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SUPREME COURT OF OHIO

COLUMBUS

ANNOUNCEMENT

TUESDAY

March 9, 1999

MISCELLANEOUS DOCKET

98-2510. In re Judicial Campaign Complaint Against Roger Kienzle.
Roger Kienzle is publicly reprimanded, fined $1,000, and ordered to pay
complainant's reasonable and necessary attorney fees and costs. See attached
opinion.

BEFORE THE COMMISSION OF FIVE JUDGES
APPOINTED BY
THE SUPREME COURT OF OHIO

In re: Judicial Campaign Complaint :
Against
Roger
Kienzle
Case
No.
98-2510
:

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, Section 5(E)(1) and R.C.
2701.11. The commission members are: Judges John T. Patton, Jan Michael Long,
John D. Schmitt, Barbara P. Gorman and Jon R. Spahr, Chair.

On October 2, 1998, the complainant, Judge Robert Brown, filed a grievance
with the Board of Commissioners on Grievances and Discipline of the Supreme
Court. The complaint alleged that the respondent, Roger Kienzle, had violated
Canon 7(E)(1) of the Code of Judicial Conduct by disseminating campaign material
containing the statement that, "[a]s Judge, Robert Brown imposed $430,000 in taxes
on Wayne countians. The Court of Appeals said he was wrong." This statement
was made in reference to complainant's ruling in the case of Strong, et al. v.
Killbuck Valley Mosquito Abatement Sanitary District (Wayne Co. Case No. 93-CI-
049) and the subsequent reversal of the complainant's order by the Ninth District
Court of Appeals. Strong, et al. v. Killbuck Valley Mosquito Abatement Sanitary
District (1996), 108 Ohio App.3d 441. The respondent further stated in the
campaign materials that, "I will never impose taxes on Wayne countians contrary to
law."

Following a review by a probable cause panel of the Board pursuant to Gov.
Jud. R. II, Section 5(C)(1)(a) and based on instructions from that panel, the
Secretary of the Board filed a formal complaint on October 28, 1998 alleging that
the respondent, during the course of a judicial campaign, violated Canon 7(E) of the
Code of Judicial Conduct by making the aforementioned statements.

On November 20, 1998, a hearing panel appointed by the Board of
Commissioners on Grievances and Discipline conducted a hearing on the allegations
contained in the formal complaint. On November 25, 1998, the hearing panel
issued its findings of fact, conclusions of law, and recommendations in this matter.
The hearing panel concluded that the statements alleged in the formal complaint
violated Canon 7(E)(1) in that the statements were made by the respondent either
knowing them to be false or with a reckless disregard of whether or not they were
false. In assessing the severity of the respondent's misconduct, the hearing panel
considered the respondent's claims that his statement describing the complainant's
ruling in the Strong case was the functional equivalent of imposing a tax and that he
did not intend to violate Canon 7. Finding these contentions did not excuse the
respondent's conduct, the hearing panel recommended that the respondent be fined
$2,500. The panel further recommended that the respondent be ordered to pay the
complainant's attorney fees and be assessed the costs of these proceedings.

On December 1, 1998, the Supreme Court of Ohio appointed this five-judge
commission to review the hearing panel's report pursuant to Gov. Jud. R. II, Section
5(E)(1). We were provided with the record certified by the Board of Commissioners
on Grievances and Discipline, a complete transcript of the November 20, 1998
proceeding before the hearing panel, and the exhibits presented at that hearing.

We met by telephone conference on December 7, 1998, February 3, 1999, and
March 2, 1999. Following the initial telephone conference, we issued an order
allowing the parties the opportunity to file written briefs. Following the second
telephone conference, the parties were ordered to submit information regarding the
complainant's attorney fees and costs. We considered the briefs and other materials
filed by the parties in reviewing the record and the hearing panel's report and
recommendation.

Pursuant to Gov. Jud. R. II, Section 5(E)(1), we are charged with reviewing
the report of the hearing panel and have discretion in establishing procedures used
to conduct our review. Gov. Jud. R. II, Section 5(E)(1) requires that we
independently review the record before us and ascertain whether clear and
convincing evidence exists to support a determination that the respondent violated
Canon 7 of the Code of Judicial Conduct.

We affirm the findings of fact and conclusions of law made by the hearing
panel. The record contains clear and convincing evidence that the respondent's
statements, alleging that the complainant imposed taxes on the residents of Wayne
County, were contrary to Canon 7(E)(1), which reads, in pertinent part, as follows:

(E) Campaign Communications. During the course of any
campaign for nomination or election to judicial office, a judicial
candidate, by means of campaign materials * * * or otherwise, shall
not knowingly or with reckless disregard do any of the following:

(1) Post, publish, broadcast, transmit, circulate, or distribute
information concerning a judicial candidate or an opponent, 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.

The record indicates that the respondent's undergraduate degree was in
political science and that he taught American government to high school students.
The respondent has been a licensed attorney since 1974 and has served as a common
pleas court magistrate since 1991. Given his educational and professional
background and the fact that he was seeking election to a judicial office, the
respondent knew or should have known that members of the judicial branch of
government are without power to impose taxes. This is a fundamental principle of
our form of government recognized by the drafters of the United States Constitution
(See Federalist No. 48 by James Madison and Federalist No. 78 by Alexander
Hamilton) and contained throughout the Ohio Constitution and Revised Code.
Accordingly, we find clear and convincing evidence that the respondent's
statements were made either knowing them to be false or with a reckless disregard
of the truth.

Before the hearing panel and in briefs filed with this commission, the
respondent heavily relied on an argument that his statements and the wording of the
appellate court's opinion in Strong were "functionally equivalent." We reject this
contention. To argue that the complainant's order and the subsequent reversal by
the court of appeals is "functionally equivalent" to the illegal imposition of a tax is
disingenuous and clearly beyond the bounds of campaign conduct permitted by
Canon 7.

While we find the respondent's statements in this instance to be contrary to
Canon 7(E)(1), we do not intend to imply the existence of absolute limits on
comments and debate in judicial campaigns. However, the respondent's statement
not only was inaccurate but promotes the public's misunderstanding of the role of
the judiciary in our form of government.

We also note that there are avenues for judicial candidates to obtain guidance
regarding the applicability of Canon 7 to planned campaign conduct and statements.
Judicial candidates are required to attend campaign seminars at which the provisions
and interpretation of Canon 7 are reviewed by staff of the Supreme Court and Board
of Commissioners on Grievances and Discipline. Persons attending those seminars
are made aware that the Court and Board staff are available for informal
consultation throughout the campaign. Judicial candidates also may request written
advisory opinions from the Board of Commissioners. Where a judicial candidate
has questions regarding the permissibility of his or her conduct, the candidate
should make use of these available resources to minimize the potential for a
violation of Canon 7.

Sanctions

The hearing panel recommended that the respondent be fined $2,500, and
ordered to pay the complainant's reasonable and necessary attorney fees and the
costs of these proceedings. In view of the record before us and the decisions made
by our colleagues in prior judicial campaign enforcement cases, we determine that
the more appropriate sanction is a public reprimand coupled with a fine of $1,000.
We believe this sanction is sufficient to punish the respondent and deter similar
violations by judicial candidates in future elections. See In re Judicial Campaign
Complaint Against Morris (1997), 81 Ohio Misc.2d 64, 65.

The hearing panel noted the respondent's cooperation with the panel and his
display of remorse and characterized his violation as "an error in judgment." While
we appreciate the perspective of the hearing panel as to the respondent's demeanor,
we view his conduct as more than a simple error in judgment. The respondent's
characterizations of the complainant's order in the Strong case were harmful to the
judiciary as an institution and particularly are troublesome in view of the
respondent's experience as an educator, lawyer, and judicial officer. In view of
these factors, we believe a public reprimand is the more appropriate sanction to
punish the respondent.

Moreover, we are mindful of the statement, first made by our colleagues in
Morris, that the punishment of judicial campaign violations by means of simply
imposing fines on offending candidates will do little to enhance public respect for
the judiciary or ensure future compliance with Canon 7. Morris at 65-66.
Moreover, as stated by our colleagues in In re Judicial Campaign Complaint
Against Hein (1999), 95 Ohio Misc.2d 31, 36:

"[c]ontinuing a pattern of imposing only monetary sanctions for
violations of Canon 7 would send a signal to future judicial candidates
that they may engage in a financial risk versus benefit analysis in
making decisions regarding campaign conduct. A judicial candidate
who believes that he or she can favorably affect the outcome of an
election by engaging in conduct contrary to Canon 7, and who knows
from prior cases that the only likely consequence of this action will be
a financial penalty, will need only to instruct his or her campaign
committee to raise and budget sufficient funds to cover the anticipated
fine and costs arising from an enforcement proceeding.

It is the unanimous conclusion of the judicial commission that respondent be
publicly reprimanded for his violations of Canon 7 of the Ohio Code of Judicial
Conduct and that he be fined $1,000. We concur with the balance of the hearing
panel's recommendation and order that the respondent pay the complainant's
reasonable and necessary attorney fees and the costs of these proceedings.

After considering the evidence related to attorney fees and expenses properly
submitted by the parties and the factors contained in DR 2-106(B), we order the
respondent to pay the complainant $4,618.86 in attorney fees and expenses

The Secretary shall issue a statement of costs before this commission and
instructions regarding payment of the monetary sanctions. Payment of all monetary
sanctions shall be made on or before July 7, 1999.

SO
ORDERED.

_____________________________
Judge
Jon
R.
Spahr

_____________________________
Judge
John
T.
Patton

_____________________________
Judge
Jan
Michael
Long

_____________________________
Judge
John
D.
Schmitt

_____________________________
Judge
Barbara
P.
Gorman

Dated: March
9,
1999