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Here Come Da Judge

I'm pretty much old school. I have a number of judges I consider personal friends, but I'd never think of addressing them by their first names in any official setting, and even in social settings, I tend to address them as "Judge." In fact, now that I think about it, even after they retire, I'm likely to address them that way.

Colleen O'Toole apparently is old school, too. Despite her defeat as judge of the 11th District court of appeals two years ago, she still refers to herself as "judge." And that just cost her about six grand.

The problem is that O'Toole's running for that same seat this year, and her advertising and web site don't give any indication that she ever lost it. She identifies herself as "Judge O'Toole" on the website, and in public wears a name badge which reads, "Colleen Mary O'Toole, Judge, 11th District Court of Appeals." That's a no-no; under the judicial conduct rules, a candidate for a judicial office isn't allowed to "knowingly or with reckless disregard distribute information concerning the judicial candidate that would be deceiving or misleading to the reasonable person."

I know, you're saying, "But this is a campaign! Isn't all the information meant to be deceiving?" You're certainly onto something, not the least my unfortunate tendency to resort to hackneyed literary devices in my posts, like inventing imaginary conversations with my readers. Still, if this standard were applied to candidates in general, the presidential election season would have ended in February, with all the potential candidates in prison for repeated violations.

But judges are held to a loftier standard, at least in theory, so the rule is that you can't tell people you're a judge if you're not. That's spelled out specifically by Judicial Canon 4.3(C): a candidate can't "use the title of an office not currently held by a judicial candidate in a manner that implies that the judicial candidate does currently hold that office." The 5-judge hearing panel found her in violation of that proscription, fined her $1,000, and ordered her to pay about $2,500 in costs and $2,500 in attorney fees.

But, as with everything in life, there's a catch; in this case, the 1st Amendment. Back in June, in US v. Alvarez, SCOTUS threw out a Federal statute, the Stolen Valor Act, which made it illegal to claim that you'd won a military medal if you hadn't. (Meanwhile, would you believe that there's never been a movie called "Stolen Valor"? I just checked. In the unlikely event that the demographics for this blog include aging Hollywood action stars, expect that to change.) Alvarez held that content-based restrictions on speech are one of the primary evils the 1st Amendment was designed to prevent; they're presumed invalid, and the government must show not only that there is a compelling interest for the restriction, but that the restriction is "actually necessary" to achieve that interest. Earlier this year, in O'Neill v. Crawford, a 13-judge panel heard an appeal from case where a candidate was sanctioned for this offense, and decided that this ran afoul of In that case, a former appellate judge had only identified himself in that fashion in one place on his brochure, which in seven other places he referred to himself as "Judge O'Neill." The horror... the horror... The panel, concurring with my observation above, noted that "undisputedly, in common conversation, a retired former judge is called 'Judge.'" (Let's face it, who's more old school than appellate judges?) By an 8-5 vote, they decided that the that 4.3(C),as applied to the facts in that case, violatedAlvarez'interpretation of the the 1st Amendment.

Whether that does O'Toole any good remains to be seen. She raised the argument, but the panel peremptorily dismissed it, noting that "O'Neill is fashionably distinguishable from the case at hand." While there are some distinctions, it's not clear what significance they have. The O'Neill panel noted that since O'Neill was a retired judge, he was eligible for appointment as a visiting judge. (O'Toole, having been defeated for re-election, is not.) But so what? Whatever the potential for O'Neill to be appointed, in actuality he's no more a judge right now than O'Toole is.

Apart from the legal arguments, there's probably more involved here. As noted, both the initial and appellate panels deciding these issues are composed of judges. While O'Neill is fairly well-respected among his peers, O'Toole earned a reputation for not playing well with others in her stay on the bench. It's quite possible that O'Toole played to type in her appearance at the hearing, and proved her own worst enemy: the opinion notes that "[O'Toole's] testimony, together with her wearing the name badge in question to the hearing in this matter, leave little doubt that she intended the public to believe that she is a judge, when she is not."

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