Ohio Board Advisory Opinion Op 09-008

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
(614) 387-9370 (888) 664-8345 FAX: (614) 387-9379
www.supremecourt.ohio.gov
OFFICE OF SECRETARY
OPINION 2009-8
Issued October 10, 2009
Withdrawn-by Board on August 13, 2010 due to amendments to Jud. Cond. Rule 4.2(B) and (C)
and Comment [2], eff. August 12, 2010.
SYLLABUS: Throughout a judicial campaign, a judicial candidate may truthfully state
in person or in advertising that he or she is “Endorsed by (or a nominee of) the
Democratic Party” or “Democratic Party Endorsed (or nominee)” or “Endorsed by (or a
nominee of) the Republican Party” or “Republican Party Endorsed (or nominee)”;
provided that the phrase identifies which political party entity endorsed the candidate, for
example, the county, state, or national Democratic or Republican Party. Any other
statement that identifies a judicial candidate as a member of or affiliated with a political
party is regulated as follows. At any time during a judicial campaign, a judicial candidate
may identify himself or herself in person as a member of or affiliated with a political
party. From the date of becoming a judicial candidate through the day of the primary a
judicial candidate may identify himself or herself in person and in advertising as a
member of or affiliated with a political party. After the day of a primary, a judicial
candidate may in person, but not in advertising, identify himself or herself as a
member of or affiliated with a political party. Jud. Cond. Rules 4.2(B)(4), 4.2(C)(6),
4.2(C)(7), 4.3(A), 4.3(M).
OPINION: This opinion addresses a question regarding a judicial candidate’s use of a
statement of endorsement by a political party.
Is it proper for a judicial candidate to use the phrase “Democratic Party
Endorsed” or “Republican Party Endorsed” in judicial campaign
advertisements, such as on billboards or yards signs?
Under the Ohio Code of Judicial Conduct a judicial candidate’s statement that he or she
is a nominee of or endorsed by a political party is treated differently from a judicial
candidate’s statement that he or she is a member of or affiliated with a political party.
This distinction must be grasped in order to avoid violating the Ohio Code of Judicial
Conduct.
Statement identifying judicial candidate as a member of or affiliated with
a political party

Op. 2009-8 2
Under Rule 4.2(C)(7) a judicial candidate may: “From the day on which he or she
becomes a judicial candidate through the day of the primary election, identify himself or
herself in person or in advertising as a member or affiliated with a political party.”
(Emphasis added).
In contrast, Rule 4.2(B)(4) requires that a judicial candidate shall not: “After the day of
the primary election, identify himself or herself in advertising as a member of or
affiliated with a political party.” (Emphasis added.)
Thus, upon becoming a judicial candidate and up through the day of the primary, a
judicial candidate may identify himself or herself in person or in advertising as a member
of or affiliated with a political party. After the day of the primary, a judicial candidate
may no longer identify himself or herself in advertising as a member of or affiliated with
a political party, but may so state in person.
After the day of the primary, a judicial candidate must carefully word advertising so as
not to identify himself or herself as a member of or affiliate with a political party. For
example, in a case interpreting Canon 7(B)(3)(c), a predecessor rule to Rule 4.2(B)(4), a
judicial candidate’s use of the phrase “Endorsed Democrat” on billboards violated the
campaign conduct rule by identifying the candidate in advertising after the date of the
primary as a member of a political party. In re Judicial Campaign Complaint Against
Grunda, 100 Ohio St.3d 1465, 2003-Ohio-5896. In another case interpreting the same
rule, a judicial candidate’s identification in campaign literature as a “conservative
Republican” violated the campaign conduct rule by identifying the candidate in
advertising after the date of the primary as a member of a political party. In re Judicial
Campaign Complaint Against Per Due, 98 Ohio St.3d 1548, 2003-Ohio-2032.
Statement that judicial candidate is a nominee of or endorsed by a
political party
Rule 4.2(C)(6) of the Ohio Code of Judicial Conduct states that a judicial candidate may:
“State in person or in advertising that he or she is a nominee of or endorsed by a
political party.” (Emphasis added). This rule applies throughout a judicial campaign.
Political party is defined in Rule 4.6(M): “‘Political party’ has the same meaning as in
R.C. 3517.01 and includes any national, state, or county political party.”
Thus, throughout a judicial campaign, a judicial candidate is permitted to state in person
and in advertising that he or she is a nominee of or endorsed by a political party, but there
are two caveats. First, pursuant to Rule 4.3(A) and Rule 4.3(M), a statement of
endorsement must be truthful and not misleading or deceiving. Second, pursuant to Rule
4.2(B)(4) and Rule 4.2(C)(7), a statement of endorsement used in advertising after a
primary must not identify a judicial candidate as a member of or affiliated with a political
party.

Op. 2009-8 3
A judicial candidate’s statement of nomination or endorsement by a political party made
pursuant to Rule 4.2(C)(6) requires careful phrasing so as to comply with Rule 4.3(A),
Rule 4.3(M), Rule 4.2(B)(4), and Rule 4.2(C)(7).
To comply with Rule 4.3(A) and Rule 4.3(M), a statement of endorsement must be
truthful and specific enough so as not to mislead or deceive.
Rule 4.3 During the course of any campaign for nomination or election to
judicial office, a judicial candidate, by means of campaign materials,
including sample ballots, advertisements on radio or television or in a
newspaper or periodical, electronic communications, a public speech,
press release, or otherwise, shall not knowingly or with reckless disregard:
(A) Post, publish, broadcast, transmit, circulate, or distribute
information concerning the judicial candidate or an opponent,
either knowing the information to be false or with a reckless
disregard of whether or not it was false or, if true, that would be
deceiving or misleading to a reasonable person;
(M) Falsely identify the source of a statement, issue statements
under the name of another person without authorization, or falsely
state the endorsement of or opposition to a judicial candidate by a
person, organization, political party, or publication.
Case law involving predecessor rules to Rule 4.3(A) and Rule 4.3(M) provide examples
of endorsement statements that were either false; or were truthful, but misleading or
deceiving.
A judicial candidate’s statement on a campaign placard that the “Neighborhood
Protection Council has endorsed Gary Kaup” and similar statements in a campaign letter
when in reality no entity called that ever existed and the name was a shortened version of
the candidate’s campaign committee was deceptive and false. Disciplinary Counsel v.
Kaup, 102 Ohio St.3d 29, 30, 2004-Ohio-1525.
A judicial candidate’s statements in campaign literature that he was endorsed by the
“legal community” in the appellate district was a false statement when only one county
bar association endorsed the candidacy and there were seven other counties in the district.
In re Judicial Campaign Complaint Against Roberts (1996), 81 Ohio Misc.2d 59, 61.
A judicial candidate’s statement in a distributed letter that she “received the Union
endorsements” while technically true, was misleading and deceiving because it would
lead a reasonable person to conclude the candidate received all of the union endorsements
when both candidates had received labor union endorsements. In Re Judicial Campaign
Complaint Against Burick (1999), 95 Ohio Misc.2d 1, 9.

Op. 2009-8 4
A judicial candidate’s broadcasted and distributed information stating that she was
“endorsed by Fraternal Order of Police” while to some degree true, was at the same time
misleading and deceiving because it was the endorsement of one lodge and her failure to
identify more specifically the nature of the FOP endorsement such as by including the
name of the lodge, made the statement misleading. In Re Judicial Campaign Complaint
Against Burick (1999), 95 Ohio Misc.2d 1, 9.
A judicial candidate’s statement in literature, print, radio, and television advertisements,
and in telephone scripts that he was “Endorsed by Southern Ohio’s Top Prosecutors and
Sheriffs!” when only five of the fourteen sheriffs and three of the fourteen county
prosecuting attorneys in the appellate district had endorsed or supported the candidate
were misleading and did not maintain the dignity appropriate to judicial office.
Disciplinary Counsel v. Evans, 89 Ohio St. 3d 497, 499-500, 2000-Ohio-0348.
Further, it is the Board’s view that the phrase “Endorsed by (or a nominee of) the
Democratic Party” or “Democratic Party Endorsed (or nominee)” or “Endorsed by (or a
nominee of) the Republican Party” or “Republican Party Endorsed (or nominee), even
though truthful, is potentially misleading when the phrase does not also identify which
political party entity endorsed the candidate, for example, the county, the state, or the
national Democratic Party or Republican Party.
In addition, as a reminder, a judicial candidate is responsible, pursuant to Rule 4.2(A)(2)
and Rule 4.2(A)(3) for all campaign statements and materials.
Rule 4.2(A) A judicial candidate shall be responsible for all of the
following:
(2) Reviewing and approving the content of all campaign
statements and materials produced by the judicial candidate or his
or her campaign committee before their dissemination;
(3) The content of statement communicated in any medium by his
or her campaign committee and for compliance by his or her
campaign committee with the limitations on campaign solicitations
and contributions contained in Rule 4.4, if the candidate knew of
the statement, solicitation, or contribution.
In conclusion, in answer to the question raised, the Board advises as follows. Throughout
a judicial campaign, a judicial candidate may truthfully state in person or in advertising
that he or she is “Endorsed by (or a nominee of) the Democratic Party” or “Democratic
Party Endorsed (or nominee)” or “Endorsed by (or a nominee of) the Republican Party”
or “Republican Party Endorsed (or nominee)”; provided that the phrase identifies which
political party entity endorsed the candidate, for example, the county, state, or national
Democratic or Republican Party. Any other statement that identifies a judicial candidate
as a member of or affiliated with a political party is regulated as follows. At any time
during a judicial campaign, a judicial candidate may identify himself or herself in person

Op. 2009-8 5
as a member of or affiliated with a political party. From the date of becoming a judicial
candidate through the day of the primary a judicial candidate may identify himself or
herself in person and in advertising as a member of or affiliated with a political party.
After the day of a primary, a judicial candidate may in person, but not in advertising,
identify himself or herself as a member of or affiliated with a political party. Jud. Cond.
Rules 4.2(B)(4), 4.2(C)(6), 4.2(C)(7), 4.3(A), 4.3(M).
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
Ohio Rules of Professional Conduct, the Ohio Code of Judicial Conduct, and the
Attorney’s Oath of Office.