Thursday, April 5, 2001

Joe Hallett
Dispatch Politics Editor

File photo Opponents of Justice Alice Robie Resnick sponsored this ad of Lady Justice peering at money.

The Ohio Elections Commission yesterday dismissed claims by government watchdog groups that the widely criticized attack ads run last year against Ohio Supreme Court Justice Alice Robie Resnick were false and violated state law.

In a 4-3 decision that broke largely along party lines, the commission ruled that even if the ubiquitous ads were untrue, the groups that sponsored them were permitted by free- speech rights to say what they want and to say it anonymously.

"We've determined that we don't have any jurisdiction,'' said Alphonse Cincione, commission chairman.

Attorneys for Common Cause of Ohio and Massachusetts-based Alliance for Democracy said they would appeal to the Franklin County Common Pleas Court. The attorneys will ask the court to compel the commission to determine whether the anti- Resnick spots violated state law by making false statements.

"We will appeal on the basis that the commission does have jurisdiction,'' said Don McTigue, attorney for Common Cause.

"I think it's a sad day for the citizens of Ohio and especially a sad day for elections in Ohio,'' McTigue added. "This means we're going to see a lot more money being spent on a lot more negative ads.''

The commission's action means that names of contributors to a multimillion-dollar campaign to defeat Resnick will remain anonymous. Resnick, a Toledo Democrat, won re- election to a third six-year term Nov. 7 despite the two-pronged campaign against her by the Institute for Legal Reform, an arm of the U.S. Chamber of Commerce, and Citizens for a Strong Ohio, an arm of the Ohio Chamber of Commerce.

Attorneys for those groups were elated by the commission's dismissal.

"The commission decided to honor First Amendment protection of political speech,'' said William M. Todd, attorney for Citizens for a Strong Ohio.

"It has always been and always will be that you can engage in political speech in this country anonymously,'' said Matthew A. Kairis, attorney for the U.S. Chamber of Commerce.

The ruling apparently ends the commission's role in the most expensive and one of the most rancorous Supreme Court races ever in Ohio. The two watchdog groups in October filed legal challenges to the chambers' television ads insinuating that Resnick traded favorable rulings in exchange for campaign contributions from trial lawyers and labor unions.

Attorneys for the chambers, seeking to protect the anonymity of donors, argued that the spots were "issue-advocacy'' ads protected by the First Amendment, which supersedes state election statutes outlawing defamatory statements in campaigns.

Independent Norton Webster joined Republicans William M. Connelly, Mary Sullivan, and William D. West in siding with the chambers. Cincione and fellow Democrats Dale W. Bayer and Judy Sheerer opposed dismissal of the case.

Questioning whether the chambers deserved status in this case as issue-advocacy groups, Sheerer sought to separate the questions of whether the ads made false statements under state law from the issue of whether they were protected by constitutional free speech guarantees. Her motion was defeated 4-3.

Bayer argued that the commission had an obligation under state law to determine whether claims made in the ads were false.

"I believe in free speech, but free speech is not absolute,'' Bayer said. "You have to have some guidelines where you cannot be falsifying and so forth.''

Referring to the chambers' anti-Resnick campaign, he added, "For someone to hide behind the First Amendment and go out and do as they darn please is not right.''

While Sullivan concurred that the chambers' ads were offensive, she said U.S. Supreme Court rulings gave the commission no authority to regulate free speech "simply because you don't like it.'' She said Resnick had a recourse, namely to sue the chambers for slander.

James Wootton, president of the Institute for Legal Reform, hailed the commission decision and defended the ads as educational.

"These ads provided crucial information on the impact of judicial elections on jobs and justice and are protected under the First Amendment,'' he said.

The watchdog groups also have sued the Ohio and U.S. chambers in U.S. District Court, but Judge Edmund A. Sargus of Columbus has refused to intercede until the case goes through the Ohio court system.

jhallett@dispatch.com

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