March 20, 2017
The Judicial Civic Duty to Speak and Explain

We have a long tradition in this country and this state of people banding together and establishing organizations to engage in our public life. We call this civil society and it is one of the most endearing hallmarks of our democracy, a hallmark absent from most other countries. Civic-minded organizations provide people with the opportunity to engage on matters of mutual concern and, yes at times, become involved in our political processes, which is the right and obligation of every citizen. Such organizations benefit from engaging with elected leaders and public officials, including judges.

It is the responsibility of every judge and justice in Ohio to speak on behalf of the institution of the judiciary, to engage with the public and civic organizations in order to assist Ohioans to better understand the judicial branch.  And because judges at every level of our court system often make difficult decisions, understanding the judiciary and the judicial process is more critical now than ever before. Given the role of the courts, it is crucial for judges to be available and to engage with the public so long as they do so within both the spirit and written obligations of their ethical responsibilities.

When Ohio Supreme Court Justice Sharon Kennedy spoke to the Greater Toledo Right to Life organization she talked about the founding of this republic, the Constitution, and the separation of powers. She did not discuss or refer to any cases pending before the Supreme Court of Ohio, nor did she mention abortion and the host group’s positions.

As a member of the judiciary, it is her duty to help demystify our branch of government and help everyone understand what we do and our role in our government, regardless of the underlying issues or philosophy of the sponsoring organization. This can be done in a manner that does not cross any judicial ethics lines.

Judges should be engaged in their communities and this naturally means speaking to citizens and groups of citizens about the judiciary, both to organizations that support a judge’s particular view of the law and organizations that do not support that view.  If the litmus test for recusal from a case is merely speaking to a group that has a particular cause, there would be very few, if any, judges sitting on cases or, alternatively, engaged in their communities. Indeed such a principle would muzzle judges and prevent every judge in this state from engaging in the very civic society that is so essential to our democracy. Judges should recuse themselves when they cannot be fair, unbiased, and impartial in considering the facts and applying the law to a case before them.  Judges take a solemn oath to act in that manner. But the mere fact that a judge speaks to the membership of an organization that has exercised its right to engage in our civic life and participate in our governmental process by supporting proposed legislation or advocating for certain issues, without more, does not require recusal.

Although judicial decision-making is an essential duty of every judge, we do so much more today. Judges are integral to our government and have obligations that extend beyond the courtroom to include educating the public on their government. Judges should not be relegated to the halls of the courthouse, remote, and divorced from the people we serve. I do not think that Ohioans want this kind of judiciary. When surveyed, the vast majority of people say they don’t know enough about the judiciary and the courts. In order to enhance the public’s knowledge of the judiciary, judges have to be able to speak to organizations, participate in educational opportunities, and promote their court’s work. Of course, as every judge knows, this must be done in accord with judicial ethical rules and without commenting on pending matters.

As chief justice I would be remiss if I did not address this unfair criticism of Justice Kennedy, as I would do for any member of the judiciary. Unfair criticism of one member of the judiciary reflects poorly on all judges of Ohio.

Maureen O’Connor
Chief Justice, Supreme Court of Ohio

For a high-resolution, print-quality photo of Chief Justice O'Connor, visit: http://www.sc.ohio.gov/PIO/news/images/justices/oconnor_highres.zip.