The Ohio Supreme Court today affirmed a public reprimand and $1,000 fine levied against a Hamilton County judicial candidate for disseminating false information about her opponent in the  2020 Republican primary election.

The Supreme Court rejected Karen Falter’s challenge to a five-judge panel’s ruling that she violated the rules governing judicial campaigning when she sent a mailer to 202 Republican voters claiming her opponent moved to Hamilton County in 2017 to receive a judicial appointment from the then governor,  John Kasich.

In a per curiam opinion, the Court majority stated that Falter violated the rule prohibiting  candidates from disseminating campaign material about an opponent either knowing it was false or in reckless disregard of whether or not it is false.

Citing the U.S. Supreme Court’s 2015 Williams-Yulee v. Florida Bar decision, the opinion stated judges are not politicians, and the state can treat judicial candidates differently from candidates for other offices. While the public may have come to expect “truth-bending” by candidates for political jobs, judicial candidates can be held to a higher standard, the Court noted.

Chief Justice Maureen O’Connor and Justices Michael P. Donnelly and Jennifer Brunner joined the per curiam opinion, as did three appellate court judges sitting for Justices Sharon L. Kennedy, Patrick F. Fischer, and R. Patrick DeWine who did not participate in the case. Eighth District Court of Appeals Judge Sean S. Gallagher, Twelfth District Court of Appeals Judge Stephen W. Powell, and Second District Court of Appeals Judge Michael T. Hall heard the case.

Justice Melody J. Stewart concurred in judgment only, stating that she agreed with the sanctions imposed on Falter, but wrote the majority’s opinion adopts a negligence standard, not a recklessness standard, when it prohibits false statements that are made by judicial candidates without a reasonable factual basis.

Opponent Complained About Candidate’s Literature
In 2017, Kasich appointed Hartman to a vacant seat on the Hamilton County Common Pleas Court. Hartman was defeated in the 2018 election.

Hartman and Falter were candidates for the Republican nomination to another common pleas court seat in 2020. In February 2020, Falter sent a letter to 202 GOP voters that stated Hartman had “moved to Hamilton County 3 years ago” to take the judicial appointment. The letter stated that Falter had grown up in Hamilton County, served 23 year as a public servant in the county, and was recommended by the Hamilton County Republican Party Judicial Screening Committee.

Hartman submitted a campaign grievance against Falter to the Ohio Board of Professional Conduct, claiming she violated the rule against making a false statement. A probable-cause panel found merit in Hartman’s claim, charging Falter with making statements about when and why Hartman had moved to Hamilton County that she knew were false or made with reckless disregard of whether or not they were false.

A three-member board panel heard testimony from Hartman, Falter, and a Falter campaign consultant, and concluded she violated the rule. The panel submitted a report to a five-judge commission, stating that rather than verify information through easily available public records, Falter instead chose to rely on statements about Hartman from her campaign consultants that were “essentially courthouse and party-insider gossip or rumors.”

The five-judge panel reviewed the panel’s report and Falter’s objections to it, and issued a public reprimand to Falter and ordered her to pay a $1,000 fine and the costs of the proceedings.

Falter appealed  the commission’s decision and the Supreme Court was required to consider the case.

Supreme Court Examined Rule’s Requirements
Falter argued she did not violate the rule because the board had not proved she knew the statement was false or that she recklessly disregarded whether it was true or not. She argued she relied on information from competent professional campaign consultants and that the Court could not find sufficient evidence to conclude she “in fact entertained serious doubts as to the truth” of the information in the letter.

The Court noted that Falter’s argument is based on the standard used when a person files a civil lawsuit for defamation. The Code of Judicial Conduct does not require the same standards as a defamation lawsuit, the opinion explained.

Citing two of the Court’s prior judicial campaign complaint decisions from 2012 and 2014, the opinion stated a judicial candidate is considered to have knowingly made a false statement if he or she has “actual knowledge of the fact in question.” A candidate acts “recklessly” if “the result is possible and the candidate chooses to ignore the risk.” The opinion stated the judicial rules do not prohibit negligently made false statements or negligent misstatements.

To determine if a candidate broke the rule, the Court explained that it looks at the nature of the candidate’s statement and the context in which it was made to determine if the candidate had a reasonable factual basis for making the claims.

Candidate’s Actions Scrutinized
Hartman testified he moved from Clermont County to Hamilton County in 2014 and submitted records from the Hamilton County auditor and the Hamilton County Board of Elections showing that he bought a condominium in the county in 2014 and registered to vote in the county that year. He produced records showing he voted in Hamilton County in every election since May 2014. He said he moved there to be closer to his Cincinnati law office and potentially run for a seat in the General Assembly. When he learned in 2016 of a common pleas court vacancy in 2017, he applied for the appointment.

The opinion noted Falter admitted writing the campaign letter and she had not researched Hartman’s voting history or his property ownership. She claimed the information came from her campaign consultants and she relied on them to ensure its accuracy. She also admitted she did not ask how her consultants knew this information, nor did she ask them to verify it.

One of her consultants testified that he did not know where some of the information in Falter’s letter came from. He stated the consulting firm reviewed the letter for “grammatical errors” and typically does not do full research on materials the firm does not produce. The consultant stated that Falter added the information about Hartman’s move on her own and the firm trusted she had “good knowledge” of what she was including.

Falter also argued that she did not break the rule because the information was “substantially true” and that it was immaterial if Hartman moved to the county in 2014 or 2017. She maintained the purpose of the letter was to identify Hartman as a “carpetbagger” and his change of residence  supports the gist of her characterization.  The Court concluded that Falter’s statements were false and material to the campaign. She claimed that Hartman moved to Hamilton County three years after he actually did and for the purpose of filling a judicial vacancy that did not exist at the time he moved, the opinion noted.

The judicial campaign rules are intended to ensure that judges and judicial candidates campaign in a way that fosters respect and confidence in the judiciary, the opinion stated.

“Falter violated both the plain language of the rule and the purpose behind it,” the opinion concluded.

2020-0407. In re Judicial Campaign Complaint Against Falter, Slip Opinion No. 2021-Ohio-1705.

View oral argument video of this case.

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