Can an Ohio judge sign a written endorsement of a local domestic-violence response protocol for police, prosecutors, and judges?

Plain-English summary

The Board addressed whether judges may sign written endorsements of local protocols for responding to domestic violence. It described Ohio's statutory framework (R.C. 2935.03 and 2935.032), under which agencies must adopt written arrest-and-response policies developed in consultation with shelters and other community organizations, leading local task forces to seek judges' consultation and, problematically, their written endorsement.

The Board concluded that a judge's limited consultative role is permissible. Under Canons 5G, 4A, and 4C a judge may serve on governmental committees and participate in activities concerning the law, the legal system, and the administration of justice, provided this does not cast doubt on the judge's capacity to decide impartially. So consulting on the development of written policies could improve the administration of justice and is permitted.

Written endorsement of a specific protocol, however, raised concerns under Canons 1, 2(A), 3(A)(1), and 7. The protocols direct the conduct of peace officers and prosecutors (sometimes making arrest mandatory, which the Board said would put a judge in the role of making rather than interpreting law) and could color a judge's ability to decide motions, set bonds, weigh defenses, and judge credibility, including in false-arrest or malicious-prosecution cases. The Board reasoned that endorsement jeopardizes judicial independence, creates an appearance of impropriety, subjects judges to public clamor, and appears to commit judges on cases likely to come before them, so it is not prudent for a judge to sign such an endorsement.

Currency note

The Ohio Board flags this opinion as a "Former CJC Opinion" interpreting the former Ohio Code of Judicial Conduct, which was superseded by the Ohio Code of Judicial Conduct effective March 1, 2009. The Board also notes subsequent amendments to Canons 1 through 6 effective May 1, 1997.

This opinion issued in 1996. 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 Treat this page as historical context, not current guidance.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 provision mentioned here.

Common questions

Q: Can a judge help develop a local domestic-violence response protocol?

A: Yes, in a consultative role. The Board concluded that under Canons 5G, 4A, and 4C a judge may consult on and participate in developing written policies, so long as it does not cast doubt on the judge's impartiality.

Q: Can a judge sign a written endorsement of the protocol?

A: Not prudently. The Board concluded it is not prudent under Canons 1, 2(A), 3(A)(1), and 7(B)(2)(c), (d), and (e) for a judge to make a written endorsement of a protocol directing the conduct of police, prosecutors, and judges.

Q: Why is signing a problem when consulting is allowed?

A: The Board reasoned that endorsing a protocol interferes with judicial independence, implies partiality, and appears to commit the judge on issues, such as arrest policy and credibility, likely to come before the court in actual cases.

Background and rules framework

The opinion interprets the former Ohio Code of Judicial Conduct: Canon 1 (integrity and independence), Canon 2(A) (avoiding the appearance of impropriety), Canon 3(A)(1) (faithfulness to the law, unswayed by public clamor), and Canon 7(B)(2)(c), (d), and (e) (no pledges or statements committing the judge on matters likely to come before the court), with reference to Canons 4A, 4C, and 5G on permitted law-improvement activities, applied against R.C. 2935.03 and 2935.032.

Citations and references

Rules of Professional Conduct:

• Former Ohio Code of Judicial Conduct Canon 1, Canon 2(A), Canon 3(A)(1), Canon 7(B)(2)(c), (d), (e); Canons 4A, 4C, 5G

Statutes:

• Ohio Rev. Code 2935.03; 2935.032; 2919.25(D)

See also

• Ohio BPC Op. 1995-013: Judge Participating in a Fund-Raising Telethon
• Ohio BPC Op. 1987-013: Judge on a Governmental Task Force (Canon 5G)
• Ohio BPC Op. 1989-033: Judicial Candidates and Views on Disputed Issues

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-96-005.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 96-5
                                        Issued June 14, 1996

     [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: A judge’s consultation and participation may be sought in
 collaborative efforts regarding domestic violence, but written endorsement
 of the protocols that set forth the required behavior of peace officers,
 prosecutors, and judges, interferes with the independence of the judiciary,
 implies partiality of the judges, and appears to commit a judge with respect
 to cases and controversies that may come before the judge in a court of law.
 For these reasons, it is not prudent under Canons 1, 2(A), 3(A)(1), and
 7(B)(2)(c), (d), (e) of the Ohio Code of Judicial Conduct for a judge to make
 a written endorsement of a protocol for responding to domestic violence.

 OPINION: This opinion addresses the propriety of judges endorsing
 protocols for responding to domestic violence.

         Is it proper for judges to make written endorsements of local
         protocols for responding to domestic violence?

 Ohio’s domestic violence laws have strong provisions for responding to
 domestic violence. When there is reasonable cause for a peace officer to
 believe that the offense of domestic violence has been committed, it is the
 preferred course of action within this state for the officer to arrest and detain
 the person whom the officer has reasonable cause to believe is the primary
 physical aggressor. See R.C. § 2935.03(B)(1), (3)(a), (b) (Baldwin Supp.
 1996). When a peace officer does not arrest and detain such person a
 written report with a clear statement of the reasons must be filed. See R.C.
 § 2935.03 (B)(3)(c) (Baldwin Supp. 1996). A victim’s consent is not a
 prerequisite for making an arrest, filing charges, or prosecuting a case. See
 R.C. § 2935.03(e)(i), (ii) (Baldwin Supp. 1996). A first offense of domestic

Opinion 96-5 2

violence is a misdemeanor. A second offense is a felony. See R.C.
2919.25(D) (Baldwin Supp. 1996). Each agency, instrumentality, or
political subdivisions served by peace officers are required to adopt written
policies and written procedures to implement the policies of the law,
including written procedures for peace officers to follow in responding to
alleged incidents of domestic violence and in arresting and detaining. See
R.C. 2935.032(A) (Baldwin Supp. 1996). The Ohio legislature requires that
the policies and procedures be adopted in conjunction and consultation with
shelters in the community for victims of domestic violence and private
organizations, law enforcement agencies, and other public agencies in the
community that have expertise in the recognition and handling of domestic
violence cases. See R.C. 2935.032(E) (Baldwin Supp. 1996).

As a result, local domestic violence task forces throughout the state have
sought the consultation of judges in the development of protocols for
responding to domestic violence. Local domestic violence task forces have
also asked judges to make written endorsements of protocols for responding
to domestic violence. Therein lies the problem. Consultation and
participation by judges is appropriate, but written endorsement of protocols
for responding to domestic violence raises ethical concerns under the Ohio
Code of Judicial Conduct.

Under Canon 5G of the Ohio Code of Judicial Conduct, a judge may serve
on governmental committees and other positions concerned with issues of
fact or policy on matters relating to the improvement of the law, the legal
system, and the administration of justice. Under Canon 4A a judge may
participate in activities concerning the law, the legal system, and the
administration of justice. Under Canon 4C a judge may make
recommendations to public and private fund-granting agencies on projects
and programs concerning the law, the legal system, and the administration
of justice. Canon 4 permits these activities provided that the judge can do
so without casting doubt on the capacity to impartially decide issues that
may come before him or her. A judge’s limited role in consultation to
domestic violence task forces developing written policies and procedures
Opinion 96-5 3

could improve the law, the legal system, and the administration of justice
and would be permitted under Canons 5G, 4A, and 4C.

Written endorsement of specific protocols for responding to domestic
violence raises ethical concerns under several canons of the Ohio Code of
Judicial Conduct. Canons 1, 2(A), 3(A)(1) and 7 should persuade judges
from going beyond consultation to making written endorsements of
protocols setting forth domestic violence arrest policies for peace officers.

                              Canon 1

  A Judge Should Uphold the Integrity and Independence of the
  Judiciary

        An independent and honorable judiciary is
        indispensable to justice in our society. A judge
        should participate in establishing, maintaining,
        and enforcing, and should himself [herself]
        observe, high standards of conduct so that the
        integrity and independence of the judiciary may be
        preserved. The provisions of this Code should be
        construed and applied to further that objective.

                              Canon 2

  A Judge Should Avoid Impropriety and the Appearance of
  Impropriety in All His [Her] Activities

        A. A judge should respect and comply with the
        law and should conduct himself [herself] at all
        times in a manner that promotes public confidence
        in the integrity and impartiality of the judiciary.

                              Canon 3

  (A)(1) A judge should be faithful to the law and maintain
  professional competence in it. He [she] should be unswayed by
  partisan interests, public clamor, or fear of criticism.

Opinion 96-5 4

                           Canon 7

  (B)(2) A judge or judicial candidate shall not do any of the
  following:

        (c) Make pledges or promises of conduct in office
            other than the faithful and impartial
            performance of the duties of the office;

        (d) Make statements that commit or appear to
           commit the judge or judicial candidate with
           respect to cases or controversies that are likely
           to come before the court.

        (e) Comment on any substantive matter relating to
            a specific pending case on the docket of a
            judge.

Pursuant to R.C. 2932.032(A), the domestic violence protocols are required
to contain the policies and procedures for peace officers to follow in
implementing arrest and detention. The provisions within the protocols
direct the conduct of the peace officers. Certain provisions are mandatory,
such as implementation of the preferred arrest policy, provisions setting
forth examples of what officers may consider when not arresting an alleged
offender when it is the preferred course of action, and the setting forth of
sanctions for police officers who fail to comply. See R.C. §2935.032(A)(1),
(2), (3), (4) (Baldwin Supp. 1996). Other provisions are optional. One
option is that the policies and procedures may make arrest mandatory, rather
that a preferred course of action. See R.C. §2935.032(B)(1)(a). When this
option is included in a protocol, a judge is engaged in making law rather
than interpreting the law.

In addition to directing the behavior of peace officers, the protocols direct
the behavior of prosecutors, and others. Independence of the judiciary is
not fostered by the endorsement of protocols that endorse procedures for
peace officers and prosecutors because they must carry out their functions
separate from the judiciary. Written endorsement of some provisions in the
protocols may color a judge’s ability in cases to decide motions, set bonds,
Opinion 96-5 5

weigh defenses, decide credibility between peace officers and defendants,
and hear certain cases such as those involving false arrest or malicious
prosecution.

The judicial fact finder should not be involved in the arrest and prosecution.
The judiciary’s role is to interpret the law through case by case
determinations, not through general protocol. Although the protocols set
forth an admirable response to a serious problem, one problem should not
be traded for the other. An independent judiciary is needed to rule properly
on each case that comes before a court. When that independence no longer
exists, a new problem has been created.

Written endorsement of protocols for responding to domestic violence
jeopardize the independence of the judiciary, create an appearance of
impropriety that decreases confidence in the integrity and impartiality of the
judiciary, subjects judges to the sway of public clamor and criticism, and
appears to commit judges with respect to cases or controversies. Despite
disclaimers that the protocols are not intended to mandate the duties of the
signatories or any of the persons described within the protocol, the contents
of the protocols can be interpreted otherwise.

In conclusion, a judge’s consultation may be sought in collaborative efforts
regarding domestic violence, but written endorsement of the protocols that
set forth the required behavior of peace officers, prosecutors, and judges,
interferes with the independence of the judiciary, implies partiality of the
judges, and appears to commit the judges with respect to cases and
controversies that may come before them in courts of law. For these
reasons, the Board advises that it is not prudent under Canons 1, 2(A),
3(A)(1), and 7(B)(2)(c), (d), (e) of the Ohio Code of Judicial Conduct for
judges to sign their names endorsing protocols for responding to domestic
violence.
Advisory Opinions of the Board of Commissioners on Grievances and Discipline are
informal, nonbinding opinions in response to prospective or hypothetical questions
regarding the application of the Supreme Court Rules for the Government of the
Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the
Code of Professional Responsibility, the Code of Judicial Conduct, and the
Attorney’s Oath of Office.