Ohio Board Advisory Opinion Op 02-003

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 2320, COLUMBUS, OH 43215-6104
(614) 644-5800 (888) 664-8345 FAX: (614) 644-5804
www.sconet.state.oh.us
OFFICE OF SECRETARY
OPINION 2002-3
Issued April 5, 2002
[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superseded by the Ohio Code of Judicial Conduct, eff. 3/1/2009.]
SYLLABUS: It is proper under Canon 2(A)(1) of the Ohio Code of Judicial Conduct for
a judge to communicate to the public about a proposed state constitutional amendment
regarding drug treatment in lieu of incarceration, to explain the proposed amendment, to
compare it to current law, and to describe its potential impact on the constitution, the law,
and the operation of the courts. At all times during public communications, a judge must
maintain the dignity appropriate to judicial office and abide by the high standards of
speech in Canon 7. High standards of speech under Canon 7 include, Canon 7(B)(2)(c)
prohibiting a judge from making pledges or promises of conduct in office other than the
faithful and impartial performance of the duties of the office; Canon 7(B)(2)(d)
prohibiting a judge from making statements that commit or appear to commit a judge or
judicial candidate with regard to cases or controversies that are likely to come before the
court; and Canon 7(B)(2)(e) prohibiting a judge from commenting on any substantive
matter relating to a specific pending case on the docket of a judge. A judge should
consider the possibility that legal challenges may arise with regard to a proposed
constitutional amendment. With regard to the proposed constitutional amendment as well
as any other proposed constitutional amendment, Ohio voters have a right to a fair
election. Under Canon 7(B)(2)(e) and Canon 3(B)(9), if legal action with regard to the
proposed constitutional amendment is pending on the docket of any court, a judge must
not comment on substantive matters relating to the pending case and must not make
comments that might reasonably be expected to affect its outcome, impair fairness, or
substantially interfere with a fair trial or hearing. In addition, a judge should not make
comments that would cause questions as to a judge’s impartiality and lead to a judge’s
disqualification under Canon 3(E)(1).
It is proper under Canon 2(A)(1) of the Ohio Code of Judicial Conduct for a judge to
communicate to the public his or her views in support of or opposition to a proposed state
constitutional amendment regarding drug treatment in lieu of incarceration, basing such
support or opposition on the judge’s understanding of the potential impact on the courts,
the law, the legal system, and the administration of justice. Expression of views by a
judge on disputed legal and political issues related to the law, the legal system, and the
administration of justice is appropriate under Canon 2(A)(1) of the Ohio Code of Judicial
Conduct, provided that the standards of speech within Canon 7 and Canon 3(B)(9) are not
violated. Unfettered expression of personal views by a judge is improper and under
Canon 3(E)(1) may lead to a judge’s disqualification from proceedings. A judge should

Op. 2002-3 2
avoid making comments that would lead to a judge’s disqualification under Canon
3(E)(1).
The Ohio Code of Judicial Conduct does not prohibit a judge from communicating with
the public regarding a proposed state constitutional amendment regarding drug treatment
in lieu of incarceration, through newspaper editorials, radio and television talk shows,
presentations to civic, charitable, and professional organizations and through panel
presentations with other elected and non-elected officials at a public meeting, provided
that a judge maintains the dignity of the judicial office and heeds the high standards of
speech within Canon 7 and Canon 3(B)(9).
It is proper under Canon 4(C)(1) of the Ohio Code of Judicial Conduct for a judge to
meet with an executive or legislative body or official to discuss a proposed state
constitutional amendment regarding drug treatment in lieu of incarceration.
The Ohio Code of Judicial Conduct does not bar a judge from contributing personal funds
to a local or state coalition to support or oppose a proposed state constitutional
amendment regarding drug treatment in lieu of incarceration.
It is proper under the Canon 2(A)(1) of the Ohio Code of Judicial Conduct for a judge,
whether or not he or she is a member of the Ohio Judicial Conference Executive
Committee, to publicly comment on the position of the Ohio Judicial Conference as
outlined in a Resolution and supported by a Judicial Impact Statement, as to a proposed
state constitutional amendment regarding drug treatment in lieu of incarceration.
OPINION: This opinion addresses questions regarding a judge’s communication with
voters, legislators, and others about a proposed state constitutional amendment regarding
drug treatment in lieu of incarceration.
1. Is it proper for a judge to communicate to the public about a proposed
state constitutional amendment regarding drug treatment in lieu of
incarceration, to explain the proposed amendment, to compare it to current
law, and to describe its potential impact on the constitution, the law, and
the operation of the courts?
2. Is it proper for a judge to communicate to the public his or her views in
support of or opposition to a proposed state constitutional amendment
regarding drug treatment in lieu of incarceration, basing such support or
opposition on the judge’s understanding of the potential impact on the
courts, the law, the legal system, and the administration of justice?
3. Is it proper for a judge to communicate to the public regarding a proposed
state constitutional amendment regarding drug treatment in lieu of
incarceration, through newspaper editorials, radio and television talk
shows, presentations to civic, charitable, and professional organizations

Op. 2002-3 3
and through panel presentations with other elected and nonelected officials
at a public meeting?
4. Is it proper for a judge to meet with an executive or legislative body or
official to discuss a proposed state constitutional amendment regarding
drug treatment in lieu of incarceration?
5. Is it proper for a judge to contribute personal funds to a local or state
coalition to support or oppose a proposed state constitutional amendment
regarding drug treatment in lieu of incarceration?
6. Is it proper for a judge, who is a member of the Ohio Judicial Executive
Committee, to publicly comment on the position of the Ohio Judicial
Conference as outlined in a Resolution and supported by a Judicial Impact
Statement on a proposed state constitutional amendment regarding drug
treatment in lieu of incarceration?
Proposed State Constitutional Amendment
An amendment to the Ohio Constitution is being proposed by the “Ohio Campaign for
New Drug Policies.” The Initiative Petition is referred to as the “Ohio Drug Treatment
Initiative.’”
The subject matter of the proposed state constitutional amendment is drug treatment in
lieu of incarceration. The purpose of the proposed amendment is described and
summarized in the Initiative Petition as follows:
Title
To amend Art. IV of the Ohio Constitution by adding a Section 24 to
provide for treatment in lieu of incarceration for persons charged with or
convicted of illegal possession or use of a controlled substance in certain
limited circumstances.
Summary
The amendment would amend the Ohio Constitution to establish a
comprehensive program to provide an opportunity for treatment instead of
incarceration for individuals charged with or convicted of illegal
possession or use of a controlled substance, and, in some cases, additional
non-violent offenses. Treatment can last up to twelve to eighteen months,
but the Amendment limits incarceration to a maximum of ninety days for
any qualifying drug offense. Notwithstanding an existing provision of the
Ohio constitution limiting appropriations to two years, the Amendment
provides for direct funding of its treatment and rehabilitation programs for
seven fiscal years, through 2009.

Op. 2002-3 4
Applicable Rules
Canon 1 of the Ohio Code of Judicial Conduct calls for high standards of conduct by
judges in order to preserve the integrity and independence of the judiciary.
Canon 1. An independent and honorable judiciary is indispensable to
justice in our society. A judge should participate in establishing,
maintaining, and enforcing high standards of conduct, and personally shall
observe those standards so that the integrity and independence of the
judiciary will be preserved. The provisions of this Code are to be
construed and applied to further that objective.
Canon 7 requires that at all times judges maintain the dignity appropriate to judicial
office and sets forth the high standards of conduct for judicial speech.
Canon 7(B)(1) A judge or judicial candidate shall maintain the dignity
appropriate to judicial office.
Canon 7(B)(2) A judge or judicial candidate shall not do any of the
following:
(a and b) [omitted];
(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;
(f and g) [omitted].
Canon 2(A)(1) broadly authorizes a judge to speak regarding the law, the legal system,
and the administration of justice.
Canon 2(A) Activities to improve the law
A judge may engage in activities to improve the law, the legal
system, and the administration of justice, provided those activities
do not cast doubt on the judge’s capacity to act impartially as a
judge, demean the judicial office, or interfere with the proper
performance of judicial duties.

Op. 2002-3 5
(1) A judge may speak, write, lecture, teach and participate
in other activities concerning the law, the legal system,
and the administration of justice.
(2) Subject to the restrictions of Canon 4(C)(1), a judge
may appear at a public hearing before an executive or
legislative body or official on matters concerning the law,
the legal system, and the administration of justice, and
otherwise may consult with an executive or legislative body
or official, but only on matters concerning the
administration of justice.
Canon 3(B)(9) limits a judge’s comments with regard to pending or impending
proceedings in any court and directs a judge to require similar abstention by court
personnel.
Canon 3(B)(9) While a proceeding is pending or impending in any court, a
judge shall not make any public comment that might reasonably be
expected to affect its outcome or impair its fairness or make any nonpublic
comment that might substantially interfere with a fair trial or hearing. The
judge shall require similar abstention on the part of court personnel subject
to the judge’s direction and control. Division (B)(9) of this canon does not
prohibit judges from making public statements in the course of their
official duties or from explaining for public information the procedures of
the court. Division (B)(9) of this canon does not apply to proceedings in
which the judge is a litigant in a personal capacity.
Canon 4(C)(1) limits a judge’s public appearances before or consultations with executive
or legislative bodies or officials to only matters concerning the law, the legal system, and
the administration of justice.
Canon 4(C)(1) A judge shall not appear at a public hearing before or
otherwise consult with an executive or legislative body or official except
on matters concerning the law, the legal system, or the administration of
justice or except when acting pro se in a matter involving the judge or the
judge’s interests.
Question 1
Is it proper for a judge to communicate to the public about a proposed
state constitutional amendment regarding drug treatment in lieu of
incarceration, to explain the proposed amendment, to compare it to current
law, and to describe its potential impact on the constitution, the law, and
the operation of the courts?

Op. 2002-3 6
Canon 2(A)(1) authorizes a judge to speak on matters relating to the law, the legal
system, and the administration of justice. The subject matter of the proposed
constitutional amendment, drug treatment in lieu of incarceration, is a matter involving
the law, the legal system, and the administration of justice.
The Commentary to Canon 2(A) encourages judges to contribute to the improvement of
the law, the legal system and the administration of justice.
As a judicial officer and person specially learned in the law, a judge is in a
unique position to contribute to the improvement of the law, the legal
system, and the administration of justice, including revision of substantive
and procedural law and improvement of criminal and juvenile justice. To
the extent the time permits, a judge is encouraged to do so, either
independently or through a bar association, judicial conference or other
organization dedicated to the improvement of the law. Judges may
participate in efforts to promote the fair administration of justice, the
independence of the judiciary and the integrity of the legal profession and
may express opposition to the persecution of lawyers and judges in other
countries because of their professional activities.
Thus, under Canon 2(A)(1) and Commentary thereto, a judge is permitted to speak about
the proposed constitutional amendment regarding drug treatment in lieu of incarceration
because it is a matter involving the law, the legal system, and the administration of
justice. But, in speaking under Canon 2(A)(1), the high standards of conduct in judicial
speech under Canon 7 must be heeded.
Canon 7(B)(2)(c) prohibits a judge from making pledges or promises of conduct in office
other than the faithful and impartial performance of the duties of the office. Canon
7(B)(2)(d) prohibits a judge from making statements that commit or appear to commit a
judge or judicial candidate with regard to cases or controversies that are likely to come
before the court. A judge, speaking to voters regarding a proposed state constitutional
amendment, explaining the proposed amendment, comparing it to current law, or
describing its potential impact on the constitution, the law, and the operation of the
courts, does not violate the high standards of speech set forth in Canon 7(B)(2)(c) and
(d). Such speech is neither the making of statements that commit or appear to commit a
judge or judicial candidate with respect to cases or controversies nor a pledge or promise
of conduct in office.
A judge should consider the possibility that legal challenges may arise with regard to a
proposed constitutional amendment. Canon 7(B)(2)(e) prohibits a judge from
commenting on any substantive matter relating to a pending case on the docket of a
judge. Also, while a proceeding is pending or impending in any court, a judge is
prohibited by Canon 3(B)(9) from making public comment that might reasonably be
expected to affect its outcome or impair its fairness or making any nonpublic comment
that might substantially interfere with a fair trial or hearing. A judge is directed by
Canon 3(B)(9) to require similar abstention by court personnel subject to the judge’s

Op. 2002-3 7
direction or control. Thus, if legal action with regard to the proposed constitutional
amendment is pending on the docket of any court, a judge must not comment on
substantive matters relating to the pending case and must not make comments that might
reasonably be expected to affect its outcome, impair fairness, or substantially interfere
with a fair trial or hearing. With regard to the proposed constitutional amendment as well
as any other proposed constitutional amendment, Ohio voters have a right to a fair
election.
In addition, Canon 3(E)(1) requires a judge to “disqualify himself or herself in a
proceeding in which the judge’s impartiality might reasonably be questioned.” A judge
should avoid making comments that would lead to a judge’s disqualification under Canon
3(E)(1).
Thus the Board advises that it is proper under the Ohio Code of Judicial Conduct for a
judge to communicate to the public about a proposed state constitutional amendment
regarding drug treatment in lieu of incarceration, to explain the proposed amendment, to
compare it to current law, and to describe its potential impact on the constitution, the law,
and the operation of the courts. At all times during public communications, a judge must
maintain the dignity appropriate to judicial office and abide by the high standards of
speech in Canon 7. High standards of speech under Canon 7 include, Canon 7(B)(2)(c)
prohibiting a judge from making pledges or promises of conduct in office other than the
faithful and impartial performance of the duties of the office; Canon 7(B)(2)(d)
prohibiting a judge from making statements that commit or appear to commit a judge or
judicial candidate with regard to cases or controversies that are likely to come before the
court; and Canon 7(B)(2)(e) prohibiting a judge from commenting on any substantive
matter relating to a specific pending case on the docket of a judge. A judge should
consider the possibility that legal challenges may arise with regard to a proposed
constitutional amendment. With regard to the proposed constitutional amendment as well
as any other proposed constitutional amendment, Ohio voters have a right to a fair
election. Under Canon 7(B)(2)(e) and Canon 3(B)(9), if legal action with regard to the
proposed constitutional amendment is pending on the docket of any court, a judge must
not comment on substantive matters relating to the pending case and must not make
comments that might reasonably be expected to affect its outcome, impair fairness, or
substantially interfere with a fair trial or hearing. In addition, a judge should not make
comments that would cause questions as to a judge’s impartiality and lead to a judge’s
disqualification under Canon 3(E)(1).
Question 2
Is it proper for a judge to communicate to the public his or her views in
support of or opposition to a proposed state constitutional amendment
regarding drug treatment in lieu of incarceration, basing such support or
opposition on the judge’s understanding of the potential impact on the
courts, the law, the legal system, and the administration of justice?

Op. 2002-3 8
In Op. 87-044, this Board advised that a judge may ethically express an opinion
“regarding a county sales tax to finance needed improvements to the county jail and
courthouse, the merit selection plan, and any other issue pertaining to the improvement of
the law, the legal system and the administration of justice.” The Board’s advice was
based on what was then Canon 7(A)(4), a rule stating “[a] judge should not engage in any
other political activity except on behalf of measures to improve the law, the legal system
and the administration of justice.” That language was deleted from the Ohio Code of
Judicial Conduct, by amendment, effective May 1, 1997, but even without that supporting
language, the advice within Op. 87-044 stands. Canon 2(A)(1) and Commentary thereto
encourage judges to speak on the law, the legal system and the administration of justice.
Expression of views by a judge on disputed legal and political issues related to the law,
the legal system, and the administration of justice is appropriate under Canon 2(A)(1) of
the Ohio Code of Judicial Conduct, provided that the standards of speech within Canon 7
are not violated. Support for expressing views on matters related to the law, the legal
system, and the administration of justice is buttressed by the May 1, 1997 amendments to
Canon 7, that deleted from Canon 7(B)(1)(c) the prohibitory language on a judge
announcing views on disputed legal or political issues. [The prohibitory language had
been part of the Code since its adoption by the Supreme Court of Ohio of December 20,
1973].
Yet, the unfettered expression of personal views by a judge is improper. Judges are
prohibited from making pledges or promises of conduct in office other than the faithful
and impartial performance of the duties of the office under Canon 7(B)(2)(c). Judges are
prohibited from making statements that commit or appear to commit a judge or judicial
candidate with respect to cases or controversies that are likely to come before the court
under Canon 7(B)(2)(d). Judges are prohibited from commenting on any substantive
matter relating to a specific pending case on the docket of a judge under Canon
7(B)(2)(e). Unfettered expression of personal views could compromise a judge’s ability
to preside over proceedings for judges are required to disqualify themselves under Canon
3(E)(1) from proceedings in which the judge’s impartiality might reasonably be
questioned. The expression of a judge’s views should focus upon his or her
understanding of the potential impact on the courts, the law, the legal system, and the
administration of justice.
Thus, this Board advises that it is proper under Canon 2(A)(1) for a judge to
communicate to the public his or her view in support of or opposition to a proposed state
constitutional amendment regarding drug treatment in lieu of incarceration, basing such
support or opposition on the judge’s understanding of the potential impact on the courts,
the law, the legal system, and the administration of justice. Expression of views by a
judge on disputed legal and political issues related to the law, the legal system, and the
administration of justice is appropriate under Canon 2(A)(1) of the Ohio Code of Judicial
Conduct, provided that the standards of speech within Canon 7 and Canon 3(B)(9) are not
violated. Unfettered expression of personal views by a judge is improper and under
Canon 3(E)(1) may lead to a judge’s disqualification from proceedings. A judge should

Op. 2002-3 9
avoid making comments that would lead to a judge’s disqualification under Canon
3(E)(1).
Question 3
Is it proper for a judge to communicate with the public regarding a proposed state
constitutional amendment regarding drug treatment in lieu of incarceration,
through newspaper editorials, radio and television talk shows, presentations to
civic, charitable, and professional organizations and through panel presentations
with other elected and non-elected officials at a public meeting?
No rule within the Ohio Code of Judicial Conduct, provides a list appropriate forums for
judicial speech. No rule within the Ohio Code of Judicial Conduct prohibits a judge from
sitting on a panel at a public meeting at which panel members will express views for or
against a proposed state constitutional amendment regarding drug treatment in lieu of
incarceration. A judge must exercise his or her discretion regarding appropriate forums
for speaking to the public regarding the law, the legal system, and the administration of
justice. At all times during participation in any community or professional forum, a
judge must maintain the dignity appropriate to judicial office and the high standards of
speech as required by Canon 7 and Canon 3(B)(9).
Thus, the Board advises that the Ohio Code of Judicial Conduct does not prohibit a judge
from communicating with the public regarding a proposed state constitutional
amendment regarding drug treatment in lieu of incarceration, through newspaper
editorials, radio and television talk shows, presentations to civic, charitable, and
professional organizations and through panel presentations with other elected and non-
elected officials at a public meeting, provided that a judge maintains the dignity of the
judicial office and heeds the high standards of speech within Canon 7 and Canon 3(B)(9).
Question 4
Is it proper for a judge to meet with an executive or legislative body or
official to discuss a proposed state constitutional amendment regarding
drug treatment in lieu of incarceration?
Drug treatment in lieu of incarceration is an issue related to the law, the legal
system, and the administration of justice. Canon 4(C)(1) permits a judge to
appear at a public hearing before or otherwise consult with an executive or
legislative body or official on matters concerning the law, the legal system, or the
administration of justice. Thus, the Board advises that it is proper under Canon
4(C)(1) of the Ohio Code of Judicial Conduct for a judge to meet with an
executive or legislative body or official to discuss a proposed state constitutional
amendment regarding drug treatment in lieu of incarceration.

Op. 2002-3 10
Question 5
Is it proper for a judge to contribute personal funds to a local or state
coalition to support or oppose a proposed state constitutional amendment
regarding drug treatment in lieu of incarceration?
The Ohio Code of Judicial Conduct does not specifically regulate a judge’s use of
his or her personal funds. Nevertheless, in the use of personal funds, as in all
other activities, a judge must exhibit high standards of conduct in order to
preserve the integrity and independence of the judiciary as required under Canon
1 and must maintain the dignity of judicial office under Canon 7(B)(1).
Thus, the Board advises that the Ohio Code of Judicial Conduct does not bar a
judge from contributing personal funds to a local or state coalition to support or
oppose a proposed state constitutional amendment regarding drug treatment in
lieu of incarceration.
Question 6
Is it proper for a judge, who is a member of the Ohio Judicial Executive
Committee, to publicly comment on the position of the Ohio Judicial
Conference as outlined in a Resolution and supported by a Judicial Impact
Statement on a proposed state constitutional amendment regarding drug
treatment in lieu of incarceration?
Canon 2(A)(1) permits a judge to speak regarding the law, the legal system, and the
administration of justice. Canon 2(B) states “[a] judge may serve as an officer, director,
trustee, or non-legal advisor of an organization or governmental agency devoted to the
improvement of the law, the legal system, or the administration of justice.” The Ohio
Judicial Conference is a governmental agency devoted to the law, the legal system, and
the administration of justice. A Resolution and Judicial Impact Statement regarding drug
treatment in lieu of incarceration relates to the law, the legal system, and the
administration of justice.
Thus, the Board advises that it is proper under Canon 2(A)(1) of the Ohio Code of
Judicial Conduct for a judge, whether or not he or she is a member of the Ohio Judicial
Conference Executive Committee, to publicly comment on the position of the Ohio
Judicial Conference as outlined in a Resolution and supported by a Judicial Impact
Statement, as to a proposed state constitutional amendment regarding drug treatment in
lieu of incarceration.
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.