The Team Working for You v. Ohio Elections Commission

• Decision Date: 29 March 2001
• Docket Number: 01-LW-1142,00AP-748
• Parties: The Team Working for You et al., Appellants-Appellants v. Ohio Elections Commission, Appellee-Appellee
• Court: Ohio Court of Appeals

The Team Working for You et al Appellants-Appellants v. Ohio Elections Commission, Appellee-Appellee

No. 00AP-748

01-LW-1142 (10th)

Court of Appeals of Ohio, Tenth District Franklin.

March 29, 2001

APPEAL from the Franklin County Court of Common Pleas.

Donald J. McTigue, for appellants.

Betty D. Montgomery, Attorney General, Sharon Jennings and Elise Porter, for appellee.

OPINION

BOWMAN J.

In November 1997, Peggy Spraggins filed a complaint with appellee, the Ohio Elections Commission ("commission"), alleging that appellants, The Team Working for You, Nick Molnar, James Predovic, Anna Hejduk Clarence E. Johnson and the News Leader newspaper were responsible for publishing an advertisement on October 22 1997, which contained false statements.^[1] Spraggins, Molnar, Predovic, Hejduk and Johnson were all candidates for Macedonia City Council. Molnar, Predovic, Hejduk and Johnson formed a committee known as The Team Working for You to promote their candidacy. The complaint also named Rosalie Koren as treasurer of The Team Working for You, but did not name her in her individual capacity.

On November 25, 1997, the commission dismissed the complaint as to the News Leader. The commission held a hearing on September 24, 1998, and October 1, 1998. Based upon clear and convincing evidence, the commission found the following statements published in the advertisement were false and violated R.C. 3517.21(B)(10):

1.__She [Spraggins] is currently campaigning against industrial growth and overdevelopment in Macedonia.

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In 1987, she [Spraggins] worked with an out-of-town developer to rezone several acres of wooded property on Highland Road from residential to industrial. Spraggins actively advised and campaigned for the developer despite the protest of residents who lived in the area and did not want industrial development.

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3.__In 1994, Spraggins stopped a referendum petition that would have given the residents a vote on Environmental Services proposed increase in our sewer rates. Prosecutor Lynn Slaby's letter addressed to Ms. Spraggins dates 4-7-94 indicated that he was responding to her "request." Because the referendum was stopped, our sewer rates were increased without voters' input.

The commission voted to refer the matter to the county prosecutor.^[2] Appellants filed a notice of appeal from the commission to the Franklin County Court of Common Pleas, which affirmed the commission's findings. Appellants filed a notice of appeal to this court and raise the following assignments of error:

1. The record does not demonstrate by clear and convincing evidence that any or each of the appellants made the challenged statements or knew that the statements were not true or entertained serious doubts as to their truthfulness.

2. The record does not demonstrate by clear and convincing evidence that the challenged statements were false.

3. The complaint did not allege a violation by Rosalie Koren and the Commission's adjudication does not apply to her.

The commission and the trial court found the statements at issue to be a violation of R.C. 3517.21(B)(10), which provides as follows:

(B) No person, during the course of any campaign for nomination or election to public office or office of a political party, by means of campaign materials, including sample ballots, an advertisement on radio or television or in a newspaper or periodical, a public speech, press release, or otherwise, shall knowingly and with intent to affect the outcome of such campaign do any of the following:

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(10) Post, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement was designed to promote the election, nomination, or defeat of the candidate.

R.C. 3517.157(D) provides that a party adversely affected by a final determination of the commission may appeal pursuant to R.C. 119.12. R.C. 119.12 provides the standard of review for the common pleas court in that the court may affirm the order if it is supported by reliable, substantial and probative evidence, and is in accordance with law. Generally, an appellate court determines whether the trial court abused its discretion in review of the agency order. Lorain City Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 260-261. On questions of law, however, the court of appeals' review is plenary. Univ. Hosp., Univ. of Cincinnati College of Medicine v. State Emp. Relations Bd. (1992), 63 Ohio St.3d 339, paragraph one of the syllabus.

In this case, the commission found a violation of R.C. 3517.21(B)(10), which requires proof by clear and convincing evidence. See R.C. 3517.155(D)(1). "Clear and convincing evidence is that measure or degree of proof which is more than a mere 'preponderance of the evidence,' but not to the extent of such certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross v. Ledford (1954), 161 Ohio St. 469, paragraph three of the syllabus.

In cases involving the First Amendment, "an appellate court has an obligation to 'make an independent examination of the whole record' in order to make sure that 'the judgment does not constitute a forbidden intrusion on the field of free expression.'" Bose Corp. v. Consumers Union of United States, Inc. (1984), 466 U.S. 485, 499, quoting New York Times Co. v. Sullivan (1964), 376 U.S. 254, 284-286. In New York Times, at 279-280, the United States Supreme Court held that a person who is a public figure cannot recover damages for a defamatory falsehood relating to his official conduct unless he proves by clear and convincing evidence that the statement was made with "actual malice," which has been defined as knowledge that the statement was false or that the statement was made with reckless disregard of whether it was false or not. Independent review is required when the actual malice standard is applicable. Dale v. Ohio Civ. Serv. Emp. Assn. (1991), 57 Ohio St.3d 112, 114. The question of whether the evidence in the record supports a finding of actual malice is a question of law. McKimm v. Ohio Elections Comm. (2000), 89 Ohio St.3d 139, 147, citing Harte-Hanks Communications, Inc. v. Connaughton (1989), 491 U.S. 657, 685.

In this case, Spraggins, a city council candidate, was a public figure and, therefore, we must conduct an independent review of the entire record and determine whether the statements were false and made with actual malice, that is, either the statements were made with knowledge that they were false or with reckless disregard as to the falsity.

Appellants initially argue that the complaint did not meet the statutory requirements for specificity and was defective. R.C. 3517.21(C) provides that a complaint shall be filed with the commission pursuant to R.C. 3517.153. R.C. 3517.153(A) provides that a complaint may be filed by anyone by affidavit upon personal knowledge, and R.C. 3517.153(B) provides that the commission shall prescribe the form for complaints. Ohio Adm.Code 3517-1-02 provides that:

"A complaint shall be submitted to the commission in one of two forms:^[3]

(1) By affidavit by an individual based on personal knowledge in the following format:

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(b) Clearly set forth the names, full residence and/or business addresses of all parties and affiants, including the name, title and address of the officer, member or agent making the complaint and person responsible for the behavior about which the complaint is made. ***

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(d) Clearly set forth the specific source or basis of the personal knowledge and be signed and sworn before a notary public ***;

(e) Contain by attachment all affidavits, exhibits and other documents relied upon in alleging the violation or tending to support the allegations;

(f) Clearly set forth sufficient facts, supported by affidavits, exhibits and/or other documents to constitute a prima facie violation of Ohio election law over which the commission has jurisdiction;

(g) Clearly set forth each and every separate alleged violation of Ohio election law over which the commission has jurisdiction in a narrative form, cross-referenced to the relevant Revised Code section(s).

In this case, Spraggins filed an affidavit which provided her name, address and, in paragraph five, listed the names and addresses of the other parties. The affidavit asserted that R.C. 3517.21(B)(10) was violated by appellees by publishing the advertisement on October 22, 1997. The affidavit then provided, in narrative form, the facts supporting Spraggins' contention that the statements were false. Attached were supporting exhibits and the affidavit was signed and sworn before a notary. The complaint met the statutory and administrative requirements, and the argument is without merit.

By the first and second assignments of error, appellants contend that the record does not demonstrate by clear and convincing evidence that any or each of the appellants made the challenged statements, or knew that the statements were not true or even that the statements were false. As stated above actual malice has been defined as knowledge that the statement was false or that the statement was made with reckless disregard of whether it was false or not. In McKimm, supra, the Supreme Court of Ohio addressed the evidence required to establish actual malice in a case before the commission. The court, at 148, quoted St. Amant v. Thompson (1968), 390 U.S. 727, as follows, finding that "'[t]here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his...