Wednesday, December 7, 2016

Ohio Judicial Candidate Suspended: Ad Suggested Incumbant Served Whiskey To Minors

Dan Trevas has his usual excellent summary of a discipline decision on the web page of the Ohio Supreme Court

An unsuccessful candidate for judge of the Eleventh District Court of Appeals today was suspended by the Ohio Supreme Court from the practice of law for one year with six months stayed for committing misconduct during his 2014 race.

Ronnie M. Tamburrino of Rock Creek violated the Ohio Judicial Code of Conduct including two infractions of “knowingly or with reckless disregard” disseminating false information about his opponent, incumbent Judge Timothy P. Cannon, in two televised campaign commercials.

Justice Judith Ann Lanzinger in writing for a majority of the Court held that Tamburrino’s statements were false and “impugned the integrity of his opponent as a jurist and public servant.” The majority concluded that his actions endangered the independence of the judiciary and required an actual license suspension.

In a dissenting opinion, Justice Judith F. French wrote that states have the right to regulate judicial elections differently than other political elections, but the political speech of judicial candidates still receive the highest First Amendment protections. While she found Tamburrino’s statements “distasteful,” she maintained the ads were reasonably susceptible to truthful interpretations and protected by the First Amendment.

The Campaign Commercials
In the last weeks of his campaign, Tamburrino broadcast two campaign ads challenged by the Cannon campaign as false. One commercial stated: “Cannon won’t disclose his taxpayer funded travel expenses.” The second commercial criticized Cannon’s concurring opinion in the Eleventh District’s 2008 State v. Andrews case.

Because Cannon’s travel expenses were readily available as public record and no one asked Cannon to “disclose” his expenses, Cannon’s campaign notified Tamburrino that the first ad was false. In the second commercial, a faceless, robed judge stands at a courtroom bench pouring Jack Daniels whiskey and serving it to children. A voice states: “Everyone knows that a judge would never serve alcohol to kids in a courtroom. But appellate Judge Tim Cannon did something almost as bad. In the case State versus Andrews, Cannon ruled that cops couldn’t enter a house to arrest a parent who was hosting a teenage drinking party, because he felt teenage drinking wasn’t a serious crime. Cannon doesn’t think teenage drinking is serious. What else does he think isn’t serious?  We can’t afford Tim Cannon’s bad judgment. Elect Ron Tamburrino to the Eleventh District Court of Appeals.”

In Andrews the Eleventh District ruled police needed to obtain a warrant to enter a house without a homeowner’s consent and search a party where underage drinking occurred. The court concluded there were no “exigent circumstance” that required immediate intrusion by the police, noting the noise from the party had stopped, the scene around the house was secure, no one was attempting to escape, evidence of the alcohol would not be destroyed, no one appeared to be in danger, and the homeowner was complying with a request for identification when the police officer forced his way past the homeowner.

Cannon stated: “While I emphasize that I do not wish to impede an officer’s duties to enforce the laws against underage drinking, there was not enough evidence of ‘exigent circumstances to validate a warrantless forced entry and search of [the] home.’ ” His opinion also noted that the crime of giving alcohol to minors is not among the serious or violent crimes that constitute exigent circumstances in and of themselves. He noted the problems with contributing to underage drinking, but recognized that individuals must be afforded their Fourth Amendment rights under the U.S. Constitution to be secure in their homes.

The commercials aired throughout the campaign despite the request of Judge Cannon’s request to stop due to their falsity.

The Disciplinary Action
Five days before the election, Paul Malchesky, Cannon’s attorney and campaign treasurer, filed a grievance with the Board of Professional Conduct. The board chose not to act on it because of the pending election, but forwarded it to the Office of Disciplinary Counsel. After completing its investigation disciplinary counsel filed a complaint with the board in December 2015, and a three-member board panel heard the case in May 2016.

The disciplinary panel found the teenage-drinking and expense-disclosure statements patently false and determined that Tamburrino made the statements either knowing that they were false or with reckless disregard of their falsity. The panel recommended that Tamburrino be suspended from practicing law for six months, fully stayed on the conditions that he not commit further misconduct, and  attend a six-hour continuing legal education course regarding judicial campaigns.

The full board adopted the panel’s findings but recommended a one-year suspension with six months stayed, noting that Tamburrino also refused to acknowledge any inappropriateness of the content of the false commercials. The board warned of the chilling effect such ads could have on judicial independence and the ability of judges to freely express views in court opinions.

Constitutional Challenges
Tamburrino objected to the finding that the statements were false, but contended the board’s decision is unconstitutional because it punishes misleading rather than false speech. He argued his sanction violated his First Amendment free speech rights and cited In Re Judicial Campaign Complaint Against O’Toole, a 2014 Supreme Court decision.

Justice Lanzinger explained that in O’Toole, the Court struck down the portion of the judicial campaign rule regarding misleading speech as unconstitutional but noted that because Tamburrino was charged with false speech, the O’Toole decision does not apply. She also noted that the U.S. Sixth Circuit Court of Appeals clarified that federal rulings relied upon by Tamburrino do not apply to judicial-conduct rules like those in Ohio.

Court Concludes Statements Were False
In response to the claim that the statement “Cannon doesn’t think teenage drinking is serious” is true, Justice Lanzinger remarked that Cannon’s opinion in the Andrews cased does not state that teenage drinking is not serious. Cannon was stating the crime of contributing to the delinquency of minors by serving them alcohol was not an emergency condition that met the emergency standard of “exigent circumstances” that justifies a warrantless search of property.

“Although he implied that teenage drinking is not an emergency situation that requires immediate action, he neither stated nor implied that it is not serious,” Justice Lanzinger wrote.

She noted that the statement “Cannon doesn’t think teenage drinking is serious,” by itself, is false, and information would have to be added to make the statement true, which the commercial failed to do. Cannon made other statements in his opinion indicating he took underage drinking seriously, and Justice Lanzinger concluded that Tamburrino was at least acting recklessly about the statement’s falsity.

With respect to the travel expenses statement Tamburrino said he meant that Cannon had not posted the expenses as part of a detailed budget and expense summary on the court’s website. Justice Lanzinger noted that the statement “Cannon won’t disclose his taxpayer funded travel expenses” by itself is false and that “an enormous amount of information would needed to be added to make the statement true in a way that Tamburrino claims.” She also rejected characterization of his statement as merely an opinion about what he thinks Cannon would do in the future if asked to produce documentation of travel expenses.

Sanction to Protect Public
When considering an appropriate sanction for Tamburrino, Justice Lanzinger noted the O’Toole decision stated the purpose of sanctioning judicial candidates “is not to punish the offender, but to protect the public.” The Court finds the sanctions serve as a deterrent to similar violations by candidates in future elections, she added.

The board found Tamburrino had no prior disciplinary record and was cooperative in the proceedings, but it also found he committed multiple violations of the rule by airing two commercials and timing them to deprive Cannon of the opportunity to counter their effect. The Court agreed with the board’s finding that Tamburrino lacked remorse for his actions.

“The problem is not that Tamburrino denied the charges that he crossed the line into knowing falsehoods; it is that Tamburrino denied that he even came close to the line and attacked those who said otherwise,” Justice Lanzinger wrote.

Justice Lanzinger observed that after Cannon’s committee complained about the teenage-drinking commercial, Tamburrino accused Cannon and the judge who wrote the majority opinion in the case of making up facts. He attacked the Ohio State Bar Association’s Board of Governors’ Government Relations Committee when it issued a letter criticizing the teenage-drinking commercial.

Tamburrino argued he should not be penalized but maintained that if he is, any sanction should not exceed previous sanctions imposed on past judicial candidates. The Court rejected the argument, finding that Tamburrino’s actions exceeded the behavior of other candidates in the prior cases. The Court imposed the one-year suspension with six months stayed on the conditions that he does not commit further misconduct and attends the course on judicial campaigns.

Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer and William O’Neill joined Justice Lanzinger’s opinion. Justice Terrence O’Donnell concurred in judgment only.

Dissent Argues Ad Claims Protected Speech
In her dissent, Justice French noted that while the O’Toole decision recognizes a compelling state interest in regulating judicial elections differently from other political elections, the free-speech rights of judicial candidates still commands the highest level of First Amendment protection. 

She wrote that Tamburrino’s statements must be given “breathing space” under the First Amendment because reasonable readers or listeners to the statement could interpret them as true. She noted Cannon wrote in his separate concurring opinion that: “I would want nothing in this decision to deter an officer from exercising his duty if he clearly observes a serious misdemeanor offense or an offense of violence, or if he has other good cause to make an intrusion.”

Justice French noted that Cannon’s opinion uses the word “serious” to make a distinction between a “misdemeanor charge” and “a serious misdemeanor offense or an offense of violence.”

“In Judge Cannon’s view, the misdemeanor charge in Andrews for contributing to the delinquency of a minor did not justify the warrantless entry, but a ‘serious misdemeanor offense’ would provide sufficient justification. A reasonable reader could conclude that Judge Cannon did not consider the charged offense to be a ‘serious misdemeanor offense,’ ” she wrote.

While the ad did not explain the full context of Cannon’s opinion, Tamburrino’s statement was readily susceptible to truthful or differing interpretations and therefore did not violate the judicial-conduct rule prohibiting false campaign statements, she maintained.

Regarding the expense disclosure ad, Justice French wrote that Tamburrino suggested that Cannon did not post his travel expenses on the website even though Cannon was campaigning on the issue of posting judges’ salaries and expenses on court websites. She noted Cannon at some point arranged to post a summary of the Eleventh District’s expenses on the court’s website, but did not post his travel expense report.

“When viewing Tamburrino’s expense-disclosure ad in this context, a reasonable viewer of the ad could have construed Tamburrino’s statement as true,” she wrote.

Rather than penalizing candidates for their speech, Justice French advocated that the matter should be resolved by letting the candidates themselves publicly debate the truthfulness of their statements.

“I give no credence to Tamburrino’s statements about his opponent, and neither, apparently, did the voting public, who re-elected Judge Cannon in 2014. But we must protect speech even when—and, perhaps, especially when—we dislike it,” she concluded.

Justice Sharon L. Kennedy joined Justice French’s opinion.

2016-0858. Disciplinary Counsel v. Tamburrino, Slip Opinion No. 2016-Ohio-8014.

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