By a 7-6 vote, an appeals court commission reversed and dismissed an earlier finding that Ohio Supreme Court candidate and former judge William M. O’Neill should cease and desist from distributing campaign material that refers to him as judge.

O’Neill challenged the March 12 finding of a five-judge commission arguing that Rule 4.3(C) of the Ohio Code of Judicial Conduct was unconstitutionally overbroad and vague.

“Canon 4.3 (C), as it applies to respondent, places the burden upon respondent of declaring himself to be ‘a former Court of Appeals Judge’ each and every time he uses the title ‘judge’ during his campaign,” the majority opinion states. “In the brochure in question, respondent identifies himself as ‘former’ judge only once and states that he has served by invitation on the Supreme Court of Ohio. Both statements are true and do not violate Canon 4.3(C). Seven other times in the same brochure, respondent identifies himself as ‘Judge O’Neill.’”

The opinion continues: “Although it is arguable that respondent’s brochure may mislead an observer, we find a ‘doctrine against misleading’ is even a greater threat to free speech.”

“Undisputedly, in common conversation, a retired former judge is called ‘Judge,’” according to the opinion. “Furthermore, as a voluntarily retired judge not engaged in the practice of law, respondent remains eligible for assignment to active duty as a judge. Ohio Constitution, Article IV, Section 6(C). To prohibit respondent from speech wherein the disclaimer of ‘former judge’ is prominent in the advertisement has a chilling effect on his First Amendment privileges and rights.”

The majority opinion concludes that “Canon 4.3(C) as it applies to respondent under the facts in this case is unconstitutional.”

The dissenting opinion found that O’Neill “has not perfected his right to challenge the constitutionality of the canon in this thirteenth hour.”

This was the first judicial campaign grievance for Supreme Court candidates to be heard after a revamped disciplinary process became effective in 2010.

Fifth District Court of Appeals Judge Sheila G. Farmer as Chief Justice of the Courts of Appeals Association was joined in the majority by:

• Judge Patricia A. Blackmon, Eighth District Court of Appeals
• Judge Susan D. Brown, Tenth District Court of Appeals
• Judge Timothy P. Cannon, Eleventh District Court of Appeals
• Judge Thomas J. Grady, Second District Court of Appeals
• Judge Arlene Singer, Sixth District Court of Appeals
• Judge Cheryl L. Waite, Seventh District Court of Appeals

The following judges dissented from the majority’s opinion:

• Judge Peter B. Abele, Fourth District Court of Appeals
• Judge Patricia A. Delaney, Fifth District Court of Appeals
• Judge Patrick F. Fischer, First District Court of Appeals
• Judge Stephen W. Powell, Twelfth District Court of Appeals
• Judge Vernon L. Preston, Third District Court of Appeals
• Judge Beth Whitmore, Ninth District Court of Appeals

In Re: Judicial Campaign Grievance Against William O’Neill, Case No. 2012-0418
Opinion: http://supremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=192227.pdf
On Appeal from a Decision of the Commission of Five Judges Appointed by the Chief Justice of the Courts of Appeals Association
Judgment Appealed Is: Reversed
Date of Judgment Entry on Appeal: July 17, 2012

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

PDF files may be viewed, printed, and searched using the free Acrobat^® Reader
Acrobat Reader is a trademark of Adobe Systems Incorporated.