Complaint Against Harper, In re

Decision Date05 December 1996
Docket NumberNo. 96-1551,96-1551
Citation673 N.E.2d 1253,77 Ohio St.3d 211
PartiesIn re COMPLAINT AGAINST Judge HARPER.
CourtOhio Supreme Court

This matter is before a panel of the Ohio Supreme Court serving pursuant to Gov.Jud.R. II(4), for the purpose of reviewing the amended findings of fact, conclusions of law, and recommendation of the Board of Commissioners on Grievances and Discipline of the Supreme Court ("board") that Judge Sara J. Harper, Attorney Registration No. 0023730, of Cleveland, Ohio, be publicly reprimanded. 1 The present disciplinary proceeding stems from an advertisement approved by Judge Harper during the course of her 1994 campaign for justice of the Supreme Court. In that campaign, Judge Harper's opponent was incumbent Supreme Court Justice Alice Robie Resnick.

Judge Harper has been involved in numerous political campaigns over many years, and has never been previously disciplined, nor has she been cited for prior disciplinary code violations. She was initially appointed to the Cleveland Municipal Court on December 31, 1970, ran in the Ohio Republican Party primary in 1976 for the Ohio Supreme Court, and then ran again in 1980 as the endorsed Republican candidate for the Ohio Supreme Court. Other than fourteen years in private practice, Judge Harper has been a judge either on the municipal bench or the court of appeals, where she is currently a judge, for twenty-two years.

In the 1994 campaign, Judge Harper was again the endorsed Republican candidate in the primary. In August 1994, she was contacted by Robert Bennett, the Chairman of the Ohio Republican Party, about filming a commercial to be used in the campaign. Shortly thereafter, Bennett came to Cleveland and Judge Harper was filmed in various poses at the Cuyahoga County Courthouse. Nothing was disclosed to her about the nature of the projected campaign advertisement.

Subsequently, on October 31, 1994, Judge Harper came to Bennett's office in Columbus to view the video of the proposed commercial. The video itself begins with a group picture of Justices of the Ohio Supreme Court, but in succeeding frames, focuses on Justice Resnick's picture only. The audio portion of the commercial states as follows:

"On the Ohio Supreme Court, one Justice has a problem. It's money. Most of Resnick's money comes from just one place, the plaintiff lawyers who sue, sue, sue. Over $300,000.00 just from them. This small group of suing lawyers wants Resnick with her liberal rulings to make it easier for them to collect millions in fees. It's time for a change to Judge Sara Harper. Recommended, endorsed, highly rated, 20 years as a Judge, Marine Corps Lieutenant Colonel. Judge Sara Harper."

While the above text is playing, a series of pictures appear. The first is a group picture of the Justices of the Ohio Supreme Court. In the next frame, only Justice Resnick is featured, and the accompanying text says, "Justice Has Problem." The third frame again shows Justice Resnick's picture and repeats the phrase "Justice Has Problem." However, this time, the phrase "... It's Money!" is added. The fourth frame once more features Justice Resnick's picture, with the caption, "Resnick's Money." The fifth frame of the ad is the same as the fourth, except that a large check is displayed, with the words "Trial Lawyers" and " 'Sue & Sue' " on the top left-hand corner of the check. In the portion of the check where one would normally see the dollar amount in the figure "Over $300,000.00," and the check is signed by "Cheatem Good."

The next two frames of the ad state that "Resnick's Liberal Rulings Help Lawyers Collect Millions." These frames also picture individuals, next to what appear to be ads making various claims, such as "Experienced in recovering large money awards," "NO FEE UNLESS YOU COLLECT," and "No Fee if No Recovery."

After reviewing the ad, Judge Harper approved its use, although she considered the ad "hard-hitting," "not [her] style," and something she wouldn't have done in her hometown of Cleveland. Moreover, at the time Judge Harper first saw the ad, she had the ability to make corrections and changes, but asked only that her middle initial be added.

The information about campaign finances in the ad was provided by Bret T. Buerck, a researcher for the Ohio Republican Party. According to the information he compiled, Justice Resnick received for her 1994 campaign a total of over $307,000 from members of the Ohio Academy of Trial Lawyers ("OATL"), the families of OATL members, and political action committees associated with OATL, including ADOPT, which is the political action committee for OATL. OATL's mission statement indicates that it is a group mainly interested in protecting the interests of plaintiffs.

At the time she viewed the ad, Judge Harper knew that money was an issue in the political consciousness and that the Ohio Supreme Court had appointed a seventeen-member committee to look into judicial elections and the financing of campaigns. Although Judge Harper did not have any particular decisions of Justice Resnick in mind when viewing the commercial, her opinion was that Justice Resnick was a liberal and that she (Harper), was a nonliberal. Judge Harper explained that she did not think the ad was unethical, nor did she feel the ad was about Justice Resnick. Her interpretation of the "problem" referred to in the commercial was the problem in the judiciary of financing campaigns and the perception the public has of judges.

Following Judge Harper's approval, the ad was aired on television a number of times during the election. The ad was brought to Justice Resnick's attention, and she viewed it on Wednesday, November 2, 1994. Justice Resnick was offended by the ad and interpreted it as implying either that she had personally taken money or that justice was for sale. After viewing the ad, Justice Resnick received a letter from an attorney, Michael Garth Moore, who had also been offended by the ad. Consequently, Justice Resnick forwarded Moore's letter, along with a cover letter, to Disciplinary Counsel.

Both Moore and another attorney (whose picture had been featured in the ad) testified at the disciplinary hearing. Moore is a trial lawyer and about ninety percent of his practice consists of representing injured parties and people in employment discrimination cases. Although Moore belonged to OATL, he did not contribute to Justice Resnick's 1994 campaign. The inference he drew from the ad was that Justice Resnick changes her rulings in order to collect money. As a result of seeing the ad, he wrote a letter to Chief Justice Moyer objecting to the ad. The basis of Moore's concern was that if such campaign standards were allowed, the public would be persuaded even more than it is already that lawyers, including those on the Supreme Court, are unethical and dishonest.

Michael Dorf, whose picture appeared in the ad, specializes in workers' compensation cases for injured claimants in the Toledo area. Dorf did not give anyone permission to use his picture and was offended by the ad for several reasons, including the unauthorized use of his photo, the use of his photo to attack the court, and the fact that the ad portrayed him in a negative light that was inconsistent with his reputation. Dorf also indicated that Justice Resnick had never ruled in his favor in any case. In addition to the two attorneys, both sides presented expert testimony from attorneys who had developed expertise in legal ethics as well as the area of judicial and attorney disciplinary matters.

After receiving the complaint against Judge Harper and investigating the matter, the Disciplinary Counsel submitted a complaint to the board on May 1, 1995, charging Judge Harper with violating five Canons of the Code of Judicial Ethics: Canon 1 (failing to uphold the integrity and independence of the judiciary), Canon 2A (failing to conduct herself in a manner that promotes public confidence in the integrity and impartiality of the judiciary), Canon 7B(1)(a) (failing to maintain the dignity appropriate to judicial office), Canon 7B(1)(c) (announcing views on disputed legal or political issues or misrepresenting facts), and Canon 7C(9) (publishing or distributing a written or printed false statement, knowing the statement to be false or with reckless disregard of its falsity, concerning a candidate). A hearing was held before a three-member panel of the board on March 5, 1996, and elicited the testimony recounted above.

After the hearing, the panel issued findings of fact and a recommendation. Concerning Canon 7C(9), the panel found that relator had failed to establish that OATL and the political action committees associated with it had not made the contributions as alleged by respondent. Accordingly, the panel recommended dismissal of this charge. Next, with regard to Canon 7B(1)(c), the panel, while not condoning the inferences in the ad, found that the statements in the ad were not sufficiently specific to violate the Canon against announcing views on disputed legal and political issues. Thus, the panel also recommended dismissal of this charge.

The remaining three violations were considered together, as they were general in nature and did not prescribe specific conduct. In this context, the panel again recommended dismissal, based on the absence of specific misconduct and the core political speech protections of the First Amendment.

Upon review of the panel decision, the board approved the portion of the panel report recommending dismissal of charges based on Canons 1, 7B(1)(c), and 7C(9). However, the board concluded that violations of Canons 2A and 7B(1)(a) had occurred, because the ad as a whole undermined public confidence in the integrity and impartiality of Justice Resnick. The board also found that the ad portrayed a lack of dignity appropriate to judicial office by suggesting to Ohio voters that a justice's decisions were influenced by...

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46 cases
  • Office of Disciplinary Counsel v. Gardner
    • United States
    • Ohio Supreme Court
    • August 13, 2003
    ...individual who knowingly makes false statements or expresses opinions that imply false statements of fact. In re Complaint Against Harper (1996), 77 Ohio St.3d 211, 673 N.E.2d 1253. {¶ 16} Thus, the First Amendment does not insulate an attorney from professional discipline even for expressi......
  • Butler v. Alabama Judicial Inquiry Com'n
    • United States
    • U.S. District Court — Middle District of Alabama
    • July 28, 2000
    ...support of their argument that Canon 7B(2) survives First Amendment scrutiny. (Def.s' Mem. at 4, citing In re Complaint Against Harper, 77 Ohio St.3d 211, 673 N.E.2d 1253, 1264-65 (1996)). In Harper, the Supreme Court of Ohio generally concluded that its canons contained in the Ohio Code of......
  • Neely v. Wyo. Comm'n on Judicial Conduct & Ethics (In re Neely)
    • United States
    • Wyoming Supreme Court
    • March 7, 2017
    ...McGuire) , 685 N.W.2d 748, 761 (N.D. 2004) ; In re Barr , 13 S.W.3d 525, 565 (Tex. Rev. Trib. 1998) ; In re Complaint Against Harper , 77 Ohio St.3d 211, 673 N.E.2d 1253, 1263, (1996) ; In re Disciplinary Proceeding Against Ritchie , 123 Wash.2d 725, 870 P.2d 967, 972 (1994) ; Matter of You......
  • Grievance Adm'R v. Fieger
    • United States
    • Michigan Supreme Court
    • July 31, 2006
    ...39 (1909). That opinion was written before the state's rules of professional conduct had been established, see In re Harper, 77 Ohio St.3d 211, 225, 673 N.E.2d 1253 (1996), and, thus, is an insufficient test of whether the broad concept that an attorney should be respectful of the judiciary......
  • Request a trial to view additional results
1 books & journal articles
  • Judicial campaign speech restrictions: some litigation nuts and bolts.
    • United States
    • Albany Law Review Vol. 68 No. 3, June 2005
    • June 22, 2005
    ...Judicial Ret. & Removal Comm'n, 873 S.W.2d 200 (Ky. 1994) ("commit" clause passes strict scrutiny). In re Complaint Against Harper, 673 N.E.2d 1253 (Ohio 1996) (rejecting vagueness and overbreadth challenges to discipline imposed for campaign ad that implied false assertions of fact abo......

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