Ohio Board Advisory Opinion Op 87-006

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 87-006
[Withdrawn- by Opinion 2002-8 on August 9, 2002]
SYLLABUS: Candidates for judicial office are not specifically prohibited from engaging in a
public debate under the Code of Judicial Conduct. However, Canon 7B(1)(c) of the Code of
Judicial Conduct only allows candidates to promise faithful and impartial performance of the duties
of office. Moreover, a judicial candidate may not make pledges or promises of conduct in office,
announce his views on disputed legal or political issues or misrepresent his identity, qualifications,
present position, or other fact.
TO: Charles D. Lynch, Esq.
FROM: The Board of Commissioners on Grievances and Discipline of the Judiciary
DATE: May 27, 1987
We have before us your request for our opinion on whether opposing candidates for a
judicial office may engage in a public debate. In your request letter you state in part:
1. Is it ever appropriate for a candidate for a judicial office to engage in a
public debate with another candidate for that same office, immediately prior
to a partisan primary election?
2. If it is proper for a candidate for a judicial office to engage in a public debate
as indicated above what, if any, guidelines or restrictions are imposed upon
the candidates or the format of the debate pursuant to the Code of Judicial
Conduct or other laws of the State of Ohio?

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3. Is it appropriate for a court referee who is a candidate in a partisan primary
election for the position of judge in the court which he presently referees to
call for a public debate or to sponsor, organize, or orchestrate such a public
debate?
Your first question, regarding the propriety of a judicial candidate's public debate, is not
specifically addressed in the Code of Judicial Conduct (the Code). The Code is void of any
language either prohibiting or allowing candidates for judicial office to engage in a public debate.
However, the Code does proscribe what information a judicial candidate may and may not
disseminate during his or her campaign. Canon 7B(1)(c) of the Code of Judicial Conduct provides:
(1) A candidate, including an incumbent judge for a judicial office: . . . (c)
should not make pledges or promises of conduct in office other than the faithful and
impartial performance of the duties of the office; announce his views on disputed
legal or political issues; or misrepresent his identity, qualifications, present position,
or other fact.
Given these three prohibitions, it seems unlikely a judicial candidate's debate would amount
to anything more than each candidate announcing his own qualifications and that he will faithfully
and impartially perform the duties of the office. Furthermore, it is our understanding that in a
debate each participant argues opposing points. Clearly, a debate, wherein the judicial candidates
address specific legal or political issues, would violate the Code.
The premise of Canon 7B(1)(c), it has been held, is to prohibit candidates for judicial office
from making pledges or promises which appeal to prejudices or special interests. Berger v.
Supreme Court of Ohio, 598 F. Supp. 69, 75 (S.D. Ohio 1984). On the other hand, informed voting
by the electorate, based upon the candidate's credentials is vital in a democratic society. In this
regard, the ABA Committee on Ethics and Professional Responsibility has stated, "the framers of
the Canons of Judicial Conduct have resolved the tensions between the political elective process
and the desire to have dignified, ethical standards for the judiciary by strictly limiting the extent to
which candidates for judicial office may campaign." ABA Committee of Ethics and Professional
Responsibility, Informal Op. 1444 (1980).

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Judges and candidates for judicial office are held to a higher standard in their campaign
practices than are other candidates for political office. For, "[t]he very purpose of the judicial
foundation makes inappropriate the same kind of particularized pledges and predetermined
comments that mark campaigns for legislative and executive office. A judge acts on individual
cases, not broad programs." Berger v. Supreme Court of Ohio, 598 F. Supp. 69, 76 (S.D. Ohio
1984).
Your second question asks what format a judicial debate should take. Again, there are no
guidelines other than Canon 7B(1)(c) as discussed supra. The essence of Canon 7 is that judges
should maintain the dignity appropriate to judicial office. Therefore, all aspects of a public debate
by judicial candidates must maintain the dignity appropriate to judicial office. This includes the
advertising for the debate; the televising and broadcasting of the debate; the time and location of
the debate; the types of questions addressed in the debate and their answers; and finally, the amount
of adversity reflected in the debate.
Your third question requests our opinion on whether a referee in municipal court, who is
running for judge in that same court, may call for a public debate between himself and his opponent
in an upcoming partisan primary election. Again, there is nothing in the Code which either permits
or prohibits a debate by candidates for judicial office. The Code does, however, hold referees to
the same standards as judges in upholding the integrity of the judiciary. Under the Compliance
Section of the Code, anyone who is an officer of a judicial system performing judicial functions is a
judge for the purposes of the Code. Code of Judicial Conduct, Compliance Section (1982).
Therefore, if sponsoring, organizing or orchestrating a public debate can be accomplished in such a
way as to comply with the mandatory standards set forth in the Code of Judicial Conduct as
discussed herein, a judge/referee might legitimately conduct and participate in such a judicial
debate.
In conclusion, it is our opinion, and you are so advised, that although public debates are not
prohibited in the Code, there are several provisions in the Code, as discussed herein, which would
apply to a debate and govern its participants.
This opinion is advisory in nature, is 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