Opinion
2011-1880.
04-19-2012
State ex rel. Robinson-Bond v. Champaign Cty. Bd. of Elections
MISCELLANEOUS DISMISSALS
Champaign App. No. 2011-CA-21, 2011-Ohio-6127. This cause is pending before the court as an appeal from the Court of Appeals for Champaign County.
Upon consideration of the joint motion for vacatur, it is ordered by the court that the motion is denied, and the cause is dismissed as moot.
MISCELLANEOUS ORDERS
BEFORE THE COMMISSION OF FIVE JUDGES
APPOINTED BY
THE SUPREME COURT OF OHIO
In re: Judicial Campaign Complaint Case No. 2012-0340
Against Paulette Lilly
04-19-12
ORDER OF THE COMMISSION OF JUDGES
This matter came to be reviewed by a commission of five judges appointed by the Supreme Court of Ohio pursuant to Gov.Jud.R. II(5)(D)(1) and R.C. 2701.11. The commission members are: Judge Nancy McDonnell, Chair, Judge John P. Bessey, Judge Joseph M. Houser, Judge Mark Wiest, and Judge Barbara P. Gorman.
On February 6, 2012, the complainant, attorney Jonathan Rosenbaum, filed a complaint with the Board of Commissioners on Grievances and Discipline. The complaint consisted of various pieces of campaign literature used by respondent, Paulette Lilly, prior to the March 6, 2012 primary. Following a review by a probable cause panel of the board pursuant to Gov.Jud.R. II(5)(B), the Board filed a formal complaint alleging in Count I that the respondent, during the course of a judicial campaign, violated the following rules of Canon 4 of the Code of Judicial Conduct: Rule 4.3(A) (circulating information concerning the judicial candidate, either knowing the information to be false or with a reckless disregard of whether or not it was false or, if true, that would be deceiving or misleading to a reasonable person); Rule 4.3(C) (using the title of an office not currently held by the judicial candidate); Rule 4.3(D) (use of the term "judge" except in conjunction with the words "elect," "vote" or "for"); and Rule 4.3(F) (misrepresenting one's identity qualifications, or present position). In addition, the complaint also alleged in Count II of the complaint that the respondent had violated Rules 4.1(A)(7) and 4.2(A)(1).
Subsequently, on February 23, 2012, a hearing panel appointed by the Board of Commissioners on Grievances and Discipline conducted a hearing on the allegations contained in the formal complaint. The hearing panel issued its findings of fact, conclusions of law, and recommendation in this matter on February 27, 2012. The hearing panel concluded the complainant had proven by clear and convincing evidence violations of Rules 4.3(A), (C), and (F) in Count I of the complaint. The hearing panel did not find the complainant had similarly proven by clear and convincing evidence a violation of Rule 4.3(D). The hearing panel also dismissed Count II of the complaint.
The hearing panel recommended that the five-judge commission issue an interim cease and desist order and further recommended the respondent be assessed the costs of these proceedings, the costs of proceedings that were suspended from her 2008 campaign conduct case, and a fine of $3,000.
On March 1, 2012, the Supreme Court of Ohio appointed a five-judge commission to review the hearing panel's report pursuant to Gov.Jud.R. II(5(D)(1). The commission was provided with the record certified by the Board of Commissioners on Grievances and Discipline, a complete transcript of the February 23, 2012 proceeding before the hearing panel, and the exhibits presented at that hearing.
This commission issued a cease and desist order on March 2, 2012, ordering the respondent to immediately and permanently cease and desist from using campaign materials and displaying billboards or other signage using the phrase "Return Paulette Lilly" or depicting her in a judicial robe without qualification. The respondent filed an affidavit of compliance with the cease and desist order on March 5, 2012. The full commission met by telephone conference on March 1 and March 27, 2012. The respondent filed objections and the complainant filed an answer brief.
Pursuant to Gov.Jud.R. II(5)(D)(1), we are charged with reviewing the record to determine whether it supports the findings of the panel and that there has been no abuse of discretion. A majority of the commission holds the record does support the findings of the hearing panel that the respondent violated Jud.Cond.R. 4.3 (A),(C), and (F).
Discussion
The respondent was previously found in 2008 to have violated, inter alia, former Canons 7(D)(3) and 7(D)(1) because the cumulative effect of all of her campaign communications, including the use of the word "reelect" and a photograph of her in a judicial robe, created a false impression that she was currently a judge or would be deceiving or misleading to reasonable person. In re: Judicial Campaign Against Paulette Lilly, 117 Ohio St.3d 1467, 2008-Ohio-1846. The five-judge commission found that the appearance of the respondent in a judicial robe was "somewhat questionable given that she does not presently serve as a judicial officer." The use of the judicial robe by the respondent in campaign literature, along with her other campaign materials, created a false impression of incumbency. The respondent was sanctioned by the commission for her misconduct.
Four years later, the 2012 complaint alleges similar conduct on the part of the respondent based primarily on the cumulative effect of her campaign materials. In many instances, the fact pattern in the 2008 case mirrors the conduct of the respondent in the present case. Several of the respondent's 2012 campaign materials were introduced into evidence during the panel hearing. For example, the panel reviewed a direct mailer used by the respondent. (Complainant's Exhibit 2). One side of the exhibit contains the phrase "Return Paulette Lilly" with the words "12 years' experience as a Domestic Relations Judge," but with no explanation that she is not currently a sitting judge. A photograph with the respondent in a judicial robe is included on one side of the exhibit. The exhibit also uses the word "former" as an adjective to other positions she no longer holds, such as social worker and chief counsel, but omits a similar adjective to describe her previous judicial experience. Another example is an exhibit admitted at hearing of a billboard containing the phrase "Return Paulette Lilly for Judge." Likewise, the billboard lacks any explanation that she is not currently a judge. (Complainant's Exhibit 3). In limited instances, some of the respondent's campaign literature, when considered alone, does convey that she is not an incumbent judge. However, when reviewed in its totality, the admitted evidence clearly demonstrates violations of Rules 4.3(A),(C) and (F). The commission agrees with the hearing panel that a reasonable person would be confused or misled by the campaign literature, especially if the materials are not carefully reviewed.
During its review, the commission was troubled by the characterization by the respondent at hearing and in her objections of her direct communications with Richard A. Dove, Secretary to the Commission on Grievances and Discipline concerning her campaign materials. The evidence at hearing reveals that the respondent was clearly put on notice by Dove that her campaign material could be misleading. Any suggestion by the respondent that Dove implicitly approved the campaign materials at issue is disingenuous and misleading and only serves to underscore the respondent's failure to comply with the canons at issue.
Despite the most recent communication she received from Dove concerning her campaign literature, and the findings in the 2008 case before a five-judge commission, the respondent distributed and displayed a coordinated series of campaign literature and advertisements for her campaign that was either knowingly false or with a reckless disregard for whether or not it was false, or if true would be deceiving for misleading to a reasonable person in violation of Rule 4.3(A). Like the 2008 case, the record in this case presents clear and convincing evidence that the respondent was aware that the cumulative effect of her campaign literature would likely lead voters to conclude she was a sitting judge. For the second time in less than five years, the respondent's use of literature displaying a photograph in a judicial robe, without any qualification she is not currently a judge, is the root cause of a judicial canon violation.
Lastly, the commission agrees with the hearing panel that the respondent's use of the word of "judge", in many instances without further explanation, implies she currently holds the office in violation of Rule 4.3(C). The commission also agrees that the use of the word "judge", coupled with a photograph of the respondent wearing a judicial robe in some campaign literature, leads to a clear misrepresentation of the respondent's current position in violation of Rule 4.3(D).
Sanction.
The hearing panel recommended that we issue an interim cease and desist order, a public reprimand and an order the respondent to pay the costs of these proceedings, the costs of the proceedings that were stayed in 2008, and a $3,000 fine. We believe the disciplinary sanction recommended by the hearing panel is warranted in this matter and conclude a public reprimand is appropriate since the candidate has violated similar canons on two separate occasions over the course of two campaigns.
We also believe the respondent's failure to avoid the same conduct as exhibited in 2008 warrants the imposition of a fine. Therefore, the commission concludes the respondent should be fined $1,000 and ordered to pay the costs of these proceedings.
The five-judge commission in the 2008 case ordered the respondent to pay the costs of the proceedings, but suspended the costs on the condition the respondent had no future campaign conduct violations. Due to the violations of rules in the case before us, the hearing panel recommended, and the commission agrees, that the respondent be ordered to now pay the costs from the 2008 case in the amount of $1,349.36.
The Secretary shall issue instructions regarding payment of the monetary sanctions. Payment of all monetary sanctions shall be made on or before June 15, 2012. The respondent's public reprimand shall be published by the Supreme Court Reporter of Decisions in the manner prescribed in Gov.Bar.R.V(8)(D)(2).
Conclusion
The hearing panel's finding that the respondent violated Canons 4.3 (A),(C) and (F) is supported by the record. The hearing panel did not abuse its discretion by either its findings or recommendations to this commission.
So Ordered.
Nancy McDonnell
Judge Nancy McDonnell
John P. Bessey
Judge John P. Bessey
Mark Wiest
Judge Mark Wiest
Barbara Gorman
Judge Barbara Gorman
Dissent
I dissent from the conclusion that the record supports a violation of Rule 4.3(A). I concur with the rest of the conclusions reached and the sanctions issued against the respondent.
Joseph M. Houser
Judge Joseph M. Houser