)(6) by making undignified or
discourteous statements degrading to a tribunal in documents that have been filed
in a court. See, e.g., Toledo Bar Assn. v. Yoder, 162 Ohio St.3d 140, 2020-Ohio-
4775, 164 N.E.3d 405 (statements were made in an affidavit of bias and prejudice);
Disciplinary Counsel v. Proctor, 131 Ohio St.3d 215, 2012-Ohio-684, 963 N.E.3d
806 (statements were made in a supplement to a trial-court motion and reiterated in
an appellate brief); Disciplinary Counsel v. Pullins, 127 Ohio St.3d 436, 2010-
Ohio-6241, 940 N.E.2d 952 (statements were made in an affidavit of
disqualification). And we have found on multiple occasions that unfounded attacks
on the judiciary in publicly filed documents are prejudicial to the administration of
justice. See, e.g., Disciplinary Counsel v. Frost, 122 Ohio St.3d 219, 2009-Ohio-
2870, 909 N.E.2d 1271, ¶ 5, 18 (an attorney engaged in conduct that was prejudicial
to the administration of justice by falsely accusing several common-pleas-court
judges of bias in the execution of their duties and by leveling unfounded accusations
of racial bias and other impropriety against a federal judge); Disciplinary Counsel
v. Stafford, 131 Ohio St.3d 385, 2012-Ohio-909, 965 N.E.2d 971, ¶ 57-58 (an
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attorney violated Prof.Cond.R. 8.4(d) by making false statements regarding the
integrity of the judge that intentionally, unnecessarily, and recklessly demeaned the
judge in a memorandum in support of a motion that was in the public record);
Disciplinary Counsel v. Gallo, 131 Ohio St.3d 309, 2012-Ohio-758, 964 N.E.2d
1024, ¶ 6-7, 11 (an attorney violated Prof.Cond.R. 8.4(d) by recklessly failing to
independently verify the identity of a man he had observed at the courthouse before
alleging in a publicly filed affidavit that it was a judge attempting to intimidate his
client). We therefore overrule Morton’s fourth and final objection to the board’s
findings of misconduct.
{¶ 25} Having overruled each of Morton’s objections, we adopt the board’s
findings of misconduct.
Sanction
{¶ 26} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
Aggravating and Mitigating Factors
{¶ 27} As aggravating factors, the board found that Morton refused to
acknowledge the wrongful nature of his conduct, made no effort to verify the
truthfulness of the statements set forth in his jurisdictional memorandum, and
denied that his comments were undignified or discourteous. See Gov.Bar R.
V(13)(B)(7). He testified that he planned to engage in the same type of conduct in
the future—even though he acknowledged that a lawyer could argue that a court
did not follow the law without accusing the court of misconduct. Morton also was
indignant and confrontational throughout the course of the hearing, refused to abide
by the rulings of the panel chair, and repeatedly directed improper questions to the
panel members. See Gov.Bar R. V(13)(B)(5).
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{¶ 28} In mitigation, the board found that Morton had no prior discipline
and lacked a dishonest or selfish motive. See Gov.Bar R. V(13)(C)(1) and (2). He
offered no evidence of his character or reputation.
Recommended Sanction and Relator’s Objection
{¶ 29} Having denied any wrongdoing, Morton did not address the issue of
a sanction at the hearing or in his posthearing brief. On the other hand, relator
argued that consistent with our holdings in Gardner, 99 Ohio St.3d 416, 2003-Ohio-
4048, 793 N.E.2d 425, and Proctor, 131 Ohio St.3d 215, 2012-Ohio-684, 963
N.E.2d 806, Morton’s misconduct warranted a six-month suspension from the
practice of law.
{¶ 30} The board acknowledged that our decisions in Gardner and Proctor
supported relator’s proposed sanction. Nonetheless, citing Disciplinary Counsel v.
Shimko, 134 Ohio St.3d 544, 2012-Ohio-5694, 983 N.E.2d 1300, the board
recommended that we suspend Morton from the practice of law for one year, stayed
in its entirety on the condition that he commit no further misconduct. Relator
objects to the board’s recommendation and renews its argument that the appropriate
sanction for Morton’s misconduct is a six-month actual suspension from the
practice of law.
{¶ 31} We agree with relator’s contention that the facts of this case are most
comparable to those of Gardner and Proctor. The attorney in Gardner, 99 Ohio
St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425, filed a motion for reconsideration of
an appellate-court decision in which he had improperly accused the appellate panel
of harboring bias toward the prosecution, corrupting the law, and issuing a result-
driven opinion in rendering a judgment adverse to his client. Gardner made no
inquiry into the court’s integrity before launching his attack, which Morton also
failed to do, and we found no evidence of bias or corruption in the court of appeals’
opinion. Id. at ¶ 33-34. We determined that Gardner’s conduct violated rules that
prohibited attorneys from engaging in undignified or discourteous conduct that is
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degrading to a tribunal and knowingly making false accusations about a judge. Id.
at ¶ 1, 35.
{¶ 32} Although Gardner had no prior discipline and acknowledged the
need to challenge judicial decisions in an appropriate manner, he maintained that
the appellate court “had skewed and ignored the facts, disregarded honesty and
truth, and violated their oaths to decide cases fairly and impartially.” Id. at ¶ 11.
Holding that “[u]nfounded attacks against the integrity of the judiciary require an
actual suspension from the practice of law,” we rejected the board’s
recommendation that we impose a six-month conditionally stayed suspension and
imposed a six-month suspension with no stay for Gardner’s misconduct. Id. at
¶ 36.
{¶ 33} In Proctor, 131 Ohio St.3d 215, 2012-Ohio-684, 963 N.E.2d 806,
we also imposed a six-month suspension on an attorney who had filed several
documents accusing a trial judge of harboring bias against him and engaging in ex
parte communications with opposing counsel and then going to great efforts to
cover up the alleged conduct. Although Proctor had no disciplinary record and
cooperated in the resulting disciplinary proceedings, he also engaged in a pattern
of misconduct involving multiple offenses. Like Morton, he continued to claim
that he had a reasonable belief to support his accusations, though Proctor actually
had stipulated to the contrary. Id. at ¶ 10-11.
{¶ 34} The attorney in Shimko, 134 Ohio St.3d 544, 2012-Ohio-5694, 983
N.E.2d 1300, acted in a disrespectful and confrontational manner during a trial and
then, over a period of nine months, filed multiple documents in which he accused
the trial judge of being dishonest and having improper motives for his rulings.
Shimko, like Morton, was unapologetic, failed to acknowledge the wrongful nature
of his conduct, and maintained that he honestly believed his statements to be true.
Id. at ¶ 24, 29. He also had prior discipline. However, he ultimately cooperated in
the disciplinary process and acknowledged that attorneys do not have an unfettered
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right to say whatever they desire about a member of the judiciary, and he
established that he had an excellent reputation with the bench and bar. While
recognizing that Shimko’s statements about the trial judge were “rough,
unnecessary, and ultimately unproductive,” id. at ¶ 34, a majority of this court found
that they were “less defamatory than Gardner’s rant against three judges on the
court of appeals,” id., and consequently imposed a conditionally stayed six-month
suspension, id. at ¶ 36.
{¶ 35} In contrast to the attorney in Shimko, Morton was combative and
obstreperous throughout his disciplinary hearing, was discourteous to the panel
members, and often refused to accept the panel chair’s evidentiary rulings. At the
hearing, he accused relator’s counsel, bar counsel, and members of the certified
grievance committee of having conflicts of interest and acting with bias because
they were allegedly appointed to serve on various committees convened by this
court. And while Shimko’s improper statements were directed at a single trial
judge, Morton, like Gardner, criticized three appellate-court judges. In addition, he
falsely and recklessly charged the entire Supreme Court of Ohio with intentionally
delaying a case and misstating the law that it has been sworn to uphold for improper
political motives. Furthermore, he did so in a document filed in this court that
remains readily accessible to the public on this court’s online docket. On these
facts, we find that Morton’s conduct is more egregious than that of the attorneys in
Shimko, Gardner, and Proctor, and we agree with relator that Morton’s unfounded
attack against the judiciary warrants an actual suspension from the practice of law.
We therefore sustain relator’s objection in part and conclude that a one-year
suspension with six months stayed on the condition that Morton commit no further
misconduct is the appropriate sanction in this case.
Conclusion
{¶ 36} Accordingly, John Alex Morton is suspended from the practice of
law in Ohio for one year, with six months stayed on the condition that he commit
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no further misconduct. If Morton fails to comply with the condition of the stay, the
stay will be lifted and he will serve the entire one-year suspension. Costs are taxed
to Morton.
Judgment accordingly.
FISCHER, DONNELLY, and BRUNNER, JJ., concur.
O’CONNOR, C.J., concurs, with an opinion joined by FISCHER, DONNELLY,
and BRUNNER, JJ.
STEWART, J., concurs in part and dissents in part and would adopt the
recommended sanction of the Board of Professional Conduct but otherwise joins
the per curiam opinion and Chief Justice O’Connor’s concurring opinion.
KENNEDY, J., dissents, with an opinion.
DEWINE, J., dissents, with an opinion.
_________________
O’CONNOR, C.J., concurring.
{¶ 37} I fully concur with the majority’s reasoning and in its judgment,
which properly sanctions respondent, John Alex Morton, for his statements
attacking the integrity of the judicial process. This case involves Morton’s blatant
breach of the professional duties, including preserving the integrity of the court,
that he agreed to be bound by as an officer of the court and the consequences for
failing to comply with those duties. As this court has unanimously done many
times before, the majority properly applies the objective test set forth in
Disciplinary Counsel v. Gardner, 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d
425, to the facts of this case. See, e.g., Erie-Huron Cty. Bar Assn. v. Bailey and
Bailey, 161 Ohio St.3d 146, 2020-Ohio-3701, 161 N.E.3d 590. I write separately
to respond to the dissenting opinions’ needless attempt to distract from this focus
with First Amendment arguments and to paint members of this court as fragile and
vindictive.
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{¶ 38} It is well established that practicing law is a privilege, not a right.
See Shimko v. Lobe, 103 Ohio St.3d 59, 2004-Ohio-4202, 813 N.E.2d 669, ¶ 54
(“no person has a right to practice law, but * * * the practice of law is an
extraordinary privilege bestowed by this court upon one who meets the
qualifications for admission and continues to maintain the standard of ethical
conduct as prescribed by the rules of the court”). And accompanying the privilege
of bar licensure are conditions. See Gentile v. State Bar of Nevada, 501 U.S. 1030,
1066, 111 S.Ct. 2720, 115 L.E.2d 888 (1991), quoting In re Rouss, 221 N.Y. 81,
84, 116 N.E. 782 (1917) (“ ‘Membership in the bar is a privilege burdened with
conditions’ ”). One such condition outlined in the Ohio Rules of Professional
Conduct, among many others, is that “[a] lawyer should demonstrate respect for the
legal system and for those who serve it.” Prof.Cond.R., Preamble [5]. It is “a
lawyer’s duty to uphold [the] legal process.” Id. In fact, this important condition
is integrated into the very oath that Ohio attorneys take upon entering this privileged
and regulated profession:
I, ___________, hereby (swear or affirm) that I will support
the Constitution and the laws of the United States and the
Constitution and the laws of Ohio, and I will abide by the Ohio Rules
of Professional Conduct.
In my capacity as an attorney and officer of the Court, I will
conduct myself with dignity and civility and show respect towards
judges, court staff, clients, fellow professionals, and all other
persons.
I will honestly, faithfully, and competently discharge the
duties of an attorney at law.
Gov.Bar R. I(9)(A).
17
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{¶ 39} By taking this oath, an attorney accepts several duties as an officer
of the court. See Shimko at ¶ 41, citing Anderson v. Elliot, 555 A.2d 1042, 1048
(Me.1989). One such duty is “to abide by the Ohio Rules of Professional Conduct.”
Another is to act “with dignity and civility” and “show respect towards judges” and
fellow professionals. An attorney willingly agrees to comply with these duties and,
in doing so, accepts that there are professional consequences for failing to fulfill
these duties. Consequently, although attorneys, like other citizens, enjoy the right
to free speech, they also willingly accept the conditions that arise with the privilege
to practice law. See In re Sawyer, 360 U.S. 622, 646, 79 S.Ct. 1376, 3 L.Ed.2d
1473 (1959) (Stewart, J., concurring in the result) (“A lawyer belongs to a
profession with inherited standards of propriety and honor * * *. He who would
follow that calling must conform to those standards”).
{¶ 40} As the majority opinion points out, professional rules and conditions
that “ ‘prohibit false statements impugning the integrity of judges * * * 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.’ ”
Gardner, 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425, at ¶ 29, quoting
Standing Commt. on Discipline of United States Dist. Court for Cent. Dist. of
California v. Yagman, 55 F.3d 1430, 1437 (9th Cir.1995). Stated differently, the
underpinning of these professional-conduct rules is the preservation of the integrity
of the court by protecting the public from incompetent and unprofessional
attorneys, In re Holtzman, 78 N.Y.2d 184, 192, 573 N.Y.S.2d 39, 577 N.E.2d 30(1991), maintaining public trust in the judicial system’s impartiality, Gardner at
¶ 29, and promoting the effective administration of justice, id. at ¶ 14, citing Gentile
at 1074. These are far from hollow sentiments: the integrity of the court is an
essential cog in the democratic system. See In re ESM Govt. Securities, Inc., 66
B.R. 82, 84 (S.D.Fla.1986). As the preamble to the Ohio Rules of Professional
Conduct duly notes, “legal institutions in a constitutional democracy depend on
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January Term, 2021
popular participation and support to maintain their authority.” Prof.Cond.R.,
Preamble at [6]. And lawyers, in furtherance of this democratic system, should
foster “the public’s understanding of and confidence in the rule of law and the
justice system.” Id.{¶ 41} Morton, like all other Ohio attorneys, took an oath of office on
entering the practice of law. By doing so, he accepted and agreed to be bound by
the duty to adhere to the Ohio Rules of Professional Conduct, including the rule
requiring an attorney to have a reasonable factual basis before making a statement,
see Gardner at ¶ 26 (whether an attorney has a reasonable factual basis for making
a statement is the standard for determining whether the attorney’s statements about
a judicial officer were made with knowledge or reckless disregard of their falsity).
Thus, contrary to the second dissenting opinion’s suggestions, this disciplinary
action does not derive from a desire to prevent “future Mortons from leveling
similar attacks on this court.” Second dissenting opinion at ¶ 100. Nor was it
brought because our skin is too “thin.” Id. at ¶ 72. In fact, disciplining Morton has
nothing to do with this court or any of its justices. Rather, it is about preserving the
integrity of the court—i.e., the judicial system as a whole—by maintaining public
confidence in the court’s impartiality and the rule of law. See Gardner at ¶ 29.
{¶ 42} Morton’s statements accusing this court of furthering its own
political agenda directly undermines this confidence. Accusations made with
reckless disregard for their truth lead the public to believe that the judiciary is not
only partial but is politically motivated to rule on cases for selfish ends.
Accordingly, the disciplinary action against Morton seeks to remedy this wrong
against society. See In re Terry, 271 Ind. 499, 502, 394 N.E.2d 94 (1979)
(professional misconduct “is not punished for the benefit of the affected person; the
wrong is against society as a whole, the preservation of a fair, impartial judicial
system, and the system of justice as it has evolved for generations”).
19
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{¶ 43} Several avenues are available to deal with a judge whose conduct
runs afoul of his or her duties. If an attorney or party believes that a judge is biased,
he or she may file an affidavit pursuant to R.C. 2701.03 to disqualify the judge. Or
the Ohio State Bar Association may charge the judge with professional misconduct.
See generally Rules of the Code of Judicial Conduct. I cite these examples to
emphasize that Morton had several vehicles by which to express his criticisms that
would have aligned with the professional duties he accepted; he chose none of these
options, however. Rather, Morton decided to voice his criticisms through
“groundless assertions” in filings to this court. In re Cobb, 445 Mass. 452, 473,
838 N.E.2d 1197 (2005) (“The court room is not a place for groundless assertions,
whatever their nature”). Morton cannot now seek refuge under the First
Amendment when he chose to ignore the professional duties that he willfully
accepted when he took his oath as an attorney. See Gardner, 99 Ohio St.3d 416,
2003-Ohio-4048, 793 N.E.2d 425, at ¶ 15 (“attorneys may not invoke the federal
constitutional right of free speech to immunize themselves from even-handed
discipline for proven unethical conduct”).
{¶ 44} With this backdrop in mind, it is evident that the First Amendment
arguments presented by the two dissenting opinions are nothing but a red herring.
The dissenting opinions cite a litany of cases for the proposition that the majority’s
opinion “chill[s],” first dissenting opinion at ¶ 69, and “stifle[s],” second dissenting
opinion at ¶ 102, attorneys’ political speech, thus silencing voices that are integral
to the public discussion of self-government. Indeed, it is true that attorneys, who
are active participants in the judicial system, play an important role in exposing
problems within that system. And thus their criticisms are an important voice in
the public discourse that the First Amendment seeks to protect. See State ex rel.
Oklahoma Bar Assn. v. Porter, 766 P.2d 958, 967 (Okla.1988).
{¶ 45} But the constitutional concerns designed to further robust public
discussion in the press are not implicated here. Unlike several of the cases cited by
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January Term, 2021
the dissenting opinions, Morton did not make his statements to any member of the
press. See, e.g., Yagman, 55 F.3d at 1434; Iowa Supreme Court Attorney
Disciplinary Bd. v. Weaver, 750 N.W.2d 71, 74 (Iowa 2008); Garrison v.
Louisiana, 379 U.S. 64, 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964); Porter at 960-
961. Rather, Morton, using his privilege to practice law and to actively participate
in the judicial system, and with reckless disregard for the truth of his statements,
filed a pleading in which he accused this court of adjudicating based on political
motives. In doing so, he undermined the integrity of the court and violated the very
oath to which he willingly agreed to adhere so that he could practice as an attorney
in Ohio.
{¶ 46} Preserving the integrity of the court depends on the public’s
confidence and respect for the judicial system and the long-standing disciplinary
rules regulating attorneys’ conduct in that system. See In re Chmura, 461 Mich.
517, 535, 608 N.W.2d 31 (2000) (to preserve the integrity of the legal process,
people must have confidence in this process); see generally In re Terry, 271 Ind. at
502-504, 394 N.E.2d 94. Morton’s unwarranted, in-court statements served only
“to weaken the public’s trust in the judicial system.” Bd. of Professional
Responsibility v. Parrish, 556 S.W.3d 153, 166 (Tenn.2018). Any distraction from
that focus of the court’s disciplinary sanction—such as creating a First Amendment
smokescreen aimed at inflaming the public—further undermines the integrity of the
court from the bench. For these reasons, I fully concur in the majority opinion.
FISCHER, DONNELLY, and BRUNNER, JJ., concur in the foregoing opinion.
STEWART, J., concurs in the foregoing opinion except that she would impose
the sanction recommended by the Board of Professional Conduct.
_________________
KENNEDY, J., dissenting.
{¶ 47} Because the majority’s continued reliance on this court’s decision in
Disciplinary Counsel v. Gardner, 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d
21SUPREME COURT OF OHIO
425, ¶ 26, is contrary to the plain language of Prof.Cond.R. 8.2(a) and the right to
free speech guaranteed by the First Amendment to the United States Constitution,
I dissent. In Gardner, this court addressed DR 8-102 of the Code of Professional
Responsibility, 23 Ohio St.2d 54, a rule that has since been abrogated. We held
that pursuant to that rule, “an attorney may be sanctioned for making accusations
of judicial impropriety that a reasonable attorney would believe are false.” Id. at
¶ 31. We referred to that reasonable-attorney standard as an objective standard. Id.
at ¶ 26. This court justified granting less protection to attorney speech in a
disciplinary case than to the speech at issue in a defamation case on the ground that
the state had a “compelling interest in preserving public confidence in the
judiciary.” Id.
{¶ 48} The objective test handed down in Gardner was wrong when we
adopted it in 2003. It improperly relieves a disciplinary authority of its burden to
prove that the attorney’s statement was false by instead requiring a showing that a
reasonable attorney would think that the statement was false. That is, Gardner
imposed a mere negligence standard in determining whether attorney speech about
the judiciary was protected. However, after our decision in Gardner, we replaced
the Code of Professional Responsibility with the Rules of Professional Conduct.
Prof.Cond.R. 8.2(a) now establishes a different standard for determining whether a
lawyer is subject to disciplinary action for statements made about a judge or other
adjudicatory officer. It now prohibits lawyers from “mak[ing] a statement that the
lawyer knows to be false or with reckless disregard as to its truth or falsity
concerning the qualifications or integrity of a judicial officer.” The rule plainly
adopts the “actual malice” standard that is required in defamation cases regarding
public officials that Gardner refused to impose. This standard requires a greater
showing of culpability than negligence. Moreover, the holding in Gardner is
inconsistent with United States Supreme Court’s precedent concerning free speech
and the judiciary. In Republican Party of Minnesota v. White, 536 U.S. 765, 122
22
January Term, 2021
S.Ct. 2528, 153 L.Ed.2d 694 (2002), the court recognized that a law abridging
speech that was intended to maintain the appearance of judicial impartiality was
not narrowly tailored to advance a compelling state interest that justified the
abridgment of the speech. In my view, Gardner’s objective test, which this court
justified by tying it to the interest in preserving public confidence in the judiciary,
fares no better.
{¶ 49} For these reasons, I would overrule this court’s decision in Gardner.
In place of its objective test, I would adopt a two-part inquiry for attorney-discipline
cases involving statements that allegedly disparage the judiciary: (1) did the
disciplinary authority prove that the attorney’s statement was a false statement of
fact and (2) if the statement is false, did the attorney make the statement with actual
malice, that is, with knowledge that it was false or with reckless disregard for its
truth. See New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d
686 (1964). Because relator, Cleveland Metropolitan Bar Association, did not
prove that the statements made about members of this court by respondent, John
Alex Morton, are false, I would dismiss the complaint brought against him in this
case.
{¶ 50} “Freedom of speech and freedom of the press, which are protected
by the First Amendment from infringement by Congress, are among the
fundamental personal rights and liberties which are protected by the Fourteenth
Amendment from invasion by state action.” Lovell v. Griffin, 303 U.S. 444, 450,
58 S.Ct. 666, 82 L.Ed. 949 (1938).
{¶ 51} Morton argues that both the United States Constitution and the Ohio
Constitution protect his right to criticize members of the judiciary. “[T]he United
States Constitution, where applicable to the states, provides a floor below which
state court decisions may not fall.” Arnold v. Cleveland, 67 Ohio St.3d 35, 616
N.E.2d 163 (1993), paragraph one of the syllabus. However, “[t]he Ohio
Constitution is a document of independent force.” Id. And we have recognized
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that the free-speech provision of Article I, Section 11 of the Ohio Constitution
affords greater protection than the free-speech provision of the First Amendment to
the United States Constitution. Gardner, 99 Ohio St.3d 416, 2003-Ohio-4048, 793
N.E.2d 425, at ¶ 19. Nonetheless, we need not break new ground to reach the issue
whether the Ohio Constitution protects Morton’s right to criticize this court in
zealously representing his client. For the reasons stated below, the binding
precedent of the United States Supreme Court and the plain language of
Prof.Cond.R. 8.2(a) provide ample reason to dismiss the allegations of misconduct
against him.
{¶ 52} In New York Times Co., 376 U.S. at 279-280, 84 S.Ct. 710, 11
L.Ed.2d 686, the United States Supreme Court held that the federal Constitution
limits state power and “prohibits a public official from recovering damages for a
defamatory falsehood relating to his official conduct unless he proves that the
statement was made with ‘actual malice’—that is, with knowledge that it was false
or with reckless disregard of whether it was false or not.” The court recognized
that political speech about public officials is fundamental to our constitutional
system, id. at 269, and “[a]uthoritative interpretations of the First Amendment
guarantees have consistently refused to recognize an exception for any test of
truth—whether administered by judges, juries, or administrative officials—and
especially one that puts the burden of proving truth on the speaker,” id. at 271.
Neither factual error nor injury to “the dignity and reputation of the courts,” id. at
272-273, “suffices to remove the constitutional shield from criticism of official
conduct,” id. at 273. The court held that “a finding of negligence in failing to
discover the misstatements * * * is constitutionally insufficient to show the
recklessness that is required for a finding of actual malice.” Id. at 288.
{¶ 53} In Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125(1964), the court extended the New York Times standard to protect a prosecuting
attorney’s criticism of local judges that had resulted in criminal sanctions against
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January Term, 2021
the attorney. The prosecuting attorney asserted publicly that a large backlog of
pending criminal cases was due to those judges’ “inefficiency, laziness, and
excessive vacations” and that their failure to fund vice investigations raised
“ ‘interesting questions about the racketeer influences on our eight vacation-minded
judges.’ ” Id. at 66. The Supreme Court held that “even where the utterance is
false, the great principles of the Constitution which secure freedom of expression
in this area preclude attaching adverse consequences to any except the knowing or
reckless falsehood.” Id. at 73. The court continued: “Truth may not be the subject
of either civil or criminal sanctions where discussion of public affairs is concerned.
* * * [O]nly those false statements made with the high degree of awareness of their
probable falsity demanded by New York Times may be the subject of either civil or
criminal sanctions.” Id. at 74.
{¶ 54} In Gardner, we considered whether these principles from First
Amendment law also extended to attorney-discipline cases. The attorney in that
case asked a court of appeals to reconsider its adverse decision; in doing so, the
attorney asserted in his filing that the panel of appellate judges was dishonest, result
driven, and corrupt and possessed prosecutorial bias. Id., 99 Ohio St.3d 416, 2003-
Ohio-4048, 793 N.E.2d 425, at ¶ 3-8. The attorney was charged with several
violations of the former Code of Professional Responsibility, including DR 8-
102(B), which prohibited a lawyer from “knowingly mak[ing] false accusations
against a judge.” He asserted that the court should adopt the actual-malice standard
from New York Times to determine whether he acted knowingly. The court,
however, looked to the majority rule among the states and adopted an objective
standard, holding that “an attorney may be sanctioned for making accusations of
judicial impropriety that a reasonable attorney would believe are false.” Gardner
at ¶ 31. We reasoned that “the 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.” Id.25
SUPREME COURT OF OHIO
{¶ 55} The court’s adoption of this objective test failed to give effect to the
words of former DR 8-102(B), which prohibited knowingly making a false
statement. And the court’s objective test did not require proof that the statement
was false; instead, it required a finding that a reasonable attorney would think that
it was false. And even if the attorney was merely mistaken, the test handed down
in Gardner permitted the disciplinary authority to prove that the attorney knowingly
made a false statement by proving that the attorney was negligent in failing to
ascertain the truth or falsity of the statement. However, an attorney who negligently
fails to realize that a statement is false does not know that the statement was false.
A reasonable-person standard reduces culpability to negligence and does not
require any awareness of wrongdoing. Elonis v. United States, 575 U.S. 723, 738,
135 S.Ct. 2001, 192 L.Ed.2d 1 (2015).
{¶ 56} Effective February 1, 2007, we abrogated the Code of Professional
Responsibility and adopted the Rules of Professional Conduct. Prof.Cond.R. 8.2(a)
prohibits lawyers from “mak[ing] a statement that the lawyer knows to be false or
with reckless disregard as to its truth or falsity concerning the qualifications or
integrity of a judicial officer.” The rule adopts the actual-malice standard from New
York Times that we rejected in Gardner. It does not subject an attorney to discipline
for statements that an attorney “reasonably should know” are false, although the
Rules of Professional Conduct use that standard in other contexts. E.g.,
Prof.Cond.R. 1.10(a) and (b). By requiring that a relator in a disciplinary case prove
that an attorney was reckless when making a false statement about the judiciary,
Prof.Cond.R. 8.2(a) has superseded Gardner’s reasonable-attorney standard, which
requires a relator to show only negligence to prove a violation.
{¶ 57} This language in Prof.Cond.R. 8.2(a) leaves no doubt as to whether
an objective or subjective standard should apply when examining statements made
by an attorney about judges. DR 8-102 did not clearly employ the New York Times
language; that rule stated, “A lawyer shall not knowingly make false accusations
26
January Term, 2021
against a judge or other adjudicatory officer.” The word “knowingly” was not
defined in the Code of Professional Responsibility; it was left for this court to define
it, and we employed an objective, negligence standard. But Prof.Cond.R. 8.2(a)
adopts the language of the New York Times subjective test regarding the knowledge
of falsity: “A lawyer shall not make a statement that the lawyer knows to be false
or with reckless disregard as to its truth or falsity concerning the qualifications or
integrity of a judicial officer * * *.” (Emphasis added.) This language requires the
court to consider the attorney’s state of mind at the time of making the statement
and is inconsistent with a reasonable-attorney standard.
{¶ 58} Therefore, by adopting the New York Times standard regarding
knowledge of falsity, Prof.Cond.R. 8.2(a) requires the subjective analysis of an
attorney’s allegedly false statements. As the Supreme Court has explained,
“reckless conduct is not measured by whether a reasonably prudent man would
have published, or would have investigated before publishing. There must be
sufficient evidence to permit the conclusion that the defendant in fact entertained
serious doubts as to the truth of his publication.” St. Amant v. Thompson, 390 U.S.
727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). That is, actual malice requires a
“high degree of awareness of [the statements’] probable falsity.” Garrison, 379
U.S. at 74, 85 S.Ct. 209, 13 L.Ed.2d 125.
{¶ 59} Even though Gardner construed a rule that has now been abrogated,
the majority today overlays its holding onto the different language of Prof.Cond.R.
8.2(a) to again apply a reasonable-attorney standard—a negligence standard—that
does not require proof that the attorney’s statement was false and that it was made
knowingly or recklessly. “Knowingly” and “recklessly” are each higher degrees of
culpability than negligence. See generally Anderson v. Massillon, 134 Ohio St.3d
380, 2012-Ohio-5711, 983 N.E.2d 266, ¶ 35.
{¶ 60} The adoption of Prof.Cond.R. 8.2(a) and that rule’s reference to the
New York Times standard is not the only reason to abandon the objective test from
27
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Gardner. The reasoning of the Supreme Court of the United States in Republican
Party of Minnesota does not support this court’s reasoning in Gardner that
preserving public confidence in the judiciary is a sufficient state interest justifying
a content-based prior restraint on speech.
{¶ 61} In Republican Party of Minnesota, the court addressed whether
judges’ First Amendment rights could be restricted by a state’s code of judicial
ethics. Specifically, a provision of the Minnesota Code of Judicial Conduct forbade
judicial candidates from “ ‘announc[ing] his or her views on disputed legal or
political issues.’ ” Id., 536 U.S. at 768, 122 S.Ct. 2528, 153 L.Ed.2d 694, quoting
former Canon 5(A)(3)(d)(i) of the Minn.Code of Judicial Conduct.
{¶ 62} The court stated that “the announce clause both prohibits speech on
the basis of its content and burdens a category of speech that is ‘at the core of our
First Amendment freedoms’—speech about the qualifications of candidates for
public office.” Id. at 774, quoting Republican Party of Minnesota v. Kelly, 247
F.3d 854, 861 (8th Cir.2001). The court applied the strict-scrutiny test, which
requires the government to demonstrate that a restraint “is (1) narrowly tailored to
serve (2) a compelling state interest.” Id. at 775. A prior restraint is narrowly
tailored when “it does not ‘unnecessarily circumscrib[e] protected expression.’ ”
Id. at 775, quoting Brown v. Hartlage, 456 U.S. 45, 54, 102 S.Ct. 1523, 71 L.Ed.2d
732 (1982).
{¶ 63} The court determined that the announce clause was unconstitutional
because prohibiting a candidate for judicial office from declaring his or her views
on disputed legal and political issues to the electorate during a campaign violated
the First Amendment. Id. at 788. In reaching this conclusion, the court rejected
the interests advanced by the state—“preserving the impartiality of the state
judiciary and preserving the appearance of the impartiality of the state judiciary”—
and held that they were not sufficiently compelling. Id. at 775.
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{¶ 64} In Gardner, 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425,
at ¶ 31, we justified requiring proof of negligence when examining an attorney’s
allegedly false statements—rather than requiring proof that the statements were
made knowingly or with reckless disregard for the truth—on the ground that the
state had a “compelling interest in preserving public confidence in the judiciary
[that] supports applying a standard in disciplinary proceedings different from that
applicable in defamation cases.” However, the Supreme Court’s decision in
Republican Party of Minnesota demonstrates that the simple assertion of the need
to protect the appearance of judicial integrity may not be a compelling interest
sufficient to abridge an attorney’s right to criticize a judicial officer.
{¶ 65} Rather, as the court explained in Landmark Communications, Inc. v.
Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978), quoting New York
Times Co., 376 U.S. at 272-273, 84 S.Ct. 710, 11 L.Ed.2d 686, protecting judicial
integrity is not a sufficient reason for “ ‘for repressing speech that would otherwise
be free.’ ” “[T]he institutional reputation of the courts * * * is entitled to no greater
weight in the constitutional scales.” Id. at 842. “The assumption that respect for
the judiciary can be won by shielding judges from published criticism wrongly
appraises the character of American public opinion. For it is a prized American
privilege to speak one’s mind, although not always with perfect good taste, on all
public institutions.” Bridges v. California, 314 U.S. 252, 270, 62 S.Ct. 190, 86
L.Ed. 192 (1941).
{¶ 66} In this case, Morton made statements critical of elected public
officials regarding their integrity and qualification to serve in office. He therefore
engaged in political speech—speech about the government and government
officials. Burson v. Freeman, 504 U.S. 191, 196, 112 S.Ct. 1846, 119 L.Ed.2d 5(1992). “Political speech, of course, is ‘at the core of what the First Amendment is
designed to protect.’ ” Morse v. Frederick, 551 U.S. 393, 403, 127 S.Ct. 2618, 168
L.Ed.2d 290 (2007), quoting Virginia v. Black, 538 U.S. 343, 365, 123 S.Ct. 1536,
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155 L.Ed.2d 535 (2003) (plurality opinion). See also Gentile v. State Bar of
Nevada, 501 U.S. 1030, 1034, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991) (Kennedy,
J., lead opinion) (noting that the speech at issue involved an attorney’s words
directed at public officials and their conduct in office but that “[t]here is no question
that speech critical of the exercise of the State’s power lies at the very center of the
First Amendment”) Such “[s]peech is an essential mechanism of democracy, for it
is the means to hold officials accountable to the people.” Citizens United v. Fed.
Election Comm., 558 U.S. 310, 339, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010).
Therefore, “political speech must prevail against laws that would suppress it,
whether by design or inadvertence. Laws that burden political speech are ‘subject
to strict scrutiny,’ which requires the Government to prove that the restriction
‘furthers a compelling interest and is narrowly tailored to achieve that interest.’ ”
Id. at 340, quoting Fed. Election Comm. v. Wisconsin Right to Life, Inc., 551 U.S.
449, 464, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007). See also Disciplinary Counsel
v. Tamburrino, 151 Ohio St.3d 148, 2016-Ohio-8014, 87 N.E.3d 158, ¶ 18 (“It is
undisputed that Jud.Cond.R. 4.3 is a content-based regulation of political speech
and therefore must withstand strict scrutiny * * *”).
{¶ 67} If Prof.Cond.R. 8.2(a) is construed by this court to permit discipline
for negligently made statements about the judiciary, it cannot withstand a strict-
scrutiny analysis of its constitutionality. Importantly, the disciplinary authority has
the burden to demonstrate that the attorney’s factual statements were false, see New
York Times Co., 376 U.S. at 271, 84 S.Ct. 710, 11 L.Ed.2d 686, yet the rule allows
an attorney to be disciplined for true statements that a reasonable attorney would
think are false rather than requiring a finding of actual falsity. The rule is therefore
overinclusive in that it prohibits true statements that attorneys should think are
false, and it is underinclusive in that it does not prohibit statements that are false
but that a reasonable attorney would assume to be true. See Ladue v. Gilleo, 512
U.S. 43, 52-53, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994) (noting that
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January Term, 2021
underinclusiveness “diminish[es] the credibility of the government’s rationale for
restricting speech”). The application of the rule can be more narrowly tailored
simply by removing our construction that it applies an objective, negligence
standard and replacing that with what the plain language requires—actual malice.
Therefore, the rule is not narrowly tailored to serve the interest—preventing false
statements about the judiciary—furthered by it.
{¶ 68} Gardner has been abrogated by our adoption of Prof.Cond.R. 8.2(a),
and anything that remains of it is too unconstitutionally infirm to salvage in light
of the Supreme Court’s decision in Republican Party of Minnesota. To hold
otherwise would be to declare that political speech by judges is more protected than
political speech by lawyers. That outcome cannot be constitutionally sound.
{¶ 69} “[A] fundamental understanding of constitutional democracy” is that
“judges are not imperial.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238,
942 N.E.2d 332, ¶ 21, overruled by State v. Harper, 160 Ohio St.3d 480, 2020-
Ohio-2913, 159 N.E.3d 248. Statements made by judicial candidates are protected
by the First Amendment as political speech: the First Amendment prohibits states
from providing for judicial elections “ ‘under conditions of state-imposed voter
ignorance.’ ” Republican Party of Minnesota, 536 U.S. at 788, 122 S.Ct. 2528, 153
L.Ed.2d 694, quoting Renne v. Geary, 501 U.S. 312, 349, 111 S.Ct. 2331, 115
L.Ed.2d 288 (1991) (Marshall, J., dissenting). In contrast, Gardner’s objective
standard burdens and chills the political speech of attorneys, who must think twice
before criticizing a prior judicial ruling out of concern that it might subject the
attorney to discipline. Silencing criticism of the judiciary, however, does not serve
the governmental interest in public confidence in the court system: “ ‘[t]he First
Amendment directs us to be especially skeptical of regulations that seek to keep
people in the dark for what the government perceives to be their own good.’ ”
Sorrell v. IMS Health Inc., 564 U.S. 552, 577, 131 S.Ct. 2653, 180 L.Ed.2d 544(2011), quoting 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 503, 116 S.Ct.
31SUPREME COURT OF OHIO
1495, 134 L.Ed.2d 711 (1996) (lead opinion). Because depriving the public of
information about the judges it elects—information that a reasonable attorney
would not dare to utter even if true—does nothing to advance a compelling state
interest, I would overrule Gardner today.
{¶ 70} I would dismiss the complaint against Morton based on the plain
language of Prof.Cond.R. 8.2(a). Morton makes assertions of fact that only Chief
Justice O’Connor, Justice French, and I could know to be true or false. He asserts
that Justice French and I decided Moskowitz v. Cuyahoga Cty. Bd. of Revision, 150
Ohio St.3d 69, 2017-Ohio-4002, 78 N.E.3d 870, for political reasons and that Chief
Justice O’Connor delayed a decision in that case until new members of the court
came on the bench. A reasonable attorney might assume these assertions are false,
but that is not clear and convincing proof of the subjective motivations of members
of this court in deciding Moskowitz. There was no evidence presented in this
disciplinary proceeding that Morton’s statements are indeed false. Chief Justice
O’Connor, Justice French, and I were not asked to provide testimony to establish
that Morton’s statements had no basis in fact, and I cannot use my own knowledge
of my motivations to establish a fact not proven below. And although the majority
points out that Morton “made no investigation and relied solely upon his own
interpretation of the facts in making his statements” (emphasis sic), majority
opinion at ¶ 23, the Supreme Court has held that “mere proof of failure to
investigate, without more, cannot establish reckless disregard for the truth,” Gertz
v. Robert Welch, Inc., 418 U.S. 323, 332, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).
Relator therefore failed to prove that Morton made false statements with actual
malice.
{¶ 71} Our country has a “profound national commitment to the principle
that debate on public issues should be uninhibited, robust, and wide-open, and that
it may well include vehement, caustic, and sometimes unpleasantly sharp attacks
on government and public officials.” New York Times Co., 376 U.S. at 270, 84
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January Term, 2021
S.Ct. 710, 11 L.Ed.2d 686. Based on this fundamental principle, I would overrule
Gardner and hold that attorneys are subject to discipline only for statements that
disparage the judiciary when they are (1) proven to be a false statement of fact, and
(2) the statement was made with actual malice—with knowledge that it was false
or with reckless disregard for its truth. In this case, there is no evidence that Morton
made false statements either with knowledge or with a reckless disregard for the
truth about members of this court, and therefore I would dismiss the complaint
alleging that he committed professional misconduct. Because the majority does
not, I dissent.
_________________
DEWINE, J., dissenting.
{¶ 72} I just don’t see it. Today, the majority suspends John Morton from
the practice of law for saying some not-so-nice things about this court in a brief that
he filed. My skin is not so thin as to think that such punishment is warranted.
Nothing Morton said has been shown to be untrue. And neither the First
Amendment nor our disciplinary rules allow us to punish an attorney just because
something he says gets under our skin.
What Morton Said
{¶ 73} Morton filed a jurisdictional memorandum asking this court to hear
a property-tax case. The gist of his argument was that a previous decision of this
court, Moskowitz v. Cuyahoga Cty. Bd. of Revision, 150 Ohio St.3d 69, 2017-Ohio-
4002, 78 N.E.3d 870, had been wrongly decided. In Morton’s view, the Moskowitz
court had incorrectly placed the burden on the taxpayer to show that the value
assigned to a property by a county’s fiscal office was incorrect.
{¶ 74} In support of this claim, Morton analyzed the caselaw cited in
Moskowitz and argued that this authority did not support the legal conclusion
reached by the court. In addition to presenting his legal argument as to why
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Moskowitz was wrongly decided, Morton speculated as to the reasons for the court’s
purported error. And here is where he got himself into hot water.
{¶ 75} Morton (correctly) took note of the fact that the Moskowitz case took
an extraordinarily long time for this court to decide. He pointed out that the case
had been argued before one of this court’s master commissioners on December 3,
2015, but that no decision was issued until May 30, 2017. He also noted that the
delay meant that two new justices (including the undersigned) replaced two justices
who had retired while the case was pending. Morton reviewed decisions authored
by the justices who had been replaced and asserted that they likely would have been
more favorable to his client’s position than their replacements.
{¶ 76} Morton blamed the chief justice for the delay in deciding Moskowitz,
saying that “it would not have been tolerated without her approval.” And he
speculated that the motivation behind the decision in Moskowitz was to advance
Justice French’s future leadership of the court. Morton then critiqued several
opinions authored by Justice French, including Akron City School Dist. Bd. of Edn.
v. Summit Cty. Bd. of Revision, 139 Ohio St.3d 92, 2014-Ohio-1588, 9 N.E.3d 1004(French, J., dissenting), and Schwartz v. Cuyahoga Cty. Bd. of Revision, 143 Ohio
St.3d 496, 2015-Ohio-3431, 39 N.E.3d 1223 (French, J., dissenting), and he
concluded that Justice French had “persistently and incorrectly maintained that this
Court should defer” to taxing authorities. Noting that Justice Kennedy had joined
Justice French’s dissent in Schwartz, Morton opined that “Justices French and
Kennedy thereby showed a willingness to favor the government, at the expense of
the taxpayer and the Constitution, no matter how unreasonable the government’s
view of the true value of the subject property.”
{¶ 77} He summed it all up with some strong claims: the “political goal of
the Moskowitz Court was to maximize government revenue, at the expense of the
taxpayer, and his or her Constitutional right to limited taxation” and “the political
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agenda of the Moskowitz Court was the promotion of the leadership of Justice
French on this Court.”
{¶ 78} What Morton said wasn’t very respectful. One can certainly
disagree with his analysis of the cases cited in his brief. And some of what he said
was based on some fairly wild speculation. But I am not convinced that it is
grounds for a suspension from the practice of law.
Punishing Attorney Criticism of Judges
{¶ 79} Judges don’t like to be criticized. (Indeed, who does?) But judges
are public officials. And if the First Amendment protects anything, it protects the
right of citizens to criticize their government.
{¶ 80} The United States Supreme Court has recognized that judges don’t
have a special dispensation to punish attorney speech they dislike; instead, “[t]he
law gives ‘[judges] as persons, or courts as institutions * * * no greater immunity
from criticism than other persons or institutions.’ ” (Ellipsis in original.) Landmark
Communications, Inc. v. Virginia, 435 U.S. 829, 839, 98 S.Ct. 1535, 56 L.Ed.2d 1(1978), quoting Bridges v. California, 314 U.S. 252, 289, 62 S.Ct. 190, 86 L.Ed.
192 (1941) (Frankfurter, J., dissenting); see also Garrison v. Louisiana, 379 U.S.
64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964).
{¶ 81} In Garrison, the Supreme Court held that the actual-malice standard
first adopted in New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710,
11 L.Ed.2d 686 (1964), applied to attorney speech critical of the judiciary. Speech
directed at official conduct, the court explained, was the “essence of self-
government.” Garrison at 75. And the commitment to wide-open debate about
public issues embodied in the First and Fourteenth Amendments protected
“vehement, caustic, and sometimes unpleasantly sharp attacks on government and
public officials.” Id., quoting New York Times v. Sullivan at 270. Though Garrison
arose out of a criminal prosecution, there is nothing in the opinion that limits its
reach to that context. To the contrary, its holding that the judiciary may not stifle
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unflattering speech to protect its reputation applies with the same force to attorney-
discipline proceedings.
{¶ 82} Thus, it should not be a surprise that our Rules of Professional
Conduct adopt the New York Times v. Sullivan standard. Prof.Cond.R. 8.2(a)
provides: “A lawyer shall not make a statement that the lawyer knows to be false
or with reckless disregard as to its truth or falsity concerning the qualifications or
integrity of a judicial officer * * *.” This echoes almost precisely the holding of
New York Times v. Sullivan: a statement is made with actual malice when it is made
“with knowledge that it was false or with reckless disregard of whether it was false
or not.” Id. at 280.
{¶ 83} In adopting the New York Times v. Sullivan standard, this court
followed the lead of the American Bar Association (“ABA”). Model Rule 8.2 of
the ABA Model Rules of Professional Conduct 8.2 says that “[a] lawyer shall not
make a statement that the lawyer knows to be false or with reckless disregard to its
truth or falsity concerning the qualifications or integrity of a judge.” ABA, Model
Rules of Professional Conduct, Rule 8.2 (1993). Not only does the ABA rule recite
the actual-malice standard, but in the background to the rule, its drafters explicitly
stated that false statements about judges are held to the same standards as those
concerning other public officials. See Model Rules of Professional Conduct,
Proposed Final Draft, 206 (1981).
{¶ 84} Despite explicitly adopting the actual-malice standard, we have
drifted away from the application of that standard in our Prof.Cond.R. 8.2
jurisprudence. Under New York Times v. Sullivan, a subjective standard applies to
measure whether a false statement is made with knowledge of or with reckless
disregard for its falsity. We have held, however, that a “reasonable attorney”
standard—or objective-malice standard—applies to determine whether a statement
is made with knowledge of or reckless disregard for its falsity. Disciplinary
Counsel v. Gardner, 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425.
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January Term, 2021
{¶ 85} As the other dissenting opinion demonstrates, this objective-malice
standard is incompatible not only with the text of Prof.Cond.R. 8.2(a) but also with
the First Amendment. See Garrison, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125.
And there is equally good reason to think that such a standard runs afoul of the Ohio
Constitution. See Ohio Constitution, Article I, Section 11 (“Every citizen may
freely speak, write, and publish his sentiments on all subjects, being responsible for
the abuse of the right; and no law shall be passed to restrain or abridge the liberty
of speech * * *”). I agree with the other dissenting justice that we should overrule
Gardner and its objective standard. But even under the objective standard, it is
clear that Morton may not be sanctioned for his comments.
Even Under the Majority’s Objective-Malice Standard, Morton is Not Subject to
Discipline
{¶ 86} Though I agree that we should return to an actual-malice standard
for attorney-discipline cases, it is not necessary that we do so to find that Morton’s
speech is constitutionally protected. The malice standard deals with a speaker’s
knowledge or recklessness in making a false statement. New York Times v.
Sullivan, 376 U.S. at 280, 84 S.Ct. 710, 11 L.Ed.2d 686. Here, though, there has
been no showing that Morton’s statements are false. Moreover, as I will explain,
his statements are best understood as statements of opinion based on fully disclosed
facts. And regardless of whether we apply an actual-malice standard or the
majority’s objective-malice standard, such statements are entitled to constitutional
protection.
{¶ 87} The fact that some courts have found it appropriate to apply an
objective-malice standard for attorney criticism of judges doesn’t mean that other
First Amendment protections do not apply. Standing Commt. on Discipline of the
United States Dist. Court for the Cent. Dist. of California v. Yagman, 55 F.3d 1430,
1438 (9th Cir.1995); Berry v. Schmitt, 688 F.3d 290, 302-303 (6th Cir.2012). Thus,
“attorneys may be sanctioned for impugning the integrity of a judge or the court
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only if their statements are false; truth is an absolute defense.” Yagman at 1438,
citing Garrison, 379 U.S. at 74, 85 S.Ct. 209, 13 L.Ed.2d 125; accord Berry, 688
F.3d at 303; Iowa Supreme Court Attorney Disciplinary Bd. v. Weaver, 750 N.W.2d
71, 81 (Iowa 2008); State ex rel. Oklahoma Bar Assn. v. Porter, 766 P.2d 958, 969
(Okla.1988). As the Supreme Court explained in Garrison at 74, “Truth may not
be the subject of either civil or criminal sanctions where discussion of public affairs
is concerned.”
{¶ 88} Further, disciplinary counsel bears the burden of proving falsity.
See Yagman at 1438; Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776-
777, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986); see also Disciplinary Counsel v.
Squire, 130 Ohio St.3d 368, 2011-Ohio-5578, 958 N.E.2d 914, ¶ 34 (“In attorney
disciplinary proceedings, relator bears the burden of proving, by clear and
convincing evidence, the facts necessary to establish a violation of a Disciplinary
Rule”).
{¶ 89} Here, nothing that Morton said was demonstrably false. This court
doesn’t explain why some cases take longer to decide than others—and it certainly
offered no explanation for the delay in issuing the Moskowitz decision. So, we can’t
proclaim his theory for the delay to be false. And while we may bristle at Morton’s
characterization of our motivations as “political,” there is nothing that objectively
disproves the characterization. Indeed, the majority offers its own possible cause
of the delay (record numbers of tax appeals in the three to four years before the
decision in Moskowitz was issued) but presents no more proof for its explanation
than does Morton.
{¶ 90} Moreover, Morton didn’t just make accusations. He explained the
basis for them. He rooted his assertion that the process was being manipulated for
political ends and to foster Justice French’s leadership in this court’s extended delay
in deciding the Moskowitz case. And he cited judicial opinions—complete with
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January Term, 2021
case citations—to support his opinion that the named justices favored “the
government, at the expense of the taxpayer and the Constitution.”
{¶ 91} Morton’s assertions are best understood not as false statements but
rather as statements of opinion based on fully disclosed facts. See In re Green, 11
P.3d 1078 (Colo.2000). And these types of statements are widely understood to be
entitled to constitutional protection. See, e.g., Berry, 688 F.3d at 303-305;
Biospherics, Inc. v. Forbes, Inc., 151 F.3d 180, 185 (4th Cir.1998).
{¶ 92} The Colorado Supreme Court’s decision in In re Green illustrates
this point. There, in the course of an ongoing proceeding, an attorney wrote several
letters to the judge with copies to opposing counsel and filed a motion to recuse the
judge. In these writings, the attorney leveled a number of charges at the judge,
including labeling him as a “racist and bigot” and accusing him of an unfavorable
“bent of mind.” Green at 1082. The Colorado high court concluded that because
the attorney’s writings “disclose[d] fully the facts upon which [the attorney] based
his opinion,” they could not be actionable. Id. at 1085. “We view Green’s
statements * * * as statements of opinion based on fully disclosed and uncontested
facts,” the court explained. Id. at 1086. Accordingly, the court could not,
“consistent with the First Amendment,” discipline the attorney “for his subjective
opinions, irrespective of our disagreement with them.” Id. And because the
accusations constituted statements of opinion, the court found it unnecessary to
reach the issue of malice.
{¶ 93} Of a similar ilk is the Ninth Circuit’s decision in Yagman, 55 F.3d
1430. There, the court explained that under the First Amendment, “[a] statement
of opinion based on fully disclosed facts can be punished only if the stated facts are
themselves false and demeaning.” Id. at 1439. The rationale is straightforward:
“When the facts underlying a statement of opinion are disclosed, readers will
understand they are getting the author’s interpretation of the facts presented; they
are therefore unlikely to construe the statement as insinuating the existence of
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additional, undisclosed facts.” Id. Such a statement “ ‘reveals its lack of merit’ ”
and “ ‘readers are free to accept or reject the author’s opinion based on their own
independent evaluation of the facts.’ ” Id., quoting Redco Corp. v. CBS, Inc., 758
F.2d 970, 972 (3d Cir.1985).
{¶ 94} Thus, in Yagman, the Ninth Circuit found that even under the
objective-malice standard applied by the majority today, an attorney could not be
sanctioned for calling a judge anti-Semitic and accusing the judge of having a
penchant for sanctioning Jewish attorneys, because the attorney disclosed the facts
upon which he drew these inferences. Id. at 1440.
{¶ 95} Similarly, the Sixth Circuit has adopted the objective-malice
standard for attorney speech, but it too has found that an opinion based on fully
disclosed facts cannot constitutionally form a basis for attorney discipline. Berry,
688 F.3d at 303. Thus, the court held that Kentucky officials strayed beyond
constitutional boundaries when they disciplined an attorney under that state’s
version of Prof.Cond.R. 8.2(a) for criticizing an investigation conducted by an
adjudicatory body. Because the attorney “provided the public with the facts upon
which his opinion relied,” the public was “free to investigate * * * and draw its own
conclusions.” Id. at 304.
{¶ 96} The same holds true for Morton. Morton didn’t pretend that he had
some secret information about the inner workings of the court and the motivations
of individual justices. He laid out the facts supporting his premises for all to see.
Thus, a reader of Morton’s jurisdictional memorandum would have seen not only
Morton’s conclusions but also the thin reed on which they rested. The reader could
decide for himself whether the delay in issuing the Moskowitz opinion demonstrated
that the court’s motivations were political. And the reader could read the opinions
cited by Morton and determine if they, in fact, supported his assertion that the
named justices favored “the government, at the expense of the taxpayer and the
Constitution.”
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January Term, 2021
{¶ 97} Morton has not been shown to have made any false statements. And
he fully disclosed the facts upon which his opinions about this court were based.
Thus, the First Amendment precludes this court from disciplining Morton for what
he said about this court.
To What End?
{¶ 98} In disciplining Morton, the majority runs roughshod on First
Amendment protections, and for what? The closest the majority comes to providing
any justification for the punishment it metes out are vague references to the need to
protect the integrity of the judiciary. But even if such a concern were sufficient to
override First Amendment protections (it’s not, see Garrison), it is hard to see how
punishing Morton does anything to advance that aim.
{¶ 99} Morton made his claims in a single filing to this court. No member
of the public voiced any concern—indeed, this case presents the unusual situation
in which a disciplinary committee filed a complaint on its own initiative without
any grievance being filed. But for the filing of the disciplinary complaint, Morton’s
musings would have been largely unheard. Notwithstanding the majority’s concern
that Morton’s filing is “readily accessible to the public on this court’s online
docket,” majority opinion at ¶ 35, it’s difficult to imagine that many members of
the public would have made their way to his filing. Most likely, the only people
who would have read Morton’s charges would have been members of this court,
our staff, and opposing counsel. The only reason that Morton’s grievances will get
any public attention at all is because the disciplinary committee chose to go after
him and because this court chooses to punish him.
{¶ 100} So, the reason to discipline Morton can’t be because he has
somehow caused public harm to the reputation of the judiciary. And one has to
assume that the motivation to discipline Morton isn’t simply hurt feelings among
members of this court. Rather, it must be because the majority wants to prevent
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future Mortons from leveling similar attacks on this court. And therein lies the
biggest problem with the majority’s decision today.
{¶ 101} Our system of government is premised on the idea that citizens will
serve as a check on the institutions of government. To this end, a “major purpose”
of the First Amendment is to “protect the free discussion of governmental affairs.”
Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966). And,
of course, “the operations of the courts and the judicial conduct of judges are
matters of utmost public concern.” Landmark Communications, Inc., 435 U.S. at
839, 98 S.Ct. 1535, 56 L.Ed.2d 1.
{¶ 102} The notion advanced by the majority today that it is appropriate to
stifle speech to protect the public reputation of the judiciary has been emphatically
rejected by the United States Supreme Court:
The assumption that respect for the judiciary can be won by
shielding judges from published criticism wrongly appraises the
character of American public opinion. For it is a prized American
privilege to speak one’s mind, although not always with perfect
good taste, on all public institutions. And an enforced silence,
however limited, solely in the name of preserving the dignity of the
bench, would probably engender resentment, suspicion, and
contempt much more than it would enhance respect.
(Footnote omitted.) Bridges, 314 U.S. at 270-271, 62 S.Ct. 190, 86 L.Ed. 192.
Thus, the Supreme Court has made clear that “speech cannot be punished * * * ‘to
protect the court as a mystical entity or the judges as individuals or as anointed
priests set apart from the community and spared the criticism to which in a
democracy other public servants are exposed.’ ” Landmark at 842, quoting Bridges
at 292 (Frankfurter, J., dissenting).
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January Term, 2021
{¶ 103} No doubt, by disciplining Morton and others who disparage this
court, the majority will make other attorneys think twice before they criticize us.
What attorney wants to risk his very livelihood by saying something to which this
court takes umbrage?
{¶ 104} Stifling attorney criticism comes at a high cost. Attorneys, by
virtue of their education, training, and experience with the judicial branch, are in
the best position to “recognize, understand, and articulate problems with the
judiciary” and “to comment on the judiciary and judicial qualifications.”
Tarkington, The Truth Be Damned: The First Amendment, Attorney Speech, and
Judicial Reputation, 97 Geo.L.J. 1567, 1601. This is precisely the information that
the public needs “to make informed decisions about the judiciary, to fulfill the self-
governing role, and check judicial abuses.” Id.{¶ 105} Today’s decision will make attorneys hesitant to assert opinions
critical of the court. Not just attorneys like Morton whose assertions some may
consider outlandish, but also the more cautious and the more insightful. By chilling
attorney criticism of the judiciary, we “forestall[] the public’s access to the thoughts
of the very class of people in daily contact with the judicial system” and “shield the
judiciary” from those best situated “to advance knowledgeable criticism.” Porter,
766 P.2d at 968. That’s not good for self-government. And it’s not consistent with
the commitment to robust debate that is central to our First Amendment.
Conclusion
{¶ 106} In disciplining Morton, the majority ostensibly acts to protect the
public reputation of this court. But by placing concerns for its own reputation ahead
of the constitutional principles we have sworn to uphold, the majority damages this
institution in ways far more profound than any harm done by Morton. I dissent.
_________________
Thompson Hine, L.L.P., Frank R. DeSantis, and Karen E. Rubin; and
Heather M. Zirke and Christopher J. Klasa, Bar Counsel, for relator.
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J. Alex Morton, pro se.
_________________
44