Panel sides with candidate for Ohio Supreme Court

Overturns decision from lower panel about 'misleading' campaign

7/17/2012

COLUMBUS — A unique judicial panel created to judge former judge William M. O’Neill on Tuesday sided with the Democratic candidate for Ohio Supreme Court and ruled an attempt to punish him for “misleading" would-be voters to be unconstitutional.

In a 7-6 decision, a never-before-used judicial commission overturned a decision by a lower five-judge panel that found that Mr. O’Neill, a former northeast Ohio appellate judge, had misrepresented himself in campaign materials as a current judge. Mr. O’Neill is challenging incumbent Republican Justice Robert Cupp in the Nov. 6 election.

The lower panel had fond Mr. O’Neill guilty of violating judicial canons with a campaign brochure that identifies himself as a “former judge" just once while but simply calls himself a judge seven other times. The lower panel had recommended that a cease-and-desist order be issued to halt the practice.

But the higher panel created by the Supreme Court to keep itself out of judging campaign tactics in races for its own bench found that the statements included on a two-sided campaign card, while maybe misleading, were not false as covered by the Judicial Code of Conduct.

“Although we might not agree the brochure is not in toto false but misleading, the challenged rule does not address misleading speech, only the use of a judicial position that the candidate currently does not have," reads the decision signed off on by seven current appellate court judges from across the state.

The majority noted that a retired judge often keeps the title once leaving the bench and that Mr. O’Neill remained eligible for temporary assignment to sit on cases.

“To prohibit (Mr. O’Neill) 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 wrote.

Mr. O”Neill, who has sworn off campaign contributions as a corrupting influence on the judiciary, said today that he has 2,000 of those self-financed campaign cards sitting in his garage that he will dust off and put into circulation.

“Once again I’m carrying the burden of correcting the way judges are elected in Ohio," Mr. O’Neill said today. “This is just another milestone in that battle."

But the six-member minority countered that Mr. O’Neill did not challenge the constitutionality of the canon as it applied to him when appearing before the lower panel and only made a “passing reference" to it in arguments before the higher panel. Those judges indicated they would have upheld the lower panel’s decision and cease-and-desist order.

Now a pediatric emergency nurse, Mr. O’Neill retired from the Warren-based 11th District Court of Appeals in 2007. This marks his first attempt to win election to the Supreme Court. He defeated the Ohio Democratic Party’s endorsed candidate, Hamilton County Municipal Judge Fanon A. Rucker, in the March primary election and will face Justice Cupp this fall.

This marks the second time that Mr. O’Neill has done battle with judicial canons and won as it relates to his Supreme Court campaigns.

He previously challenged the canons in federal court for prohibiting him and other candidates from identifying themselves as members of a political party. In Ohio, judicial candidates run in partisan primaries but run in the general election without party labels.