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In Re: Judicial Campaign Complaint

October 26, 2011

IN RE: JUDICIAL CAMPAIGN COMPLAINT AGAINST MICHELLE WAGNER


The opinion of the court was delivered by: Judge Richard Warren

CAS E ANNOUNCEMENTS October 26, 2011

[Cite as 10/26/2011 Case Announcements #2, ]

MISCELLANEOUS ORDERS BEFORE THE COMMISSION OF FIVE JUDGES APPOINTED BY

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(D)(1) and R.C. 2701.11. The commission members are: Judge Jan Michael Long, Chair, Judge Cheryl S. Karner, Judge Jeffrey E. Froelich, Judge David A. Basinski, and Judge Richard Warren.

On September 13, 2011, the complainant, attorney Mark Davis, filed a complaint with the Board of Commissioners on Grievances and Discipline of the Supreme Court. The complaint alleged that the respondent, Michelle Wagner, had knowingly and or with reckless disregard violated various provisions of Rule 4.3 of the Code of Judicial Conduct by displaying campaign advertisements with the word

"for" in a size that was not prominent. Following a review by a probable cause panel of the Board pursuant to Gov.Jud.R. II, Section 5(B) and based on instructions from that panel, the Acting Secretary of the Board filed a formal complaint alleging that the respondent, during the course of a judicial campaign, violated Rule 4.3(D)(2) (a judicial candidate shall not knowingly or with reckless disregard use the term "judge" when the judicial candidate is not a judge unless that term appears after or below the name of the judicial candidate and is accompanied by the word "for,"

in prominent lettering, between the name of the judicial candidate and the term "judge").

Subsequently, on September 28, 2011, 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 October 3, 2011, the hearing panel issued its findings of fact, conclusions of law, and recommendations in this matter. The hearing panel concluded that by clear and convincing evidence that the Respondent's yard signs, t-shirts, and bumper magnets did not comply with the prominent lettering requirement of Jud.Cond.R. 4.3(D)(2) and that the Respondent violated the canon with reckless disregard.

The hearing panel recommended that the five-judge commission issue an interim cease and desist order. The panel further recommended that the respondent be assessed the costs of these proceedings.

On October 5, 2011, the Supreme Court of Ohio appointed a five-judge commission to review the hearing panel's report pursuant to Gov.Jud.R. II, Section 5(D)(1). The commission was provided with the record certified by the Board of Commissioners on Grievances and Discipline, a complete transcript of the September 28, 2011 proceeding before the hearing panel, and the exhibits presented at that hearing.

The full commission met by telephone conference on October 10 and October 13, 2011; briefs were not requested from the parties.

Pursuant to Gov.Jud.R. II, Section 5(D)(1), we are charged with reviewing the record to determine whether it supports the findings of the panel and that there has been no abuse of discretion. A majority of the Commission holds that the record does not support the findings of the hearing panel that a violation of Jud.Cond.R. 4.3 has occurred.

We note the word "for" is obviously smaller than and of the same color and print as the other words on the Respondent's campaign signs, t-shirts, and bumper magnets and may, therefore, not be prominent within the intent of Jud.Cond.R. 4.3. In that regard, future judicial candidates may possibly avoid a complaint or even a violation, by ...


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