Ohio Board Advisory Opinion Op 96-005

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superseded by the Ohio Code of Judicial Conduct, eff. 3/1/2009.]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.