ORDER OF THE COMMISSION OF JUDGES.
This mattér came for review before a five-judge commission appointed by the Supreme Court pursuant to Gov.Jud.R. II(5)(E)(1) and R.C. 2701.11 upon a judicial campaign complaint filed by Joe Murray against respondent Jeffrey Runyan. Members of the commission were Judges William G. Lauber, Chair, Melissa Byers-Emmerling, John Bessey, Judith Nicely, and Margaret K. Weaver.
This cause arose out of a judicial election in Ashland County in which the parties were the opposing candidates for an open common pleas court judgeship. Complainant alleges in his disciplinary grievance that respondent made the following campaign promise or pledge: “If elected, I will imprison all convicted felons,” in violation of Canon 7(B)(2)(c) of the Code of Judicial Conduct. He allegedly made the statement during an interview with a Richland County newspaper. Based upon that complaint, a finding of probable cause was made, a formal complaint was filed charging a violation of Canon 7(B)(2)(c), and a hearing was held before a hearing panel, pursuant to Gov.Jud.R. II(5)(C) and (D). The hearing panel concluded that the respondent had violated the canon and made recommendations for penalty.
The case was reviewed by teleconference on December 8 and 14,1998, after the entire commission had an opportunity to review the transcript, exhibits, and arguments. The majority of the commission concluded that it must find in the record clear and convincing evidence, first, that the respondent said what complainant alleges he said, and, second, if he did say it, that it constitutes a Canon 7(B)(2)(c) violation.
Canon 7(B)(2)(c) states:
“A judge or judicial candidate shall not do any of the following:
it * * *
“Make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office * *
Ohio law states that to be clear and convincing, the evidence must have more than simply a greater weight than the evidence opposed to it, and it must produce in the trier of fact’s mind a firm belief or conviction about the facts to be proved or the truth of the matter. Lansdowne v. Beacon Journal Publishing Co. (1987), 32 Ohio St.3d 176, 512 N.E.2d 979; Cross v. Ledford (1954), 161 Ohio St. 469. 53 O.O. 361, 120 N.E.2d 118.
[64]*64The statement at issue arose at an interview with a newspaper in Richland County on October 15, 1998, at which four people were in attendance. The record shows that complainant and respondent were both present as interviewees. Reporter Mark Caudill, who was charged with writing an account of the interviews, was present. Also present was the paper’s city editor, Michael Shearer, who represented the editorial board and apparently conducted the interview. He was also charged with writing an endorsing editorial. The interview of the two candidates lasted less than forty-five minutes.
Reporter Mark Caudill’s article appeared on October 19, 1998, and in it he specifically quotes the respondent as follows: “I would run a court that views convicted felons from the standpoint that they are going to be incarcerated. The penalty is the best and first way of dealing with felons.”
On October 21,1998, City Editor Michael Shearer wrote his editorial endorsing the complainant and saying, “Runyan vows to uphold Henderson’s tradition, saying he would put all convicted felons in prison. Murray said each individual case must be considered.”
The same day the editorial appeared in the morning paper, and six days after the October 15 interview, complainant filed his grievance.
In his testimony before the hearing panel, City Editor Michael Shearer testified as follows:
“Q. Would you describe to the Panel that discussion as you recall it?
“A. Mr. Runyan had made a statement that he wanted to continue to serve the tradition of the court under the sitting Judge Henderson.
“And I asked a follow-up question about what he meant by that statement, what does that mean? And he responded about — with a statement I guess which is to the question, to the effect that convicted felons should be put in prison.”
After being shown his editorial with the statement that Runyan would put all convicted felons in prison, he was asked:
“Q. Did Mr. Runyan make that statement to you in the course of his interview with you?
“A. As far as I can recollect, yes.”
Later, during cross-examination, he testified:
“Q. Is that the document reflecting the article written by Mark Caudill?
“A. Yes it is.
“Q. Is that a true and accurate copy of that article?
“A. It would appear to be.
[65]*65“Q. I’d like you to read that portion of the article, these two paragraphs here.
“A. This in a direct quote from Mr. Runyan. We have a very special situation in Ashland County, he said. Judge Henderson has a reputation of being a very conservative judge. With his success, that needs to be continued. I would run a court that views convicted felons from the standpoint that they are going to be incarcerated. The penalty is the best and first way of dealing with felons.
“Q. And apparently you surmised that from his statement he indicated that he would put all convicted felons in prison?
“A. That was the impression that I was left with, yes.
“Q. That’s what you surmised?
“A. That’s what I surmised and that’s what I surmised from reading the quote here today.
“Q. He indicates here that something is the best and first way. You don’t find that to mean that there may be other ways of dealing with felons?
“A. I suppose you could read it that way; by me — the impression I got from sitting with him and reading the quote again was that all convicted felons would be imprisoned. I guess in my reading of it, I did not take that to mean that of being absolute. But I thought that was what the gist of it was.
“Q. You deem it to be an absolute?
“A. That’s — that would be with Mr. Runyan. I guess I found it a little hard to believe that would be the case. But that’s what the statement was.
“Q. That’s the way you interpreted it?
“A. That’s the way I interpreted it, yes.”
There was no redirect.
Therefore, the only statement by City Editor Shearer that respondent said “If elected, I will put all convicted felons in prison” is to be derived from his answer that as far as he could recollect, respondent made that statement, although under cross-examination he testified that he surmised that, that it was the gist of Runyan’s answer, that it was how he interpreted Runyan’s answer, and that the October 19 article by Reporter Mark Caudill contained “a direct quote” by Runyan.
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ORDER OF THE COMMISSION OF JUDGES.
This mattér came for review before a five-judge commission appointed by the Supreme Court pursuant to Gov.Jud.R. II(5)(E)(1) and R.C. 2701.11 upon a judicial campaign complaint filed by Joe Murray against respondent Jeffrey Runyan. Members of the commission were Judges William G. Lauber, Chair, Melissa Byers-Emmerling, John Bessey, Judith Nicely, and Margaret K. Weaver.
This cause arose out of a judicial election in Ashland County in which the parties were the opposing candidates for an open common pleas court judgeship. Complainant alleges in his disciplinary grievance that respondent made the following campaign promise or pledge: “If elected, I will imprison all convicted felons,” in violation of Canon 7(B)(2)(c) of the Code of Judicial Conduct. He allegedly made the statement during an interview with a Richland County newspaper. Based upon that complaint, a finding of probable cause was made, a formal complaint was filed charging a violation of Canon 7(B)(2)(c), and a hearing was held before a hearing panel, pursuant to Gov.Jud.R. II(5)(C) and (D). The hearing panel concluded that the respondent had violated the canon and made recommendations for penalty.
The case was reviewed by teleconference on December 8 and 14,1998, after the entire commission had an opportunity to review the transcript, exhibits, and arguments. The majority of the commission concluded that it must find in the record clear and convincing evidence, first, that the respondent said what complainant alleges he said, and, second, if he did say it, that it constitutes a Canon 7(B)(2)(c) violation.
Canon 7(B)(2)(c) states:
“A judge or judicial candidate shall not do any of the following:
it * * *
“Make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office * *
Ohio law states that to be clear and convincing, the evidence must have more than simply a greater weight than the evidence opposed to it, and it must produce in the trier of fact’s mind a firm belief or conviction about the facts to be proved or the truth of the matter. Lansdowne v. Beacon Journal Publishing Co. (1987), 32 Ohio St.3d 176, 512 N.E.2d 979; Cross v. Ledford (1954), 161 Ohio St. 469. 53 O.O. 361, 120 N.E.2d 118.
[64]*64The statement at issue arose at an interview with a newspaper in Richland County on October 15, 1998, at which four people were in attendance. The record shows that complainant and respondent were both present as interviewees. Reporter Mark Caudill, who was charged with writing an account of the interviews, was present. Also present was the paper’s city editor, Michael Shearer, who represented the editorial board and apparently conducted the interview. He was also charged with writing an endorsing editorial. The interview of the two candidates lasted less than forty-five minutes.
Reporter Mark Caudill’s article appeared on October 19, 1998, and in it he specifically quotes the respondent as follows: “I would run a court that views convicted felons from the standpoint that they are going to be incarcerated. The penalty is the best and first way of dealing with felons.”
On October 21,1998, City Editor Michael Shearer wrote his editorial endorsing the complainant and saying, “Runyan vows to uphold Henderson’s tradition, saying he would put all convicted felons in prison. Murray said each individual case must be considered.”
The same day the editorial appeared in the morning paper, and six days after the October 15 interview, complainant filed his grievance.
In his testimony before the hearing panel, City Editor Michael Shearer testified as follows:
“Q. Would you describe to the Panel that discussion as you recall it?
“A. Mr. Runyan had made a statement that he wanted to continue to serve the tradition of the court under the sitting Judge Henderson.
“And I asked a follow-up question about what he meant by that statement, what does that mean? And he responded about — with a statement I guess which is to the question, to the effect that convicted felons should be put in prison.”
After being shown his editorial with the statement that Runyan would put all convicted felons in prison, he was asked:
“Q. Did Mr. Runyan make that statement to you in the course of his interview with you?
“A. As far as I can recollect, yes.”
Later, during cross-examination, he testified:
“Q. Is that the document reflecting the article written by Mark Caudill?
“A. Yes it is.
“Q. Is that a true and accurate copy of that article?
“A. It would appear to be.
[65]*65“Q. I’d like you to read that portion of the article, these two paragraphs here.
“A. This in a direct quote from Mr. Runyan. We have a very special situation in Ashland County, he said. Judge Henderson has a reputation of being a very conservative judge. With his success, that needs to be continued. I would run a court that views convicted felons from the standpoint that they are going to be incarcerated. The penalty is the best and first way of dealing with felons.
“Q. And apparently you surmised that from his statement he indicated that he would put all convicted felons in prison?
“A. That was the impression that I was left with, yes.
“Q. That’s what you surmised?
“A. That’s what I surmised and that’s what I surmised from reading the quote here today.
“Q. He indicates here that something is the best and first way. You don’t find that to mean that there may be other ways of dealing with felons?
“A. I suppose you could read it that way; by me — the impression I got from sitting with him and reading the quote again was that all convicted felons would be imprisoned. I guess in my reading of it, I did not take that to mean that of being absolute. But I thought that was what the gist of it was.
“Q. You deem it to be an absolute?
“A. That’s — that would be with Mr. Runyan. I guess I found it a little hard to believe that would be the case. But that’s what the statement was.
“Q. That’s the way you interpreted it?
“A. That’s the way I interpreted it, yes.”
There was no redirect.
Therefore, the only statement by City Editor Shearer that respondent said “If elected, I will put all convicted felons in prison” is to be derived from his answer that as far as he could recollect, respondent made that statement, although under cross-examination he testified that he surmised that, that it was the gist of Runyan’s answer, that it was how he interpreted Runyan’s answer, and that the October 19 article by Reporter Mark Caudill contained “a direct quote” by Runyan.
The complainant testified that the respondent said that if elected, he would imprison all convicted felons.
During cross-examination, he further testified as follows:
“Q. And the quotes of Mr. Caudill, you don’t have any reason to disagree with his attributions to Mr. Runyan?
[66]*66“A. His quote of Mr. Runyan isn’t what I recall Mr. Runyan to say. Specifically — I’ve testified as to what Mr. Runyan which supports — which is reiterated in Mr. Shearer’s editorial on the 21st.
« * * 5|5
“Q. If elected, I will imprison all convicted felons.
“A. Exactly.
“Q. Is that what you remember him saying?
“A. That’s what I remember him saying.
“Q. And you wrote that based upon your memory?
“A. Yes.”
The respondent testified that he made the statement contained in Reporter Caudill’s October 19 article and it was substantially accurate. The only evidence that Reporter Caudill’s quotation was not accurate came from the complainant on cross-examination as set forth above in which he testified that the reporter’s quote was not what he recalled respondent to have said, although Michael Shearer, city editor, described the quotation in the October 19 paper as a direct quotation.
The hearing panel’s findings of fact portion of its decision includes the following statement in its final paragraph:
“Respondent testified on his own behalf. He indicated that the quotes in the October 19th news article and the October 21st editorial were substantially accurate.”
A careful review of the record reveals that at no time did respondent indicate that the quote of the October 21 editorial was substantially accurate. In fact, on page 71 of the transcript, the respondent gives the following testimony:
“Q. Finally, did you ever indicate to the voters that you would, as is indicated in the complaint, if elected, I will imprison all convicted felons.
“A. I don’t recall ever saying that.
“Q. Did you say it.
“A. No.”
Counsel for complainant never inquired of respondent concerning the statement in the October 21 editorial.
Based upon this evidence, which it believes to be exhaustive of the evidence in the transcript on the issue, the majority concludes that there is not clear and convincing evidence that respondent said, “If elected, I -will imprison all felons.” In an alleged violation of this genus, the words of the candidate are what [67]*67must be considered, not an interpretation of his words or conjecture of another as to their meaning. The reason this is an important issue is that the “direct quote,” as the city editor called the statement in the October 19 article, and the city editor’s October 21 editorial statement, which he himself said was an interpretation, are not the same. It was the editorial statement that was asserted by the complainant in his grievance as his recollection. However, the grievance was filed not at the time of the directly quoted statement, but after the editorial statement appeared in print. These two statements are different in relevant ways in both form and substance.
The statement quoted in the October 19 article is made “from the standpoint that” which is in the form of a philosophical viewpoint, whereas the statement in the editorial, and quoted in the complaint, is an affirmative declaration. These differing forms are significant when it comes to the second determination that would have to be made in this case, to wit, does the statement represent a pledge or promise made by the candidate? An affirmative declaration can be, in appropriate circumstances, a pledge or promise. A philosophical viewpoint, while perhaps inappropriate under another section of the canon, is unlikely to rise to a pledge or promise as reasonable persons would define them.
The substance of the two statements differ as well. The October 19 statement speaks of incarceration, which Black’s Law Dictionary defines as including jail and prison, and which Ohio criminal law professionals define to include jail and community-based correction facilities, as well as prisons. The editorial and the complaint use the words “prison” and “imprison.” On page 20, lines 7-10, of the transcript, City Editor Shearer states that respondent answered his question “to the effect that convicted felons should be put in prison.” The word “all” was in the editorial statement: “Runyan vows to uphold Henderson’s tradition, saying he would put all convicted felons in prison.” By changing the word “incarceration” to “prison” by the addition.of the words “all” and “vows,” the statement is transformed to what would reasonably be considered a pledge or promise.
The majority thereupon concludes that complainant failed to prove by clear and convincing evidence that respondent said, “If elected, I will imprison all convicted felons.” And although the hearing panel appears to deal with the statement of October 19, this was not part of the majority’s review, as it is not properly before the commission as an alleged violation, although it had been publicly disseminated prior to the filing of this grievance.
Therefore, we reverse the action of the hearing panel and dismiss the complaint.
So ordered.
[68]*68William G. Lauber, Chair, Melissa Byers-Emmerling and Margaret K. Weaver, JJ., concur.
Judith Nicely and John Bessey, JJ., dissent.