Under the former Ohio Code of Judicial Conduct, could a judge speak out publicly against an organization the judge belonged to that the judge believed was engaged in racist and anti-Semitic activities?

Currency note

This opinion was issued in 1987 under the former Ohio Code of Judicial Conduct, which was superseded by the Ohio Code of Judicial Conduct effective March 1, 2009. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Ohio Code of Judicial Conduct before relying on any specific rule mentioned here.

Plain-English summary

A judge asked how much restraint the judge should use in speaking out against an organization the judge was a member of, which the judge believed was engaged in racist and anti-Semitic activities. The Board read former Canon 1 (a judge should observe high standards of conduct so the integrity and independence of the judiciary are preserved) and former Canon 2(A) (a judge should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary) as reasons a judge should not become embroiled in ongoing public commentary with the organization.

The Board read former Canon 5 as permitting a judge to speak on non-legal subjects so long as the comments did not detract from the dignity of the office or interfere with judicial duties. On those facts, the Board concluded the judge could ethically respond to questions from citizens, the media, and concerned organizations about activities the judge considered immoral, unethical, and illegal. The Board stated that the judge should not initiate comment, but merely respond to requests for it, and should not allow the matter to become an ongoing commentary that would detract from the office.

Common questions

Q: Could the judge publicly criticize the organization at all?

A: Yes. The Board concluded that, under former Canon 5, the judge could address questions about the organization's activities so long as the comments did not detract from the dignity of the office or interfere with judicial duties.

Q: Were there limits on how the judge could speak out?

A: Yes. The Board advised the judge to respond to requests for comment rather than initiating it, and not to become embroiled in an ongoing commentary that would detract from the dignity of the office, citing former Canons 1 and 2(A).

Background and rules framework

The opinion applies the former Ohio Code of Judicial Conduct. Former Canon 1 directed a judge to observe high standards of conduct to preserve the integrity and independence of the judiciary; former Canon 2(A) directed a judge to promote public confidence in the integrity and impartiality of the judiciary; and former Canon 5 governed a judge's extra-judicial activities, allowing speech on non-legal subjects within limits. The Model Code of Judicial Conduct uses parallel canon numbering in this period.

Citations and references

Rules of Professional Conduct:

• Former CJC Canon 1, Ohio Code of Judicial Conduct
• Former CJC Canon 2(A), Ohio Code of Judicial Conduct
• Former CJC Canon 5, Ohio Code of Judicial Conduct

See also

• Ohio BPC Opinion 1987-044: Judges Commenting on Ballot Issues
• Ohio BPC Opinion 1987-006: Judicial Candidate in a Public Debate

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-87-040.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 87-040
Issued: September 25, 1987

[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.]

SYLLABUS: A judge may express his or her opinion with regard to an organization of which he or she is a member, provided the judge conducts himself or herself in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

OPINION: We have before us your request for an informal advisory opinion regarding the amount of restraint you should use in speaking out against an organization you are a member of, which you believe is engaged in racist and anti-Semitic activities.

Canon 1 of the Code of Judicial Conduct (the Code) states that a judge should "observe high standards of conduct so that the integrity and independence of the judiciary may be preserved." Code of Judicial Conduct Canon 1. In addition, under Canon 2(A) of the Code, a judge should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Code of Judicial Conduct Canon 2(A). These two Canons should discourage you, as a judge, from becoming embroiled in an ongoing commentary with the organization.

However, under Canon 5 of the Code, you may speak on non-legal subjects as long as your comments do not detract from the dignity of your office or interfere with the performance of your judicial duties. Code of Judicial Conduct, Canon 5. The Code, therefore, does not prohibit you from addressing questions concerning an organization to which you belong as long as you act in a manner appropriate to your judicial position. We feel that, in your particular situation, you may ethically address questions from citizens, the media and concerned organizations regarding what you consider to be immoral, unethical and illegal activities by an organization of which you are a member. Furthermore, we recommend that you do not initiate comment on your opinion concerning this matter, but merely respond to requests for your comment.

In conclusion, it is our opinion, and you are so advised, that, based upon the facts as you present them, you may ethically express your opinion in response to an inquiry regarding this matter. Again, however, you should not allow yourself to become embroiled in an ongoing commentary which would detract from the dignity of your office.

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