[Cite as Ohio Democratic Party v. Ohio Elections Comm., 2008-Ohio-4256…

[Cite as Ohio Democratic Party v. Ohio Elections Comm., 2008-Ohio-4256.]


                            IN THE COURT OF APPEALS OF OHIO

                                 TENTH APPELLATE DISTRICT

Ohio Democratic Party et al.,                        :

                Appellants-Appellants,               :                     No. 07AP-876
                                                                  (C.P.C. No. 06CVF-12-17161)
v.                                                   :
                                                                  (REGULAR CALENDAR)
Ohio Elections Commission,                           :

                Appellee-Appellee.                   :




                                         O P I N I O N

                                   Rendered on August 21, 2008


                McTigues Law Group, Donald J. McTigue, Mark A. McGinnis
                and John M. Stephan, for appellants.

                Marc Dann, Attorney General, Sharon A. Jennings, Peggy W.
                Korn and Pearl M. Chin, for appellee.

                 APPEAL from the Franklin County Court of Common Pleas.

PETREE, J.

        {¶1}    The Chairman of the Ohio Democratic Party ("ODP"), as well as the ODP,

appeal from a judgment of the Franklin County Court of Common Pleas affirming a

decision of the Ohio Elections Commission ("commission") finding that the Chairman of

the ODP acted in violation of R.C. 3517.21(B)(1). For the reasons that follow, we affirm.

        {¶2}    This appeal concerns certain campaign material mailed before the

November 2006 election that promoted Democratic candidates seeking statewide offices

(hereinafter the campaign material will be referred to as the "flyer").
No. 07AP-876                                                                                2


          {¶3}     The record contains a photocopy of the flyer. The Chairman of the ODP is

identified on the flyer as its sender, and there is a notation on the flyer indicating that it

was paid for by the ODP. The flyer states on one side: "Fed Up With The Mess? Do

something about it ­ Vote Democrat." On the same side are what appear to be partial

images of the White House1 in Washington, D.C., and the Ohio Statehouse,2 with the

words       "CORRUPTION,"           "GAS      PRICES,"   "HEALTH   COSTS,"    "IRAQ,"   "JOBS

OVERSEAS," and "LOST PENSIONS," superimposed over the buildings.

          {¶4}     The top of the reverse side of the flyer states: "Vote Democratic ­ Help

Turn Around Ohio." It also states: "If you have had enough of Republican incompetence

and corruption, send them a message from the comfort of your home. All Ohio voters can

now vote by mail from home. It's convenient. It's easy. And it will send a message that

will be heard."         The flyer explains the "three simple steps" for voting by mail and

encourages the recipient to "vote the complete Democratic ticket to bring about the

change we need in Ohio." The flyer further states: "Vote By Mail. Vote for Change.

Vote the Democratic Ticket." Directly below these last three statements are photographs

of the slate of Democratic candidates who were seeking statewide offices. Directly below

each candidate's photograph is his or her name, and directly below most of the names

are the titles of the offices the candidates were seeking to hold.           For example, the

photograph of Ted Strickland was placed directly above the following caption:

                   Ted Strickland
                     Governor



1
    Adjacent to this image is the word "Washington."
2
    Adjacent to this image is the word "Columbus."
No. 07AP-876                                                                             3


In the same way, the preparer of the flyer set forth the photograph, name, and title of

office sought, for candidates Lee Fisher, Marc Dann, Barbara Sykes, Jennifer Brunner,

and Richard Cordray. However, instead of indicating that Sherrod Brown was seeking

the office of "U.S. Senator," below his name is "U.S. Senate." In addition, instead of

indicating that Ben Espy and Bill O'Neill were both seeking the office of "Justice," below

each of their names is "Supreme Court." At the time the flyer was distributed, none of the

Democratic candidates held the office that was being sought in the election.

       {¶5}   On October 13, 2006, the Chairman of the Ohio Republican Party filed a

complaint with the commission against the Chairman of the ODP, Ted Strickland, Lee

Fisher, Sherrod Brown, Marc Dann, Barbara Sykes, Jennifer Brunner, Richard Cordray,

Ben Espy, and Bill O'Neill.

       {¶6}   A probable-cause hearing was held before the commission on October 19,

2006, and all individual candidates included in the original complaint were dismissed, thus

leaving only the Chairman, acting on behalf of the ODP. On November 2, 2006, a full

hearing was held before the commission. Subsequent to the hearing, the commission

issued the following decision:

              THE COMMISSION FOUND A VIOLATION OF R.C.
              §3517.21(B)(1) BASED ON THE OHIO REVISED CODE'S
              STANDARD OF CLEAR AND CONVINCING EVIDENCE.
              THE COMMISSION DETERMINED THERE WAS GOOD
              CAUSE SHOWN NOT TO REFER THE MATTER FOR
              PROSECUTION OR TO ISSUE A LETTER OF REPRIMAND,
              BUT TO ALLOW THE FINDING OF A VIOLATION TO
              STAND AS THE PENALTY. ALL INDIVIDUAL CANDIDATES
              INCLUDED IN THE ORIGINAL COMPLAINT WERE
              DISMISSED BY THE PROBABLE CAUSE PANEL.
No. 07AP-876                                                                                              4


          {¶7}    Pursuant to R.C. 119.12, the ODP and its Chairman appealed to the

Franklin County Court of Common Pleas.3 The ODP and its Chairman challenged the

constitutionality of R.C. 3517.21(B)(1) and additionally argued that there was no evidence

that the Chairman of the ODP knowingly violated the statute. The trial court resolved that

R.C. 3517.21(B)(1) is constitutional on its face and was constitutionally applied in this

case. The trial court resolved that the ODP and its Chairman had knowledge of the

implied claim of incumbency and still distributed the flyer.                 Therefore, the trial court

affirmed the decision of the commission.

          {¶8}    The ODP and the Chairman of the ODP have appealed to this court from

the judgment of the trial court. In this appeal, they set forth the following assignments of

error for our review:

                  1. The Trial Court erred in holding that [the Chairman of the
                  ODP] knowingly made a false statement.

                  2. The Trial Court erred in holding that R.C. §3517.21(B)(1) is
                  facially constitutional.

                  3. The Trial Court erred in holding that the application of R.C.
                  §3517.21(B)(1) was constitutional.

                  4. The Trial Court erred in holding that the Ohio Democratic
                  Party violated R.C. §3517.21(B)(1).

                  5. The Trial Court erred in holding that the Ohio Elections
                  Commission can find a violation by the Ohio Democratic Party
                  for statements made regarding a federal candidate.

          {¶9}    Before addressing appellants' assignments of error, we will outline the

standard of review for administrative appeals pursuant to R.C. 119.12. Pursuant to R.C.

119.12, when a common pleas court reviews an order of an administrative agency, it

3
    R.C. 3517.157(D) provides that a party adversely affected by a final determination of the commission may
No. 07AP-876                                                                              5


must consider the entire record to determine whether the agency's order is supported by

reliable, probative, and substantial evidence and is in accordance with law. Univ. of

Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, 110-111; see, also, Andrews v. Bd. of

Liquor Control (1955), 164 Ohio St. 275, 280. 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. However, on

questions of law, the review of the court of appeals 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.

        {¶10} In cases involving the First Amendment, as in the case at bar, "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, 104 S.Ct. 1949, quoting New York Times Co. v. Sullivan (1964), 376 U.S.

254, 284-286, 84 S.Ct. 710; see, also, The Team Working for You v. Ohio Elections

Comm. (2001), 142 Ohio App.3d 114, 119, citing Bose Corp.

        {¶11} The First Amendment of the United States Constitution states in part:

"Congress shall make no law * * * abridging the freedom of speech." The Fourteenth

Amendment of the United States Constitution makes the freedom of speech provision of

the First Amendment applicable to the states. City of Ladue v. Gilleo (1994), 512 U.S. 43,

45, 114 S.Ct. 2038, fn. 1. Analogously, the Ohio Constitution states in part: "Every

citizen may freely speak, write, and publish his sentiments on all subjects, being


appeal pursuant to R.C. 119.12.
No. 07AP-876                                                                             6


responsible for the abuse of the right; and no law shall be passed to restrain or abridge

the liberty of speech[.]" Section 11, Article I, Ohio Constitution.

       {¶12} Political speech is " 'at the core of our First Amendment freedoms.' "

Republican Party v. White (2002), 536 U.S. 765, 774, 122 S.Ct. 2528, quoting Republican

Party of Minn. v. Kelly (C.A.8, 2001), 247 F.3d 854, 861. " 'Discussion of public issues

and debate on the qualifications of candidates are integral to the operation of the system

of government established by our Constitution.           The First Amendment affords the

broadest protection to such political expression in order 'to assure [the] unfettered

interchange of ideas for the bringing about of political and social changes desired by the

people.' " McIntyre v. Ohio Elections Comm. (1995), 514 U.S. 334, 346, 115 S.Ct. 1511,

quoting Buckley v. Valeo (1976), 424 U.S. 1, 14-15, 96 S.Ct. 612, 632. Hence, the First

Amendment has " 'its fullest and most urgent application' " in campaigns for political

office. McIntyre, at 347, quoting Buckley, 14-15.

       {¶13} However, certain statements in the context of political campaigns are not

protected by the First Amendment.          "Calculated falsehood falls into that class of

utterances which 'are no essential part of any exposition of ideas, and are of such slight

social value as a step to truth that any benefit that may be derived from them is clearly

outweighed by the social interest in order and morality.' " Garrison v. Louisiana (1964),

379 U.S. 64, 75, 85 S.Ct. 209. "[T]he use of the known lie as a tool is at once at odds

with the premises of democratic government and with the orderly manner in which

economic, social, or political change is to be effected." Id. Therefore, " 'false speech,

even political speech, does not merit constitutional protection if the speaker knows of the

falsehood or recklessly disregards the truth.' " McKimm v. Ohio Elections Comm. (2000),
No. 07AP-876                                                                                      7

89 Ohio St.3d 139, at 147, quoting Pestrak v. Ohio Elections Comm. (C.A.6, 1991), 926

F.2d 573, 577. See, also, Garrison, at 75 ("Hence the knowingly false statement and the

false statement made with reckless disregard of the truth, do not enjoy constitutional

protection.")4 False statements can distort the electoral process by potentially misleading

and misinforming the electorate. See Marshall, False Campaign Speech and the First

Amendment (2004), 153 U.Pa.L.Rev. 285.

          {¶14} Appellants' second and third assignments of error challenge the

constitutionality of R.C. 3517.21(B)(1),5 which provides, in part, as follows:

                  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 * * * shall knowingly and with
                  intent to affect the outcome of such campaign do any of the
                  following:

                  (1) Use the title of an office not currently held by a candidate
                  in a manner that implies that the candidate does currently
                  hold that office[.]

          {¶15} A violation of R.C. 3517.21(B)(1) must be proven by clear and convincing

evidence.          See R.C. 3517.155(D)(1); McKimm, at 142, fn.1 (applying R.C.

3517.21[B][10]). "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




4
 Under First Amendment principles, such knowledge or recklessness must be demonstrated by clear and
convincing evidence. See Committee to Elect Straus Prosecutor v. Ohio Elections Comm., Franklin App.
No. 07AP-12, 2007-Ohio-5447, at ¶9.
5
    R.C. 3517.21 was formerly codified as R.C. 3599.091.
No. 07AP-876                                                                                  8

be established." Cross v. Ledford (1954), 161 Ohio St. 469, paragraph three of the

syllabus.

       {¶16} "All statutes have a strong presumption of constitutionality."          Arbino v.

Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, ¶25. Moreover, it is a "well-

settled principle of statutory construction that where constitutional questions are raised,

courts will liberally construe a statute to save it from constitutional infirmities." State v.

Sinito (1975), 43 Ohio St.2d 98, 101, citing State ex rel. Prospect Hosp. v. Ferguson

(1938), 133 Ohio St. 325; Wilson v. Kennedy (1949), 151 Ohio St. 485. "Before a court

may declare unconstitutional an enactment of the legislative branch, 'it must appear

beyond a reasonable doubt that the legislation and constitutional provisions are clearly

incompatible.' " Groch v. General Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546,

quoting State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, paragraph one of

the syllabus.

       {¶17} Appellants argue that because resolving the issue of whether the use of the

title to an office implies that the candidate holds that office is highly subjective, regulating

speech on the basis of what is implied is not constitutional. Appellants contend that a

person can violate R.C. 3517.21(B)(1) without intentionally implying incumbency by using

the title of the office, thus forcing the person to not use the title. Essentially, appellants

argue that R.C. 3517.21(B)(1) is unconstitutionally overbroad because it prohibits persons

from falsely implying incumbency in campaign materials. See Ashcroft v. Free Speech

Coalition (2002), 535 U.S. 234, 255, 122 S.Ct. 1389, 1404 ("The overbreadth doctrine

prohibits the Government from banning unprotected speech if a substantial amount of

protected speech is prohibited or chilled in the process.").
No. 07AP-876                                                                                9


        {¶18} In support of their contention that R.C. 3517.21(B)(1) is unconstitutional

because it prohibits certain implications, appellants cite Pestrak, supra. In Pestrak, the

Sixth Circuit Court of Appeals for the United States determined that R.C.

3599.091(B)(10),    which   is   currently   codified   as   R.C.   3517.21(B)(10),   is   not

unconstitutional on its face. R.C. 3517.21(B)(10), which is not the section at issue here,

prohibits a person from, during the course of a campaign, and by means of campaign

materials, knowingly and with intent to affect the outcome of such campaign, "[p]ost,

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 is designed to promote the election, nomination, or

defeat of the candidate."

        {¶19} In addition to making the abovementioned determination, the Pestrak court

opined: "Certain portions of the statute, not at issue here, may pose greater problems.

Ohio Rev.Code § 3599.091(B)(1) [currently R.C. 3517.21(B)(1)] proscribes the use of

terms and titles in certain ways that 'imply' certain things. Thus, a former governor may

not use the term 'elect Governor Smith' if he is not in fact the incumbent governor[.]" Id.

at fn. 2.

        {¶20} Appellant's reliance on Pestrak for the proposition that R.C. 3517.21(B)(1)

is unconstitutional is unpersuasive, as the Pestrak court's statements concerning former

R.C. 3599.091(B)(1) were dicta.      Also, regarding appellants' contention that what a

communication implies is subjective, we note that the Supreme Court of Ohio, in

McKimm, supra, observed that the standard for determining what a statement

communicates is based on the reasonable reader standard, not what a particular person
No. 07AP-876                                                                                 10


may subjectively perceive.      See id.    Moreover, for there to be a violation of R.C.

3517.21(B)(1), it must be determined, by clear and convincing evidence, that the person

"knowingly and with intent to affect the outcome of such campaign * * * use the title of an

office not currently held by a candidate in a manner that implies that the candidate does

currently hold that office." Id. (Emphasis added.) Thus, R.C. 3517.21(B)(1) does not

apply to circumstances only involving negligence or even recklessness.

       {¶21} For these reasons, we find as unpersuasive appellants' argument that

R.C. 3517.21(B)(1) is unconstitutionally overbroad on the basis that it prohibits persons

from falsely implying incumbency in campaign materials.

       {¶22} Appellants argue that R.C. 3517.21(B)(1) violates due process of law

because it is unconstitutionally vague. A law is unconstitutionally vague if it "fails to give a

person of ordinary intelligence fair notice that his contemplated conduct is forbidden[.]"

United States v. Harriss (1954), 347 U.S. 612, 617, 74 S.Ct. 808. The "vagueness

doctrine," which is based on the idea of fairness, "is not a principle designed to convert

into a constitutional dilemma the practical difficulties in drawing criminal statutes both

general enough to take into account a variety of human conduct and sufficiently specific

to provide fair warning that certain kinds of conduct are prohibited." Colten v. Kentucky

(1972), 407 U.S. 104, 110, 92 S.Ct. 1953. The Supreme Court of Ohio has stated that

"[w]hen a statute is challenged under the due-process doctrine prohibiting vagueness, the

court must determine whether the enactment (1) provides sufficient notice of its

proscriptions to facilitate compliance by persons of ordinary intelligence and (2) is specific

enough to prevent official arbitrariness or discrimination in its enforcement." Norwood v.
No. 07AP-876                                                                                11

Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, ¶84, citing Kolender v. Lawson (1983),

461 U.S. 352, 357, 103 S.Ct. 1855.

       {¶23} Appellants contend that the statute does not provide fair notice to a person

of ordinary intelligence as to what conduct is prohibited by the statute. While an

implication itself may be subject to interpretation, as is the wording of many statutes, the

language of R.C. 3517.21(B)(1) is clear. Upon reviewing the statute, we resolve that a

person of ordinary intelligence would reasonably understand what conduct is proscribed

by R.C. 3517.21(B)(1). Additionally, we further resolve that the statute is sufficiently

specific so as to prevent arbitrariness or discrimination in its enforcement. See Norwood,

supra, at ¶84. The fact that circumstances may arise wherein it is relatively more difficult

to determine whether there is a violation of a statute does not render that statute

unconstitutionally vague.     See Colton, supra.       In sum, appellants have failed to

demonstrate that R.C. 3517.21(B)(1) is unconstitutionally vague.

       {¶24} Appellants contend that R.C. 3517.21(B)(1) is an unconstitutional

delegation of legislative power. The General Assembly is precluded from delegating its

legislative function; however, it may delegate discretionary functions to administrative

bodies so that they can apply the law to various sets of facts or circumstances. Blue

Cross of N.E. Ohio v. Ratchford (1980), 64 Ohio St.2d 256, 259. "A statute does not

unconstitutionally delegate legislative power if it establishes, through legislative policy and

such standards as are practical, an intelligible principle to which the administrative officer

or body must conform and further establishes a procedure whereby exercise of the

discretion can be reviewed effectively." Id. at syllabus.
No. 07AP-876                                                                               12


       {¶25} In enacting R.C. 3517.21(B)(1), the General Assembly set forth in detail the

elements that must exist for the commission to find a violation of that statute, and set forth

the evidentiary standard that must be established for the commission to find a violation.

See R.C. 3517.21(B) and 3517.155(D)(1). Thus, we find as unpersuasive appellants'

argument that R.C. 3517.21(B)(1) is an unconstitutional delegation of legislative power to

the commission.

       {¶26} Appellants argue that the commission has interpreted R.C. 3517.21(B)(1) to

require the use of the word "for" between the candidate's name and the office being

sought, thereby compelling speech in violation of the United States and Ohio

Constitutions.   In this regard, appellants contend that the commission placed undue

emphasis on the fact that the flyer did not contain the word "for" between the candidates'

names and the titles of the offices. Appellants assert that the statute does not require the

word "for" to be used between a candidate's name and the title of the office sought.

Indeed, R.C. 3517.21(B)(1) does not require the use of the word "for" before the title of

the office being sought. Even so, we disagree with appellants to the extent they contend

that the commission has created a rule that the word "for" must be used by a non-

incumbent.

       {¶27} We next address appellants' argument that R.C. 3517.21(B)(1) was

unconstitutionally applied in this case. "In an 'as applied' challenge, the party challenging

the constitutionality of the statute contends that the 'application of the statute in the

particular context in which he has acted, or in which he proposes to act, would be

unconstitutional. The practical effect of holding a statute unconstitutional "as applied" is

to prevent its future application in a similar context, but not to render it utterly
No. 07AP-876                                                                                     13

inoperative.' " Yajnik v. Akron Dept. of Health, 101 Ohio St.3d 106, 2004-Ohio-357, at

¶14, quoting Ada v. Guam Soc. of Obstetricians & Gynecologists (1992), 506 U.S. 1011,

113 S.Ct. 633 (Scalia, J., dissenting).                In support of their argument that

R.C. 3517.21(B)(1) was unconstitutionally applied in this case, appellants cite Briggs v.

Ohio Elections Comm. (C.A.6, 1995), 61 F.3d 487. According to appellants, the flyer

does not unambiguously imply the incumbency of the candidates.

         {¶28} In the Briggs case, the commission found Lou Briggs, a candidate for the

office    of   Ohio   State   Representative     for   the   28th   District,   in   violation   of

R.C. 3599.091(B)(1), which is now R.C. 3517.21(B)(1), in view of her paying for a

billboard that stated:

                Lou
                Briggs
                State Representative
                Strong New Leadership

Briggs, at 489.

         {¶29} Lou Briggs sued the commission in federal district court, alleging, inter alia,

that R.C. 3599.091(B)(1) was unconstitutionally applied to her. See id. The district court

dismissed the claim under Fed.R.Civ.P. 12(b)(6). Id. The Briggs court reversed, finding

the plaintiff to have stated a claim upon which relief could be granted. Like the trial court,

we find that the Briggs case is not controlling here because the Briggs case was resolved

on the basis of the appellate court's finding that the district court erred in dismissing the

matter under Fed.R.Civ.P. 12(b)(6).          Thus, the Briggs holding did not resolve the

constitutional claim raised by appellants.
No. 07AP-876                                                                              14


         {¶30} In the case at bar, it is uncontested that none of the candidates on the flyer

held the office for which he or she was seeking before the November 2006 election. But

the parties do dispute whether the preparer of the flyer used the titles of the offices which

the candidates were seeking in a manner that implies that the candidates held those

offices. The flyer identifies nine Democratic candidates by their picture and name. As to

six of the candidates, the public office that each was seeking to hold was identified under

the corresponding name and picture. However, regarding Sherrod Brown, "U.S. Senate,"

was placed under his name, and "Supreme Court" was placed below the names of Ben

Espy and Bill O'Neill. Without considering whether the flyer portrays Sherrod Brown, Ben

Espy, and Bill O'Neill, as incumbents, we resolve that the flyer would communicate to a

reasonable reader that the other six candidates currently held the offices of which they

were seeking, considering the positioning of the candidates' photographs, names, and

titles of the offices. We recognize that there is language on the flyer that generally

advocates "change"; however, that language does not negate the clear implication

conveyed by the flyer that these six candidates were incumbents. Therefore, we reject

appellants' "as applied" constitutional arguments set forth by their third assignment of

error.

         {¶31} Accordingly, appellants' second and third assignments of error are

overruled.

         {¶32} Because they involve interrelated issues, we will address appellants' first

and fourth assignments of error together. By their first assignment of error, appellants

argue that the record contains no evidence showing that the Chairman of the ODP

knowingly made a false statement. Appellants' fourth assignment of error alleges that the
No. 07AP-876                                                                              15


trial court erred in holding that the ODP violated R.C. 3517.21(B)(1) because the record

does not establish by clear and convincing evidence that ODP violated R.C.

3517.21(B)(1).

       {¶33} The complaint named, as respondents, the candidates on the flyer and the

Chairman of the ODP. After the commission dismissed the individual candidates who

were named as respondents in the complaint, the only respondent remaining was the

Chairman of the ODP.       Thus, the violation finding of the commission applied to the

Chairman of the ODP. As such, we must resolve whether there was clear and convincing

evidence that the Chairman of the ODP knowingly, and with intent to affect the outcome

of a political campaign used, in campaign material, titles of offices not currently held in a

manner that implies incumbency. See R.C. 3517.21(B)(1); R.C. 3517.155(D)(1).

       {¶34} The Chairman of the ODP is expressly identified on the flyer as its sender.

There is nothing in the record to suggest that the Chairman of the ODP did not sanction

or authorize the distribution of the flyer.     Furthermore, the Chairman of the ODP

indisputably knew that none of the candidates on the flyer currently held the offices they

were seeking. Thus, we find that there was clear and convincing evidence that the

Chairman of the ODP knowingly, and with intent to affect the outcome of political

campaigns, used titles of offices not currently held to imply that candidates on the

distributed flyer currently held the office of which each was seeking.

       {¶35} Accordingly, appellant's first and fourth assignments of error are overruled.

       {¶36} By their fifth assignment of error, appellants argue that the trial court erred

in holding that the commission can find that statements regarding a federal candidate can

constitute a violation of R.C. 3517.21(B)(1). Only one of the candidates on the flyer,
No. 07AP-876                                                                             16


Sherrod Brown, was seeking the federal office of U.S. Senator. The other candidates

were seeking state offices. The commission found a violation of R.C. 3517.21(B)(1)

based on the evidence in the record, which, as determined above, supported a violation

finding even without considering whether the flyer communicated that Sherrod Brown was

an incumbent U.S. Senator. Thus, it is unnecessary for this court at this time to resolve

the issue raised by appellants' fifth assignment of error. See App.R. 12(A)(1)(c).

       {¶37} Based on the foregoing, we overrule appellants' first, second, third, and

fourth assignments of error. Additionally, for the reason expressed above, appellants' fifth

assignment of error is moot. Accordingly, we affirm the judgment of the Franklin County

Court of Common Pleas affirming the Election Commission's determination that there was

a violation of R.C. 3517.21(B)(1), which precludes an implication that a candidate holds

an office that is not currently held.

                                                                        Judgment affirmed.

                                        BROWN, J., concurs.

                                    BRYANT, J., dissents.

BRYANT, J., dissenting,

       {¶38} The majority concludes the political advertisement at issue ("flyer") violates

R.C. 3517.21(B)(1) by falsely implying the candidates listed in the flyer hold the offices

associated with their names. Being unable to agree with the majority opinion, I

respectfully dissent.

       {¶39} R.C. 3517.21(B) regulates false campaign speech. Most of the subsections

under R.C. 3517.21(B) prohibit "false statement[s]" regarding certain topics or matters,

such as the educational background and voting record of a candidate or public official.
No. 07AP-876                                                                                17


See R.C. 3517.21(B)(2) and (9).       R.C. 3517.21(B)(10) more generally prohibits false

statements of fact concerning candidates. See McKimm. The subsection at issue, R.C.

3517.21(B)(1), prohibits any person from knowingly, and with the intent to affect the

outcome of a campaign, using the title of an office in a manner that falsely "implies that

the candidate does currently hold that office." The parties dispute whether appellants

used the titles of the offices the non-incumbent candidates were seeking in a manner that

falsely implies the candidates held those offices.

       {¶40} The term "false statement" has particular meaning within the context of

campaign speech. A false statement " 'sets forth matters which are not true,' " or

" '[s]tatements without grounds in truth or fact.' " Serv. Emp. Internatl. Union Dist. 1199 v.

Ohio Elections Comm., 158 Ohio App.3d 769, 2004-Ohio-5662, at ¶18, quoting In re

Pirko (1988), 44 Ohio App.3d 3, 5.            "[A] statement that is subject to different

interpretations is not 'false.' " Serv. Emp. Internatl. Union Dist. 1199, citing both Briggs v.

Ohio Elections Comm. (C.A.6, 1995), 61 F.3d 487, and McKimm v. Ohio Elections

Comm. (2000), 89 Ohio St.3d 139, at 147.

       {¶41} McKimm involved campaign material that depicted a human hand extending

toward the reader and waving a bundle of cash underneath a table.              The Elections

Commission determined the material violated R.C. 3517.21(B)(10).             In reviewing the

matter, the Ohio Supreme Court determined a reasonable reader could attach only one

meaning to the cartoon and accompanying text: the candidate's opponent accepted cash

for his vote to award a lucrative, unbid construction contract. See id. at 146. Because the

only reasonable interpretation was false, the court concluded the campaign material

violated the statute. In reaching its decision, however, the Supreme Court specified that if
No. 07AP-876                                                                              18


the "words are susceptible [of] two meanings, one defamatory and one innocent, the

defamatory meaning should be rejected, and the innocent meaning adopted." McKimm,

supra, at 146, quoting Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 372. As a

consequence, a flyer does not falsely "imply" if it is subject to a reasonable, innocent

construction.

       {¶42} The flyer here is subject to two different interpretations. Even if a reader

arguably could interpret the flyer to indicate that at least some of the candidates then held

the offices they were seeking, such an interpretation is not the only or even most

reasonable one. A reasonable reader also could interpret the flyer to advocate a change

in leadership, to set forth the slate of Democratic candidates seeking election to

implement that change, and, like a sample ballot, to identify the candidates and the

respective offices for which they were candidates in a manner that would assist the

reader who is being urged to exercise the right to vote by mail. Indeed, I have some

difficulty imagining how the flyer could be amended to negate the implication the majority

finds without using "for," a measure the majority acknowledges is not necessary.

       {¶43} Because the flyer is susceptible of more than one reasonable interpretation

about whether the candidates were incumbents, it does not communicate a "false

statement" in violation of R.C. 3517.21(B)(1) or fall outside the protection the First

Amendment affords. See McIntyre v. Ohio Elections Comm. (1995), 514 U.S. 334, 346,

115 S.Ct. 1511; Serv. Emp. Internatl. Union Dist. 1199, supra; McKimm, supra

(statements that are reasonably susceptible of an innocent construction are protected

under the innocent-construction rule).
No. 07AP-876                                                                               19


         {¶44} Alternatively, if R.C. 3517.21 is construed to encompass the flyer, then the

statute would be unconstitutional as applied. In Pestrak v. Ohio Elections Comm. (C.A.6,

1991),    926   F.2d   573,   577,   the   Sixth   Circuit   Court   of    Appeals   concluded

R.C. 3599.091(B)(10), currently codified as R.C. 3517.21(B)(10), is not unconstitutional

on its face. Pointing, however, to what is now R.C. 3517.21(B)(1), Pestrak stated that

"[c]ertain portions of the statute, not at issue here, may pose greater problems."

         {¶45} To apply R.C. 3517.21(B) in this situation would apply it to language that is

not false, as the language does not falsely imply incumbency under the standard set forth

in McKimm. While McKimm acknowledged an implication in campaign material can

constitute a "false statement" that violates R.C. 3517.21(B)(10), it did so when campaign

material is subject to only one reasonable interpretation that, in turn, is false. Because the

flyer here is subject to a reasonable, innocent interpretation, it is not false and therefore

enjoys the protection the First Amendment affords. Thus, to interpret R.C. 3517.21(B) as

applying to the flyer here renders the statute unconstitutional by applying it to political

speech that, because it is not false, enjoys the protection the First Amendment affords.

         {¶46} Moreover, to so construe R.C. 3517.21(B)(1) violates a "well-settled

principle of statutory construction that where constitutional questions are raised, courts

will liberally construe a statute to save it from constitutional infirmities." State v. Sinito

(1975), 43 Ohio St.2d 98, 101, citing State ex rel. Prospect Hosp. v. Ferguson (1938), 133

Ohio St. 325; Wilson v. Kennedy (1949), 151 Ohio St. 485.                 See, also, R.C. 1.42

(providing "[w]ords and phrases shall be read in context and construed according to the

rules of grammar and common usage," but "[w]ords and phrases that have acquired a

technical or particular meaning, whether by legislative definition or otherwise, shall be
No. 07AP-876                                                                              20


construed accordingly"). R.C. 3517.21(B) need not be declared unconstitutional if it is

interpreted to regulate only false speech and, as a result, not to apply to the language at

issue.

         {¶47} To the extent appellants' first and fourth assignments of error contend the

trial court    erred   in   affirming the   commission's   order finding a    violation   of

R.C. 3517.21(B)(1), I would sustain those assignments of error, rendering moot

appellants' remaining assignments of error. See, e.g., Doucet v. Telhio Credit Union, Inc.,

Franklin App. No. 05AP-307, 2006-Ohio-4342 (recognizing that we need not address

issues that a dispositive issue renders moot); App.R. 12(A)(1)(c).

         {¶48} Accordingly, I would reverse the judgment of the Franklin County Court of

Common Pleas affirming the commission's determination that appellants violated

R.C. 3517.21(B)(1) and would remand with instructions to reverse the commission's

order. Because the majority does not, I dissent.

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