Tuesday, November 23, 2021

Politics Not Law

Dan Trevas summarizes a bar decision of the Ohio Supreme Court

The Ohio Supreme Court today suspended a Richmond Heights attorney for one year with six months stayed for accusing Ohio judges and Supreme Court justices of basing property tax valuation decisions on “politics, not law,” and for speculating about political motivations behind their decisions.

In a per curiam opinion, a divided Supreme Court found John Morton violated the professional conduct rules by voicing undignified and discourteous statements about the judicial officers and recklessly making false statements about their integrity.

Chief Justice Maureen O’Connor, Justices Patrick F. Fischer, Michael P. Donnelly, and Jennifer Brunner joined the opinion.

Justices Sharon L. Kennedy and R. Patrick DeWine dissented with separate opinions, each noting that Morton’s statements, originally made in a memorandum seeking the Court’s acceptance of an appeal he filed, were free speech protected by the First Amendment to the U.S. Constitution.

Chief Justice O’Connor also wrote a concurring opinion to respond to what she views as the dissenting opinions’ attempts to distract from the focus of the disciplinary action against Morton with “First Amendment arguments” and to paint members of the Court as “fragile and vindictive.” Justices Fischer, Donnelly, and Brunner also joined the concurring opinion.

Justice Melody J. Stewart joined the chief justice’s opinion, except that she supported the Board of Professional Conduct’s recommendation that Morton’s suspension be fully stayed.

Judicial Behavior Questioned in Filing
Morton represented a Cuyahoga County landowner in a tax valuation matter. In an appeal of a county valuation, Morton argued that after his client presented a value based on a land sale, the burden shifted to the county board of revision to present evidence in support of the county’s higher valuation. In rejecting Morton’s argument, the Eighth District Court of Appeals cited the Ohio Supreme Court’s 2017 Moskowitz v. Cuyahoga Cty. Bd. of Revision decision.

Morton sought the Supreme Court’s review of the Eighth District’s decision upholding the board of revision’s valuation. In his January 2019 memo advocating that the Court accept the case, he argued that Moskowitz was wrongly decided. He also criticized the Eighth District panel and opined, “Only politicians committed to maximizing the revenue of their political cronies could reach such a conclusion ….”

He went on to criticize the Supreme Court’s handling of the Moskowitz case. He wrote 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.”

He accused specific justices of showing a willingness to favor the government by accepting valuations “no matter how unreasonable the government’s view” of a property’s value. He stated the “most obvious evidence of the political nature of the Moskowitz decision” was delaying the decision until after two former members of the Court retired and were replaced by Justices Fischer and DeWine. He assigned the responsibility for that delay to Chief Justice O’Connor.

The Court declined to accept the case.

Lawyer Challenged Misconduct Claims
In April 2020, the Cleveland Metropolitan Bar Association filed a complaint against Morton with the professional conduct board. Morton sought to dismiss the matter, but the board rejected his request. A three-member board panel conducted a hearing, which found that Morton had no reasonable factual basis for making the allegations about the judges and justices.

The board found he violated three ethical rules, including one that prohibits a lawyer from engaging in undignified and discourteous conduct that is degrading to a court. The board recommended that Morton be suspended for one year, fully stayed, on the condition that he does not commit any further misconduct. The bar association objected to the recommendation and urged the Court to suspend Morton for six months with no stay.

Morton asked the Court to dismiss the charges, in part by challenging the board’s reliance on the Court’s 2003 Disciplinary Counsel v. Gardner decision. He maintained Gardner allows for punishment of speech by attorneys that is protected by the First Amendment.

Supreme Court Rejects Attorney’s Objections
The Court majority noted that Morton argued his First Amendment rights are supported by U.S. Supreme Court rulings that allow individuals to make comments about public officials unless the statements are knowingly false or made with a reckless disregard for the truth. He maintained that under Gardner, the Ohio Supreme Court uses a lower standard that allows an attorney to be sanctioned for making accusations of judicial impropriety that a reasonable attorney would believe are false.

The opinion noted that Morton cited cases that would prevent him from being found guilty of defaming a public official. However, the opinion stated, the U.S. Supreme Court has recognized that attorneys may be subject to ethical restrictions on speech that could not be applied to an ordinary citizen.

The opinion stated that contrary to Morton’s arguments, “it was not only possible—but true—that our decision in Moskowitz was based on well-settled law.” The opinion noted there was a record number of tax appeals filed with the Court in 2014 and 2015, and Morton ignored the possibility that the delay in decisions could be attributed to the high number of cases submitted.

“He admitted he made no investigation and relied solely upon his own interpretation of the facts in making his statements,” the opinion stated.

The Court modified the board’s recommendation and stayed six months of Morton’s one-year suspension with the condition that he does not commit further misconduct. Morton must also pay the costs of the disciplinary proceedings.

Dissent Challenged Court Standard
In her dissent, Justice Kennedy stated that the Court’s reliance on Gardner’s reasonable-attorney standardwas contrary to the free speech rights of attorneys guaranteed by the First Amendment and the plain language of the current Rules of Professional Conduct adopted by the Court. She noted that the Gardner decision was delivered at a time when attorneys followed the Code of Professional Responsibility, which has been replaced.

She wrote that the new professional conduct rules adopted the actual-malice standard to determine whether an attorney’s statements made about a judge were subject to discipline. She advocated that the language of the rule “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.”  She maintained that Gardner should be overruled and the Court subject attorneys to discipline only for a statement that disparages the judiciary when it is “(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.”

Justice Kennedy also challenged Gardener’s justification that a negligence standard was necessary to preserve public confident in the judiciary. Noting recent U.S. Supreme Court decisions, she wrote that “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.”

She further reasoned that if the Court permitted discipline under the negligence standard, its constitutionality cannot withstand strict scrutiny analysis. The rule is “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,” she wrote.

Because the bar association did not prove that Morton’s statements were false, she would dismiss the charges.

Lawyer Expressed Opinion, Dissent Maintained
Justice DeWine wrote that the Court suspended Morton for “saying some not-so-nice things” in a document he filed and nothing Morton said has been shown to be untrue.

“My skin is not so thin as to think that such punishment is warranted,” he wrote.

Justice DeWine noted that Morton correctly pointed out that the Moskowitz decision took the Court an extraordinarily long time to decide, and he analyzed the prior decision of the justices he criticized to support his contention that they favored the government at the expense of the taxpayer.
He wrote that while much of what Morton said was not very respectful, Morton “laid out the facts supporting his premises for all to see.”   Morton’s assertions are best understood as “statements of opinion based on fully disclosed facts,” a category of speech that is protected by the First Amendment, the dissent stated. Justice DeWine added that the majority opinion will only serve to chill attorney criticism of the judiciary.

“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,” Justice DeWine concluded.

Chief Justice Rejects Dissent Arguments
Chief Justice O’Connor concurred with the per curiam opinion, stating Morton blatantly breached his professional duties, including preserving the integrity of the judiciary, that he had agreed to abide by so that he could practice as an attorney in Ohio. She emphasized that Morton cannot seek refuge in the First Amendment when he chose to disregard these accepted duties.

The opinion noted Ohio attorneys take an oath when entering the practice and, by this oath, accept the duty to conduct themselves with “dignity and civility” and the duty to comply with ethical rules. Attorneys accepting these duties also accept “that there are professional consequences for failing to fulfill these duties.”

By agreeing to abide by the rules, Morton agreed to the rule that an attorney must have a reasonable factual basis before making a statement about a judicial officer. This rule seeks to preserve the public’s confidence in the justice system’s fairness and impartiality. The disciplinary case against Morton was not brought “because our skin is too ‘thin’,” the chief justice wrote, and 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,” Chief Justice O’Connor wrote.

The concurrence noted the dissenting opinions’ First Amendment arguments are “a red herring” and emphasized “the constitutional concerns designed to further robust public discussion in the press are not implicated” in this case.

2020-1520Cleveland Metro. Bar Assn. v. MortonSlip Opinion No. 2021-Ohio-4095.

(Mike Frisch)

Video camera icon View oral argument video of this case.

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