What may a judicial candidate's campaign advertising say about titles, an opponent, shared ads, criticism, and fundraising?

Currency note

The Board flags this opinion as not current: it issued in 1989 under Ohio's former Code of Judicial Conduct (superseded by the Ohio Code of Judicial Conduct effective March 1, 2009), and Canon 7 was later amended. Treat this page as historical context, not current guidance. Verify against the current Ohio Code of Judicial Conduct (its rules on campaign conduct) and the current Ohio campaign-finance statutes before relying on any specific rule mentioned here.

Plain-English summary

The Board answered five questions about judicial campaigns under Canon 7, which sets mandatory standards for all judicial candidates.

On titles, the Board read Canon 7C(1) (no use of a title not currently held in a way implying the candidate holds it) and Canon 7B(1)(c) (no misrepresentation of identity, qualifications, or present position) to mean that using "judge" without showing the candidate sits in a different court is misleading, and that an ad identifying the incumbent by name without a title is also misleading. It concluded that an opponent's name in an ad must include the title, and that to avoid confusion the phrase "for judge" should appear after or below the candidate's name.

On shared advertising, the Board explained that Canon 7A(1)(b) bars a judge or candidate from publicly endorsing other candidates, but the commentary makes clear that running on the same ticket is not an endorsement. Candidates may share ad time to economize, provided each maintains the individual nature of the campaign; an ad presenting the candidates as an integrated team (speaking in terms of "our," "us," or "we") begins to look like a prohibited endorsement and should be avoided.

On criticism, the threshold is truthfulness (Canon 7C(9)), and the candidate must still maintain the dignity of the office (Canon 7B(1)(a)); the Board cited In re Donahue and Wise's Legal Ethics for the principle that criticism of an incumbent must be fair, accurate, and fact-based. On fundraising, the Board concluded that, unless prohibited by law, a group other than the candidate's campaign committee may raise funds and contribute, so long as the funds go to the single campaign committee that, under Canon 7B(2)(a), must be the only committee receiving contributions and making expenditures; it noted Ohio campaign-finance statutes and that paid television time may be transferred to another candidate's committee if properly disclosed.

Common questions

Q: Can a sitting lower-court judge run ads using the title "judge" for a higher seat?

A: Under this opinion, not without clarifying the current court. The Board concluded that using "judge" without showing it is a different court is misleading under Canon 7C(1), and recommended placing "for judge" after the candidate's name.

Q: Must an ad that names the opponent include the opponent's title?

A: Yes. The Board concluded that using an opponent's name in campaign advertisements must include his or her title to avoid misleading the public.

Q: Can two judicial candidates share a television ad?

A: They may share ad time to economize if each campaign stays individual; an ad presenting them as an integrated team can amount to a prohibited public endorsement under Canon 7A(1)(b).

Q: Can a group other than the campaign committee raise money for a candidate?

A: The Board concluded it is not improper, unless otherwise prohibited by law, provided the funds are given to the candidate's single campaign committee, which alone receives and spends contributions under Canon 7B(2)(a).

Background and rules framework

The opinion interprets Ohio's former Code of Judicial Conduct, Canon 7 (campaign conduct), including Canon 7C(1) (titles), Canon 7B(1)(a) and (c) (dignity and no misrepresentation), Canon 7A(1)(b) (no public endorsement), Canon 7C(9) (no false statements), and Canon 7B(2) (campaign committee). It references Ohio campaign-finance statutes (R.C. 3517.10 and 3517.13).

Citations and references

Rules of Judicial Conduct (Ohio):

• Former Code of Judicial Conduct, Canon 7C(1), 7B(1)(a) and (c), 7A(1)(b), 7C(9), 7B(2)
• Former Code of Judicial Conduct, Canon 7, generally

Statutes:

• Ohio Rev. Code 3517.10; Ohio Rev. Code 3517.13

Cases:

• In re Donahue, 580 P.2d 1093 (Wash. 1978), fair and accurate criticism of an incumbent

Other opinions and authorities cited:

• Ohio Board Op. 88-17 (1988); ABA Informal Ops. 1444 (1980) and C-703 (1964); Thode, Reporter's Notes to the Code of Judicial Conduct; R. Wise, Legal Ethics (1966); Alabama State Bar Op. 86-69 (1986)

See also

• Ohio BPC Opinion 1987-037: Judicial Campaign Fund-Raising 120-Day Window
• Ohio BPC Opinion 1987-030: Judicial Candidate Sentencing-Policy Pledges
• Ohio BPC Opinion 1988-017: Judicial Campaign Political Contributions

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-89-015.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 89-15
Issued June 16, 1989

[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 Canon 7, Ohio Code of Judicial Conduct]

SYLLABUS: In judicial campaigns, use of the title "judge" without indicating the candidate sits in a court different from the one that is the subject of the campaign is misleading and therefore should be avoided. A judicial candidate's campaign advertisement which mentions the office being sought and identifies the incumbent by name without his or her title is also misleading. Use of an opponent's name in campaign advertisements must include his or her title. In order to prevent any misunderstandings as to a candidate's identity, use of the phrase "for judge" may only be used after a candidate's name in his or her campaign advertisements.

Judicial candidates may share television advertising time provided each candidate maintains the individual nature of his or her campaign. A shared advertisement which focuses on the two candidates as an integrated team is comparable to a public endorsement which is prohibited under the Code of Judicial Conduct. The use of negative criticisms in judicial campaigns must be truthful and should not have the effect of diminishing the dignity of the judiciary. Each candidate must use her or his own personal and professional good judgment when determining whether to criticize an opponent.

Unless prohibited by law, the Code of Judicial Conduct does not prohibit a group or committee, other than a candidate's campaign committee, from raising funds and making contributions to a candidate's campaign committee. However, only one committee may receive contributions and make expenditures on behalf of a judicial candidate.

OPINION: The following opinion is in response to a request for an advisory opinion that addresses five major issues in the area of judicial campaigns. Canon 7 of the Code of Judicial Conduct establishes mandatory standards which govern all judicial candidates. This opinion is an attempt to create some workable guidelines in the area of judicial campaigns.

This in an informal, non-binding advisory opinion interpreting the Code of Judicial Conduct and is limited to the facts and questions presented.

1. Is it permissible for a judge who holds a position in a lower court to run advertisements which do not mention that he or she is a "judge" in a court different from the office which is being sought? Or, is it permissible for a judicial candidate to fail to mention in an advertisement that his or her opponent is the actual incumbent for that particular office?

The Code of Judicial Conduct, under Canon 7C (1) prohibits,

the use of a title of an office not currently held by the candidate in a manner that implies that the candidate does currently hold that office ...

The purpose of this provision is to ensure that the public is not misled or confused by judicial campaign advertisements. Use of the title "judge," without indicating the candidate is a judge in a different court while, not a false statement, is a misleading statement. In this instance, the impression or effect that the advertisement has on the general public outweighs the technical truthfulness of the statement.

In our opinion, an advertisement that mentions the new office sought and identifies the non-incumbent candidate as a judge without specifying the particular court that he or she currently holds is the type of situation to which Canon 7C (1) applies. Accordingly, we encourage judicial candidates to clarify their titles and positions when advertising their candidacy.

In regard to your second question, Canon 7C (9) states that an incumbent judge or candidate for judicial office cannot post, publish, circulate or distribute false statements designed to promote or defeat the candidacy of another. Again, a judicial candidate's campaign advertisement which mentions the new office sought by the candidate but only identifies the incumbent by name, without his or her title, would not be considered a false statement under Canon 7C (9). However, such an omission would tend to mislead the public and, therefore, use of an opponent's name in campaign advertisements must include his or her title. In conclusion, a judicial candidate's advertisement should be drafted with the primary purpose of informing the public and to avoid confusing or misleading statements.

2. What restrictions apply to the use of the word "judge" within campaign advertisements? Specifically, is it permissible to print the title "judge" in very large letters while the preceding preposition "for" is in much smaller type?

Again, the statements in question may not be false but may mislead or inaccurately imply a judicial candidate is currently a judge. In addition to the guidelines discussed previously under Canon 7C (1), Canon 7B(1) (c) states in part that:

[a] candidate for a judicial office . . . should not ... misrepresent his identity, qualifications, present position, or other fact.

The overriding purpose of judicial campaign advertisements should be to inform the public of the candidate's ability, experience and record, not to misrepresent him or herself in any way. Thode, Reporter's Notes to the Code of Judicial Conduct, 98 (1973).

An advertisement that is unclear as to whether the candidate is currently a judge is, in our opinion, a misrepresentation of the candidate's identity. To misrepresent or distort has been defined as "a twisting or emphasizing of certain statements so as to produce an inaccurate or misleading impression." Random House Dictionary (2nd ed. 1987). An advertisement does create emphasis through use of the size and coloring of lettering in the copy. To determine to what extent such emphasis creates a misleading impression, the facts and circumstances of each advertisement must be examined.

An Alabama ethics opinion held that a lawyer running for judicial office could not use the word "judge" before his name despite his intention to use the word as a verb, as in "to evaluate." This proposed advertisement was seen as likely to mislead or deceive the public into believing the lawyer is, or has been, a judge. Alabama State Bar Op. 86-69 (1986).

Through Canon 7, the Code of Judicial Conduct attempts to ensure that judicial campaigns will maintain the dignity appropriate to judicial office. ABA Committee on Ethics and Professional Responsibility, Informal Op. 1444 (1980). Advertisements should not misrepresent the identity of the candidate under Canon 7B (1) (c), nor use a title not currently held by the candidate in a manner that implies that he does currently hold that office. Code of Judicial Conduct, Canon 7C(1). Thus, the advertisement should leave no doubt in the public's mind that the phrase "for judge" is a request and not a representation of an office currently held.

In light of these considerations, it is our opinion that the best way to avoid any potential misunderstanding is to use the phrase "for judge" after a candidate's name. Thus, in any advertisement the phrase "for judge" should appear either behind or below the candidate's name. We believe this standard would eliminate any confusion regarding an advertiser's status as either a non-incumbent candidate for judicial office or an incumbent seeking re-election to that office.

3. May judicial candidates appear together in television advertisements promoting both their own, and their co-advertiser's candidacy, without violating the prohibition against public endorsement of a candidate under Canon 7A(l)(b)?

Canon 7A(1) (b) of the Code prohibits a judge or candidate for judicial office from publicly endorsing candidates for public office. This broad prohibition was drafted in response to fears that the judiciary might improperly involve itself in party politics. Thode, Reporter's Notes to the Code of Judicial Conduct, 95 (1973). Such activities might arouse suspicion that the judge was using the power of his judicial position to promote the success of his or her own political party. ABA Committee on Ethics and Professional Responsibility, Informal Opinion C-703 (1964).

However, the commentary to Canon 7A(1)(b) makes it clear that running on the same ticket with another candidate for political office is not a public endorsement. We believe this exception allows candidates to appear together both in print and television advertisements.

There are instances however, when an advertisement goes beyond merely being on the same ticket and becomes an actual endorsement. We understand that the sharing of television advertisements by candidates is an attempt to economize the expense of advertising. Commercials which split the available time between two or more candidates are an economic reality. However, a commercial which focuses on the two candidates as an integrated team or partnership begins to give the appearance of an endorsement.

To endorse has been defined as "to give approval of or support to." Webster's II New Riverside University Dictionary (1984). An advertisement that has two candidates speaking in terms of "our," "us," or "we" implies such approval or support and should be avoided. Therefore, candidates should strive to maintain the individual nature of their campaigns.

4. How much negative criticism of an incumbent judge is permissible before such comments infringe on the dignity appropriate to that judicial office?

The threshold test to apply is whether the statements regarding an opponent are indeed truthful. Code of Judicial Conduct, Canon 7C (9). Once this is satisfied, there is a further requirement that the candidate must maintain the dignity appropriate to the judicial office being sought. Code of Judicial Conduct, Canon 7B (1) (a). This standard is not a precise one to apply; instead it requires each candidate to exercise his or her own personal and professional judgment as to the implication and effect of the proposed criticisms.

Some criticism of an opponent may be justifiable, as the Washington State Supreme Court has held:

[a] candidate for judicial office has a right to challenge an incumbent judge's ability, decisions and judicial conduct, but it must be done fairly, accurately and upon facts, not false representations. In re Donahue, 580 P.2d 1093, 1097 (1978).

Furthermore, one commentator has stated that:

[i]f running for judicial office, a lawyer may criticize an incumbent judge who is his opponent but the criticism must be well founded, on a high plane, factual and not personal. R. Wise, Legal Ethics 21 (1966).

We believe that both of these are suitable guidelines for candidates to follow when contemplating criticizing their opponents.

5. May a judge or a judicial candidate accept campaign contributions from a judicial campaign committee associated with his or her own political party and may campaign contributions be donated to the candidate from another judicial candidate in the form of paid television advertising?

The overriding concern in this area is that all of a judicial candidate's campaign contributions and expenses be disclosed in accordance with Ohio law, specifically as required by the Ohio Rev. Code Ann., §3517.10 (Page, 1988). Canon 7B (2) of the Code of Judicial Conduct suggests that a judge or judicial candidate may establish a campaign committee to handle the fund raising and solicitation which the individual candidate is prohibited from doing.

The requirement, under Canon 7B (2) (a), that a judicial candidate have no more than one campaign committee, seems to be an attempt to ensure that all contributions and expenditures are easily accounted for. The Canon does not require that only one organization raise funds. Instead, only one committee may receive contributions and make expenditures. This distinction appears to allow other groups to gather financial support for a candidate as long as the money is then given directly to the candidate's committee which handles distribution and accounting of the candidate's funds.

In other words, it is not improper, under the Code of Judicial Conduct, unless otherwise prohibited by law, for an outside group or committee to raise funds and make contributions to a judicial candidate provided such funds are properly given to the candidate's campaign committee. The campaign committee is responsible for accepting, spending and disclosing such transactions.

Concerning donation of paid television advertisement time, Ohio Rev. Code §3517.13 (0) allows candidate contributions to other candidates. See, also, Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio, Op. 88-17 (1988). Therefore, provided the television advertising time is officially transferred to another candidate's campaign committee for proper acknowledgement and disclosure, it is not prohibited.

This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Judicial Conduct.