An Ohio ethics rule that prohibits state judicial candidates from personally soliciting campaign contributions does not violate the First Amendment, a federal judge determined on December 10.
At the same time, the judge found that the rule should not apply to candidates’ communications with family members.
U.S. District Judge Susan Dlott, of the Southern District of Ohio, held that the ban on personal solicitations of campaign contributions — except in writing or when speaking to groups of 20 or more people — passed constitutional muster.
A statewide labor organization, three Ohio judicial candidates and the Ohio Democratic Party challenged the rule in 2010. At that time, it banned judicial candidates from making any personal campaign solicitations, without exception.
Shortly after the plaintiffs brought the case, the U.S. District Court for the Sixth Circuit in Carey v. Wolnitzek threw out a similar rule in Kentucky. Following the Carey decision, Ohio modified its original rule to include the exceptions. The plaintiffs claimed that even with those exceptions, the rule still unconstitutionally restricted free speech.
In upholding Ohio’s rule, Dlott found that, as modified, it served the compelling state interest of “preserving the appearance and reality of an impartial judiciary and protecting donors from coercion.” It also was narrowly tailored to that interest, she ruled. However, with regard to the prohibition of solicitations of family members, it had “diminished value,” she said.
Dlott found that other judicial ethics rules pertaining to disqualifying a judge in matters involving his or her family sufficiently served the purpose of maintaining an impartial judiciary and could be applied in a campaign contribution context.
“That a judge must recuse himself or herself from matters involving immediate family members is recognized in other rules, such as the one that permits a judge to accept gifts, loans, and other things of value from close friends and family members because their appearance or interest in a proceeding before the judge would in any event require the judge’s disqualification,” she wrote.
The decision resolves part of a larger challenge to an Ohio statute that requires judicial candidates to run in partisan primaries but then requires that their names appear without a party designation on the general election ballot. Dlott has not ruled on that issue.
The plaintiffs are Ohio Council 8 of the American Federation of State, County and Municipal Employees; Nadine Allen, a Hamilton County municipal court judge; Peter Corrigan, a Cuyahoga County Common Pleas Court judge; Martha Good, a judicial candidate; and the Ohio Democratic Party. They were represented by Jennifer Branch of Gerhardstein & Branch in Cincinnati.
“We’re very pleased that Judge Dlott found that part of the code was prohibited,” Branch said. “Unfortunately, her decision was narrow.”
Defending the rule was the office of the Ohio secretary of state, represented by Thomas Madden in the Ohio attorney general’s office. A spokesman for the attorney general’s office did not respond to a request for comment.
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