Under the former Ohio Code of Judicial Conduct, could the Chief Justice of the Ohio Supreme Court write a foreword for a book on the bicentennial of the U.S. Constitution without remuneration?
Ohio BPC Opinion 87-008: Judge Writing Foreword to Book on Bicentennial of the U.S. Constitution
Short answer: The Board concluded that writing a foreword to a book on the U.S. Constitution's bicentennial, without remuneration, did not violate the former Ohio Code of Judicial Conduct. Canon 4(A) and Canon 5(A) encouraged judges to write, lecture, teach, or speak on legal and non-legal subjects, subject to limits that the activity must not cast doubt on the judge's impartiality, must not detract from the dignity of office, and must not interfere with judicial duties.
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flags this opinion as a Former CJC Opinion providing advice under the former Ohio Code of Judicial Conduct, which was superseded by the current Ohio Code of Judicial Conduct effective March 1, 2009. The status list also notes subsequent rule amendments to Canons 1 through 6 effective May 1, 1997. Treat this page as historical context, not current guidance. Do not rely on the former Canon 4(A) or Canon 5(A) references as current Ohio rules. Verify against current rules before acting.
Plain-English summary
The Board addressed an inquiry about whether the Chief Justice of the Ohio Supreme Court could write a foreword for a book on the bicentennial of the U.S. Constitution, with no remuneration. The Board began by noting that the former Code did not prohibit extra-judicial writing and that Canon 4(A) and Canon 5(A) affirmatively encouraged judges to write, lecture, teach, or speak on legal and non-legal subjects.
The Board reproduced the limits: the activity must not cast doubt on the judge's capacity to impartially decide any issue that might come before him, must not detract from the dignity of the office, and must not interfere with the performance of judicial duties. The Board cited McKay, The Judiciary and Nonjudicial Activities, 35 L. & Contemp. Prob. 9, 20 (1970), for the proposition that extra-judicial activity should be encouraged when it "enrich[es] and educate[s] the audiences to which the judge lectures, writes, or teaches." On the specific facts, the Board concluded that writing a foreword to a book on the Constitution's bicentennial was the kind of activity the framers of the former Code intended to encourage.
Common questions
Q: Did the former Code treat extra-judicial writing as permitted, prohibited, or encouraged?
A: The Board read former Canons 4(A) and 5(A) as affirmatively encouraging judges to write, lecture, teach, or speak on legal and non-legal subjects, subject to the impartiality, dignity, and judicial-duties limits.
Q: What limits did the Board emphasize?
A: The activity must not cast doubt on the judge's capacity to impartially decide any issue that might come before him; must not detract from the dignity of the office; and must not interfere with the performance of judicial duties.
Q: Did remuneration matter to the analysis?
A: The inquiry stated the Chief Justice would not receive any remuneration for the foreword, and the Board's conclusion was tied to those facts. The opinion does not analyze how remuneration would affect the analysis.
Citations and references
Rules of Judicial Conduct:
- Former Canon 4(A), Ohio Code of Judicial Conduct (1973)
- Former Canon 5(A), Ohio Code of Judicial Conduct (1973)
Other authorities:
- McKay, The Judiciary and Nonjudicial Activities, 35 L. & Contemp. Prob. 9 (1970)
See also
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-87-008.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 87-008
[Former CJC Opinion-provides advice under the former Ohio Code of Judicial Conduct which is superseded by the Ohio Code of Judicial Conduct, eff. 3/1/2009.]
[Not Current- subsequent rule amendments to Canons 1 through 6, Ohio Code of Judicial Conduct, eff. May 1, 1997]
SYLLABUS: Under the Code of Judicial Conduct as adopted in Ohio, a judge is permitted to write a foreward to a book on the bicentennial of the United States Constitution.
OPINION: We have before us your request for our opinion on whether, under the Code of Judicial Conduct (the "Code") or any other applicable statutes or rules, Chief Justice Moyer is permitted to write a foreward for a book on the bicentennial of the U.S. Constitution. In your request letter you state that the Chief Justice would not receive any remuneration for his effort.
There is nothing in the Code which prohibits a judge from extra-judicial writing. In fact, the Code encourages a judge to write, lecture, teach or speak on legal and non-legal subjects. Code of Judicial Conduct, Canon 4(A) and 5(A) (1973). While the Code espouses the notion that a judge may engage in extra-judicial writing in the interest of law improvement, it also limits a judge's quasi-judicial and extra-judicial activities to those which: 1) do not cast doubt on his capacity to impartially decide any issue which may come before him, 2) do not detract from the dignity of his office and 3) do not interfere with the performance of his judicial duties. Id.
Provided none of these prohibitions exist, nonjudicial activities should be encouraged if their performance will "enrich and educate the audiences to which the judge lectures, writes, or teaches," McKay, The Judiciary and Nonjudicial Activities, 35 L. & Contemp. Prob. 9, 20 (1970). Writing a foreward to a book about the Constitution's bicentennial--the very document which forms the foundation of American law--undoubtedly is the type of activity the framers of the Code intended to encourage.
In Professor McKay's article he states:
[i]t would be easy, but intellectually lazy, to hold that the sole business of judges is judging, that all else is at least distracting, and that accordingly a judge should avoid all nonjudicial activities that might either be time-consuming or influence his opinion on matters that come before him . . . [t]o judge in the real world a judge must live, breathe, think, and partake of opinions in the world. Id. at 12.
We agree with this statement, and encourage judges across Ohio to contribute their expertise in the interest of improving the law and society within the limitation set forth in the Code.
In conclusion, it is our opinion, and you are so advised, that the writing of a foreward to a book on the U.S. Constitution, without remuneration, by the Chief Justice of the Ohio Supreme Court, does not violate the Code of Judicial Conduct.
This is an informal, non-binding advisory opinion, 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
on Grievances and Discipline