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SUPREME COURT OF OHIO

COLUMBUS

ANNOUNCEMENT

THURSDAY

February 25, 1999

MISCELLANEOUS DOCKET

98-2541. In re Judicial Campaign Complaint Against Runyan.
The action of the hearing panel is reversed, and the complaint is dismissed. See
attached Order.

Lauber, Chair, Byers-Emmerling and Weaver, JJ., concur.

Nicely and Bessey, JJ., dissent.

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

In re: Judicial Campaign Complaint

:
Against
Jeffrey
Runyan
Case
No.
98-2541
:

ORDER OF THE COMMISSION OF JUDGES.

This matter came for review before a five-judge commission appointed by
the Supreme Court pursuant to Gov. Jud. R. II, Section 5 (E)(1) and R.C. 2701.11
upon a judicial campaign complaint filed by Joe Murray against respondent Jeffrey
Runyan. Members of the commission were Judges William G. Lauber, Chair;
Melissa Byers-Emmerling; John Bessey; Judith Nicely; and Margaret K. Weaver.

This cause arose out of a judicial election in Ashland County in which the
parties were the opposing candidates for an open common pleas court judgeship.
Complainant alleges in his disciplinary grievance that respondent made the
following campaign promise or pledge: "If elected, I will imprison all convicted
felons", in violation of Canon 7(B)(2)(c) of the Code of Judicial Conduct. He
allegedly made such statement during an interview with a Richland County
newspaper. Based upon that complaint, a finding of probable cause was made, a
formal complaint was filed charging a violation of Canon 7(B)(2)(c), and a
hearing was held before a hearing panel, pursuant to Gov. Jud. R. II, Section 5 (C)
and (D). The hearing panel concluded the respondent had violated the canon and
made recommendations for penalty.

The case was reviewed by teleconference on December 8 and 14, 1998, after
the entire commission had an opportunity to review the transcript, exhibits, and
arguments. The majority of the commission concluded that it must find in the
record clear and convincing evidence that first, the respondent said what
complainant alleges he said, and second, if he did say it, that it constitutes a Canon
7(B)(2)(c) violation.

Canon 7(B)(2)(c) states:

A judge or judicial candidate shall not do any of the
following:

* * *

Make pledges or promises of conduct in office other than
the faithful and impartial performance of the duties of
the office * * *.

Ohio law states that to be clear and convincing, the evidence must have
more than simply a greater weight of the evidence opposed to it and it must
produce in the trier of fact's mind a firm belief or conviction about the facts to be
proved or the truth of the matter. Lansdown v. Beacon Journal Pub. Co. (1987),
32 Ohio St.3d 176; Cross v. Ledford (1954), 161 Ohio St.469.

The statement at issue arose at an interview with a newspaper in Richland
County on October 15, 1998 at which four people were in attendance. The record
shows that complainant and respondent were both present as interviewees.
Reporter Mark Caudill, who was charged with writing an account of the
interviews was present. Also present was the paper's city editor, Michael Shearer,
who represented the editorial board and apparently conducted the interview. He
was also charged with writing an endorsing editorial. The interview of the two
candidates lasted less than forty-five minutes.

Reporter Mark Caudill's article appeared on October 19, 1998, and in it he
specifically quotes the respondent as follows: "I would run a court that views
convicted felons from the standpoint that they are going to be incarcerated. The
penalty is the best and first way of dealing with felons."

On October 21, 1998, City Editor Michael Shearer wrote his editorial
endorsing the complainant and saying, "Runyan vows to uphold Henderson's
tradition, saying he would put all convicted felons in prison. Murray said each
individual case must be considered."

The same day the editorial appeared in the morning paper, and six days after
the October 15 interview, complainant filed his grievance.

In his testimony before the hearing panel City Editor Michael Shearer
testified as follows:

Q.
Would you describe to the Panel that discussion as you recall it?

A.
Mr. Runyan had made a statement that he wanted to continue to serve
the tradition of the court under the sitting Judge Henderson.

And I asked a follow-up question about what he meant by that
statement, what does that mean? And he responded about -- with a

statement I guess which is to the question, to the effect that convicted
felons should be put in prison.

(Tr. at pp. 19, 20; ll. 22-10)

After being shown his editorial with the statement that Mr. Runyan would put all
convicted felons in prison, he was asked:

Q.
Did Mr. Runyan make that statement to you in the course of his
interview with you?

A.
As far as I can recollect, yes.
(Tr. at p. 21, ll 13-16)

Later, during cross-examination, he testified:

Q.
Is that the document reflecting the article written by Mark Caudill?

A.
Yes it is.

Q.
Is that a true and accurate copy of that article?

A.
It would appear to be.

Q.
I'd like you to read that portion of the article, these two paragraphs
here.

A.
This in a direct quote from Mr. Runyan. We have a very special situation in
Ashland County, he said. Judge Henderson has a reputation of being a very
conservative judge. With his success, that needs to be continued. I would run a
court that views convicted felons from the standpoint that they are going to be
incarcerated. The penalty is the best and first way of dealing with felons.

Q.
And apparently you surmised that from his statement he indicated that
he would put all convicted felons in prison?

A.
That was the impression that I was left with, yes.

Q.
That's what you surmised?

A.
That's what I surmised and that's what I surmised from reading the
quote here today.

Q.
He indicates here that something is the best and first way. You don't find that to
mean that there may be other ways of dealing with felons?

A.
I suppose you could read it that way; by me -- the impression I got
from sitting with him and reading the quote again was that all
convicted felons would be imprisoned. I guess in my reading of it, I
did not take that to mean that of being absolute. But I thought that
was what the gist of it was.

Q.
You deem it to be an absolute?

A.
That's -- that would be with Mr. Runyan. I guess I found it a little hard to believe
that would be the case. But that's what the statement was.

Q.
That's the way you interpreted it?

A.
That's the way I interpreted it, yes.
(Tr. at pp. 23-25, ll 5-9)
There was no redirect.

Therefore, the only statement by City Editor Shearer that respondent said,
"If elected, I will put all convicted felons in prison" is to be derived from his
answer that as far as he could recollect, respondent said that, although under cross
examination he testifies that he surmised that, that it was the gist of Mr. Runyan's
answer, that it was how he interpreted Mr. Runyan's answer, and that the October
19 article by Reporter Mark Caudill contained "a direct quote" by Mr. Runyan.

The complainant testified that the respondent said that if elected, that he
would imprison all convicted felons. (Transcript p. 38, ll 11, 12)

During cross-examination, he further testified as follows:

Q.
And the quotes of Mr. Caudill, you don't have any reason to disagree
with his attributions to Mr. Runyan?

A. His quote of Mr. Runyan isn't what I recall Mr. Runyan to say.
Specifically -- I've testified as to what Mr. Runyan which supports --
which is reiterated in Mr. Shearer's editorial on the 21st.
(Tr. at pp. 41, 42; ll 19-20)

Q.
If elected, I will imprison all convicted felons.

A.
Exactly.

Q.
Is that what you remember him saying?

A.
That's what I remember him saying.

Q.
And you wrote that based upon your memory?

A.
Yes.
(Tr. at pp. 43, 44; ll 23-27)

The respondent testified that he made the statement contained in Reporter
Caudill's October 19 article and it was substantially accurate. (Tr. at p. 62, ll. 15-
17) The only evidence that Reporter Caudill's quotation was not accurate came
from the complainant on cross-examination as set forth above in which he testified
that the reporter's quote wasn't what he recalled respondent to have said, although
Michael Shearer, city editor, described the quotation in the October 19 paper as a
direct quotation.

The hearing panel's Findings of Fact portion of its decision includes the
following statement in its final paragraph:

Respondent testified on his own behalf. He indicated
that the quotes in the October 19th news article and the
October 21st editorial were substantially accurate.

A careful review of the record reveals that at no time did respondent
indicate that the quote of the October 21 editorial was substantially accurate. In
fact, on page 71 of the transcript the respondent gives the following testimony:

Q.
Finally, did you ever indicate to the voters that you would, as is indicated in the
complaint, if elected, I will imprison all convicted felons.

A.
I don't recall ever saying that.

Q.
Did you say it.

A. No.

Counsel for complainant never inquired of respondent concerning the
statement in the October 21 editorial.

Based upon this evidence, which it believes to be exhaustive of the evidence
in the transcript on the issue, the majority concludes that there is not clear and
convincing evidence that respondent said, "If elected, I will imprison all felons."
In an alleged violation of this genus, the words of the candidate are what must be
considered, not an interpretation of his words or conjecture of another as to their
meaning. The reason this is an important issue is that the "direct quote," as the
editor called the statement in the October 19 article, and the editor's October 21
editorial statement, which he himself said was an interpretation, are not the same.
It was the editorial statement that was asserted by the complainant in his grievance
as his recollection. However, no grievance was filed at the time of the directly-
quoted statement, but after the editorial statement appeared in print. These two
statements are different in relevant ways in both form and substance.

The statement quoted in the October 19 article is stated to be "from the
standpoint of", which is in the form of a philosophical viewpoint, whereas the
statement in the editorial, and quoted in the complaint, is an affirmative
declaration. These differing forms are significant when it comes to the second
determination which would have to be made in this case, to wit: does the

statement represent a pledge or promise made by the candidate? An affirmative
declaration can be, in appropriate circumstances, a pledge or promise. A
philosophical viewpoint, while perhaps inappropriate under
another section of the canon, is unlikely to rise to a pledge or promise as
reasonable persons would define them.

The substance of the two statements differ as well. The October 19
statement speaks of incarceration, which Black's Law Dictionary defines as
including jail and prison, and which Ohio criminal law professionals define to
include jail, community based correction facilities, as well as prisons. The
editorial and the complaint use the words prison and imprison. On page 20, ll 7-
10, of the transcript, City Editor Shearer states that respondent answered his
question "to the effect that convicted felons should be put in prison." The word
"all" was in the editorial statement: "Runyan vows to uphold Henderson's
tradition, saying he would put all convicted felons in prison." By changing the
word "incarceration" to "prison" by the addition of the words "all" and "vows" the
statement is transformed to what would reasonably be considered a pledge or
promise.

The majority thereupon concludes that complainant failed to prove by clear
and convincing evidence that respondent said, "If elected, I will imprison all
convicted felons." And although the hearing panel appears to deal with the
statement of October 19, this was not part of the majority's review as it is not
properly before the commission as an alleged violation, although it had been
publicly disseminated prior to the filing of this grievance.

Therefore, we reverse the action of the hearing panel and dismiss the
complaint.

SO ORDERED.
______________________________

Judge William G. Lauber, Chair

______________________________

Judge Melissa Byers-Emmerling

______________________________

Judge Margaret K. Weaver

Nicely and Bessey, JJ., dissent.
We would affirm the Board of Commissioners on Grievances and Discipline
Panels Findings of Facts, Conclusions of Law and Recommendations as filed on
December 1, 1998. The panel could best determine the credibility of the witnesses
regarding the facts. The facts are not disputed as Respondent states in the
transcript that the newspaper articles were accurate regarding his statements, "I
would run a court that views convicted felons from the standpoint that they are
going to be incarcerated." (Tr. at pp. 75-77).

The issue in this case is one's interpretation of the law and what statements
are acceptable under the Judicial Canon in the course of a judicial campaign.
Canon 7(B)(2) holds that:

A judge or a judicial candidate shall not do any of the
following:

* * *

Make pledges or promises of conduct in office other than the
faithful and impartial performance of the duties of the office * * *

Having reviewed the case law in Ohio and other states, we find the
statements "I would run a court that views convicted felons from the standpoint
that they are going to be incarcerated" violate this Canon because it implies that a
judge has prejudged an issue without hearing the specific individual facts or
applicable law.

The Ohio Judicial Canons follow the ABA Model Code which has also in part been
adopted by other states. The purpose of these Canons is to improve public confidence and
respect in the judiciary. It is to establish appropriate standards of conduct which to the objective
observer appears impartial. It is not the conduct which may be dominate and prevailing in some
communities.

Case law is consistent that states have a compelling interest in limiting a
judicial candidate's speech. The Ohio Supreme Court recently held the Canons
are binding on judicial campaign conduct. In Re: Complaint Against Judge
Harper (1996), 77 Ohio St. 3d 211, 218.

The Ohio Supreme Court in Harper referred to a case analogous to this case
from the State of Washington. In Re: Kaiser (1988), 111 Wash. 2d 275. In
Kaiser, an incumbent judge made the following campaign statements:

Judge Kaiser is tough on drunk driving. . .Will Roarty,
the opponent, receives the majority of his financial
support from drunk driving defense attorneys, whose
primary interests are getting their clients off. ***

The point is clear, I am a tough, no-nonsense judge and
this group of attorneys wants to prevent my re-election.

The Washington Supreme Court found these statements violated the Canons because the
statements suggested that justice was for sale and that defendants are not entitled to a fair trial.
The Court further found that the statements regarding contributions by DWI defense attorneys

violated the Canons by calling into questions the integrity and impartiality of the judiciary.

In Harper, the Ohio Supreme Court also referred to Berger v. Supreme
Court of Ohio (S.D. Ohio 1984), 598 F. Supp. 69.

The facts in Berger are interesting. In Berger, the judicial candidate filed a
preliminary injunction against the enforcement of the Ohio Code of Judicial
Canons. The Supreme Court held that while the Judicial Canon prohibits a
candidate from announcing views on disputed legal or political issues such as
making pledges or promises of conduct in office other than a faithful and impartial
performance of duties in office, it does not prohibit criticisms of judicial
administration or incumbents, assuming those criticisms are not untruthful or
misleading. Pledges by judicial candidates to increase the judge's personal
involvement in administration and resolution of cases which encourage dispute
resolution is exempted from the Judicial Canons.

The Court in Berger held that one of the purposes of Canon was to prohibit
judicial candidates from making pledges or promises which appeal to prejudices or
special interests.

Plaintiff does not dispute that the state has a compelling
interest in assuring that its elected judges are protected
from untruthful criticism and that judicial campaigns are
run in a manner so as not to damage the actual and
perceived integrity of state judges and the bar; hence, the
provision against misrepresentation. Additionally: [']
Ours is an era in which members of the judiciary often
are called upon to adjudicate cases squarely presenting
hotly contested social or political issues. The state's
interest in ensuring that judges be and appear to be
neither antagonistic nor beholden to any interest, party,
or person is entitled to the greatest respect. [']"
(Emphasis added.) Id. At 75, quoting Morial v.
Louisiana Judiciary Comm. (C.A.5, 1977), 565 F. 2d
295, 302.

It is also helpful to review other states' cases which have interpreted this
Canon. In Ackerson v. Kentucky Judicial Retirement And Removal Commission
(W. D. KY. 1991), 776 F. Supp. 309, 314, Ackerson, a judicial candidate,

petitioned the Commission to determine with respect to what statements or
promises could be made. The Court held:

The Canon does not prohibit all speech by a judicial
candidate on legal issues. A candidate may fully discuss,
debate, and commit himself with respect to legal issues
which are unlikely to come before the court. A candidate
may also fully discuss and debate legal issues which are
likely to come before the court. It is only with respect to
the later that the candidate is prohibited from making
direct or indirect commitments.

We find that there is a compelling state interest in so
limiting a judicial candidate's speech, because the
making of campaign commitments on issues likely to
come before the court tends to undermine the
fundamental fairness and impartiality of the legal system.
The canon is closely tailored to this end.

All candidates for elective office, including judicial candidates,
presumably come equipped with options and predilections which
are the result of their life experience. A judge, however, must cast
these aside, saving only his or her intrinsic notion of fundamental
fairness. The canon recognizes that pre-election commitments by
judicial candidates impair the integrity of the court by making the
candidate appear to have pre-judged an issue without benefit of
argument of counsel, applicable law, and the particular facts
presented in each case.

The Kentucky Supreme Court found that pro-life issues discussed by a
candidate were issues that were likely to come before the Court and in violation of
the Canons. Deters v. Judicial Retirement and Removal Commission (1994), 873
S.W. 2d 200. The Court concluded that:

Mr. Deters publicly announced his view on the abortion
issue for the admitted purpose of obtaining support from
voters interested in that issue. In doing so, he attempted
to obtain an unwarranted and illegal advantage in the
election over his opponents. In so acting, he violated the
[the Canon] by making statements that commit or appear

to commit the candidate to a position with respect to
cases, controversies or issues that are likely to come
before the court.

In another case from The Supreme Court of Kentucky, a judicial candidate
made a commitment to the voters regarding her position on the issue of probation
in child abuse cases. Summe v. Judicial Retirement and Removal Commission
(1997), 947 S.W. 2d 42. The Court stated:

The obvious crux of the letter is that appellant's
opponent lets child abusers off easy and that if appellant
was elected, she would not. As was aptly stated in a
treatise on the various rules of judicial conduct
throughout the United States:

Ethics advisory opinions address the propriety of
numerous statements and pledges candidates have
proposed to use in the course of a campaign. The
general sense of these opinions is that anything that
could be interpreted as a pledge that the candidate will
take a particular approach in deciding cases or a
particular class of cases is prohibited. Jeffrey M.
Shaman et al., Judicial Conduct and Ethics, Section
11.09 p. 372 (Michie 2nd ed., 1995).1

The Court in Summe also held that:

The purpose of the Canons is to improve the quality of
justice administered within a state by examining specific
complaints of judicial misconduct and correcting any
deficiencies found by taking the least severe action
necessary to remedy the situation. The target is not
punishment of the judge.

There are two other cases from Kentucky which found violations of this
Canon. In 1994, a Kentucky judge was censured for distributing campaign

1
This book was a valuable source of information.

materials containing the phrase "solid reputations for law and order" and "does not
allow plea bargaining." In re Nolan, Unreported Order (Ky. Comm'n 1984).
Another Kentucky judge was suspended from office for ten days without pay for
suggesting, in a campaign advertisement, that he would rule favorably toward a
particular group if elected. In re Ehlschide, Unreported Order (Ky. Comm'n
1982).

In Indiana a judicial candidate was reprimanded for distributing campaign
materials in which the candidate pledged, if elected, to "stop suspending
sentences" and to "stop putting criminals on probation." In The Matter of William
D. Hann (1997), 676 N.E. 2d 740 the Supreme Court of Indiana held:

A judge has a duty to consider requests for probation or
suspension of sentences in accordance with the law and
in light of any mitigating circumstances or evidence
submitted in individual cases.

The parties agree that Mr. Hann's pledges committed
him to the outcome of criminal cases in violation of the
[Canon]. . .in a manner inconsistent with a judge's duties
to impose sentences in accordance with the law and the
evidence. Nothing less than the constitutional right to
due process commands such an approach to a judge's
duties. There was nothing "innocuous" about such a
pledge. In effect, Hann's campaign materials, promised
the voters he would decide cases in his court without
regard to evidence or applicable rules of law. id. at 741.

Both the State Bar of Michigan and ABA Committee on Ethics and Professional
Responsibility have issued an opinion that a candidate cannot use the slogan "a strict sentencing
philosophy," as it gives the impression he or she would act in a bias manner in certain cases.
State Bar of Mich. Comm. On Prof. And Judicial Ethics, Formal Op. C-1219 (1980); ABA
Comm. On Ethics and Professional Responsibility, Informal Op. 1444 (1980).

There are two cases which one must address from the federal courts
regarding candidate's statements. In Stretton v. Disciplinary Bd. Of Supreme Ct.
Of Penn., 944 F. 2d 137 (3d Cir. 1991), a judge desired to announce his views on
the following issues:

(a) the need for election of judges with a "activist"
view;

(b) criminal sentencing and the rights of victims of
crime;

(c) "reasonable doubt" and how we apply the
standard;

(d) the need to more closely scrutinize the work of
district justices;

(e)
the need for various changes in judicial administration;

(f)
the need for greater sensitivity toward hiring minority lawyers
and law clerks.

In Stretton the Court interpreted the Pennsylvania Canon to mean that
"disputed legal or political issues" refers to only those issues that are likely to
come before the court. They found that this restriction is narrowly tailored to
serve the state's compelling interest in an impartial judiciary. They stated:

The public has the right to expect that a court will make an assessment
of the facts based on the evidence submitted in each case, and that the
law will be applied regardless of the personal views of the judge.
Taking a position in advance of litigation would inhibit the judge's
ability to consider the matter impartially. Even if he or she should
reach the correct result in a given case, the campaign announcement
would leave the impression that, in fact, if not in actuality, the case
was prejudged rather than adjudicated through a proper application of
the law to facts impartially determined. See Cox, 379 U.S. at 565, 85
S. Ct. At 481 (State may protect against public perception that a
judge's action was in part the result of improper influence).

The United States Seventh Circuit Court of Appeals in Buckley tried to
distinguish Stretton from their finding. Such a rule was unconstitutional. Buckley
v. Illinois Judicial Inquiry Board (7th Cir. 1993), 997 F. 2d 224. In Buckley, the
judge circulated campaign literature that stated, "he had never written an opinion
reversing a rape conviction."

Our conclusion that the supreme court's rule is invalid
creates undoubted tension with the Third Circuit's decision
in Stretton v. Disciplinary Board, 944 F. 2d 137 (3d Cir.
1991), which upheld an almost identically worded rule that
had been promulgated by the Supreme Court of
Pennsylvania. Stretton is distinguishable, although
precariously. While the court employed a similar form of
words as the district court judge in our case to narrow the
application of the rule, it seems to have understood the rule
to be confined to campaign statements that would leave the
impression that a case had been "prejudged," id. at 144,
which seems to fold the "announce" clause back into the
"pledges or promises" clause understood as equivalent to
the ABA's new "commitment" canon. The court listed a
number of issues, including the rights of victims of crime
and the importance of the constitutional rights to privacy, as
lying outside the rule as interpreted both by it and the chief
counsel of the disciplinary authority. Id. at 139, 142. The
court did not have the benefit of the insight into the scope of
such a rule as is provided by a ruling such as that of the
Illinois Courts Commission that condemned so innocuous a
statement as a candidate's report of his past record in ruling
on a particular type of case (Justice Buckley's comment on
rape convictions). Nor did it have to confront the
complexities introduced by a concession that a candidate
has a broad right of reply or that the word "announce"
should be read to mean foretell one's vote. Id. at 230.

To summarize, we find that the law supports the Findings of Fact and
Recommendation of the Hearing Panel. Campaign statements which views
"convicted felons as going to be incarcerated" are prejudicial. These statements
appeal to special interests and unfairly treat felons as a class of persons without
respect to their individual differences.

______________________________

Judge Judith Nicely

______________________________

Judge John Bessey