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Strategic choices

You can't always tell from oral argument, but here's when you can:  you're the respondent in a disciplinary matter, and you're arguing in the Supreme Court, and you hear the chief justice tell disciplinary counsel how this is the worst form of the offense, and question him about why he recommended only a stayed suspension.

As Bob Dylan said, you don't need to be a weatherman to know which way the wind blows, and that day it was blowing pretty hard against Ronnie Tamburino.  He ran against incumbent Timothy Cannon of the 11th District in 2014, and Tamburino's campaign, shall we say, pushed the envelope of acceptable political discourse in a judicial campaign.

His first problem was an ad he ran which included the allegation that "Cannon won't disclose his Taxpayer Funded Travel Expenses."  In truth, nobody had ever asked Cannon for his travel expenses, which were a matter of public record anyway.

The second problem was a bit more involved.  Cannon had written a concurring opinion in State v. Andrews, in which the majority found that the police lacked the authority to conduct a warrantless entry into private home to investigate a claim of underaged teenage drinking, because exigent circumstances didn't exist.

Here's what another of Tamburino's ads had to say about that:

In the case State versus Andrews, Cannon ruled that cops couldn't enter a house to arrest a parent who was hosting a teenage drinking party, because he felt teenage drinking wasn't a serious crime.

Here's what Cannon said in his concurring opinion:

I would want nothing in this decision to deter an officer from exercising his duty if he clearly observes a serious misdemeanor offense or an offense of violence, or if he has other good cause to make an intrusion.

Now, I think you can make a fairly compelling logical argument that Tamburino's ad was an accurate statement:

    • Cannon says that exigent circumstances did not exist in this case involving teenage drinking.
    • Cannon says that exigent circumstances would exist for a "serious misdemeanor."
    • Ergo, Cannon does not believe that teenage drinking is serious.

Not airtight, by any stretch.  But I've seen a lot worse arguments.  Hell, I've made a lot worse arguments.

But let's get down in the weeds with a little bit of the law in these cases.  In the Goode Olde Days, judicial campaigns were paragons of decorum.  An attack ad in a judicial campaign was unheard of.  And if you did run one, you got slammed.

Then the US Supreme Court got involved, and said that judges had First Amendment rights, too.  Since then, the way it's worked out is that the New York Times v. Sullivan standard has come to govern complaints in judicial elections:  the disciplinary body must prove that the respondents' claim was false, and made with knowledge of falsity, or that the respondent had acted recklessly in that regard.

Let's apply that to Tamburino.  He's got problems on the first one, the travel expenses.  Unless Cannon had been asked to disclose those expenses and refused, that statement is categorically false:  it imparts to Cannon a willful act that did not happen.

The second one is a bit dicier; you could make the claim that, at worse, the ad was simply misleading, which gets you back into First Amendment Land, which is where you want to be. 

But, as usual, I left some things out.  Like the visuals from the commercial; as the opinion notes,

The commercial begins with a faceless, robed judge standing at a courtroom bench pouring Jack Daniels whiskey and serving it to children ... During the voiceover, the commercial shows children carousing and drinking beer out of large bottles.

Yeah, that's a bit over the top.  It's one thing to argue that a judge doesn't think teen drinking is a serious matter; even that's a stretch from what Cannon wrote in Andrews.  But it's an entirely different thing to suggest that Cannon has no issue with serving children liquor from the bench.

So it came as little surprise when yesterday the Supreme suspended Tamburino's license, with the first six months an actual suspension; the last six months were stayed.  The court had never imposed an actual suspension for a campaign violation before.

Several takeaways.  First, I liked the Goode Olde Days.  Frankly, the non-judicial elections are bad enough, what with hearing endless ads about how Congressman Pez Dispenser must be a pedophile because when's the last time you heard him deny it?  I'd like a safe harbor somewhere.

Second, the ads didn't do Tamburino much good.  He lost to Cannon by 11 points in 2014.  He ran against a different 11th District judge this year, and fared even worse, losing by 16 points.

Third...  Well, let's take a side trip to Cincinnati.  Where, on Friday, I'll be arguing a habeas case in the 6th Circuit on whether an attorney performed ineffectively by choosing not to request lesser included instructions in a felony murder case and instead going with an "all or nothing" defense.  There's a lot more to talk about in that case, and maybe we might at some point.  Basically, I'm arguing that in light of the evidence against the defendant, and the great benefit of a conviction of a lesser offense (three years instead of fifteen to life), going for a full acquittal was unreasonable.

What's this got to do with Tamburino?  He could have gone the mea culpa route, apologizing for the ads, and walked away with a public reprimand.  Instead, he insisted he'd done nothing wrong; that the ads weren't even misleading, let alone false.  That's a seriously questionable strategy, too; it depended upon him persuading the judges that there was nothing wrong with the ads, and that wasn't going to happen.

And he paid a heavy price for his strategic choice.  It was very clear from oral argument, and from the opinion, that his unwillingness to confess error cost him dearly.

He'll probably need a drink after that.  


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