Judicial Campaign Education and Enforcement: Ohio’s Quarter Century of Experience

Judicial Elections in Ohio

Like many other jurisdictions, Ohio has a three-tiered judiciary consisting of two levels of trial courts (common pleas and municipal/county courts), district courts of appeal, and a supreme court. Except for judges who are initially appointed by the governor to fill vacancies created by retirement, resignation, removal, or death, all judges in Ohio are elected to six-year terms. Although common pleas courts, appellate courts, and the supreme court are constitutionally created offices, judicial offices are placed “down ballot,” well after national and statewide candidates and candidates for local executive and legislative offices. In many years, only local ballot issues and tax levies appear after judicial races on a general election ballot and in the reported election results.

For more than a century, most Ohio judicial candidates were nominated in partisan primaries and then appeared on the general election ballot without political party designations. The exceptions are some part-time court judges, who are nominated by petition, and a handful of candidates who choose to run as Independents. In the summer of 2021, the Ohio General Assembly enacted legislation¹ to require that candidates for the supreme court and the district courts of appeal appear on the general election ballot with party designations. The bill passed both houses of the General Assembly, along largely party-line votes, and the governor signed the legislation less than a week after its enactment. Thus, candidates for election to the supreme court and courts of appeal in 2022 will have party affiliation on the ballot for the first time in Ohio history. Trial court candidates will continue to appear on the general election ballot by name only.

Regardless of whether party affiliation appears on the general election ballot, indicia of judicial candidates’ party identification are readily available to voters. Since 2010, the Ohio Code of Judicial Conduct has permitted judicial candidates to include party affiliation, nominations, and endorsements in campaign advertising.² Newspaper articles featuring judicial races and editorial endorsements in those races routinely reference the candidates’ political affiliation, with those affiliations highlighted for state supreme court contests. Political parties routinely distribute slate cards or sample ballots that identify party-endorsed candidates, both judicial and nonjudicial. In many instances, the local parties send mailers to registered voters that feature their endorsed judicial candidates. Although not as prevalent in local judicial races, special interest groups sponsor campaign advertisements that often identify the party affiliations of state supreme court candidates.

Political parties also are active in recruiting attorneys to run for judicial office and providing financial and other forms of support to party-endorsed candidates. The support provided to a judicial candidate varies based on the size, sophistication, and resources of the county party and can include fundraising assistance, direct financial contributions, in-kind contributions of goods and services, and the recruitment of volunteers to aid in the distribution of campaign literature and placement of yard signs. For good reason, Ohio’s judicial elections have sometimes been referred to as “nominally nonpartisan.”³

Regulation of Ohio’s Judicial Elections

Faced with increasingly expensive and partisan judicial races in the mid-1990s, the Ohio Supreme Court, under the leadership of then Chief Justice Thomas J. Moyer, undertook a review and revision of the rules governing judicial campaign conduct and enforcement. A 17-member committee, consisting of a majority of nonlawyers, was appointed by the chief justice to develop and present recommendations for amendments to the Ohio Code of Judicial Conduct.

The supreme court took two unprecedented steps to underscore the importance of the judicial campaign reform and provide transparency in the process. First, the court authorized the committee to conduct public hearings throughout the state in the summer and fall of 1994. The hearings gathered input on the public’s perception of the judiciary and proposals to reform the judicial election process. Second, after receiving the committee’s report and recommendations, the court considered those in its first and, to date, only public conference of the justices. At the public conference, the justices discussed the committee’s recommendations, debated revisions to the recommendations, and voted on individual recommendations and amendments. The amendments and justices’ votes were recorded and reported publicly.⁴

This process produced new rules, effective in July 1995, that included limits on contributions to, and expenditures by, judicial campaigns, prohibitions on the solicitation or receipt of contributions from court employees and vendors, and enhanced disclosure of campaign contributions from court appointees, such as assigned counsel.⁵ The extensive amendments to then Canon 7 of the Ohio Code of Judicial Conduct and the Rules for the Government of the Judiciary featured three new provisions that remain unique in comparison to judicial campaign conduct regulations in other states.⁶

Mandatory Judicial Candidate Education

Added to the Ohio Code of Judicial Conduct was a requirement that each candidate for election or reelection to judicial office complete a two-hour course on campaign practices, finance, and ethics.⁷ The course must be taken one year prior to, or 60 days after, the judicial candidate is certified to first appear on the ballot, and completion of the course must be promptly certified to the Ohio Board of Professional Conduct.

The course is offered annually in three or four live presentations and two recorded presentations. Depending on the number of judicial seats on the ballot in a given year, annual attendance ranges from 150 to 600 persons. The training segments include an overview of the campaign-conduct provisions of the Ohio Code of Judicial Conduct, including the content of campaign advertisements and communications and judicial candidate fundraising, as well as a presentation from the Ohio Secretary of State’s office regarding the requirements of state law relative to campaign finance reporting and the use of disclaimers on campaign advertising. Whether live or recorded, each session includes a live question-and-answer period with the Board of Professional Conduct’s legal staff. Judicial candidates are encouraged to bring their campaign treasurers, consultants, other staff, and volunteers to the seminar, and there is no charge to attend. Attendees receive a handbook that includes rules and other materials relevant to the conduct of a judicial campaign. Additional information is made available via a webpage maintained by the Ohio Board of Professional Conduct.⁸

Candidate Accountability

Also added to the Ohio Code of Judicial Conduct in 1995 is a provision that expressly makes a judicial candidate accountable for all campaign activity conducted on his or her behalf:

A judicial candidate shall be responsible for * * * [t]he content of any statement communicated in any medium by his or her campaign committee and for compliance by his or her campaign committee with the limitations on campaign solicitations and contributions contained in Rule 4.4, if the candidate knew of the statement, solicitation, or contribution.⁹

This rule makes it clear that a judicial candidate is responsible for all aspects of his or her campaign, including oversight and approval of campaign advertisements and compliance with financial aspects of the campaign such as the timing and targets of solicitations and adherence to campaign contribution limits. A judicial candidate cannot evade responsibility for compliance with the provisions of Ohio Canon 4 by placing the blame on an overly aggressive volunteer committee member or, as illustrated by the Falter case discussed below, a paid consultant who is unfamiliar with the rules governing judicial campaign conduct.

The importance of candidate accountability was noted in a decision from a judicial commission issued just 18 months after this provision was adopted:

* * * [W]e are distressed, as was the hearing panel, that respondent failed to verify personally the content of [his campaign] advertisements, particularly after he was informed in writing by the complainant of the incorrect statements. Judicial candidates have a duty * * * to ensure the truthfulness of statements that are communicated by their campaign committees with their knowledge. Respondent breached that duty by failing to ascertain the accuracy of his campaign advertisements and take steps to ensure the accurate portrayal of the complainant’s Congressional voting record and record of election to public office.¹⁰

A later judicial commission described a judicial candidate’s responsibility to understand and adhere to the rules governing campaign conduct:

We agree and share the hearing panel’s concern over the respondent’s lack of familiarity with [former] Canon 7 and somewhat cavalier attitude taken toward obtaining a greater understanding. Judicial candidates have an obligation, beyond simply attending the two-hour judicial candidate seminar * * *, to familiarize themselves with [former] Canon 7 and conduct their campaigns accordingly. The Supreme Court throughout [former] Canon 7 and our colleagues who have reviewed previous judicial campaign complaints have made it clear that judicial candidates who fail to comprehend the requirements of [former] Canon 7 and apply them to their campaigns will be held accountable for violations.¹¹

Expedited Review of Judicial Campaign Misconduct Allegations; Enhanced Sanctions

Also in 1995, the Supreme Court amended the Rules for the Government of the Judiciary of Ohio to include an expedited process for reviewing and adjudicating formal allegations of improper judicial campaign conduct. Prior to adoption of these procedures, a grievance alleging judicial campaign misconduct was handled in the same fashion as any other disciplinary grievance filed against an attorney or judge—the grievance was reviewed and possibly investigated before the disciplinary authority decided to dismiss the matter or proceed with a formal complaint. If a formal complaint was filed, the matter was often not resolved, either by dismissal or entry of a final disciplinary order, for several months or years after the campaign was over.¹²

The expedited procedures adopted in 1995 remain largely unchanged today. The rules establish time frames for the review of a campaign misconduct grievance, the filing and adjudication of a formal complaint if probable cause is found, and the submission of a report and recommendation to the supreme court. Although these time frames allow for the prompt consideration and resolution of many judicial campaign complaints, due process considerations often make it impossible to effectively address misconduct that occurs in the waning days of a campaign. Nonetheless, as illustrated by the Tamburrino case discussed below, that misconduct does not go unaddressed.

The Ohio Supreme Court also expanded the disciplinary sanctions available in judicial campaign misconduct cases. In a typical disciplinary case, an Ohio judge or attorney may be sanctioned with a public reprimand, term suspension (stayed or unstayed), an indefinite suspension of at least two years, or permanent disbarment. These same sanctions also can be recommended and imposed against an attorney or judge who engages in campaign-related misconduct. However, the hearing panels, judicial commissions, and supreme court can also recommend or impose sanctions that are designed to immediately end the improper conduct and essentially punish the offending judicial candidate. This broader arsenal of sanctions includes interim and permanent cease-and-desist orders, fines, the payment of costs, and the payment of the attorney fees incurred by the party who filed the grievance and prosecuted the formal complaint. The payment of the complainant’s attorney fees recognizes that expedited judicial campaign misconduct matters are prosecuted by the complainant and not the Office of Disciplinary Counsel.

As noted below, a judicial candidate also can be ordered to apologize to the opponent and the public for false statements included in judicial campaign communications. Any sanction imposed for judicial campaign misconduct is included on the candidate’s permanent disciplinary record and is considered as prior discipline should the sanctioned candidate be the subject of any future disciplinary action, including a disciplinary action unrelated to a judicial campaign.¹³

Federal Court Challenges; Impact of Williams-Yulee

Like other jurisdictions that have rules regulating judicial campaign conduct, Ohio has faced constitutional challenges to specific provisions of its Code of Judicial Conduct. Within a few months after the 1995 reforms were adopted, a sitting judge successfully challenged provisions of the Code of Judicial Conduct that limited the amount of money that a judicial candidate could spend during an election or reelection campaign.¹⁴ Subsequent legal challenges were made to provisions that prohibited the direct solicitation or receipt of campaign funds,¹⁵ the time limits during which such solicitations can occur and regulations on candidate endorsements,¹⁶ and the content of advertising by judicial candidates who are not judges.¹⁷

Ohio prevailed in many of the aforementioned challenges. Other jurisdictions facing similar changes have not always succeeded, with many courts relying on the U.S. Supreme Court decision in Minnesota Republican Party v. White to invalidate judicial campaign rules.¹⁸ The lawsuits filed against the Ohio rules were defended vigorously, in each instance relying on arguments that enhanced judicial election regulations are warranted by the unique responsibilities of the judicial office, vis-à-vis nonjudicial offices, and the state’s compelling interest in preserving principles of judicial independence, integrity, and impartiality.

Efforts to defend the constitutionality of Ohio’s rules were bolstered by the 2015 decision in Williams-Yulee v. Florida Bar¹⁹ that upheld against a First Amendment challenge a Florida prohibition against direct candidate solicitation of campaign funds. This decision stemmed a growing tide of circuit court rulings that struck judicial campaign regulations in other states and provided the foundation for two Sixth Circuit rulings that upheld several key provisions of the Ohio Code of Judicial Conduct.²⁰ Most notably, these rulings agreed with a conclusion in Williams-Yulee that a state’s campaign regulations must be narrowly tailored, but not “perfectly tailored.”

Although the Ohio Supreme Court adopted the rules governing judicial campaign conduct in Ohio, it too has recognized the constitutional limits on its rule-making authority. In the case of In re Judicial Campaign Complaint Against O’Toole,²¹ the court upheld a portion of Judicial Conduct Rule 4.3(A) that prohibits false campaign statements—in this case, false statements regarding the candidate’s status as a judge. However, that same opinion agreed with the respondent-candidate’s argument that the rule’s prohibition against misleading or deceiving campaign statements was overbroad and thus unconstitutional. Judicial Conduct Rule 4.3(A) was subsequently amended by the court to prohibit only those judicial campaign communications that are knowingly false or that are made with a reckless disregard of whether or not the communication is false.²²

Judicial Misconduct Cases

Since Ohio revamped its judicial campaign rules and procedures in 1995, there have been 31 cases in which sanctions have been imposed for judicial campaign misconduct. Thirty judicial candidates have been sanctioned, including four candidates who were sanctioned twice. Although it is difficult to predict what, if any, impact the misconduct and resulting sanctions had on the outcome of the election because some of the sanctions were imposed after voting commenced or after the election was concluded, fewer than a quarter of the sanctioned candidates were successful in their bids for election or reelection.

Early Misconduct Cases and Evolution of Sanctions

Many of the early cases in which judicial campaign misconduct was found resulted in the imposition of minor sanctions. The first case that proceeded under the expedited hearing procedures involved a violation of a longstanding rule that prohibits the personal solicitation of campaign contributions by a judicial candidate. Although this violation was intentional and occurred multiple times, the sanction imposed was a cease-and-desist order and fines and costs totaling $2,600.²³ Relatively minor sanctions also were imposed against a candidate who misrepresented his current judicial office (cease-and-desist order and $250 fine)²⁴ and two judicial candidates who placed their names on a fundraising invitation for a candidate seeking reelection to a county administrative office (cease-and-desist order only).²⁵

Two cases from the 1996 election cycle significantly altered the approach to sanctioning judicial candidates who run afoul of the rules and initiated an effort that continues today to underscore the importance of conducting campaigns in a manner consistent with the dignity and integrity of judicial office. The first case involved an appellate judge seeking a third term who was challenged by a former member of Congress.²⁶ In television and radio advertisements timed to air just days before Election Day, the incumbent judge made false statements regarding his opponent’s voting record in Congress and his history of seeking public office. Although the incumbent judge was informed of the advertisements’ inaccuracies, the judge did not withdraw or modify the ads.

The panel that heard the case found violations of three separate rules and, consistent with prior cases, recommended imposition of a $750 fine. A judicial commission appointed to review the panel’s findings and recommendation concluded a fine was inadequate given the severity of the candidate’s misconduct and the need to deter similar violations in the future. The commission increased the fine to $15,000 and ordered the payment of the complainant’s attorney fees and expenses of nearly $8,000. The commission also imposed a six-month suspension from office, without pay, but stayed the suspension upon conditions that included payment of the monetary sanctions, completion of a term of probation, and issuance of a written, public apology to the complainant and citizens of the appellate district.

The respondent-judge appealed the commission’s sanction to the supreme court but dismissed his appeal a few weeks later. He submitted a proposed apology to the judicial commission, but the commission rejected the language, rewrote the apology, and ordered the issuance of the revised apology.

A second case from the 1996 campaign involved a television advertisement in which a judicial candidate was portrayed as referring to a child as a loser in a domestic relations proceeding over which the candidate was supposedly presiding. The advertisement went on to suggest that because of this comment, the candidate was ill-suited to serve as a domestic relations judge. The situation was portrayed out of context as the “loser” comment was made by the judicial candidate, not as a judge but in her capacity as a lawyer in the proceeding, and the “child” in question was a 19-year-old who was not present at the hearing.²⁷

Following a hearing in which misconduct was found, the hearing panel recommended a $500 fine. A judicial commission affirmed the panel’s findings but rejected the recommended sanction and imposed a public reprimand. The commission order concluded that the imposition of a mere fine on these facts would

* * * create a campaign environment in which judicial candidates may determine to engage in known violations of the judicial code, including in their campaign budgets a calculation of fines to be paid as a “cost of doing business.” Such an environment would in no way enhance the public respect for the judiciary or increase the ability of the citizenry to make more informed choices among candidates for judicial office.²⁸

A later case addressed the purpose and importance of the expedited campaign complaint process and sanctioning judicial candidates who run afoul of the rules governing judicial campaign conduct:

[T]he processes that exist for adjudicating judicial campaign complaints serve multiple purposes: punish behavior that is contrary to the Code of Judicial Conduct; inform the legal and judicial communities of the appropriate standards governing judicial campaign conduct; and deter similar violations by judicial candidates in future elections. * * * These processes serve the additional purposes of informing the public of the self-regulating nature of the legal profession and enhancing public confidence in the integrity of the proceedings. The sanctions recommended in this instance serve these purposes and again underscore the responsibility of all judicial candidates to conduct their campaigns with the same degree of honesty, dignity, and respect that, if elected, they would expect to receive form lawyers, litigants, and other members of the public.²⁹

Themes in Campaign Misconduct Cases

Space limitations do not allow a detailed treatment of the sometimes creative misconduct for which Ohio judicial candidates have been sanctioned. There are cases involving what one might characterize as minor or inadvertent violations of judicial campaign misconduct rules,³⁰ and those violations result in commensurate sanctions. However, the majority of cases involve a judicial candidate who has made a blatantly false statement about the candidate or the candidate’s opponent. These cases draw distinctions between judicial campaigns and campaigns for other public offices, making it clear that judicial campaigns should be conducted with the dignity associated with judicial office and devoid of name-calling, labeling, and outright misrepresentations that are more prevalent in campaigns for nonjudicial office.³¹

The following are examples of campaign statements and conduct for which Ohio judicial candidates have been sanctioned:

• Candidate characterized his opponent’s ruling, later reversed on appeal, as raising taxes for county residents and promised that he would never impose taxes on the residents that were contrary to law. The statements were not only found to be inaccurate but promoted a misunderstanding of the role of the judiciary. Sanction: public reprimand and attorney fees.³²
• Candidate claimed an endorsement from the “Neighborhood Protection Council,” which was a shortened version of the name of his campaign committee. Sanction: six-month suspension, stayed.³³
• Candidate criticized his opponent for rulings that included allowing a well-known producer of pornography to go free, jailing an alleged rape victim, and prosecuting a death penalty case in which the death sentence was later commuted. Sanction: $5,000 fine.³⁴
• Candidate characterized his opponent’s appointment to fill a judicial vacancy as an appointment by “political bosses in Columbus” and criticized the opponent’s involvement, while a prosecutor, in negotiating a plea bargain in a case in which the defendant was charged with raping a minor. The hearing panel determined the former statement was a mischaracterization of the appointment process and that the latter statement was false, given that the opponent appeared on behalf of the state at the sentencing hearing only and after the plea bargain had been negotiated and accepted by the trial court. The respondent-candidate also mailed an advertisement containing the false statements after having been advised of the inaccuracies and was found to have done so immediately prior to Election Day. The reports of the hearing panel and judicial commission reference the purposes of the expedited process (punishment, deterrence, furthering appropriate judicial campaign standards, informing the public of the self-regulating nature of the profession, and enhancing public confidence in the integrity of the process). Sanction: six-month, stayed suspension; $7,500 fine; and $6,000 in the complainant’s attorney fees.³⁵
• Candidate falsely claimed to have earned six degrees in seven years when, in fact, he possessed an undergraduate and law degree. The four additional degrees claimed by the candidate included major and minor fields of undergraduate study and a certificate in international trade. The judicial commission appointed to review the hearing panel’s report increased the sanction, citing the severity of the respondent-candidate’s misconduct, his deliberate attempt to mislead the public, his failure to acknowledge the falsity of his statements, and his failure to comply with the commission’s interim cease-and-desist order. Sanction: public reprimand, $5,000 fine, and more than $9,600 in complainant’s attorney fees.³⁶
• At a sentencing hearing in municipal court, the defendant thanked the judge for accepting his misdemeanor plea and imposing a suspended sentence. The judge told the defendant to “tell all your family how you feel about me because I’m running this year for common pleas court.” The comments by the respondent-judge were found prejudicial to public confidence in the judiciary and implied that the suspended sentence was imposed in exchange for campaign support. Sanction: a public reprimand and $5,000 fine, based in large part on the fact that the respondent-judge’s second violation of judicial campaign conduct regulations occurred in the same election cycle as her first violation and while the first matter was still being adjudicated.³⁷

Two Recent Cases

Two relatively recent cases illustrate the emphasis Ohio continues to place on principled judicial campaign conduct more than 25 years after stringent reforms were adopted. Both cases are noteworthy for the misconduct in which the candidates engaged, and the Ohio Supreme Court’s rejection of constitutional arguments advanced by the respondents.

In Disciplinary Counsel v. Tamburrino,³⁸ the respondent-candidate challenged a sitting court of appeals judge. In the latter days of the campaign, the respondent ran a television advertisement critical of the incumbent’s concurrence in a majority opinion that ruled police could not conduct a warrantless entry of a home to arrest a parent suspected of hosting a party at which teenagers were drinking. The audio portion of the respondent’s advertisement stated that his opponent “felt teenage drinking wasn’t a serious crime” and “doesn’t think teenage drinking is serious.” The video portion of the advertisement showed a robed individual standing at a courtroom bench pouring shots of whiskey for children and reiterated that the respondent’s opponent “doesn’t think teenage drinking is a serious offense.” In a second commercial, also released a few weeks before the election, the respondent claimed his opponent refused to “disclose his taxpayer-funded travel expenses.”

Although the candidate was informed of the false nature of the advertisements, he did not withdraw the advertisements. Rather, he doubled down on the conduct by issuing a news release affirming the statements in the advertisements and accusing the incumbent judge of fabrications and false accusations of campaign misconduct.

Because the statements were made in the waning days of the campaign, a disciplinary investigation and prosecution did not occur until after the election and proceeded through the regular disciplinary process. The Board of Professional Conduct found the respondent-candidate’s advertisements violated the rule against false campaign communications and were inconsistent with the principles of judicial independence, integrity, and impartiality. The board further found the candidate refused to acknowledge the blatantly false statements and expressed concern over the chilling effect such advertisements could have on the ability of a judge to freely state his or her views in court opinions. The board recommended imposition of a conditionally stayed, six-month license suspension.

The respondent objected to the board’s findings and also argued that the prohibition against false campaign statements was unconstitutional. The supreme court considered and rejected these objections, upheld the findings of the board, and imposed the recommended sanction of a six-month stayed suspension, noting:

[Respondent’s] misconduct impugned the integrity of his opponent as a jurist and public servant. It endangered the independence of the judiciary and lessened the public’s understanding of public records and the protections of the Fourth Amendment.³⁹

In his objections to the board’s recommendation, Tamburrino cited precedent holding that Ohio’s criminal statute prohibiting false campaign speech was unconstitutional.⁴⁰ The Ohio Supreme Court rejected this argument, finding the Ohio rule to be both narrowly tailored and supported by a compelling state interest.⁴¹ The court also cited a Sixth Circuit decision that upheld Kentucky judicial conduct regulations and distinguished the case that held Ohio’s criminal prohibition on false statements unconstitutional.⁴²

The most recent instance of judicial campaign misconduct occurred in the 2020 primary election. The case of In re Judicial Campaign Complaint Against Falter⁴³ involved a statement in which Falter falsely claimed that her opponent moved to Hamilton County in 2017 to seek appointment to a judicial vacancy. This statement was false in two respects. First, her opponent moved to Hamilton County three years earlier and, second, he did so with the goal of running for the Ohio General Assembly.

At the hearing, Falter admitted that she made no attempt to verify the truthfulness of her statements and testified that she relied on information from her campaign consultants and “essentially courthouse and party-insider gossip or rumors.” Falter’s attempt to shift blame for the inaccuracies to her campaign consultants was pointedly rejected by the supreme court:

Considering the specific factual nature of her statements, verification of them was necessary. She should have personally confirmed the accuracy of her allegations or ensured that her consultants had done so. A judicial candidate cannot avoid discipline by claiming that she merely repeated statements from her campaign consultants without taking some action to ensure the accuracy of those statements or to inquire about the credibility of the sources.⁴⁴

The Ohio Supreme Court rejected Falter’s arguments regarding application of the actual-malice standard from New York Times v. Sullivan,⁴⁵ specifically holding 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 to public-official defamation cases.”⁴⁶ The court also rejected arguments that the prohibition against false statements was ambiguous or that the sanction of a public reprimand was unreasonable or arbitrary.

Takeaways from Ohio’s Experiences

The regulatory provisions outlined above were adopted by the Ohio Supreme Court in response to judicial campaigns that were becoming increasingly partisan, expensive, and nasty. The late Chief Justice Moyer, under whose leadership the Ohio campaign reforms were adopted, observed:

Our system of laws and constitutions is only as strong as the trust extended to it by those who are governed. I share with many of my colleagues the belief that the courts still enjoy the support of most citizens. But that trust is fragile, made ever more so each time a misleading campaign ad is aired, with each effort to influence judicial decisions through contributions, and with each new record amount spent in judicial campaigns.⁴⁷

In enforcing the campaign conduct regulations, hearing panels, judicial commissions, and the Supreme Court have repeatedly emphasized the bedrock principles of independence, integrity, and impartiality upon which the regulations rest. Moreover, sanctions for judicial campaign misconduct have been imposed for the multipronged purposes of ensuring public confidence in the judiciary, promoting an understanding of the proper role of the judiciary in our form of government, and punishing those judicial candidates who lose sight of these principles in an effort to promote their election or reelection to judicial office.

The Ohio regulatory provisions were adopted at a time before there was widespread early and absentee voting and when the sole means of communicating electronically with voters was via television and radio, the cost of which exceeded the budget of all but the most well-funded judicial campaigns. Ohio’s early voting period now begins four weeks prior to Election Day and there is no-fault absentee voting. These changes result in a significant number of votes being cast prior to Election Day.⁴⁸ Many judicial candidates, especially at the county and municipal levels, continue to use traditional means such as yard signs and parade attendance to reach voters. However, Facebook, Instagram, Twitter, and other social media platforms have expanded the ability of candidates to communicate electronically and more directly with the electorate without breaking the campaign budget.

Notwithstanding significant shifts in voting practices and campaign methods, Ohio’s judicial campaign conduct regulations have endured. Mandatory candidate training has served to raise awareness about the nature and purposes of judicial campaign conduct rules and highlight the many differences between judicial and nonjudicial campaign regulations. The expedited process for adjudicating judicial campaign misconduct complaints ensures that misconduct allegations are reviewed and adjudicated promptly. Cases in which misconduct is found have resulted in the imposition of sanctions, commensurate to the misconduct, that underscore both the purpose of judicial campaign regulations and the principles that those regulations are intended to promote.

The vast majority of Ohio judicial candidates conduct their campaigns in accord with the overarching principle of Canon 4 of the Ohio Code—that a judicial candidate must refrain from campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary. This is borne out by the fact that, in the past quarter century, thousands of candidates have sought election or reelection to one of Ohio’s 723 judgeships. Yet, a small number—just 30 individuals—have been sanctioned for campaign misconduct. For those candidates who run afoul of Ohio’s rules, the consequences are often swift and always certain.

The views expressed in this article are those of the author only and do not necessarily reflect the views of commissioners of the Board of Professional Conduct or the Supreme Court of Ohio. The author acknowledges and appreciates the contributions of board counsel D. Allan Asbury and Kristi R. McAnaul in the preparation of this article.

Endnotes

1. S.B. 80, 134 Gen. Assemb. (eff. Sept. 30, 2021).

2. Ohio Code of Jud. Conduct r. 4.2(C)(6) (2009). Prior to August 2010, judicial candidates could include party affiliation and endorsements in primary advertisements only. 126 Ohio St. 3d cxvii–cxx (2010).

3. Charles G. Geyh, Methods of Judicial Selection & Their Impact on Judicial Independence, 137 Daedalus, no. 4, Fall 2008, at 86, available at http://www.jstor.org/stable/40544064.

4. 72 Ohio St. 3d 1430–1515 (1995).

5. Id. at xci–ci.

6. Ohio’s judicial campaign and political conduct regulations are contained in Canon 4 of the Ohio Code of Judicial Conduct, effective in 2009. Some quotes in this article reference Canon 7 of the pre-2009 version of the Ohio Code of Judicial Conduct.

7. Ohio Code of Jud. Conduct r. 4.2(A)(4) (2009).

8. For more detail about the judicial candidate training, including course materials and other resources, see Ohio Bd. of Pro. Conduct, https://www.bpc.ohio.gov/judicial-candidates.

9. Ohio Code of Jud. Conduct r. 4.2(A)(3) (2009).

10. In re Jud. Campaign Complaint Against Hildebrandt, 675 N.E.2d 889, 891 (Ohio 1997).

11. In re Jud. Campaign Complaint Against Hein, 706 N.E.2d 34, 35–36 (Ohio 1999).

12. For example, the case of In re Complaint Against Judge Harper, 77 Ohio St. 3d 211 (1996), involved allegations of misconduct by an appellate court judge who sought to unseat a sitting supreme court justice in the 1994 election. After an investigation of a grievance and a hearing on a formal complaint, a final disciplinary order was issued in December 1996, more than two years after Judge Harper engaged in the misconduct for which she was sanctioned.

13. A table of sanctions imposed in judicial misconduct cases is included in the aforementioned judicial candidate handbook. The handbook is available from the link identified supra note 8.

14. Suster v. Marshall, 121 F. Supp. 2d 1141 (N.D. Ohio 2000).

15. Ohio Council 8 AFSCME v. Brunner, 912 F. Supp. 2d 556 (S.D. Ohio), aff’d, Ohio Council 8 AFSCME v. Brunner, 462 F. App’x 557 (6th Cir. 2012).

16. Platt v. Bd. of Comm’rs on Grievs. & Discipline of the Ohio Sup. Ct., 894 F.3d 235 (6th Cir. 2018).

17. O’Toole v. O’Connor, 260 F. Supp. 3d 901 (S.D. Ohio 2017), aff’d, O’Toole v. O’Connor, 733 F. App’x 828 (6th Cir. 2018).

18. 536 U.S. 765 (2002). For a compilation of case law post-White, see Nat’l Ctr. for State Cts. (NCSC), Case-Law Following Republican Party of Minnesota v. White, 536 U.S. 765 (2002), https://www.ncsc.org/__data/assets/pdf_file/0021/15429/caselawafterwhite.pdf (updated July 2018).

19. 575 U.S. 433 (2015).

20. See cases cited in NCSC, supra note 18.

21. 24 N.E.3d 1114 (Ohio 2014).

22. 140 Ohio St. 3d lxxxix (2014).

23. In re Jud. Campaign Complaint Against Carr, 658 N.E.2d 1158 (Ohio 1995), aff’d, 667 N.E.2d 956 (Ohio 1996).

24. In re Jud. Campaign Complaint Against Emrich, 669 N.E.2d 586 (Ohio 1996).

25. In re Jud. Campaign Complaint Against Keys, 671 N.E.2d 1124 (Ohio 1996).

26. In re Jud. Campaign Complaint Against Hildebrandt, 675 N.E.2d 889 (Ohio 1997).

27. In re Jud. Campaign Complaint Against Morris, 675 N.E.2d 580 (Ohio 1997).

28. Id. at 583.

29. In re Jud. Campaign Complaint Against Beery, 2009-Ohio-113, 2009 Ohio LEXIS 3763.

30. See, e.g., In re Jud. Campaign Complaint Against Sherron, 87 N.E.3d 215 (Ohio 2017) (candidate sanctioned for misconduct that included use of the phrase “licensed to practice in all federal courts” when he was admitted in only the Southern District of Ohio); In re Jud. Campaign Complaint Against Lombardi, 113 N.E.3d 564 (Ohio 2018), and In re Jud. Campaign Compliant Against McCarty, 2018-Ohio-5173, 2018 Ohio LEXIS 3017 (candidates reused banners, t-shirts, and buttons from a prior campaign that did not comply with the campaign conduct rules in place for the current election).

31. One current example involves a television advertisement sponsored by a state senator who is one of 10 candidates in a special congressional primary election. The candidate featured in the advertisement is standing behind a podium in a barn. He is flanked on both sides by 10 sheep, each of whom is standing behind a podium that displays the name of one of the candidate’s opponents. The not-so-subtle message is that the sponsoring candidate is a leader, while his opponents are followers.

32. In re Jud. Campaign Complaint Against Kienzle, 708 N.E.2d 800 (Ohio 1999).

33. Disciplinary Counsel v. Kaup, 806 N.E.2d 513 (Ohio 2004).

34. In re Jud. Campaign Complaint Against O’Reilly, 857 N.E.2d 599 (Table) (Ohio 2006).

35. In re Jud. Campaign Complaint Against Beery, 2009-Ohio-113, 2009 Ohio LEXIS 3763.

36. In re Jud. Campaign Complaint Against Davis, 959 N.E.2d 9 (Table) (Ohio 2011).

37. In re Jud. Campaign Complaint Against Michael, 977 N.E.2d 687 (Table) (Ohio 2012).

38. 87 N.E.3d 158 (Ohio 2016).

39. Id. at 163.

40. Susan B. Anthony List v. Driehaus, 814 F.3d 466 (6th Cir. 2016).

41. Tamburrino, 87 N.E.3d at 152–53.

42. Winter v. Wolnitzek, 834 F.3d 681 (6th Cir. 2016).

43. 2021-Ohio-1705, 2021 Ohio LEXIS 974.

44. Id. ¶ 29.

45. 376 U.S. 254 (1964).

46. Falter, 2021-Ohio-1705, ¶ 16.

47. Thomas J. Moyer, Chief Just., Ohio Sup. Ct., Preserving Impartial Courts (July 14, 2008), https://www.supremecourt.ohio.gov/Publications/CJMSpeeches.pdf.

48. In the 2020 general election, nearly 57 percent of Ohio ballots were cast prior to Election Day. See Press Release, Frank LaRose, Ohio Sec’y of State, Ohio Shatters Early Voting Records—On Election Eve, 3.4 Million Ohioans Have Already Cast Ballots (Nov. 2, 2020); Voter Turnout in General Elections, Ohio Sec’y of State, (last visited Aug. 13, 2021).