Under the former Ohio Code of Judicial Conduct, could opposing candidates for a judicial office engage in a public debate immediately before a partisan primary election, and what restrictions applied to the format?
Ohio BPC Opinion 87-006: Public Debate Between Candidates for Judicial Office
Short answer: The Board concluded that the former Ohio Code of Judicial Conduct did not specifically prohibit or allow public debates between candidates for judicial office, but that Canon 7B(1)(c) limited candidates to promising faithful and impartial performance of office and prohibited pledges or promises of conduct, announcements of views on disputed legal or political issues, and misrepresentations of identity, qualifications, present position, or other fact. The Board concluded that a debate that complied with those limits could occur but a debate that addressed specific legal or political issues would violate the former Code. The opinion was withdrawn by Opinion 2002-8 on August 9, 2002.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Ohio Board of Professional Conduct's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Currency note
The Board's status list flags this opinion as Withdrawn by Opinion 2002-8 on August 9, 2002. The opinion was issued under the former Ohio Code of Judicial Conduct (1973), which was superseded by the current Ohio Code of Judicial Conduct effective March 1, 2009. The former Canon 7B(1)(c) restrictions on judicial-campaign speech also implicate post-1987 First Amendment jurisprudence (notably Republican Party of Minnesota v. White, 536 U.S. 765 (2002)), which the 1987 opinion does not address. Treat this page as historical context, not current guidance. Do not rely on the Canon 7B(1)(c) reference as current Ohio rule. Verify against current rules before acting.
Plain-English summary
A lawyer asked whether judicial candidates could engage in a public debate before a partisan primary, what format restrictions applied, and whether a court referee running for judge could call for or organize such a debate. The Board began by observing that the former Code of Judicial Conduct was silent on public debates between judicial candidates, neither permitting nor prohibiting them.
The Board then read Canon 7B(1)(c) as limiting the content of candidate speech: candidates could promise only faithful and impartial performance of duties of office; they could not make pledges or promises of conduct in office, announce views on disputed legal or political issues, or misrepresent identity, qualifications, present position, or other fact. The Board reasoned that under those limits a debate "would amount to anything more than each candidate announcing his own qualifications and that he will faithfully and impartially perform the duties of the office," and that a debate addressing specific legal or political issues would violate the former Code. The Board cited Berger v. Supreme Court of Ohio, 598 F. Supp. 69, 75-76 (S.D. Ohio 1984), for the proposition that the Canon prohibited pledges or promises appealing to prejudice or special interests, and that judicial campaigns were intentionally limited to preserve the dignity of judicial office.
On format, the Board noted that the Code provided no specific guidance beyond Canon 7B(1)(c) but that the essence of Canon 7 required all aspects of a debate (advertising, broadcasting, time and location, types of questions and answers, and degree of adversity) to maintain the dignity appropriate to judicial office.
On the referee-candidate question, the Board treated referees as judges under the Compliance Section because they performed judicial functions, and concluded that a referee-candidate could "legitimately conduct and participate in such a judicial debate" if the debate complied with the mandatory standards in the Code.
Common questions
Q: Did the Board hold judicial-candidate debates were prohibited?
A: No. The Board read the former Code as silent on debates and concluded that a debate could occur if it complied with Canon 7B(1)(c) and the broader dignity-of-the-office requirements of Canon 7. A debate that addressed specific legal or political issues would, however, violate the Code.
Q: What content could a judicial candidate share at such a debate?
A: Per the Board's reading of Canon 7B(1)(c), the candidate could discuss qualifications and promise faithful and impartial performance of the duties of the office. The candidate could not make pledges or promises of conduct in office, announce views on disputed legal or political issues, or misrepresent identity, qualifications, present position, or other fact.
Q: Could a court referee running for judge call for or organize the debate?
A: Yes, per the Board, provided the debate complied with the mandatory standards in the Code. The Board treated referees as judges under the Compliance Section because they performed judicial functions, and held them to the same campaign-conduct standards.
Q: Why was the opinion withdrawn?
A: The Board's status list states the opinion was withdrawn by Opinion 2002-8 on August 9, 2002. The 1987 opinion does not itself analyze the post-2002 framework.
Citations and references
Rules of Judicial Conduct:
- Former Canon 7B(1)(c), Ohio Code of Judicial Conduct (1973)
- Former Compliance Section, Ohio Code of Judicial Conduct (1982)
Cases:
- Berger v. Supreme Court of Ohio, 598 F. Supp. 69, 75-76 (S.D. Ohio 1984)
Other opinions cited:
- ABA Committee on Ethics and Professional Responsibility, Informal Op. 1444 (1980): tension between the political elective process and ethical standards for the judiciary
See also
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-87-006.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 87-006
[Withdrawn- by Opinion 2002-8 on August 9, 2002]
SYLLABUS: Candidates for judicial office are not specifically prohibited from engaging in a public debate under the Code of Judicial Conduct. However, Canon 7B(1)(c) of the Code of Judicial Conduct only allows candidates to promise faithful and impartial performance of the duties of office. Moreover, a judicial candidate may not make pledges or promises of conduct in office, announce his views on disputed legal or political issues or misrepresent his identity, qualifications, present position, or other fact.
TO: Charles D. Lynch, Esq.
FROM: The Board of Commissioners on Grievances and Discipline of the Judiciary
DATE: May 27, 1987
We have before us your request for our opinion on whether opposing candidates for a judicial office may engage in a public debate. In your request letter you state in part:
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Is it ever appropriate for a candidate for a judicial office to engage in a public debate with another candidate for that same office, immediately prior to a partisan primary election?
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If it is proper for a candidate for a judicial office to engage in a public debate as indicated above what, if any, guidelines or restrictions are imposed upon the candidates or the format of the debate pursuant to the Code of Judicial Conduct or other laws of the State of Ohio?
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Is it appropriate for a court referee who is a candidate in a partisan primary election for the position of judge in the court which he presently referees to call for a public debate or to sponsor, organize, or orchestrate such a public debate?
Your first question, regarding the propriety of a judicial candidate's public debate, is not specifically addressed in the Code of Judicial Conduct (the Code). The Code is void of any language either prohibiting or allowing candidates for judicial office to engage in a public debate. However, the Code does proscribe what information a judicial candidate may and may not disseminate during his or her campaign. Canon 7B(1)(c) of the Code of Judicial Conduct provides:
(1) A candidate, including an incumbent judge for a judicial office: . . . (c) should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; announce his views on disputed legal or political issues; or misrepresent his identity, qualifications, present position, or other fact.
Given these three prohibitions, it seems unlikely a judicial candidate's debate would amount to anything more than each candidate announcing his own qualifications and that he will faithfully and impartially perform the duties of the office. Furthermore, it is our understanding that in a debate each participant argues opposing points. Clearly, a debate, wherein the judicial candidates address specific legal or political issues, would violate the Code.
The premise of Canon 7B(1)(c), it has been held, is to prohibit candidates for judicial office from making pledges or promises which appeal to prejudices or special interests. Berger v. Supreme Court of Ohio, 598 F. Supp. 69, 75 (S.D. Ohio 1984). On the other hand, informed voting by the electorate, based upon the candidate's credentials is vital in a democratic society. In this regard, the ABA Committee on Ethics and Professional Responsibility has stated, "the framers of the Canons of Judicial Conduct have resolved the tensions between the political elective process and the desire to have dignified, ethical standards for the judiciary by strictly limiting the extent to which candidates for judicial office may campaign." ABA Committee of Ethics and Professional Responsibility, Informal Op. 1444 (1980).
Judges and candidates for judicial office are held to a higher standard in their campaign practices than are other candidates for political office. For, "[t]he very purpose of the judicial foundation makes inappropriate the same kind of particularized pledges and predetermined comments that mark campaigns for legislative and executive office. A judge acts on individual cases, not broad programs." Berger v. Supreme Court of Ohio, 598 F. Supp. 69, 76 (S.D. Ohio 1984).
Your second question asks what format a judicial debate should take. Again, there are no guidelines other than Canon 7B(1)(c) as discussed supra. The essence of Canon 7 is that judges should maintain the dignity appropriate to judicial office. Therefore, all aspects of a public debate by judicial candidates must maintain the dignity appropriate to judicial office. This includes the advertising for the debate; the televising and broadcasting of the debate; the time and location of the debate; the types of questions addressed in the debate and their answers; and finally, the amount of adversity reflected in the debate.
Your third question requests our opinion on whether a referee in municipal court, who is running for judge in that same court, may call for a public debate between himself and his opponent in an upcoming partisan primary election. Again, there is nothing in the Code which either permits or prohibits a debate by candidates for judicial office. The Code does, however, hold referees to the same standards as judges in upholding the integrity of the judiciary. Under the Compliance Section of the Code, anyone who is an officer of a judicial system performing judicial functions is a judge for the purposes of the Code. Code of Judicial Conduct, Compliance Section (1982). Therefore, if sponsoring, organizing or orchestrating a public debate can be accomplished in such a way as to comply with the mandatory standards set forth in the Code of Judicial Conduct as discussed herein, a judge/referee might legitimately conduct and participate in such a judicial debate.
In conclusion, it is our opinion, and you are so advised, that although public debates are not prohibited in the Code, there are several provisions in the Code, as discussed herein, which would apply to a debate and govern its participants.
This opinion is advisory in nature, is based upon the facts as presented and limited to questions arising under the Code of Judicial Conduct.
James W. Mason, Esq.
Secretary
Board of Commissioners