(A) A judge or judicial candidate shall not do any of the following: (1) Act as a leader of, or hold an office in, a political party; (2) Make speeches on behalf of a political party or another candidate for public office; (3) Publicly endorse or oppose a candidate for another public office; (4) Solicit funds for or make a contribution or expenditure of campaign funds to a political party or a candidate for public office, except as permitted by division (B)(2) or (3) of this rule;(5) Make any statement or comment that would reasonably be expected to affect the outcome or impair the fairness of a matter known to be pending or impending in any court in the United States or its territories;(6) In connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.(B) A judge or judicial candidate may do any of the following, subject to limitations set forth in this canon: (1) Attend or speak to a political gathering; (2) Make a contribution or expenditure of campaign funds to purchase a ticket to attend a social or fundraising event held by or on behalf of another public official, a candidate for public office, or a political party;(3) Make a contribution or expenditure of campaign funds to a political party, other than for the purchase of a ticket to attend a social or fundraising event, provided the contribution or expenditure will not be used for any of the following purposes: (a) To further the election or defeat of any particular candidate or to influence directly the outcome of any candidate or issue election;(b) To pay party debts incurred as the result of any election;(c) To make a payment clearly in excess of the market value of the item or service that is received for the payment.Comment
General Considerations
[1] Though subject to public election, a judge plays a role different from that of a legislator or executive branch official. Rather than making decisions based upon the expressed views or preferences of the electorate, a judge makes decisions based upon the law and the facts of each case. Therefore, in furtherance of this interest, judges and judicial candidates must, to the greatest extent possible, be free and appear to be free from political influence and political pressure. Canon 4 imposes narrowly tailored restrictions upon the political and campaign activities of all judges and judicial candidates. [2] When a person becomes a judicial candidate, Canon 4 becomes applicable to his or her conduct. See Rule 4.6. Participation in Political Activities[3] Public confidence in the independence and impartiality of the judiciary is eroded if judges or judicial candidates are perceived to be subject to political influence. Although judges and judicial candidates may register to vote as members of a political party, they are prohibited by division (A)(1) from assuming leadership roles in political organizations. [4] Divisions (A)(2) and (A)(3) prohibit judges and judicial candidates from making speeches on behalf of political organizations or publicly endorsing or opposing candidates for public office to prevent them from abusing the prestige of judicial office to advance the interests of others. See Rule 1.3. These rules do not prohibit candidates from campaigning on their own behalf or from other permitted conduct. See Rule 4.2(C). [5] Although members of the families of judges and judicial candidates are free to engage in their own political activity, including running for public office, there is no "family exception" to the prohibition in division (A)(3) against a judge or candidate publicly endorsing candidates for public office. A judge or judicial candidate must not become publicly involved in, or publicly associated with, a family member's political activity or campaign for public office. To avoid public misunderstanding, judges and judicial candidates should take, and should urge members of their families to take, reasonable steps to avoid any implication that they endorse any family member's candidacy or other political activity. [6] Judges and judicial candidates retain the right to participate in the political process as voters in both primary and general elections. Statements and Comments Made during a Campaign for Judicial Office
[7] Division (A)(5) prohibits judicial candidates from making statements or comments that might impair the fairness of a judicial proceeding known to be pending or impending in the United States or its territories. This provision does not restrict arguments or statements to the court or jury by a lawyer who is a judicial candidate, or rulings, statements, or instructions by a judge that may appropriately affect the outcome of a matter.Pledges, Promises, or Commitments Inconsistent with Impartial Performance of the Adjudicative Duties of Judicial Office.
[8] The role of a judge is different from that of a legislator or executive branch official, even when the judge is subject to public election. A judge must at all times strive for the respect and confidence of all persons who come before the judge and decide each case on the law and facts presented. Campaigns for judicial office must be conducted differently from campaigns for other offices so as to foster and enhance respect and confidence for the judiciary. Judicial candidates have a special obligation to ensure the judicial system is viewed as fair, impartial, and free from partisanship. To that end, judicial candidates are urged to conduct their campaigns in such a way that will allow them, if elected, to maintain an open mind and uncommitted spirit with respect to cases or controversies coming before them. The narrowly drafted restrictions upon political and campaign activities of judicial candidates provided in Canon 4 allow candidates to conduct campaigns that provide voters with sufficient information to permit them to distinguish between candidates and make informed electoral choices. [9] Division (A)(6) makes applicable to both judges and judicial candidates the prohibition that applies to judges in Rule 2.10(B), relating to pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office. [10] The making of a pledge, promise, or commitment is not dependent upon, or limited to, the use of any specific words or phrases; instead, the totality of the statement must be examined to determine if a reasonable person would believe that the candidate for judicial office has specifically undertaken to reach a particular result. Pledges, promises, or commitments must be contrasted with statements or announcements of personal views on legal, political, or other issues, which are not prohibited. When making such statements or announcements, a judge should acknowledge the overarching judicial obligation to apply and uphold the law without regard to his or her personal views. [11] A judicial candidate may make campaign promises related to judicial organization, administration, and court management, such as a promise to dispose of a backlog of cases, start court sessions on time, or avoid favoritism in appointments and hiring. A candidate may also pledge to take action outside the courtroom, such as working toward jury selection system, or advocating for more funds to improve the physical plant and amenities of the courthouse. [12] Judicial candidates may receive questionnaires or requests for interviews from the media and from issue advocacy or other community organizations that seek to learn their views on disputed or controversial legal or political issues. Division (A)(6) does not specifically address responses to such inquiries. Depending upon the wording and format of such questionnaires, judicial candidates' responses might be viewed as pledges, promises, or commitments to perform the adjudicative duties of office other than in an impartial way. To avoid violating division (A)(6), therefore, candidates who respond to media and other inquiries should also give assurances that they will keep an open mind and will carry out their adjudicative duties faithfully and impartially if elected. Candidates who do not respond may state their reasons for not responding, such as the danger that answering might be perceived by a reasonable person as undermining a successful candidate's independence or impartiality, or that it might lead to frequent disqualification. See Rule 2.11. Permitted Conduct
[13] Subject to the other requirements in this canon, a judge or judicial candidate may attend and speak to a political gathering and may make contributions and expend campaign funds to attend a social or fundraising event on behalf of or sponsored by another office holder or candidate. Comparison to Ohio Code of Judicial Conduct
Rule 4.1 contains the provisions applicable to judges and judicial candidates that are found in Ohio Canons 7(B) and (C)(7)(b) and (c). Specifically:
* Rules 4.1(A)(1) to (3) correspond to Ohio Canons 7(B)(2)(a) and (b);
* Rules 4.1(A)(4) and (B)(2) and (3) correspond to Ohio Canons 7(C)(7)(b) and (c);
* Rule 4.1(A)(5) corresponds to Ohio Canon 7(B)(2)(e);
* Rule 4.1(B)(1) corresponds to Ohio Canons 7(B)(3)(a)(i) and (ii).
Rule 4.1(A)(5) is a new rule insofar as it addresses a statement made by a judge or judicial candidate in the course of political and campaign activity. However, the rule is similar to Ohio Canons 3(B)(9) and 7(B)(2)(e). Also see Rule 2.10(A)(1).
Rule 4.1(A)(6) replaces Ohio Canons 7(B)(2)(c) and (d), with the primary difference being elimination of the phrase "appear to commit" found in Canon 7(B)(2)(d).
Comparison to ABA Model Code of Judicial Conduct
Rule 4.1 is analogous to portions of Model Rule 4.1. Specifically:
* Rule 4.1 retains, with minor modifications, the provisions of Model Rules 4.1(A)(1), (2), (3), (12), and (13);
* Rules 4.1(A)(4) and (B)(2) and (3) replace Model Rules 4.1(A)(4) and (5);
* Model Rules 4.1(A)(6) and (7) are not adopted since Rule 4.2 permits judicial candidates to solicit political party endorsements and advertise or otherwise state party affiliation, membership, nominations, and endorsements;
* Model Rule 4.1(A)(8) is moved to Rule 4.4;
* Model Rules 4.1(A)(9) and (10) contain prohibitions found in the Ohio Revised Code and are thus duplicative;
* Model Rule (A)(11) is moved to Rule 4.3(A);
* Model Rule 4.1(B) is moved to Rule 4.2(A)(3).
Comments [1] to [6] are taken from the corresponding comments to Model Rule 4.1. Comment [1] does not contain a phrase found in the Model Rule comment that references different judicial selection methods. Comment [4] is modified to remove a phrase contained in the Model Rule comment that would permit candidate endorsements prohibited by Rule 4.1(A)(3). Comment [6] is revised to delete a reference to caucus elections.
Comment [7] corresponds to Model Rule 4.1, Comment [10], and Comments [8] to [12] correspond to Model Rule Comments [11] to [15]. Comment [8] is revised to further underscore the need for narrowly tailored limitations on the campaign activity of judicial candidates. The inserted language is based on the public reprimand administered by the Supreme Court of Florida to Judge Carven Angel in 2004. See Florida Bar News, July 1, 2004. Comment [13] is added to acknowledge conduct that is permissible under Rule 4.1(C).
Amended February 11, 2020, effective 2/11/2020; amended July 21, 2020, effective 8/1/2020.