The Ohio Supreme Court earlier this month struck down a long-standing ethics rule that barred state and local judges from endorsing political candidates running for public office, becoming the first state judiciary to allow the practice, according to a Court Watch analysis.
In a 5–1 opinion issued on April 2, the Court in Disciplinary Counsel v. Rudduck invalidated Ohio Judicial Code of Conduct Rule 4.1(A)(3) — also known as the “anti-endorsement rule” — on grounds that it unlawfully restricts judges’ free speech rights under the First Amendment.
Refusing to discipline a Clinton County judge who endorsed his son’s campaign via a series of Facebook posts, the Court paved the way for Ohio to become one of the first states in the Nation to part ways with anti-endorsement rule.
“Simply put, the rule sweeps too broadly and chills an unacceptable amount of core political speech,” Chief Justice Sharon Kennedy wrote for the majority. “Since Jud.Cond.R. 4.1(A)(3) cannot survive strict scrutiny, we decline to enforce it in this case.”
Some members of the Ohio bar, however, fear that the Court’s ruling will embolden sitting judges to greenlight their preferred candidates’ campaigns, thereby tainting the judiciary’s independence and the public’s perception thereof.
Cleveland attorney Richard Koblentz, who represents attorneys facing disciplinary charges, said in an interview with Ohio Court Watch that the ruling — which he said “takes a wrecking ball” to Rule 4.1(A)(3) — is the latest in the Courts’ trend toward politicizing the judiciary and expanding the speech rights of both lawyers and judges in Ohio.
“This purely becomes a game of political football,” said Koblentz, of Koblentz, Penvose and Froning, LLC, in an interview with Ohio Court Watch.
With a new slate of candidates vying for public office in the upcoming May and November elections, former Rocky River Municipal Court Administrative Judge Brian Hagan told Ohio Court Watch he’s waiting to see which Ohio Supreme Court justices, if any, decide to offer up their endorsements.
“There’s enough money in those races to begin with, let alone having a Justice come out and say, ‘I prefer this candidate,’” Hagan said. “The millions of dollars that are being raised and will be raised and spent on Supreme Court races is unfathomable.”
Departing from his colleagues in the majority, Justice Patrick R. Fischer stood alone in a scathing dissent.
Aside from the stressing the value of the anti-endorsement rule, Justice Fischer balked at his colleagues’ decision to decide the case on First Amendment grounds — a complex constitutional issue that neither party had raised nor briefed on appeal.
“[W]ithout any input from, or notice to, the parties involved, the judges and judicial candidates in Ohio’s 88 counties, the members of the Ohio bar, or the public at large, the court reaches its conclusion by going against established First Amendment case law,” Justice Fischer wrote.
Justice Jennifer Brunner, who is seeking re-election to the Court in November, abstained from the case.
Court OKs former Clinton County judge’s Facebook posts endorsing son’s campaign
At issue before the Court was a series of Facebook posts shared and authored by Clinton County Judge John William Rudduck, in which he publicly endorsed his son, Brett Rudduck, for a seat on the Clinton County Municipal Court.
After disciplinary counsel with the Ohio Board of Professional Conduct got wind of Judge Rudduck’s Facebook activity — including a lengthy diatribe in which he defended various attacks against him and his family — he was charged in June 2024 with violating the Code of Judicial Conduct.
A panel of the Board agreed, finding that Judge Rudduck’s social media posts ran afoul of the judicial code. As a sanction, the panel recommended that Rudduck receive a public reprimand from the Ohio Supreme Court and be ordered to remove his endorsement-related Facebook posts.
The Board itself ultimately approved Rudduck’s recommended sanction, and both parties “jointly waived any objections” to the Board’s findings.
Despite the fact that both parties agreed with the recommended sanction — raising no challenge, First Amendment or otherwise, to the Board’s findings — the Court on its own accord, as “the ultimate arbiter of misconduct and sanctions in disciplinary cases,” took up the case to assess Rule 4.1(A)(3)’s compliance with the First Amendment.
The Court found that Rule 4.1(A)(3) imposes a “vastly overinclusive” restriction by prohibiting judges’ speech on too broad of a scale — encompassing not only endorsements or opposition, but also “speech by a judge about all candidates for public office[.]”
“It therefore prohibits a judge from endorsing or opposing candidates who would likely never be litigants before the judge, such as candidates for another judicial seat or family members of the judge,” Chief Justice Kennedy wrote. “That is important here; it is highly unlikely that Rudduck would have heard a case in which his son was a party.”
In other words, because Judge Rudduck would have to recuse himself from cases in which his son was involved pursuant to other judicial ethics rules — the anti-endorsement rule spans too broadly in banning judges’ speech, the Court held.
Chief Justice Kennedy offered a word of caution, however. Although the Court said it is unlikely that Rudduck would have presided over a case involving his son, judges are nevertheless “held to the highest standard of ethical conduct” and “must be cognization of how their actions appear in public.”
The Court offered a “word of caution” that “it would have been far more prudent for Rudduck to have abstained from posting about his son’s candidacy on social media.” But it ultimately stressed that judges do not entirely waive their First Amendment rights when they take the bench.
Judge Hagan, who served on the Rocky River Municipal Court for 18 years and ran in six judicial campaigns, said he viewed his role a bit differently.
When he was elected to the bench, Hagan said he knew he had to “give up” certain things, including his ability to publicly endorse candidates. Remaining impartial is precisely what the voters elected him to do, he said.
“The ability of judges to maintain their neutrality — that was the whole thing,” Hagan said. “I couldn’t see myself, as a municipal court judge, endorsing a candidate. I mean, it’s bad enough seeing people come before you that you know.”
Justice Fischer warns of ‘immobilizing effect’ on Ohio courts
Standing alone in dissent, Justice Fischer criticized the majority’s decision to vacate the anti-endorsement rule on First Amendment grounds — accusing his colleagues of “unchecked and unwelcome interference” — as neither party had raised or briefed arguments based on the First Amendment.
“By sua sponte raising a constitutional challenge and concocting its own argument to strike [the rule] as facially unconstitutional, the majority takes up its sword and carves a path for Rudduck on an unraised, unbriefed, an affirmatively waived constitutional issue,” Justice Fisher wrote. “In doing so, the majority rejects the principles of party presentation, judicial restraint, and constitutional avoidance.”
Justice Fischer further cautioned that allowing judges to endorse political campaigns so long as they recuse themselves from presiding over cases involving that party “could have an immobilizing effect on the judicial system in Ohio.”
He provided a hypothetical scenario to illustrate the problem — namely, where all sitting judges on a common pleas court publicly endorse a candidate for county prosecutor, who is “eventually elected and sworn into office.”
If each judge recused himself from cases brought by the prosecutor’s office, Justice Fischer wrote that such an en-masse recusal “would substantially reduce the workload for those judges and require the inefficient and potentially costly appointment of visiting judges.”
“[I]f judges refuse to recuse themselves from cases involving a party whom they have endorsed, then the public will be left with serious doubts regarding the ability of those judges to remain impartial,” he wrote.
The majority downplayed the risk of recusal and reduction of judges’ workload in response to Justice Fischer’s hypothetical, instead stressing that “[t]he First Amendment does not permit the State to sacrifice speech for efficiency.”
“While we acknowledge that the State has a compelling interest in maintaining judicial independence, integrity, and impartiality, [the rule] sweeps too broadly and restricts political speech beyond what is necessary to uphold those state interests,” Chief Justice Kennedy wrote.
Court moves to expand free speech rights of lawyers, judges
The ruling marks the latest in a line of opinions in which the Court has signaled its desire to relax ethical rules aimed at limiting the ability of lawyers and judges to speak freely on various issues, according to Koblentz.
InDisciplinary Counsel v. Grendell, for instance, the Court moved toward a more lenient approach in favor of allowing judges to speak freely on political issues.
There, Geauga County Probate-Juvenile Court Judge Timothy Grendell was charged by the Board of Professional Conduct with violating Rule 3.2 of the Judicial Code of Conduct after he publicly testified in support of COVID-19-related legislation sponsored by his wife, Ohio Rep. Diane Grendell.
Rule 3.2 provides, in part, that judges “shall not appear voluntarily at a public hearing before, or otherwise consult with, an executive or a legislative body or official” unless the testimony concerns “the law, the legal system, or the administration of justice” or other matters related to the judge’s judicial duties.
Although the Court handed Judge Grendell an 18-month suspension for a separate offense — namely, the jailing of two children who refused to see their estranged father — the majority took no issue with his public testimony at the Statehouse, holding Rule 3.2 similarly unconstitutional in that it too broadly restricted judges’ “core political speech.”
“Under the provision, a judge could not share with a legislator his views on school funding, highway improvements, tax policy, or any number of important civic issues,” Justice R. Patrick DeWine wrote for the Grendell majority. “It’s hard to imagine that such restrictions do anything to advance the State’s interest in ensuring against judges who are biased for or against a particular party.”
The Court stressed that less restrictive means to achieve the goals of impartiality and independence are available. A judge’s “subsequent recusal” or “disqualification” from a case in which they have endorsed an involved party, for instance, “is a far less restrictive means than a broad-reaching, upfront prohibition” on speech.
As a defense attorney, Koblentz said he’s ambivalent about the Rudduck ruling and the Court’s move toward a more deferential approach to lawyers’ and judges’ free speech rights. On one hand, he said the free speech defense gives him more tools in his toolbox to defend his clients.
“But as a member of this profession for over 50 years, I’m saddened by where our profession is going,” he said.
By allowing judges to greenlight political candidates’ campaigns, Koblentz said the Ohio Supreme Court risks transforming the judiciary “into the jungle” by politicizing an already-politicized institution.
“With this issue, the Supreme Court is opening a Pandora’s box,” he said, “and you don’t know what’s going to come out of it.”