Under the former Ohio Code of Judicial Conduct, could a judicial candidate (including an incumbent) promise to refuse plea bargaining in DWI cases or announce a specific sentencing policy for a category of criminal cases?

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The Board's status list flags this opinion as Withdrawn by Opinion 2002-8 on August 9, 2002. The opinion was issued under the former Ohio Code of Judicial Conduct (1973, 1982), which was superseded by the current Ohio Code of Judicial Conduct effective March 1, 2009. The 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 Treat this page as historical context, not current guidance. Verify against current rules before acting.

Plain-English summary

A lawyer asked whether a judicial candidate (and a sitting judge running for election) could announce specific policies on the handling of certain criminal cases, such as pledging no plea bargaining in DWI cases or announcing a specific sentencing policy in DWI cases. The Board read former Canon 7B(1)(c) as prohibiting such pledges: candidates could only pledge faithful and impartial performance of the duties of office, and could not announce views on disputed legal or political issues.

The Board quoted the Reporter's Notes for the proposition that a candidate "cannot campaign on a platform of partiality for specific persons or groups, nor can he commit himself in advance on disputed legal issues. . . . He can campaign on the basis of his ability, experience, and record." The Board cited Berger v. Supreme Court of Ohio, 598 F. Supp. 69, 75-76 (S.D. Ohio 1984), for the proposition that Ohio's Canon 7B(1)(c) regulation served the compelling state interest in preserving the integrity of state judges. It also cited ABA Informal Op. 1444 (1980), which had held that the campaign slogan "A strict sentencing philosophy . . ." was barred by Canon 7B(1)(c) as both a pledge of judicial conduct and an announcement of position on a disputed legal and political issue.

The Board applied the same conclusion to incumbents under the Code's Reporter's Notes, and rejected the framing that the pledges were merely statements on court administration: specific statements on the handling of particular types of cases could not reasonably be construed as statements on court administration.

Common questions

Q: Could a judicial candidate pledge not to plea bargain in DWI cases?

A: No. The Board concluded that the pledge was both a Canon 7B(1)(c) pledge or promise of conduct in office beyond faithful and impartial performance, and an announcement of views on a disputed legal or political issue.

Q: Did the bar apply to incumbents running for re-election?

A: Yes. The Board read Canon 7 to bind all judicial candidates, including incumbents, citing the Code's Reporter's Notes. An incumbent could not promise to continue handling a category of cases in a specific way.

Q: Could the pledges be reframed as "court administration" statements?

A: No. The Board held that specific statements on the handling of certain types of cases could not reasonably be construed as statements on court administration.

Citations and references

Rules of Judicial Conduct:

• Former Canon 7B(1)(c), 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): "strict sentencing philosophy" slogan barred

Other authorities:

• E.W. Thode, Reporter's Notes to Code of Judicial Conduct, 95, 98 (1973)

See also

• Ohio BPC Opinion 1987-006: Judicial Candidate Public Debate

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-87-030.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 87-030

[Withdrawn- by Opinion 2002-8 on August 9, 2002]

SYLLABUS: A candidate for judicial office may not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; announce his or her views on disputed legal or political issues; or misrepresent his or her identity, qualifications, present position or other fact. In this regard, a judicial candidate may not promise to treat a certain classification of criminal offenses in a certain way if elected, nor announce a specific sentencing policy for criminal cases.

TO: Philip J. Croyle, Esq.

FROM: Board of Commissioners on Grievances and Discipline of the Judiciary

DATE: June 22, 1987

We have before us your request for our informal advisory opinion on whether candidates campaigning for judicial office may, under the Code of Judicial Conduct (the Code), announce their specific policies on the handling of certain types of cases if elected or re-elected. In your request letter you ask the following:

Under the Code of Judicial Conduct, Canon 7B, may a judicial candidate promise to treat a certain classification of criminal offense in a certain way if elected, such as promising no plea bargaining in D.W.I. cases or announce a specific sentencing policy in D.W.I. cases?

May a sitting judge running for election promise to continue to treat certain classifications of offense in a certain way if elected or re-elected, such as continuing to not accept plea bargaining in D.W.I. cases or continue to sentence in a particular manner in D.W.I. cases or any other certain classification of offenses?

May statements to this effect as indicated above and in the accompanying articles be reasonably construed as stating an opinion or view of "Court Administration" or be appropriate statements on issues under the strictures of Canon 7B?

Regarding your first question, we believe that a candidate for judicial office may not promise to handle certain crimes in a specific way if elected, including promising not to plea bargain in D.W.I. cases. Under Canon 7B(1)(c) of the Code, candidates for judicial office may only pledge or promise the faithful and impartial performance of the duties of office. Code of Judicial Conduct Canon 7B(1)(c) (1982). Additionally, judicial candidates may not announce their views on disputed legal or political issues. Id.

The Reporter's Notes to the Code of Judicial Conduct also states:

[a candidate] cannot campaign on a platform of partiality for specific persons or groups, nor can he commit himself in advance on disputed legal issues . . . . He can campaign on the basis of his ability, experience, and record.

E. W. Thode, Reporter's Notes to Code of Judicial Conduct 98 (1973). Furthermore, all candidates for judicial office must comply with the campaign restrictions of the Code which make "inappropriate the same kind of particularized pledges and predetermined commitments that mark campaigns for legislative and executive offices." Berger v. Supreme Court of Ohio, 598 F. Supp. 69, 76 (S.D. Ohio 1984). The court in Berger also held that Ohio's regulation under Canon 7B(1)(c) "is necessary to achieve a compelling state interest . . . in assuring . . . that judicial campaigns are run in a manner so as not to damage the actual and perceived integrity of state judges . . ." Id. at 75.

The ABA Committee on Ethics and Professional Responsibility has held that use of the campaign slogan, "A strict sentencing philosophy . . ." by a candidate for judicial office is barred by Canon 7B(1)(c) of the Code. ABA Comm. on Ethics and Professional Responsibility, Informal Op. 1444 (1980). The Committee's opinion states that such a slogan "can be viewed by the voters as both a campaign pledge of judicial conduct and also an announcement of [the candidate's] position on sentencing which is a disputed legal and political issue." Id. at 1445.

In this regard, we believe that promising not to plea bargain in D.W.I. cases, as well as announcing a specific sentencing policy in D.W.I. cases, falls within the proscription of announcing views on disputed legal or political issues. Clearly, judicial candidates taking a stance on specific types of cases is prohibited under Canon 7B(1)(c) of the Code. Code of Judicial Conduct Canon 7B(1)(c) (1982).

Addressing your second question, all judicial candidates, including incumbents, are bound by Canon 7 of the Code. E. W. Thode Reporter's Notes to Code of Judicial Conduct 95 (1973). Therefore, an incumbent candidate running for judicial office may not promise to continue to handle certain classifications of offenses in a particular way if re-elected, such as not accepting plea bargaining in D.W.I. cases or continuing to sentence in a particular manner in D.W.I. cases.

The answer to your third question is simply no; specific statements on the handling of certain types of cases cannot reasonably be construed as stating an opinion or view of court administration. In addition, as stated above, taking a stance on the handling of particular types of cases is not appropriate under the strictures of Canon 7B of the Code of Judicial Conduct.

In conclusion, it is our opinion, and you are so advised, that a candidate for judicial office, including the incumbent, may not promise to treat certain classifications of criminal offenses in a certain way if elected, nor announce a specific sentencing policy for criminal cases.

This opinion is advisory in nature, is based upon the facts as presented and is limited to questions arising under the Code of Judicial Conduct.

James. W. Mason, Esq.
Secretary
Board of Commissioners
on Grievances & Discipline
of the Judiciary