[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as In re Judicial Campaign Complaint Against Falter , Slip Opinion No. 2021-Ohio-1705.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O
. 2021-O HIO -1705
I N RE J UDICIAL C AMPAIGN C OMPLAINT A GAINST F ALTER
. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it

may be cited as In re Judicial Campaign Complaint Against Falter , Slip Opinion No. 2021-Ohio-1705.] Judges—Judicial campaign s—Misconduct—Jud.Cond.R. 4.3(A) prohibits judicial candidates from knowingl y or recklessly disseminating false information about opponents—Candidate’s erroneous st atements regarding when and why opponent had moved to county violated Jud.Cond.R. 4.3(A)—Public reprimand affirmed. (No. 2020-0407—Submitted Janua ry 13, 2021—Decided May 20, 2021. )
A PPEAL from the Order of the Judicial Commission of the Supreme Court

.

__________________ Per Curiam. {¶ 1} Respondent, Karen Kopich Falter, o f Cincinnati, Ohio, Attorney Registration No. 0066770, was admitte d to the practice of law i n Ohio in 1996. Pursuant to Gov.Jud.R. II(5)(D), a five-judge commission conclu ded that while Falter was a judicial candidate in 2020, she committed two viol ations ofS UPREME C OURT OF O HIO

2 Jud.Cond.R. 4.3(A), which prohibits a judicial candidate from d isseminating campaign material about an opponent either knowing that it is f alse or in reckless disregard of whether or not it is false. The commission public ly reprimanded Falter and ordered her to pay a $1,000 fine and the costs of the proce edings. Falter appeals
the commission’s sanction. For the reasons explained below, we affirm. Background {¶ 2} In March 2017, former Governor John Kasich appointed Curt Hartman—the complainant in this disciplinary action—to a vacant seat as a judge of the Hamilton County Court of C ommon Pleas. Hartman was late r defeated in the November 2018 general election. {¶ 3} In 2020, Hartman and Falter were opponents in the Republican primary for a different seat on the Hamilton County Court of Co mmon Pleas. 1 In February of that year, Falter’s campaign committee sent to 202 Republican voters a letter stating th at Hartman had “ moved to Hamilton County 3 years ago to take a judicial appointment from Gover nor John Kasich in March, 2017 .” (Underlining sic.) The letter additionally stated that Falter had grown up in Hamilton County, had served for 23 years as a public servant in the county, and was recommended by the Hamilton County Republican Par ty Judicial Screening Committ ee. {¶ 4} Hartman filed a judicial-campaig n grievance against Falter with the
Board of Professional Conduct. P ursuant to Gov.Jud.R. II(5)(B) , a probable-cause panel of the board found that pr obable cause existed to file a formal complaint, and the board’s director certified a complaint charging Falter with two violations of Jud.Cond.R. 4.3(A). The complaint alleged that in Falter’s cam paign letter, she
made stateme nts about when and why Hartman had moved to Hamilton County that
she either knew were false or that she had made with a reckless disregard of whether or not they were false.

1. Hartman won the primary election but was defeated in the No vember 2020 general election.January Term, 2021

3 {¶ 5} The matter proceeded to a hearing before a three-member panel o f the board. Hartman, Falter, and one o f Falter’s campaign consultan ts testified. Based on the hearing evidence, the pane l found that Falter’s statemen ts about Hartman in
her letter were false: Hartman had moved to Hamilton County in May 2014 with the goal of running for a seat in the Ohio General Assembly, no t—as Falter had alleged—in 2017 in order to obtain a judicial appointment in th at same year. And according to the panel, a check of public records would have ea sily shown that Falter’s allegations were untrue. Yet Falter, the panel found, made no effort to
confirm the truthfulness of her allegations against Hartman and instead chose to rely on statements from her campaign consultants and “what was essentially courthouse and party-insider gossip or rumors” about when and w hy Hartman had moved to Hamilton County. The panel determined that Falter had acted with reckless disregard as to whether or not the statements in her l etter were false and
that she had therefore violate d Jud.Cond.R. 4.3(A). The panel recommended that she be publicly reprimanded and ordered to pay a $1,000 fine an d the costs of the proceedings. {¶ 6} A five-judge commission appointed by this court pursuant to Gov.Jud.R. II(5)(D)(1) reviewed the record of the proceedings, the panel’s report, Falter’s objections to the report, and Hartman’s responses to h er objections. In April 2020, the commission found that the panel had not abused its discretion and that the record supported its fi ndings by clear and convincing evidence. 158 Ohio St.3d 1458, 2020-Ohio-1413, 142 N.E.3d 680. The commission the refore publicly reprimanded Falter, fined her $1,000, and ordered her to pay th e costs of the proceedings. {¶ 7} Pursuant to Gov.Jud.R. II(5)(E), Falter appeals, arguing that w e should dismiss the charges against her or, in the alternative, vacate the public reprimand.S UPREME C OURT OF O HIO

4 Falter’s Objections to the Commi ssion’s Findings of Misconduct {¶ 8} Falter sets forth five objecti ons to the commission’s findings that she violated Jud.Cond.R. 4.3(A). For ease of analysis, we will add ress the issues posed by her objections out of order.
New York Times Co. v. Sullivan {¶ 9} Jud.Cond.R. 4.3 provides:

During the course of any campaign for nomination or election to judicial office, a judi cial candidate, by means of campaign materials, including sam ple ballots, advertisements on
radio or television or in a news paper or periodical, electronic communications, a public speech, pr ess release, or otherwise, s hall not knowingly or with reckless disregard do any of the followin g: (A) Post, publish, broadcast, transmit, circulate, or distribut e information concerning the judi cial candidate or an opponent, e ither knowing the information to be false or with a reckless disregar d of
whether or not it was false.

{¶ 10} The primary issue in this appeal is whether Falter distributed her letter “with a reckless disregard of whether or not it was fals e” for purposes of Jud.Cond.R. 4.3(A). In her first objection, Falter argues that this language incorporates the actual-mali ce standard established in New York Times Co. v.
Sullivan , 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its pr ogeny. Under that standard, Falter assert s, a false statement must hav e been made with a specific mental state. She also asserts that “reckless disrega rd” as to a statement’s “truth or falsity” is a term of art that requires “ ‘sufficient evidence to permit the conclusion that the [maker of the statement] in fact entertaine d serious doubts as to the truth of his publication,’ ” Varanese v. Gall , 35 Ohio St.3d 78, 80, 518 N.E.2dJanuary Term, 2021

5 117 (1988), quoting St. Amant v. Thompson , 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), or to permit the conclusion that there was “a high degree of awareness of its probable falsity,” Varanese at 80. Falter claims that because there was no evidence presented that she entertained serious doubt as to the truth of her statements about Hartman, she lack ed the necessary mens rea “re quired by Jud.Cond.R. 4.3(A) and the First Amendment.” {¶ 11} Falter is correct that Jud.Cond.R . 4.3(A) requires a specific m ens rea. In In re Judicial Campaign Complaint Against O’Toole , 141 Ohio St.3d 355, 2014- Ohio-4046, 24 N.E.3d 114, we affirmed the constitutionality of the portion of Jud.Cond.R. 4.3(A) at issue in this case and concluded that it requires “a specific
mental state as to t he information’s accu racy (with knowledge o f its falsity or with reckless disregard as to its truth or falsity),” id. at ¶ 41. {¶ 12} We disagree, however, with Falter’s assertion that Jud.Cond.R. 4.3(A) incorporates the subjective actual-malice definition emp loyed in publicfigure defamation cases. Although the language of Jud.Cond.R. 4.3(A) resembles
the actual-malice standard established in New York Times Co. v. Sullivan , id. at 280 (defining “actual malice” as acting “with knowledge that [the s tatement] was false or with reckless disregard of whe ther it was false or not”), th ere are important differences between the interests served by defamation law and those served by ethical rules for judges and judi cial candidates. As the Supre me Court of Michigan concluded, the subjective actual- malice standard is inappropria te in this context and adopting it “ ‘would immunize accusations, however reckless or irresponsible, from censure as long as the attorney uttering them did not actually entertain serious
doubts as to their truth.’ ” In re Chmura , 461 Mich. 517, 543, 608 N.W.2d 31 (2000), quoting In re Holtzman , 78 N.Y.2d 184, 192, 573 N.Y.S.2d 39, 577 N.E.2d 30 (1991). Instead, the determin ation whether a judicial candi date recklessly disregarded the truth or falsi ty of campaign material is an obj ective one.S UPREME C OURT OF O HIO

6 {¶ 13} We previously determined that an “objective version” of the act ualmalice test applies in attorney-discipline proceedings arising from a lawyer’s false statements impugning the integri ty of a judge. We explained:

“Defamation actions seek to remedy an essentially private wrong by compensating individuals for har m caused to their reputation an d standing in the community. Ethical rules that prohibit false statements impugning the integri ty of judges, by contrast, are not designed to shield judges from unpleasant or offensive criticis m, but to preserve public confidence in the fairness and impartiality of our system of justice.”
* * * * * * [T]he state’s compelling in terest in preserving public confidence in the judiciary supports applying a standard in disciplinary proceedings different from that applicable in defamation cases. Under the objective standard, an attorney ma y still freely exercise free speech rights and make statements supported by a reasonable factual basis, even if the attorney t urns out to be mistaken.

(Citations omitted.) Disciplinary Counsel v. Gardner , 99 Ohio St.3d 416, 2003- Ohio-4048, 793 N.E.2d 425, ¶ 29, 31, quoting Standing Commt. on Discipline of the United States Dist. Court for the Cent. Dist. of California v. Yagman , 55 F.3d 1430, 1437 (9th Cir.1995). {¶ 14} Similar reasoning applies here. T he purpose of this proceeding is not to compensate any person for injuries to his or her reputat ion. Rather, sanctions against judges and judicial ca ndidates for violating Canon 4 of the Code of Judicial Conduct “inform the public of th e self-regulating nature of the legal profession andJanuary Term, 2021

7 enhance public confidence in the i ntegrity of judicial proceedi ngs.” O’Toole , 141 Ohio St.3d 355, 2014-Ohio-4046, 24 N.E.3d 114, at ¶ 64. “Ohio has a compelling interest in promoting and main taining an independent judiciary, ensuring public confidence in the independence, impartiality, integrity, and co mpetence of judges, and ensuring that the conduct of judicial candidates furthers, rather than impairs,
these interests.” Id. at ¶ 29. {¶ 15} In addition, the limits on a judicial candidate’s speech are no t necessarily coextensive with the limits of the First Amendment. The United States Supreme Court has recognized tha t “[s]tates may regulate judici al elections differently than they regulate political elections, because the role of judges differs from the role of politicians.” Williams-Yulee v. Florida Bar , 575 U.S. 433, 446, 135 S.Ct. 1656, 191 L.Ed.2d 570 (2015); see also Disciplinary Counsel v.
Tamburrino , 151 Ohio St.3d 148, 2016-Ohio-8014, 87 N.E.3d 158, ¶ 17 (noti ng that First Amendment principles in other contexts do not apply “to disciplinary sanctions for knowingly false or r ecklessly false statements by judicial candidates”); O’Toole at ¶ 22-29. {¶ 16} Thus, Ohio’s interest in preserving public confidence in the in tegrity of its judiciary supports applying a standard in judicial-candi date-discipline proceedings different from that applicable in defamation cases. And an objective standard for determining viola tions of Jud.Cond.R. 4.3(A) strik es a balance between a judicial candidate’s F irst Amendment rights and the s tate’s compelling interests. Falter’s argument in this case fails to account for the fact that “judicial elections fundamentally alter the constitutional calculus,” Platt v. Bd. of Commrs. on Grievances and Discipline of the Ohio Supreme Court , 894 F.3d 235, 267 (6th Cir.2018). Therefore, whether Falter subjectively had serious doubts about the truth of her allegations is not t he sole determinative factor i n analyzing whether she acted with the requisite mens r ea. We accordingly overrule thi s objection.S UPREME C OURT OF O HIO

8 The alleged ambiguity of Jud.Cond.R. 4.3(A) {¶ 17} In her fifth objection to the misconduct findings, Falter argue s that
if the actual-malice standard of New York Times Co. v. Sullivan is inapplicable, Jud.Cond.R. 4.3(A) “does not provi de notice” of what it prohibi ts and “encourages arbitrary enforcement.” Falter therefore requests that we “fin d that Jud.Cond.R. 4.3(A) is ambiguous and dismiss the charges.” {¶ 18} Jud.Cond.R. 4.3(A) is not ambiguous; it “applies to specific communications made by judicial candidates under narrowly defin ed
circumstances.” O’Toole , 141 Ohio St.3d 355, 2014-Ohio-4046, 24 N.E.3d 1114, at ¶ 41. As noted above, to violate Jud.Cond.R. 4.3(A), the ju dicial candidate must have acted with a specific mental state as to the campaign mate rial’s accuracy: either knowing the information was false or with a reckless dis regard of whether or not it was false. A judicial candidate acts knowingly if he or she has “actual knowledge of the fact in questi on,” although a person’s knowled ge may be inferred from circumstances. Jud.Cond.R. 4.6( G). A candidate “acts ‘re cklessly’ if the result is possible and the candidate chooses to ignore the risk .” In re Judicial Campaign Complaint Against Moll , 135 Ohio St.3d 156, 2012-Ohio-5674, 985 N.E.2d 436, ¶ 11. Negligently made false statements or neglige nt misstatements are not prohibited by the rule. {¶ 19} In determining whether a judicial candidate acted with the requ isite mens rea for purposes of Jud.Cond.R. 4.3(A), we consider factor s similar to those used when determining whether a lawyer has violated Prof.Cond.R . 8.2(a) by making a statement that the lawyer either knew was false or mad e “with reckless disregard as to its truth or falsity” concerning the integrity of a judicial officer. We
look to the nature of the candida te’s statements and the contex t in which they were
made to determine whether the candidate had a reasonable factua l basis for making
them. Disciplinary Counsel v. Gallo , 131 Ohio St.3d 309, 2012-Ohio-758, 964 N.E.2d 1024, ¶ 19; accord Disciplinary Counsel v. Marshall , 142 Ohio St.3d 1,January Term, 2021

9 2014-Ohio-4815, 27 N.E.3d 481, ¶ 59 (“In determining whether an attorney has knowingly or recklessly made fals e statements concerning the in tegrity of a judicial officer, we consider whether the attorney had a reasonable fact ual basis for making the statements”). {¶ 20} Determining whether a judicial candidate made a false statement with reckless disregard of its truth or falsity may require wei ghing evidence and assessing witness credibility—as in any other attorney-discipli ne case. But contrary to Falter’s position, that process does not make enfor cement of Jud.Cond.R. 4.3(A) “arbitrary.” In O’Toole , we affirmed the constitutionality of the portion of Jud.Cond.R. 4.3(A) at issue in this case, id. at ¶ 41, and Falter has failed to sufficiently explain why this language is ambiguous. The evidence supporting the violations {¶ 21} Falter argues in her third objec tion that even if the standard set forth
in New York Times Co. v. Sullivan is inapplicable, the cha rges should be dismissed because she did not act recklessly. According to Falter, she r elied on reputable campaign consultants—not gossip—wh en she included the statement s about Hartman in the letter. She similarly argues in her fourth obje ction that because she relied on her consultants, the r ecord lacked clear and convinci ng evidence of a Jud.Cond.R. 4.3(A) violation. {¶ 22} Upon our review of the record, we agree with the commission tha t the record supports the panel’s f indings that Falter violated J ud.Cond.R. 4.3(A). {¶ 23} At the panel hearing, Hartman testified that he moved from Cler mont County to Hamilton County in May 2014. He submitted records fr om the Hamilton County Auditor’s office and the Hamilton County Board of Electi ons showing that he purchased a condominium in Hamilton County in May 2014, regi stered to vote and cast a provisional ballot in Hamilton County in May 2014, a nd voted in every Hamilton County election since May 2014. Hartman also testifie d that he moved to Hamilton County to be closer t o his Cincinna ti legal practic e and to potentiallyS UPREME C OURT OF O HIO

10 run for a seat in the Ohio General Assembly, although he later decided against it. In 2016, he learned about the judicial vacancy on the Hamilton County Court of Common Pleas and was appointed to the open seat in 2017. Thus, Hartman testified, both of Fa lter’s statements about his move—that he m oved to Hamilton County in 2017 and that he did so for the purpose of taking a j udicial appointment—
were false. {¶ 24} Falter admitted that she had pers onally typed the February 2020 campaign letter stating that Hartman had “ moved to Hamilton County 3 years ago to take a judicial appointment from Governor John Kasich in March, 2017 .” (Underlining sic.) She also admitted that prior to sending the letter, she had not researched Hartman’s voting hist ory or his property ownership. And she admitted
that her statements about H artman turned out to be untrue. {¶ 25} As her defense, Falter claimed that the information in her lett er came from her campaign consultants and that she expected the consult ants to ensure the accuracy of her campaign messages. But Falter also testified t hat she did not know how her consultants allegedly kne w this information about Hartm an and that she never specifically asked them to confirm the accuracy of the al legations or to research his voting history. A nd one of Falter’s campaign cons ultants testified that the letter was “technically one of [Falter’s] projects;” that a t the time the letter was being prepared, he did not know w hen Hartman had moved to Hamil ton County;
that he did not know where some of the information in the lette r came from; and that although there had been discussions about the validity of Hartman’s residency, there was “never really a specific time given nor did [the cons ultants] actually do the full research on it.” The campaign consultant also testifi ed that he had reviewed Falter’s letter for “grammatical errors,” and he explained that “when a client does something on their own, I trust that they have good knowledge o f what they’re putting in there,” especially when his consulting firm had no p art in creating the campaign material.January Term, 2021

11 {¶ 26} Similar to her argument on appeal, Falter also testified that s he did not rely on rumors when she prepared the campaign letter. But when Falter was asked whether she had done anything to verify her allegation re garding the reason
Hartman had moved to Hamilton County, she responded that it was “common knowledge within the legal system. ” Falter learned of this com mon knowledge, she testified, through conversa tions with “different people wit hin the Republican Party” and over lunch with assistant prosecutors who had practi ced before Hartman when he was a judge. In attempting to further explain the basi s for this knowledge about Hartman, Falter stated tha t the talk of the legal communi ty was that Hartman had “moved from Clermont County to Hamilton County to be eligib le to take an appointment” and that it was “j ust the common discussion of why Mr. Hartman ended up in Hamilton County.” {¶ 27} Based on this testimony, the panel concluded that Falter “chose to believe what was essentially c ourthouse and party-insider gossi p or rumors without making any effort to check the truthfulness of the allegation.” The panel also found that Falter’s contract with her consultants did not expressly r equire them to do “fact checking” of her campaign materials. Because Falter’s statemen ts were the type that must be verified and because she failed to take any action to do so, the panel concluded that she acted with reckless disregard of whether or not the statements
were false. {¶ 28} To be sure, the panel heard conflicting testimony. But similar to attorney-discipline proceedings, “it is of no consequence that the * * * findings of fact are in contravention of [the] respondent’s or any other wi tness’s testimony.
‘Where the evidence is in conflic t, the trier of facts may dete rmine what should be accepted as the truth and what s hould be rejected as false.’ ” Disciplinary Counsel v. Zingarelli , 89 Ohio St.3d 210, 217, 729 N.E.2d 1167 (2000), quoting Cross v. Ledford , 161 Ohio St 469, 478, 120 N.E.2d 118 (1954). And “[u]nless t he record weighs heavily against a hearing panel’s findings, we defer to the panel’s credibilityS UPREME C OURT OF O HIO

12 determinations, inasmuch as the panel members saw and heard the witnesses
firsthand.” Cuyahoga Cty. Bar Assn. v. Wise , 108 Ohio St.3d 164, 2006-Ohio-550, 842 N.E.2d 35, ¶ 24. {¶ 29} The record here does not weigh heavily against the panel’s find ings. Falter made a pointed attack against her election opponent, cit ing a specific date and intention. Her accusations, however, were false, and as th e panel and commission found, a cursory search of public records would have revealed that her allegations were untrue. Yet Fa lter made no effort to verify h er statements. Although she now argues that she relied on her consultants to f act-check her letter, one of her consultants provided contrary testimony at the heari ng and described the letter as Falter’s “project.” Considering the specific factual nature of her statements, verification of the m was necessary. She should hav e personally confirmed the accuracy of her allegations or ensured that her c onsultants had done so. A judicial candidate cannot avoid discipline by claiming t hat she merely repeated statements from her cam paign consultants without takin g some action to ensure the accuracy of those st atements or to inquire about the credibility of the

sources. {¶ 30} In the end, Falter had no reasonabl e basis to include her alleg ations about Hartman in her letter and chose to ignore the risk that t hey were false. By repeating gossip about her election opponent without making any effort to verify the accuracy of her allegations, she acted with a reckless disr egard of whether or
not her statements were false. The truth or falsity of Falter’s statements {¶ 31} Falter argues in her second objection that the charges should b e dismissed because her allegations against Hartman were “substan tially true” and that any inaccuracies were immaterial. Specifically, she asser ts that it was
immaterial whether Hartman move d in 2014 or 2017, because the p urpose of her letter was to identify him as a “carpetbagger” and the facts re garding Hartman’sJanuary Term, 2021

13 move support the gist of that characterization. She also argue s that her letter was immaterial because only a fraction of the Hamilton County elect orate received it. {¶ 32} We need not determine whether, a s Falter contends, Jud.Cond.R. 4.3(A) incorporates a “materialit y test.” Falter’s statements about Hartman were false and material to the campaig n: she claimed that he moved t o Hamilton County three years after he actually did and for the purpose of fillin g a judicial vacancy that
did not exist at the time he moved. Her statements were not re asonably susceptible to a truthful interpretation. I n addition, it is irrelevant un der Jud.Cond.R. 4.3(A)
whether she distributed the l etter to 200 or 2,000 voters, and 202 households in a primary election is not an insig nificant number of voters. {¶ 33} “However much or how ever little truth-bending the public has co me to expect from candidates for political jobs, ‘[j]udges are not politicians,’ and a ‘State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office.’ ” Winter v. Wolnitzek , 834 F.3d 681, 693 (6th Cir.2016), quoting Williams-Yulee , 575 U.S. at 437-438, 135 S.Ct. 1656, 191 L.Ed.2d 570. We overrule this objection. {¶ 34} Having overruled Falter’s objections to the commission’s findin gs of misconduct, we affirm the co mmission’s conclusion that she c ommitted two violations of Jud.Cond.R. 4.3(A). The rules in Canon 4 “are in tended to ensure that judges and judicial candidates cam paign in a way that fosters a nd enhances respect for, and confidence in, the judiciary.” O’Toole , 141 Ohio St.3d 355, 2014-Ohio4046, 24 N.E.3d 1114, at ¶ 25. Falter violated both the plain language of the rule and the purpose behind it. Falter’s Objections to the Commission’s Sanction {¶ 35} In addition to challenging the commission’s misconduct findings , Falter argues that the public reprimand should be vacated. “On an appeal of a commission’s order of sanctions, our review is limited to wheth er the commission
abused its discretion.” O’Toole at ¶ 61. “ ‘A decision constitutes an abuse ofS UPREME C OURT OF O HIO

14 discretion when it is unreasona ble, arbitrary, or unconscionabl e.’ ” Moll , 135 Ohio St.3d 156, 2012-Ohio-5674, 985 N.E.2d 436, at ¶ 17, quoting State ex rel. Ebbing
v. Ricketts , 133 Ohio St.3d 339, 2012-Ohio-4699, 978 N.E.2d 188, ¶ 13. {¶ 36} In reviewing whether the commission abused its discretion, we consider the purpose of sanctions. We have often recognized th at “the primary purpose of disciplinary sanctions is not to punish the offender , but to protect the public.” Disciplinary Counsel v. O’Neill , 103 Ohio St.3d 204, 2004-Ohio-4704, 815 N.E.2d 286, ¶ 53; see Disciplinary Counsel v. Farris , 157 Ohio St.3d 527, 2019-Ohio-4810, 138 N.E.3d 1134, ¶ 17. But in judicial-candida te-discipline proceedings, we have also explained that the purpose of sanctio ns is to inform other judicial candidates of the ser iousness of such misconduct and t o deter similar
violations in future elections. See O’Toole at ¶ 64. “[T]he public’s faith in the disciplinary proceedings against judges and judicial candidates is fostered by sanctions that reflect the unique injuries on the public by jud ges and judicial
candidates who are not truthful in the information they dissemi nate.” Id. {¶ 37} The commission determined that a public reprimand was appropria te because merely ordering Falter to pay a fine and costs would no t serve the deterrence purpose of a sanction. Falter raises two objections to the public reprimand. Aggravating and mitigating factors {¶ 38} Falter first argues that the commission erred by failing to con sider the aggravating and mitigating factors listed in Gov.Bar R. V(1 3). Falter acknowledges that the hearing pane l considered those factors, b ut she additionally argues that the panel misapplied them. For example, she argues that the panel failed to give her mitigating credit for retracting her statements abo ut Hartman after she learned that they were inaccurate. {¶ 39} With respect to Falter’s argument about the commission, we hold that the commission did not err by omitting consideration of th e aggravating andJanuary Term, 2021

15 mitigating factors in its order. Gov.Jud.R. II(5) provides tha t “a grievance that alleges a violation by a judici al candidate of Canon 4 of the C ode of Judicial Conduct during the course of a cam paign for judicial office sha ll be brought, conducted, and disposed of in accordance with this rule and Gov .Bar R. V, as modified by this section .” (Emphasis added.) Gov.Jud.R. II(5)(D)(1) requires the commission to review the hearing panel’s report. If the commis sion “concludes the record supports the hearing panel’s finding that a violation of Canon 4 has occurred and there has been no abuse of discretion by the hearing panel, the commission may enter an order that includes one or more of the following:” a d isciplinary sanction, a cease-and-desist order, a fine , an assessment of costs, or an assessment of attorney fees. Nothing in Gov.Jud.R. II(5) required the commission to a lso independently weigh the aggravating and mitigating factors applicable in othe r attorney-discipline

cases. {¶ 40} With respect to the hearing panel’s findings, we commend Falter for issuing a retraction letter shortly after Hartman’s campaign no tified her that the letter was inaccurate. But that fact does not mean that her pu blic reprimand should be vacated. Nor has she established that the panel’s weighing of the other aggravating or mitigating fact ors should have any impact on her sanction. The public reprimand {¶ 41} Falter next argues that her disciplinary sanction should be vac ated because she “has been sufficiently reprimanded in public.” She claims that although she quickly retracted h er campaign letter, she receive d negative media attention, which culminated in he r loss in the primary election . With her objections, Falter submitted screenshots of social-media posts criticizing her for the false campaign letter. She argues that in light of the damage to her reputation, the commission’s public repr imand was excessive. {¶ 42} Gov.Jud.R. II(5)(C)(3) provides fo r a formal hearing before a hearing panel and there is no provision in Gov.Jud.R. II(5) for the introduction ofS UPREME C OURT OF O HIO

16 additional evidence when the proceedings are in this court on a ppeal. Similar to other attorney-discipline cases, we would consider accepting ad ditional evidence at this late stage only in the most exceptional circumstances. See Lorain Cty. Bar
Assn. v. Weir , 156 Ohio St.3d 566, 2019-Ohio-2151, 130 N.E.3d 275, ¶ 13. No exceptional circumstances exist here that would a llow Falter to introduce evidence for the first time in her objections. Nor has she otherwise es tablished why alleged
critical comments in the media or on social media could somehow substitute for a public reprimand from this court. {¶ 43} We therefore overrule Falter’s two additional objections to the public reprimand. Falter has not established that the commissi on acted in an unreasonable, arbitrary, or unconscionable manner. A public re primand is in line with other cases in which judici al candidates have violated Jud .Cond.R. 4.3(A).
See O’Toole , 141 Ohio St.3d 355, 2014-Ohio-4046, 24 N.E.3d 1114; Moll , 135 Ohio St.3d 156, 2012-Oh io-5674, 985 N. E.2d 436 . And the sancti on will serve as a deterrent to prevent other judicial candidates from knowingly or recklessly disseminating false information during their campaigns. See O’Toole at ¶ 64.
Conclusion {¶ 44} Because we overrule Falter’s objections to the commission’s misconduct findings and because the commission did not abuse it s discretion in issuing sanctions against Falte r for her violations of Jud.Cond .R. 4.3(A), we affirm
the commission’s order.
Order affirmed.
O’C ONNOR , C.J., and G ALLAGHER , P OWELL , H ALL , D ONNELLY , and
B RUNNER , JJ., concur.
S TEWART , J., concurs in judgment only, with an opinion.
S EAN C. G ALLAGHER , J., of the Eighth District Court of Appeals, sitting for
K ENNEDY , J.January Term, 2021

17 S TEPHEN W. P OWELL , J., of the Twelfth District Court of Appeals, sitting
for F ISCHER , J.
M ICHAEL T. H ALL , J., of the Second District Court of Appeals, sitting for
D E W INE , J.

_________________ S TEWART , J., concurring in judgment only. {¶ 45} I agree with the per curiam opi nion’s holding that an objective , rather than a subjective, standard applies in determining whether a ca ndidate for judicial office has violated Jud.Cond.R. 4.3(A). I also agree that in t his case, respondent, Karen Kopich Falter , did not have a reasonabl e factual basis fo r the statements she published about her opponent, Curt Hartman. I nevertheless con cur in judgment only, because I think it is important to acknowledge that the t est we are using to determine whether a false statement was published with “a reckl ess disregard of
whether or not it was false” under Jud.Cond.R. 4.3(A) is in fac t a negligence test. {¶ 46} We are ruling that Falter vi olated Jud.Cond.R. 4.3(A) when she published information that she gathered from speaking with her campaign
consultants and with members of t he bar without undertaking to fact-check it. She could have easily discovered the correct information by checkin g the county auditor’s website to see when Hartman had purchased a condomini um in Hamilton County and by checking Hartman’s voting records. At bottom, th e reason for this
court’s conclusion that Falte r violated Jud.Cond.R. 4.3(A) is t hat she failed to act as a prudent judicial candidate would have acted when she faile d to diligently investigate the information befo re publishing it. In other wor ds, Falter negligently published false information. See, e.g. , Willoughby Hills v. Cincinnati Ins. Co., 9 Ohio St.3d 177, 180, 459 N.E.2d 555 (1984), quoting Embers Supper Club, Inc. v. Scripps-Howard Broadcasting Co. , 9 Ohio St.3d 22, 457 N.E.2d 1164 (1984), syllabus, modified on other grounds, Lansdowne v. Beacon Journal Publishing Co. , 32 Ohio St.3d 176, 512 N.E.2d 979 (1987) (plurality opinion) (t he negligenceS UPREME C OURT OF O HIO

18 standard asks “ ‘whether the defendant acted reasonably in atte mpting to discover the truth or falsity or defamatory character of the publication ’ ”). The per curiam opinion’s insistence that “[n]egligently made false statements or negligent misstatements are not prohib ited by” Jud.Cond.R. 4.3(A), majori ty opinion at ¶ 18,
cannot therefore be reconciled w ith the fact that this court ha s adopted and applied an objective-reasonableness test.

_________________ Finney Law Firm, L.L.C., and Christopher P. Finney, for complai nant. Isaac, Wiles, Burkholder & Teetor, L.L.C., Donald C. Brey, and Matthew R. Aumann, for respondent.

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