[This opinion has been published in Ohio Official Reports at
89 Ohio St.3d 497.]
OFFICE OF DISCIPLINARY COUNSEL v. EVANS.
[Cite as Disciplinary Counsel v. Evans, 2000-Ohio-227.]
Judges—Misconduct—Six-month stayed suspension—Judicial candidate fails to
maintain the dignity appropriate to judicial office—Failing to have
campaign committee file required contribution and expenditure
statements with clerk of court—Knowingly or with reckless regard
publishing information concerning an opponent that would be deceiving
or misleading to a reasonable person.
(No. 00-348—Submitted May 23, 2000—Decided August 30, 2000.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 99-01.
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{¶ 1} On September 20, 1999, relator, Disciplinary Counsel filed a fivecount amended complaint against respondent, Judge David T. Evans of Gallipolis,
Ohio, Attorney Registration No. 0021152. Respondent answered, and the matter
was heard by a panel of the Board of Commissioners on Grievances and Discipline
of the Supreme Court. The panel considered stipulations of fact and of violations
of the Code of Judicial Conduct, testimony submitted at the hearing, and numerous
letters attesting to respondent’s character and standing in the community. Counts
II, IV, and V were dismissed by the relator.
{¶ 2} Respondent became an attorney in 1975. He practiced law for twentythree years as a sole practitioner. In 1982, respondent was elected to the Republican
Party’s central committee in Gallia County. Thereafter, he served ten years as the
chairman of the executive committee, resigning in 1994. In that capacity, he helped
select candidates for campaigns and advised them on their responsibilities.
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{¶ 3} In late 1997, respondent decided to run for a vacant seat on the Fourth
District Court of Appeals.1 Respondent’s neighbor and friend, Curtis “Chuck”
Gilliam, assisted him during his primary campaign. Gilliam’s friend, Roger
Watson, a Guyan Township trustee in Gallia County, also worked on respondent’s
campaign. Watson suggested to Gilliam that he would be willing to construct
political signs for respondent’s campaign if the lumber would then be donated to
his township after the election. Gilliam relayed this proposal to respondent.
Respondent, who was pleased that the proposal involved free labor for the
preparation of his four-by-four-foot and four-by-eight-foot campaign signs, told
Gilliam to go ahead and take responsibility for the sign preparation. The source of
the free labor turned out to be jail inmates on work release and welfare recipients
assigned to work for the township.
{¶ 4} Respondent testified that he was not present at the township garage
when work on the signs was performed. However, Gilliam visited the garage on at
least three occasions. On his third visit to the garage, Gilliam became concerned
about rainwater in the garage and the lack of space. Gilliam discussed his concerns
with respondent, and as a result of this conversation, respondent arranged for the
sign preparation to move to a larger, private warehouse in Gallipolis. The sign
preparation continued at this new location for approximately two weeks.
{¶ 5} Gilliam met Watson and four workers on the first day the Gallipolis
warehouse was used. Thereafter, during the two-week period when work was
performed at that location, Gilliam would stop by the warehouse three or four times
a week and would stay approximately fifteen minutes. On one occasion respondent
visited the Gallipolis location and met some of the workers, all of whom were clad
in street clothes.
1. The Fourth District incorporates fourteen counties in the southeast part of the state: Pickaway,
Ross, Highland, Adams, Pike, Scioto, Jackson, Lawrence, Vinton, Hocking, Gallia, Meigs, Athens,
and Washington.
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January Term, 2000
{¶ 6} Philip Bailey, the only full-time township employee, also worked on
the signs. Bailey used the township truck to transport the inmates and welfare
workers to and from the warehouse. Watson and Gilliam also transported the
workers to and from the warehouse. On at least two occasions, Gilliam picked up
a worker at his residence and then stopped near the courthouse in Gallipolis while
the worker went and got two additional workers. On the second occasion that
Gilliam provided transportation to the workers, he dropped off two workers outside
the jail attached to the courthouse. Gilliam asserted that it was then that he realized
some of the workers were inmates.
{¶ 7} Gilliam asserted that he then advised respondent that inmates were
preparing signs at the warehouse. Respondent asserted that this was the first time
he learned that inmates were working on his signs. Respondent ordered that the
work be halted immediately. No further work was done on his signs until after the
primary, when a college student completed the signs at the warehouse. However,
respondent used the signs that had been completed thus far in his campaign. On
April 22 and June 2, 1998, the respondent’s campaign filed campaign finance
reports with the board of elections that did not mention the contribution of the
township facilities or the labor provided by jail inmates or welfare workers in the
construction of the campaign signs.
{¶ 8} Respondent admitted that his lack of close supervision of Gilliam’s
activities relating to the construction of the signs violated Canon 7(B)(1) of the
Code of Judicial Conduct (a judicial candidate shall maintain the dignity
appropriate to judicial office). Respondent also admitted that the failure to report
the contributions by the township for the use of the township garage and the value
of the labor of the inmates and welfare workers was a violation of Canon 7(C)(9)
(the campaign committee of a judicial candidate shall file a copy of all contribution
and expenditure statements specified in R.C. 3517.10[A] with the clerk of court).
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{¶ 9} In mitigation, respondent expressed regret. In addition, he stated that
he did not include the value of the free labor or the use of township property in the
campaign financial reports because he did not know how to do so. He stated that
he had tried to ameliorate the problem by having his counsel write to the Scioto
County Board of Elections for advice on how to report those contributions.
However, the panel and the board found that this letter was sent only after
respondent had received a draft complaint from Disciplinary Counsel stating
proposed charges against him based on the failure to report these contributions.
{¶ 10} Also during respondent’s primary campaign, respondent used
literature, print, radio, and television advertisements, and telephone scripts that
stated that he was “Endorsed by Southern Ohio’s Top Prosecutors and Sheriffs!”
At the time the advertisements were created and distributed, only five of the
fourteen sheriffs and three of the fourteen county prosecuting attorneys in the
Fourth Appellate District had endorsed or supported respondent.
{¶ 11} In June 1998, Judge Milton Nuzum and Judge Marshall Brown
Douthett, who had been respondent’s primary opponents, filed a grievance with the
Board of Commissioners under Gov.Jud.R. II(5) (fast-track campaign-violations
review). In July 1998, Judges Nuzum and Douthett filed a motion with the board
to refer the matter to relator for investigation.2 In September 1999, respondent filed
a civil complaint against Judges Nuzum and Douthett, among others. One count of
this complaint alleged that Judges Nuzum and Douthett had libeled and slandered
respondent and had intentionally filed false allegations with the Board of
Commissioners. Two months later, at his disciplinary hearing, respondent
conceded that his exaggeration of his endorsements was a violation of Canon
7(B)(1) (a judicial candidate shall maintain the dignity appropriate to judicial
office), and yet at the same time he testified that he was entitled to maintain his
2. This case results from this investigation.
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January Term, 2000
civil suit against the judges for falsely accusing him in their grievance filed with
the Board of Commissioners.
{¶ 12} In mitigation, respondent testified that he regretted the exaggeration
and that when it was brought to his attention before the primary that there was some
difficulty with it, he changed his telephone and radio scripts to state that he was
endorsed by “many of Ohio’s top sheriffs and prosecutors.” The postprimary
printed ads were also changed.
{¶ 13} In addition to the stipulated violation, the panel also found that
respondent’s endorsement language violated Canon 7(E)(1) (a candidate “shall not
knowingly or with reckless regard … publish … information concerning a
judicial candidate or an opponent, either knowing the information to be false or
with reckless disregard of whether or not it was false or, if true, that would be
deceiving or misleading to a reasonable person”).
{¶ 14} The panel found several aggravating circumstances, most notably
respondent’s actions in admitting violations of the Code of Judicial Conduct yet
proceeding with a lawsuit against Judges Douthett and Nuzum. The panel stated
that while respondent signed and testified to admissions of ethical violations at the
time of the hearing, he also believed that he had the right to pursue civil litigation
against the judges for “intentionally fil[ing] false charges,” charges that the panel
regarded as now admitted. The panel thus concluded that there was a serious
question as to respondent’s sincerity and candor in his admissions. The panel found
that the other actions that respondent claimed to be mitigating, i.e., changing his
ads and consulting the board of elections about reporting contributions, were taken
only in response to notice of a complaint to be filed against him rather than as a
result of any recognition of wrongdoing on his part. Moreover, the panel believed
that the modified ads were just as inaccurate and misleading to a reasonable person
as the original statement.
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{¶ 15} The panel recommended a six-month stayed suspension. The board,
however, recommended a six-month suspension without a stay. The board stated
that it based its recommendation on respondent’s proven knowledge of the
improper activity, the lack of timely, good faith mitigation, and the initiation and
continuation of a civil action against the judges who filed the original grievance
against him. Moreover, the board determined that respondent showed no remorse
for his violations.
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Jonathan E. Coughlan, Disciplinary Counsel, for relator.
Don C. Iler Co., L.P.A., and Don C. Iler; Buckley, King & Bluso and John
A. Hallbauer, for respondent.
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FRANCIS E. SWEENEY, SR., J.
{¶ 16} We adopt the board’s findings and conclusions that respondent
violated Canon 7(B)(1), (C)(9), and (E)(1). However, after thoroughly considering
the evidence in this case, we adopt the panel’s recommended sanction rather than
the board’s recommended sanction.
{¶ 17} When deciding what sanction to impose, we consider the duties
violated, respondent’s mental state, the injury caused, the existence of aggravating
or mitigating circumstances, and applicable precedent. Warren Cty. Bar Assn. v.
Bunce (1998), 81 Ohio St.3d 112, 115,
689 N.E.2d 566, 568; Disciplinary Counsel
v. Brown (1999),
87 Ohio St.3d 316, 320,
720 N.E.2d 525, 528. With respect to
the aggravating or mitigating circumstances, we are guided by the recent
Amendments to the Rules and Regulations Governing Procedure on Complaints
and Hearings Before the Board of Commissioners on Grievances and Discipline of
the Supreme Court, Section 10, Guidelines for Imposing Lawyer Sanctions. Ohio
Official Reports, June 19, 2000, Advance Sheets, xix.
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January Term, 2000
{¶ 18} One aggravating circumstance listed in Section 10 of these
guidelines is the refusal to acknowledge the wrongful nature of the conduct.
Section 10(B)(1)(g). Like the board, we believe that this aggravating circumstance
is present here. Although respondent admitted that his misleading endorsement
statements violated Canon 7(B)(1), he filed a civil lawsuit against the judges who
had initiated a grievance against him based in part on the endorsements. This action
was still pending at the time of the disciplinary hearing. The existence of this
lawsuit contrasts with respondent’s admissions that his campaign endorsements
were misleading. Instead, it supports a finding that despite his stipulated
admissions, respondent did not really believe that his conduct was wrong. The
board was justified in finding this to be an aggravating circumstance. However,
respondent now asks this court to allow him to avoid responsibility for his actions
and blames his predicament on his prior counsel. He asserts that the civil suit was
not instigated by him, but rather by his attorneys from the law firm of Chester,
Wilcox & Saxbe, a firm, he asserts, that was disqualified from representing him
due to a conflict of interest. We reject respondent’s attempt to escape responsibility
for the filing of the lawsuit.
{¶ 19} Respondent, as the client, made the ultimate decision as to whether
a lawsuit should be filed. In this regard, we note that respondent is not a typical
client. He has been an attorney for over twenty-five years, and now serves as a
judge on the Fourth District Court of Appeals. Moreover, due to his many years of
service as a Republican Party’s central committee executive chairman, he is well
versed in the mechanics of operating a political campaign. He is aware of, or should
be aware of, the rules governing campaign advertising. Thus, we find that this
after-the-fact attempt to disclaim responsibility is further proof that respondent still
does not acknowledge his wrongful conduct.
{¶ 20} We also question respondent’s asserted lack of knowledge as to the
source of the free labor used in the preparation of his campaign signs. The
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stipulations reveal that respondent knew that the labor for the signs was being
provided in exchange for the lumber being donated to Guyan Township and that
the signs were being constructed at the Guyan Township garage. The stipulations
also reveal that respondent’s good friend and neighbor, Gilliam, was put in charge
of this campaign detail. Gilliam visited the work sites on several occasions and
even transported workers at times. Respondent himself visited the workers at the
warehouse on one occasion. Thus, it strains credibility to argue that the source of
this free labor was realized only when jail inmates were actually shuttled to the jail.
However, at the very least, even assuming respondent did not know that jail inmates
and welfare workers prepared his signs, we find that respondent’s failure to
investigate the source of the free labor or supervise Gilliam’s activities in the
construction of the signs violated Canon 7(B)(1).
{¶ 21} Additionally, the failure to report the free contributions once he
learned of them violated Canon 7(C)(9). This canon is designed to mandate the
disclosure of all contributions by judicial candidates and to make such information
accessible to the public by requiring the information to be filed with the clerk of
court in each county in the district. While respondent claims that he immediately
halted the sign preparation as soon as he learned the source of the labor, he made
no attempt to determine what he should report as contributions until he received
relator’s draft complaint after the general election was over. Even then, upon
receiving no response to his letter to the board of elections, respondent took no
further action. The responsibility of reporting contributions is respondent’s, not the
board of elections.
{¶ 22} In mitigation, we note the absence of a prior disciplinary record and
consider the nine letters offered in support of respondent’s character and reputation.
We also consider this misconduct to be isolated, arising only in the context of
respondent’s political campaign.
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January Term, 2000
{¶ 23} As applicable precedent, we consider other cases involving election
campaign violations. See, e.g., In re Judicial Campaign Complaint Against
Hildebrandt (1997), 82 Ohio Misc.2d 1,
675 N.E.2d 889 (inaccurate disparaging
campaign statements justified a six-month stayed suspension); In re Complaint
Against Harper (1996),
77 Ohio St.3d 211,
673 N.E.2d 1253 (a misleading
disparaging television campaign advertisement justified only a public reprimand in
light of Judge Harper’s many years of distinguished public service). See, also, In
re Judicial Campaign Complaint Against Burick (1999),
95 Ohio Misc.2d 1,
705
N.E.2d 422; In re Judicial Campaign Complaint Against Roberts (1996),
81 Ohio
Misc.2d 59,
675 N.E.2d 84 (misleading campaign advertisements concerning
endorsements justified a public reprimand and/or fine).3
{¶ 24} In light of the seriousness of respondent’s misconduct and the
aggravating circumstances, we believe that a six-month stayed suspension is an
appropriate sanction. Therefore, respondent is hereby given a six-month stayed
suspension. Costs taxed to respondent.
Judgment accordingly.
KARPINSKI, Brogan and LUNDBERG STRATTON, JJ., concur.
RESNICK, ACTING C.J., and CHRISTLEY, J., concur in part and dissent in part.
COOK, J., dissents.
JUDITH A. CHRISTLEY, J., of the Eleventh Appellate District, sitting for
MOYER, C.J.
DIANE KARPINSKI, J., of the Eighth Appellate District, sitting for DOUGLAS,
J.
JAMES A. BROGAN, J., of the Second Appellate District, sitting for PFEIFER,
J.
3. The sanction of a fine is available in fast-track campaign-violations review cases pursuant to
Gov. Jud.R. II(5)(E)(1)(c). A fine is not a permissible sanction in a regular disciplinary proceeding.
Gov.Bar R. V(6)(B).
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CHRISTLEY, J., concurring in part and dissenting in part.
{¶ 25} While I concur in the majority’s adoption of the board’s findings and
conclusion that the respondent violated Canon 7(B)(1), 7(C)(9), and 7(E)(1), I
respectfully dissent as to the lesser sanction imposed.
{¶ 26} The board had it right. Thus, I concur in part and dissent in part.
RESNICK, ACTING C.J., concurs in the foregoing opinion.
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COOK, J., dissenting.
{¶ 27} The aggravating factors present in this case warrant the sanction
recommended by the board. I, therefore, respectfully dissent.
CHRISTLEY, J., concurs in the foregoing dissenting opinion.
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