Ohio Board Advisory Opinion Op 89-015

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The Suprerre Caturt 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[Former CJC Opinion-provides advice under the former Ohio Code of Judicial Conduct which is superseded by the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 govem all judicial candidates. This opinion is an
attempt to create some workable guidelines in the area of judicial campaigns.

Op. 89-15 2
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.

Op. 89-15 3
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.

Op. 89-15 4
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.

Op. 89-15 5
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

Op. 89-15 6
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.