Can an Ohio judge sign a candidate's nominating petition or introduce a partisan candidate at a political dinner?

Plain-English summary

The Board addressed two political-activity questions for incumbent judges. The first was whether a judge may sign nominating petitions or declarations of candidacy for judicial candidates or candidates for partisan office, and whether the answer changes if the signing judge is also a judicial candidate. Canon 7A(1)(b) prohibits an incumbent judge or judicial candidate from publicly endorsing a candidate for public office. The Board examined the language of the petitions, which states only that the signer believes the person is well qualified for the office, and reasoned that a statement of qualification is not a statement of support or a public endorsement, particularly since a signer might sign petitions for several competing candidates. The Board concluded a judge may sign such petitions, with no different answer if the signing judge is also a judicial candidate, and distinguished its Opinion 91-29 (letter of support circulated to bar members for a bar association office).

The second question was whether an incumbent judge running for re-election may attend a political dinner, sit at the speaker's table, and formally introduce a partisan candidate. Canon 7A(3) permits an incumbent judge or judicial candidate to attend political gatherings and to speak on his or her own behalf as a candidate, and the Board concluded that this permission to attend extends throughout the judge's term. On formally introducing a partisan candidate, however, the Board identified three problems: such an introduction is not a speech on the judge's own behalf permitted by Canon 7A(3); it could be considered acting as a leader in a political organization prohibited by Canon 7A(1)(a); and it could be viewed as a public endorsement prohibited by Canon 7A(1)(b).

The Board concluded that an incumbent judge may attend a political dinner, sit at the speaker's table, and be introduced as a judge, but should not formally introduce a partisan candidate even where the introduction is limited to stating the candidate's name and the office sought without comment on qualifications.

Currency note

This opinion issued in 1992 under Ohio's former Code of Judicial Conduct (superseded by the Ohio Code of Judicial Conduct effective March 1, 2009). The Board's status list also flags it as not current because of subsequent rule amendments to Canon 7. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Ohio Code of Judicial Conduct before relying on any specific rule mentioned here.

Common questions

Q: Can a judge sign a candidate's nominating petition?

A: Under this opinion, yes. The Board concluded that an incumbent judge may sign nominating petitions or declarations of candidacy for judicial candidates or candidates for partisan office, reasoning that a statement of qualification is not a public endorsement.

Q: Can a judge attend a partisan political dinner?

A: Yes. The opinion concluded an incumbent judge may attend a political dinner, sit at the speaker's table, and be introduced as a judge, and that the permission to attend political gatherings extends throughout the judge's term.

Q: Can the judge introduce another candidate at that dinner?

A: No. The opinion concluded a judge should not formally introduce a partisan candidate, because doing so is not a speech on the judge's own behalf and could be seen as acting as a political leader or as a public endorsement.

Background and rules framework

The opinion interprets the former Code of Judicial Conduct Canon 7A, including Canon 7A(1)(a) (no acting as a leader in a political organization), Canon 7A(1)(b) (no public endorsement of a candidate for public office), and Canon 7A(3) (attending political gatherings and speaking on one's own behalf as a candidate). The analogous modern provisions appear in the Model Code of Judicial Conduct.

Citations and references

Rules of Judicial Conduct (Ohio, former):

• Canon 7A(1)(a), acting as a political leader
• Canon 7A(1)(b), public endorsement of a candidate; Canon 7A(3), attending political gatherings

Other opinions cited:

• Ohio Bd. of Comm'rs on Grievances and Discipline, Op. 88-17 (1988); Op. 91-29 (1991)
• State Bar of Michigan, Informal Op. CI-778 (1982); Kansas Sup. Ct, JE-33 (1990); Alaska Bar Ass'n, Op. 88-5 (1988); Kentucky Sup. Ct, Formal Op. JE-45 (1983)

See also

• Ohio BPC Op. 1991-029: Judge Endorsing a Candidate for Bar Association Office
• Ohio BPC Op. 1988-017: Judicial Campaign Political Contributions
• Ohio BPC Op. 1990-008: Judge Pro Tempore Holding Political Organization Office
• Ohio BPC Op. 1987-044: Judges Commenting on Ballot Issues

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-92-011.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

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 92-11
Issued April 10, 1992

[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: An incumbent judge may sign Nominating Petitions or Declaration of Candidacy petitions for judicial candidates and or candidates for partisan political office. The question is not answered differently if the judge signing the petition is also a candidate for a judicial office.

An incumbent judge may attend a political dinner, sit at the speaker's table and be introduced as a judge, but he or she should not formally introduce a partisan candidate even though such introduction is limited to stating the candidate's name and the office sought without comment upon the candidate's qualifications for such office.

OPINION: This opinion addresses political and campaign issues faced by incumbent judges.

1. May an incumbent judge sign Nominating Petitions or Declarations of Candidacy petitions for judicial candidates and or candidates for partisan political office? Is the question answered differently if the judge signing the petition is also a candidate for a judicial office?

2. May an incumbent judge who is a candidate for re-election attend a political dinner, sit at the speaker's table and formally introduce a partisan candidate where such introduction is limited to stating the name of the candidate and the office sought without comment upon the candidate's qualifications for such office?

Question 1

Canon 7 broadly proclaims that "A Judge Should Refrain from Political Activity Inappropriate to Judicial Office." The separation of a judge from political activities is necessary to assure the public of an independent judiciary. To this end Canon 7A restricts political conduct by both incumbent judges and candidates for judicial office.

Canon 7A. Political Conduct in General.

(1) An incumbent judge, or a candidate for judicial office, should not:

(a) act as a leader or hold any office in a political organization;

(b) make speeches for a political organization or candidate at a political meeting or publicly endorse a candidate for public office. (Emphasis added).

At issue is whether a judge's signature on a Nominating Petition or on a Declaration of Candidacy constitutes a public endorsement of another candidate for public office for purposes of Canon 7A (l) (b). The Board could find no advisory opinions addressing the precise issue. Nor is there case law on the issue.

Commentary to Canon 7A (l) (b) states that "[a] candidate does not publicly endorse another candidate for public office by having his or her name on the same ticket or attending a fundraising event for a candidate." Beyond this, there is no guidance within the Code as to what constitutes a public endorsement.

State ethics committees have offered the following advice: A judge offering his or her home for a reception for a partisan candidate for public office is tantamount to a public endorsement. State Bar of Michigan, Informal Op. CI-778 (1982); A judge allowing his or her home to be used to host a "Meet the Candidate" party for a governor during an election year could be viewed as a political endorsement. Kansas Sup. Ct, JE-33 (1990); A judge writing a letter to a local newspaper to support a judicial candidate during a retention election constitutes a public endorsement of a candidate for public office, Alaska Bar Ass'n, Op. 88-5 (1988). This Board has expressed the view that a contribution by a candidate for judicial office to another candidate should not be considered a public endorsement. Ohio Sup.Ct, Bd. of Comm'rs on Grievances and Discipline, Op. 88-17 (1988).

However, the above cited opinions provide little guidance in determining the issue addressed. Instead, the Board must examine the language and purpose of a Nominating Petition and a Declaration of Candidacy. A signature on a Nominating Petition is a declaration of the statement set forth below.

We, the undersigned, qualified electors of the State of Ohio, whose voting residence is in the County, City, Village, Ward, Township, or Precinct set opposite our names, hereby nominate__as a Candidate for election to the office of__in __ County for the: full term commencing __ or unexpired term ending_, to be voted for at the next general election, and certify this person is, in our opinion, well qualified to perform the duties of the office or position to which he/she desires to be elected.

A signature on a Declaration of Candidacy Party Primary Election for County Office similarly declares:

We, the undersigned, qualified electors of the State of Ohio, whose voting residence is in the county, city, village, ward, township, and precinct set opposite our names, and members of the__ Party, hereby certify that__, whose declaration of candidacy is filed herewith, is a member of the__ Party, and is, in our opinion, well qualified to perform the duties of the office or position to which he/she desires to be elected.

Thus, a signature on either petition is a statement that the person seeking office is, in the signer's opinion, well qualified to perform the duties of the office or position to which he or she desires to be elected. The notable difference between the two petitions is that the Declaration of Candidacy has the additional requirement that the person signing must state his or her political party and must be of the same political party as the candidate.

A statement that an individual is qualified to perform certain duties is not a statement of support for a candidate for public office. It is merely a statement regarding qualification. In fact, the signature cannot logically be construed as a public endorsement of a candidate for public office since a person signing a petition might possibly sign petitions for several different individuals running for the same office. Further, the requirement on the Declaration of Candidacy that the signer state his or her political party does not present an obstacle since the Code of Judicial Conduct does not prohibit a judge from remaining a member of a political party, nor from answering such question honestly when asked. Thus, the Board's opinion is that an incumbent judge may sign Nominating Petitions and or Declaration of Candidacy petitions for judicial candidates and or candidates for partisan political office. The Board finds no rationale for answering the question differently if the judge signing the petition is also a candidate for a judicial office.

The Board does not find this conclusion to be inconsistent with Opinion 91-29 in which the Board advised that a judge should not endorse a candidate for elective office of a bar association by allowing his or her name, with or without the designation that the individual is a judge, to be included on a list of supporters of the candidate which would be circulated to members of the bar association since such endorsement lends the prestige of the judge's office to advance the private interests of others and creates an appearance of impropriety in violation of Canon 2 of the Code of Judicial Conduct. Ohio Sup.Ct. Bd. of Comm'rs on Grievances and Discipline, Op. 91-29 (1991). That opinion is distinguishable for several reasons: the signature was to be on a letter of support; the letter was to be circulated to members of a bar association; and the Board found no support in the Code or elsewhere for finding an elective office in a bar association to be a "public office" within the meaning of Canon 7A (l) (b), nor for finding a bar association election to be the type of political activity to which Canon 7 is directed. Id.

Question 2

"Canon 7 involves compromises between political reality and the aim of maintaining the appearance of judicial impartiality." E. Thode, Reporter's Notes to Code of Judicial Conduct, 96 (1973). Thus, although Canon 7A (1) restricts political conduct by both incumbent judges and candidates for judicial office, it provides some leniency in Canon 7A (3) for incumbents and candidates to engage in political activity for purposes of candidacy.

Canon 7A(3) An incumbent judge, or a candidate for judicial office, may attend political gatherings and may identify himself or herself as a member of a political party. He or she may speak to such political gatherings on his or her own behalf when he or she is a candidate for election or re-election.

Attendance at a political dinner would clearly fall within the permissible activity allowed by Canon 7A (3) and would be permissible even if such dinner were a fund-raising event. See Commentary to 7A (l) (b) stating that "[a] candidate does not publicly endorse another candidate for public office by attending a fund-raising event for a candidate."

What is less clear is the application of this limited permission. It is possible to interpret Canon 7A (3) two ways: as making it proper for judges to attend political gatherings throughout the judge's term of office, or as making it proper to attend political gatherings only during certain time periods surrounding elections. This Board's view is that Canon 7A (3)'s limited permission to attend political gatherings extends throughout the judge's entire term of office. This view supports Canon 7's compromises between political reality and the necessity that a judge be and appear to be impartial.

Therefore, in part answer to Question Two, the Board's view is that it is proper for an incumbent judge to attend a political gathering. See e.g., Kentucky Sup.Ct, Formal Op. JE-45 (1983) (judges are candidates during their entire term of office and may appear before a political gathering for purposes of promoting their own candidacy. An appearance does not equate with membership in the party any more than appearances before labor unions, social clubs and business groups amount to membership in those groups.)

As to whether it would be proper for an incumbent judge running for re-election to sit at a speaker's table at a political dinner and introduce a partisan candidate, several rules must be considered. Canons 7A (3) permits an incumbent judge to speak at political gatherings on his or her own behalf when he or she is a candidate for election or re-election. Canon 7A (l)(a) prohibits an incumbent judge from acting as a leader in a political organization, and 7A (l)(b) prohibits incumbent judges from public endorsement of a candidate for public office. Thus, there emerges three problems with allowing a judge sitting at a speaker's table at a political dinner to introduce a partisan candidate. Such introduction by the judge is not a speech on behalf of the judge's candidacy as permitted by Canon 7A (3). Such introduction of a speaker by a judge at a political dinner could be considered acting as a leader in a political organization as prohibited by Canon 7A (l)(a). Such introduction could be viewed by others as a public endorsement of a candidate for public office as prohibited by Canon 7A (l)(b). These problems would exist even though the proposed introduction would be limited to stating the candidate's name and the office sought.

Therefore, in conclusion, it is the Board's opinion that an incumbent judge may attend a political dinner, sit at the speaker's table, and be introduced as a judge; but he or she should not formally introduce a partisan candidate even though such introduction is limited to stating the candidate's name and the office sought without comment upon the candidate's qualifications for such office.

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.