The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Rudduck, Slip Opinion No. 2026-Ohio-1126.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2026-OHIO-1126
DISCIPLINARY COUNSEL v. RUDDUCK.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Rudduck, Slip Opinion No.
2026-Ohio-1126.]
Judges—Alleged misconduct—Alleged violations of Code of Judicial Conduct
based on judge’s personal Facebook activity—Jud.Cond.R. 4.1(A)(3)
violates First Amendment to United States Constitution because it is a
content-based restriction on political speech and does not satisfy strict
scrutiny—Complaint dismissed.
(No. 2025-0203—Submitted March 11, 2025—Decided April 2, 2026.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2024-015.
__________________
KENNEDY, C.J., authored the opinion of the court, which DEWINE, DETERS,
HAWKINS, and SHANAHAN, JJ., joined. FISCHER, J., dissented, with an opinion.
BRUNNER, J., did not participate.
SUPREME COURT OF OHIO
KENNEDY, C.J.
{¶ 1} Respondent, John William Rudduck (“Rudduck”), of Wilmington,
Ohio, Attorney Registration No. 0006233, was admitted to the practice of law in
Ohio in 1976, and his attorney registration is currently inactive.
{¶ 2} In a June 2024 complaint, relator, disciplinary counsel, charged
Rudduck, then a Clinton County Common Pleas Court judge, with violating the
Code of Judicial Conduct based on his activity on his personal Facebook page
through which he endorsed his son, Brett Rudduck, for a seat on the Clinton County
Municipal Court. Rudduck was tagged in Facebook posts endorsing Brett, shared
many of those posts, and in one instance, posted a lengthy essay defending himself
and members of his family, including Brett, on his Facebook page.
{¶ 3} A panel of the Board of Professional Conduct found that Rudduck had
committed the charged misconduct and recommended that this court publicly
reprimand him and order him to remove all posts referred to in the panel’s report
within ten days of the court’s decision. The board adopted the panel’s findings of
fact, conclusions of law, and recommended sanction. The parties jointly waived
any objections. However, we note that “as the ultimate arbiter of misconduct and
sanctions in disciplinary cases, this court is not bound by factual and legal
conclusions drawn by either the panel or the board.” Disciplinary Counsel v. Kelly,
2009-Ohio-317, ¶ 11.
{¶ 4} Before us is the question whether Rudduck’s Facebook activity while
serving as a judge violated Jud.Cond.R. 1.2 (requiring a judge to act at all times in
a manner that promotes public confidence in the independence, integrity, and
impartiality of the judiciary), 1.3 (prohibiting a judge from abusing the prestige of
his or her judicial office to advance the personal or economic interests of the judge
or others), and 4.1(A)(3) (prohibiting a judge from publicly endorsing or opposing
a candidate for another public office).
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{¶ 5} Starting with Jud.Cond.R. 4.1(A)(3), we conclude that the rule
prohibits “speech that is ‘at the core of our First Amendment freedoms’—speech
about the qualifications of candidates for public office,” Republican Party of
Minnesota v. White, 536 U.S. 765, 774 (2002), quoting Republican Party of
Minnesota v. Kelly, 247 F.3d 854, 861 (8th Cir. 2001). And as a content-based
restriction on political speech, the bar against judges endorsing judicial candidates
does not withstand strict scrutiny, as it is not narrowly tailored to serve a compelling
state interest, see Disciplinary Counsel v. Grendell, 2025-Ohio-5239, ¶ 25, 80. We
therefore hold that Jud.Cond.R. 4.1(A)(3) violates the First Amendment to the
United States Constitution and, therefore, a violation of the rule cannot serve as a
basis for discipline. And because the violation of Jud.Cond.R. 1.2 found by the
board in this case was premised on its finding of a violation of Jud.Cond.R.
4.1(A)(3), the Jud.Cond.R. 1.2 violation also cannot serve as a basis for discipline.
{¶ 6} Further, upon a review of the facts and our caselaw, we conclude that
Rudduck’s Facebook activity did not violate Jud.Cond.R. 1.3.
{¶ 7} For these reasons, we dismiss the complaint.
Facts and Procedural History
{¶ 8} Rudduck served as a judge in Clinton County for 39 years; his final
term ended on December 31, 2024. At all times relevant to this case, Rudduck had
a personal Facebook account and his profile identified him as a Clinton County
Common Pleas Court judge. His Facebook page was set to be a public profile,
meaning anyone could access his page and view its content.
{¶ 9} When a user logs into Facebook, he or she lands on a homepage, and
on that homepage is a “feed” that contains a list of posts from “friends,” groups that
the user is in, and pages that the user follows. Facebook Help Center, Your Home
Page, https://www.facebook.com/help/753701661398957?helpref=related_topics
(accessed Dec. 19, 2025) [https://perma.cc/BAP3-WWK3]. The parties stipulated
that when a user is “tagged” in a Facebook post by another person, that post may
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appear on the user’s Facebook page, depending on the user’s privacy settings, and
may be viewed by friends and others who visit the user’s page. The parties also
stipulated that a user may “share” a post appearing on the user’s feed to distribute
that post to friends and other groups.
{¶ 10} Rudduck’s relevant Facebook activity falls into three categories: (1)
sharing posts that his son Brett tagged him in, (2) sharing posts by nonfamily
individuals, and (3) posting his own content on his Facebook page.
Posts that Brett tagged Rudduck in and Rudduck then shared
{¶ 11} In 2023, Brett decided to run in the Republican primary for a seat on
the Clinton County Municipal Court that opened due to the death of the sitting
judge. Brett’s opponents in the primary were David Henry and Judy Gano.
{¶ 12} During his campaign, Brett wrote seven posts and tagged Rudduck
in them, and those posts appeared on Rudduck’s Facebook page.
{¶ 13} The first post included two photos of five children wearing Brett’s
campaign shirts and holding his campaign signs. In the first picture, the children
are standing in a row, smiling, and holding the signs above their heads. In the
second picture, the children appear to be roughhousing while holding the signs.
The caption to the pictures read: “Expectations vs Reality . . . . I live it. I get it.
Let me know if you would like a sign before they are all spoken for! (or destroyed).”
(Ellipsis in original.) Rudduck shared the post.
{¶ 14} The second post contained a photo showing Brett in a suit with his
wife and their three children, who are wearing Brett’s campaign shirts. The caption
read: “As I am famously known for, I turbo-talked my way through my Five-Minute
Speech at the Republican-Hosted event last night. Mangled-Messaging aside . . .
it’s still a start.” (Ellipsis in original.) Rudduck shared the post and commented:
“I heard [that] one candidate in an opening statement said the ‘sole qualification’
the other two candidates had to be Judge was their last name. Should I consider
that a complement or an insult?”
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{¶ 15} A third post was a photo of Brett in a Cincinnati Reds jacket kneeling
behind a red campaign sign. The photo was captioned, “The Perfect Day for
Rudduck Red!” Rudduck shared the post.
{¶ 16} The fourth post contained a photo of Brett, his wife, and their three
children wearing campaign shirts and inserting pretend ballots into a homemade
ballot box. Brett captioned the post, “Don’t forget about Early Voting!!!” Rudduck
shared the post.
{¶ 17} The fifth post was posted in response to a 27-second video of Henry,
one of Brett’s opponents, speaking at a campaign event. Henry claimed that he was
the only candidate not related to a judge. Brett’s rebuttal post to the video stated:
While most of the recent attacks on me have been
unrelentingly personal in nature, the more civil and appropriate
criticism has tended to be centered around my lack of relevant
qualifications.
As the elected law director for the city of Wilmington, I hired
David Henry as my assistant law director and city prosecutor
because I obviously found him undoubtedly qualified for the
position. I also firmly believe he is qualified to be a judge.
When Mr. Henry began his campaign claiming the other two
candidates believed their “sole qualification” for being a judge was
their “last name,” I was stunned.
When he later encouraged an individual in a private text
message to publicly share misleading and unflattering information,
I was shocked.
When he declined to respond to my attempt to discuss the
error, I was disappointed.
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I encourage you to view the video and then review a brief
summary of my actual qualifications by clicking the link below and
in the comments.
Vote BRETT RUDDUCK for judge on May 2.
(Capitalization in original.) Rudduck shared Brett’s rebuttal post.
{¶ 18} A sixth post included a photo of two gymnasts, one balancing on the
other’s hand, wearing Brett’s campaign shirts. The photo was captioned: “One
thing that is true in both one’s judicial philosophy and elite gymnastics?
BALANCE is Key.” (Capitalization in original.) Rudduck shared the post.
{¶ 19} Brett’s seventh post showed a photo of his wife behind a campaign
sign. Rudduck shared the post.
Rudduck’s sharing of posts from nonfamily individuals
{¶ 20} Other people made posts about Brett’s campaign on Facebook that
Rudduck shared or that otherwise appeared on his page.
{¶ 21} Monika Davis posted a picture of Brett’s campaign flyer beside a
statement of Brett’s accomplishments and affiliations, and she captioned the photo
“Vote Brett Rudduck for Municipal Court Judge this May! Share and vote.”
Rudduck shared the post.
{¶ 22} Rick Crabtree posted a photo of Brett’s campaign signs in front of a
home. The photo was captioned as follows:
A friend of ours is running for judge. It’s so different
knowing a person running for an elected position personally, and
knowing he is a good person. Brett did our adoption when I adopted
Addy and we’ve been friends since. Love this guy.
Good luck Brett Rudduck, we’re rooting for you. Looking
forward to rocking those t-shirts.
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January Term, 2026
Words I never even thought of saying before but here we are,
life is good.
Rudduck shared the post.
{¶ 23} Tyler McCollister posted a photo of Brett’s campaign sign
captioned, “Representing in Blanchester.” Rudduck shared the post.
{¶ 24} Seth Cunningham wrote a lengthy post discussing his personal
relationship with Brett, outlining Brett’s characteristics, and explaining why he
endorsed Brett to be the municipal-court judge. The stipulations do not say that
Rudduck shared the post, but it appeared on his Facebook page.
{¶ 25} Justina Davidson responded to a post on Rudduck’s Facebook page
by commenting: “So glad I got to listen to Brett’s speech! Now I know for sure
that I will be voting for Brett Rudduck for Municipal Court Judge!” Brett
responded to the comment, “[Thank you], young lady!”
Rudduck’s posts
{¶ 26} On April 25, 2023, Rudduck posted a link to a WNEWSJ.com
biography entitled “Clinton Co. Municipal Court Judge candidate: Brett
Rudduck—Wilmington News Journal.” Brett’s headshot appeared next to the text.
{¶ 27} On April 26, 2023, within a week of the primary election, Rudduck
posted a screenshot showing that Brett’s Facebook account had been restricted
because his activity “didn’t follow [Facebook’s] Community Standards.” Rudduck
wrote: “No—this is not the message I woke up to today—but rather my son. I
understand if folks complain about account activity, Facebook places restrictions
on free speech. Odd this would occur just before election day and without just
cause.”
{¶ 28} Craig Dawley commented on the post, stating: “This means you’re
a rebel. . . . I put a post on Facebook about a vac case tractor and the[y] fact
check[ed] it. Said there wasn’t correct information haha.” Rudduck replied:
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No Craig—not me. Not my son. Not anyone in my family.
My son is running for election and his opposition has apparently
convinced [Facebook that] his posts do not meet community
standards. I hope the community we know disagrees. He is
investigating the reason for the ridiculous action taken and I am sure
will keep people informed—if allowed to update. This is serious
stuff going on in Clinton County.
{¶ 29} The same day that Brett’s Facebook account was restricted, Rudduck
authored and posted to his Facebook page a lengthy four-part essay. Some
background is needed before we set forth the essay here.
{¶ 30} Rudduck testified at his disciplinary hearing that he had granted a
foreclosure against a person named Tony Thomas, whose family was subsequently
evicted from their home. According to Rudduck, Thomas bore a grudge against
him and used social media to post “[h]orrific things” about him. For example,
Thomas posted that Rudduck should go to prison and described what would happen
to him in prison. Thomas also maligned Rudduck’s wife, brother, and nephew.
And he accused Brett of abusing his children, being a child pornographer, and
colluding with the police department to avoid charges. Rudduck said that these
accusations appeared on a website that Thomas administered with Darrell Petrey.
According to Rudduck, Henry, one of Brett’s opponents in the primary, relied on a
taped telephone conversation between Brett and Petrey to suggest that Brett had
been using illicit drugs.
{¶ 31} Rudduck testified that his posts were made in response to Thomas’s
posts. He said: “[I wanted] to show the public that I’m proud—given the firestorm
that ha[d] occurred . . . during this period of time, the damage in mental health that
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was happening to my family, I wanted to indicate to them that I was proud of my
son.”
{¶ 32} Rudduck’s four-part essay, which acknowledges the campaign and
defends Brett against various accusations, reads as follows:
There are more important things in life than winning an
election. Faith, family, friends, community, reputation, and
honesty, to name a few. Since 1985 when I first ran for judicial
office, these “more important things” have been a cornerstone of our
community. We now live in a different era.
I have previously called the Ohio Supreme Court before
posting this message to the community. A representative of the
Supreme Court advised me the only way to respond to misleading
information in judicial campaigns is through free speech. Just today,
Facebook restricted my son, Brett Rudduck, from exercising his
right to free speech by precluding him from posting on Facebook,
citing a violation of “community standards” without any explanation
or details a mere five days from Election Day. Given Brett is
precluded from posting, in defense of my family’s integrity and
reputation and for the benefit of the community, I am exercising my
right to free speech to set some records straight.
This message will be long; many will not read it because of
its length, but those who do, please understand the purpose is not
about “winning an election” but rather to counter a narrative and to
reveal facts and personal information known only by a few. Truth
is always the best antidote for lies. But on social media, it is hard to
discern the truth and even harder to discern whether truth is still
paramount in our society!
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Throughout the latest judicial campaign, the entire Rudduck
family, not just the candidate running for office, has been targeted
and attacked. I am all too familiar with these attacks, as you will
learn if you read this entire message. But on sites such as Citizens
Arrest of Clinton County, Ohio, administered by Darrell Petrey and
Tony Thomas, and Wilmington Ohio Crime Concerns, my wife is
being called an alcoholic; my brother is being maligned for his work
as a Superintendent at Clinton Massie; my nephew is being
characterized cruelly and maliciously. And my son, well, the
number of attacks he has shouldered since 2018 by Mr. Petrey and
Mr. Thomas and others in less public ways would be impossible to
quantify.
While most of the participants on these sites are earnest in
their desire to make our community better, the divisive messages
allowed to be shared on the sites are more harmful than they may
realize. Folks with different views are sometimes blocked from
commenting, just as my son experienced today, and cannot defend
themselves. The record needs to be corrected.
PART ONE—Allegations of child abuse
Mr. Thomas and Mr. Petrey posted pictures of my son
playing with his two young boys in his own backyard on some of
these sites with allegations that my son was throwing hammers at
them and needed to be investigated for child abuse. In fact, Mr.
Thomas contacted the police department and Children’s Services,
explicitly seeking an investigation for child abuse be conducted.
Mr. Thomas was unwilling to share the identity of the person taking
the pictures, how they were obtained, or any other information to
confirm his charges. Therefore, no investigation was pursued.
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January Term, 2026
These allegations would be laughable to most, but they fed
into the idea authority figures in our county were not investigating
elected public officials for criminal behavior, a theory Mr. Thomas
especially was advancing. When no one in authority acted upon the
lies, the attacks became more volatile, vulgar, and targeted, as those
attending regular Wilmington City Council sessions should attest.
The lies and pictures were even posted on the Wilmington
Police Department Facebook page by a police officer named Scott
Baker while he was on paid suspension from the department. Those
posts are still on the official page. This act alone caused our entire
family unbelievable stress, pain, and distress.
PART TWO—Taped audio phone conversation
On September 8, 2022, Judge Michael Daugherty suddenly
passed away; the community mourned and came together to support
his entire family. My son was heartbroken. On September 22, 2022,
my son called Mr. Petrey, a high school classmate and administrator
of one of the sites that controlled postings, in a second attempt to
have the images of his children removed. Brett also wanted to notify
him of death threats made against Brett contained in comments on a
specific post moderated by Mr. Petrey.
Drug usage issues surfaced quickly in this taped fifteen-
minute conversation, which I first listened to this week. I learned
my son was admittedly drunk, and I knew he was still mourning the
death of Judge Daugherty in the midst of the unwarranted attacks on
himself and his family. He knew Mr. Petrey was taping the phone
conversation but emotionally and embarrassingly used language that
offended his Mother, me, and I am sure most who listened to the
recording.
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Mr. Petrey declined to remove the posts, ultimately
switching the subject of the conversation to the alleged widespread
corruption he believed he, Mr. Thomas and his followers were
uncovering throughout the county. I am proud my son went on to
defend the reputations of those other elected public officials Mr.
Petrey and Mr. Thomas were and are still trying to destroy. Brett
also indicated early in the conversation he was proud he “had not
used a single drug” for one-and-one-half years.
In 2003, my son was diagnosed with ADHD [Attention
Deficit Hyperactivity Disorder] and prescribed Adderall. This legal,
prescription drug is and was a standard treatment for individuals
diagnosed with ADHD. My son has been using this legally
prescribed medication ever since. Throughout the entire period,
despite having some concerns about the treatment, several
physicians continued to treat Brett’s condition by prescribing
Adderall. More recently, one particular physician, a clinical
psychiatrist, specifically indicated he would never prescribe
Adderall for ADHD, a position Brett eventually adopted.
In 2021, my son sought treatment to wean himself from this
addictive drug, Adderall. A recent article in The Atlantic titled
“Why adult ADHD is so complicated” ably expresses the concerns
of individuals who are prescribed this legal drug. Neither our family
nor Brett ever attempted or desired to keep his battle with ADHD
and his use of Adderall a secret; we also gratefully shared the good
news his treatment was successful, as he has not used Adderall for
the time period he mentioned in the tape recording. Given their
close working relationship, Brett shared this very personal
information regarding his treatment with Mr. Henry.
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January Term, 2026
Recently, someone provided Mr. Henry with the taped
telephone conversation via private message to his judicial
candidate’s Facebook account. In response, through a private
message now shared on social media, Mr. Henry indicated he would
be sending the taped conversation to both law enforcement
authorities and the Ohio Supreme Court “the next day,” implying
there was something decidedly criminal about my son’s statement
of not using “a single drug” for one-and-one-half years. Mr. Henry
specifically characterized that “single drug” as “illicit.”
In listening to the audio recording, I understand how
members of the public could jump to the conclusion that Brett was
admitting to using something other than his previously prescribed
Adderall. However, with Mr. Henry’s prior personal knowledge of
Brett’s medical treatment for ADHD, it makes one question the
purpose of Mr. Henry encouraging the recipient of the private
message to “share your findings with everyone you speak with so
the public is aware.” Mission accomplished?
Brett attempted to contact Mr. Henry to address Mr. Henry’s
now public, private message. Mr. Henry never responded. As Brett
proudly stated in the recorded private conversation, he has been off
Adderall for nearly two years. No one addicted to drugs, legal or
illegal, especially those who have recovered, should be stigmatized
or afraid to seek treatment or punished for doing so. I fear people
will be deterred from seeking help given the small but vocal intent
of fostering anger and division.
PART THREE—Allegations against family
I will not spend much time considering the suggestion my
son needs to be criminally investigated for throwing hammers at his
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sons or any other allegations that constantly emerge on social media.
But those posts are still out there and should be taken down. Nor
will I address the reported number of DUIs for which I have
somehow escaped prosecution (or have been convicted of, last
reported to be twelve in number) other than to say I have never been
stopped for a DUI nor had lunch at a local restaurant three times a
week with my son where we allegedly staggered out, cross-eyed and
drove back to work. As for my wife, she seldom drinks and is most
certainly not an alcoholic. My brother has been in the education
field all his life. He served the East Clinton and Clinton Massie
school districts with distinction, leaving each in exceptional shape
before being elected to serve on the state Board of Education. And
my nephew, well on his way to recovering from his current
diagnosis of Hodgkin’s Lymphoma, is a man with such a bright
future undeserving of being attacked and thrust into this judicial
campaign—no wonder good people do not want to run for public
office.
PART FOUR—Mr. Thomas’s foreclosure
Concerning Mr. Thomas, while I can’t speak to his
motivation for attacking our family, I granted what is called a
Summary Judgment in foreclosure, resulting in the eviction of Mr.
Thomas from his home, a decision he has repeatedly claimed was
unjust and criminal. The central allegations made by the bank
included Mr. Thomas had failed to make his mortgage payments
over a period of years. In Summary Judgment proceedings, we need
not have record hearings where testimony is provided IF facts are
undisputed. The case can be resolved on the legal filings only. That
is what happened in the foreclosure case. It was undisputed Mr.
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Thomas did not make his payments for a period of years. Privately
retained legal counsel represented Mr. Thomas and chose not to
appeal the court’s Judgment finding Mr. Thomas should be evicted.
Since that day, Mr. Thomas has filed multiple disciplinary
complaints against me and my son, all summarily rejected by the
Ohio Supreme Court. He has repeatedly maligned my character and
my son’s character on social media and denigrated my service as a
military policeman in the U.S. Army from 1971-1973. If you are a
Marine, please know every chance he gets, Mr. Thomas uses the
opportunity to promote his service to our country as an argument
supporting his claims and to bolster his credibility.
Unless good people stand up for the truth when it is
objectively demonstrated, I fear our democracy is in danger. I never
expected it to be an issue in our beloved county, but it is clearly here
and caused division which pains most of us.
CONCLUSION
I began this message by stating there are more important
things in life than winning an election. I advised my son I would
“go public” with these things regardless of the political
consequences for him or me because I felt I had a duty to speak out
to inform the public of things that transcend this election cycle and
need to be stopped. This became even more necessary when
Facebook inexplicably blocked him from posting. Social media can
be a great force for good, as was demonstrated when my wife’s dog
was lost, only to be found with the unbelievable help of the
community; it can also cause great harm and personal pain if used
indiscriminately and is immune from any form of accountability.
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(Capitalization in original.)
Disciplinary proceedings
{¶ 33} In June 2024, disciplinary counsel filed a complaint alleging that
Rudduck had violated Jud.Cond.R. 1.2, 1.3, and 4.1(A)(3). Disciplinary counsel
and Rudduck entered into stipulations of facts.
{¶ 34} After a hearing, the panel found by clear and convincing evidence
that Rudduck had violated these rules and it recommended that Rudduck receive a
public reprimand based on the charged violations and the aggravating and
mitigating factors it found applicable. The panel further recommended that
Rudduck be ordered to remove the posts at issue from his Facebook page. The
board adopted the panel’s findings of fact, conclusions of law, and recommended
sanction.
{¶ 35} The parties do not contest the board’s finding that Rudduck’s
Facebook activity included a judge’s endorsement of a candidate for another
political office in violation of Jud.Cond.R. 4.1(A)(3), that that same conduct
constituted a violation of Jud.Cond.R. 1.2, and that Rudduck’s lengthy Facebook
essay abused the prestige of his judicial office in violation of Jud.Cond.R. 1.3. Nor
has Rudduck claimed that his speech was protected by the First Amendment to the
United States Constitution.
{¶ 36} We ordinarily decide only those questions presented by the parties.
Epcon Communities Franchising, L.L.C. v. Wilcox Dev. Group, L.L.C., 2024-Ohio-
4989, ¶ 15. But this is not an ordinary case.
{¶ 37} Importantly, only this court has the authority to regulate matters
relating to the practice of law in Ohio. Ohio Const., art. IV, § 2(B)(1)(g). Only this
court is charged with promulgating “rules governing the admission to the practice
of law and discipline of persons so admitted.” Ohio Const., art. IV, § 5(B). “[I]t
is this court, not the board”—and not the parties—“that is the ultimate arbiter of
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the facts of the case, the law that applies to the facts, and the discipline that should
be imposed.” Disciplinary Counsel v. Warner, 2024-Ohio-551, ¶ 9.
{¶ 38} However, our power to regulate the practice of law is not absolute.
Shimko v. Lobe, 2004-Ohio-4202, ¶ 27. “This court may no more disregard or
infringe upon the constitutional rights of our citizens in the exercise of its regulatory
functions than may any other branch of government.” Id. The “‘[r]ules adopted by
this court in an administrative capacity must comply with the state and federal
constitutions like any other rules.’” Id., quoting Christensen v. Bd. of Commrs. on
Grievances & Discipline, 61 Ohio St.3d 534, 537 (1991).
{¶ 39} “Because it is our own rule[s] that [are] at issue, we are obligated in
the first instance to ensure that the rule[s] comport[] with constitutional
guarantees.” In re Application of Jones, 2018-Ohio-4182, ¶ 34 (DeWine, J.,
concurring in judgment only). Consequently, we consider whether Rudduck’s
actions implicate the First Amendment and must draw our own conclusion
regarding whether he may be disciplined for violating the judicial-conduct rules.
Law and Analysis
The prohibition on endorsements by judges
{¶ 40} Jud.Cond.R. 4.1(A)(3) provides, “A judge or judicial candidate shall
not . . . [p]ublicly endorse or oppose a candidate for another public office.” The
word “endorse” means “to express definite approval or acceptance of . . . : support
or aid explicitly by or as if by signed statement : vouch for.” Webster’s Third New
International Dictionary (2002). “‘Endorsement’ connotes an expression or
demonstration of approval or support.” Capitol Square Rev. & Advisory Bd. v.
Pinette, 515 U.S. 753, 763 (1995) (plurality opinion).
{¶ 41} The board found that Rudduck violated Jud.Cond.R. 4.1(A)(3) and
that by violating Jud.Cond.R. 4.1(A)(3), Rudduck also violated Jud.Cond.R. 1.2 by
posting on Facebook about Brett’s campaign. That latter rule requires a judge to
“act at all times in a manner that promotes public confidence in the independence,
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integrity, and impartiality of the judiciary, and [to] avoid impropriety and the
appearance of impropriety.”
{¶ 42} Lastly, Jud.Cond.R. 1.3 prohibits a judge from “abus[ing] the
prestige of judicial office to advance the personal or economic interests of the judge
or others.” In its report, the board premised a violation of this rule, in part, on
Rudduck’s “effort to address allegations made against Brett and to rehabilitate
Brett’s character just days before the election.”
{¶ 43} The board’s conclusion that Rudduck violated these rules, then, is
based in whole (Jud.Cond.R. 4.1(A)(3) and 1.2) or in part (Jud.Cond.R. 1.3) on its
finding that Rudduck endorsed his son’s political campaign. Mindful that we are
the ultimate arbiter of the facts and the law in a disciplinary case, we ask first
whether Rudduck’s Facebook activity in fact included endorsements in violation of
the Code of Judicial Conduct.
{¶ 44} At his disciplinary hearing, Rudduck denied that he had endorsed his
son’s candidacy for office or that he had intended to endorse Brett’s campaign. In
support of his denial, he noted that he had never told anyone to vote for Brett and
maintained that all he had done was show support for his son who was being
attacked on social media.
{¶ 45} As noted above, an endorsement is an expression of approval or
support. It does not appear that any court has squarely addressed the question
whether sharing or reposting a candidate’s campaign-related post on social media
constitutes an endorsement of that candidate for office. Nonetheless, “sharing a
video on social media often implies an endorsement of the content shared.” Davis
v. Cisneros, 744 F.Supp.3d 696, 737, fn. 16 (W.D.Tex. 2024).
{¶ 46} Looking at the context of Rudduck’s Facebook activity, we conclude
that Rudduck endorsed his son’s judicial campaign by sharing and commenting on
Brett’s campaign-related content. See Bland v. Roberts, 730 F.3d 368, 386 (4th
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Cir. 2013) (liking a political candidate’s campaign page on Facebook “is the
Internet equivalent of displaying a political sign in one’s front yard”).
{¶ 47} A reasonable person would believe that Rudduck approved and
supported his son’s candidacy for judge. Both Rudduck’s name and Brett’s
campaign material were displayed prominently next to each other on Rudduck’s
Facebook page, and the posts depict Brett’s campaign in a positive light. For
example, Rudduck shared pictures of his family, including young children, wearing
campaign attire and with campaign yard signs. He also shared a news article about
Brett’s candidacy. And Rudduck’s comments plainly supported Brett when he
thanked a constituent for her support and when he defended Brett against political
attacks and against Facebook’s decision to restrict Brett’s Facebook account right
before election day.
{¶ 48} Rudduck did not have to say “I endorse Brett” or “Vote for Brett” to
get across his approval of Brett’s candidacy. No reasonable person would believe
that Rudduck did not intend to support his son’s campaign when he shared positive
campaign-related content. We therefore conclude that Rudduck’s Facebook
activity was an endorsement of Brett’s candidacy for judge.
{¶ 49} Having decided that Rudduck endorsed his son’s campaign, we turn
next to the question whether this court may prohibit a sitting judge from publicly
endorsing a candidate for political office. That analysis begins with the First
Amendment to the United States Constitution.
The First Amendment
{¶ 50} The First Amendment provides that Congress “shall make no law
. . . abridging the freedom of speech.” That prohibition applies to the states through
the adoption of the Fourteenth Amendment. Stromberg v. California, 283 U.S. 359,
368 (1931) (“the conception of liberty under the due process clause of the
Fourteenth Amendment embraces the right of free speech”).
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{¶ 51} “The right of citizens to inquire, to hear, to speak, and to use
information to reach consensus is a precondition to enlightened self-government
and a necessary means to protect it.” Citizens United v. Fed. Election Comm., 558
U.S. 310, 339 (2010). Therefore, “[t]he First Amendment ‘“has its fullest and most
urgent application” to speech uttered during a campaign for political office,’” id.,
quoting Eu v. San Francisco Cty. Democratic Cent. Commt., 489 U.S. 214, 223
(1989), quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971), as that helps
safeguard the “right of citizens to choose who shall govern them,” McCutcheon v.
Fed. Election Comm., 572 U.S. 185, 227 (2014) (plurality opinion). Because
“political speech must prevail against laws that would suppress it,” laws burdening
political speech are subject to strict scrutiny. Citizens United at 340. That means
that the law must be narrowly tailored to further a compelling governmental
interest. Id.
{¶ 52} In addition, the State “‘has no power to restrict expression because
of its message, its ideas, its subject matter, or its content.’” Reed v. Gilbert, 576
U.S. 155, 163 (2015), quoting Chicago Police Dept. v. Mosley, 408 U.S. 92, 95
(1972). “Content-based laws—those that target speech based on its communicative
content—are presumptively unconstitutional and may be justified only if the
government proves that they are narrowly tailored to serve compelling state
interests.” Id.
{¶ 53} Jud.Cond.R. 4.1(A)(3) burdens core political speech by prohibiting
endorsements by judges, i.e., “speech about the qualifications of candidates for
public office,” White, 536 U.S. at 774; see also Eu at 222-224 (banning
endorsements of primary candidates burdens freedom of speech); Sanders Cty.
Republican Cent. Commt. v. Bullock, 698 F.3d 741, 745 (9th Cir. 2012) (“political
speech—including the endorsement of candidates for office—is at the core of
speech protected by the First Amendment”). Jud.Cond.R. 4.1(A)(3) is also a
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content-based prohibition on speech—it prohibits a judge from expressing approval
for or opposition to a candidate for another political office.
{¶ 54} Consequently, strict scrutiny applies in determining whether the rule
violates the First Amendment. We therefore ask whether Jud.Cond.R. 4.1(A)(3)’s
bar against judges endorsing other candidates for public office is narrowly tailored
to serve a compelling state interest.
A narrowly tailored regulation is one that actually advances
the state’s interest (is necessary), does not sweep too broadly (is not
overinclusive), does not leave significant influences bearing on the
interest unregulated (is not underinclusive), and could be replaced
by no other regulation that could advance the interest as well with
less infringement of speech (is the least-restrictive alternative).
Republican Party of Minnesota v. White, 416 F.3d 738, 751 (8th Cir. 2005) (en
banc).
Jud.Cond.R. 4.1(A)(3)
{¶ 55} Canon 4 of the Code of Judicial Conduct provides that “[a] judge or
judicial candidate shall not engage in political or campaign activity that is
inconsistent with the independence, integrity, or impartiality of the judiciary.” The
canon itself identifies the state interests it advances: ensuring the independence,
integrity, and impartiality of the judiciary.
{¶ 56} We start with impartiality. In Grendell, we recognized that there is
a compelling state interest in ensuring against judges who are biased for or against
a particular party to a case before them. Grendell, 2025-Ohio-5239, at ¶ 32. We
also acknowledged the compelling state interest in preventing the appearance of
judicial bias for or against a party. Id. at ¶ 48. But it is not obvious that a prohibition
on endorsing or opposing a candidate for public office meaningfully advances
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either of those interests. Both come into play only when the endorsed or opposed
candidate for public office is also a party to a case before the judge or likely will
be. In any case, Jud.Cond.R. 4.1(A)(3) sweeps in much more speech than
endorsements or opposition aimed at parties to a particular case—it bars speech by
a judge about all candidates for public office (other than speech about the judge
him or herself or about his or her own opponent). 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. That is important here; it is highly unlikely that Rudduck would have heard
a case in which his son was a party—Jud.Cond.R. 2.11(A)(2) requires a judge to
disqualify him- or herself in a proceeding when the judge knows that a party or an
attorney in the proceeding is within the third degree of relationship to the judge.
Therefore, to the extent Jud.Cond.R. 4.1(A)(3) advances the State’s interest in
ensuring an impartial judiciary and the public confidence in an impartial judiciary,
it is vastly overinclusive.
{¶ 57} Nor is a prohibition on a judge’s endorsement of or opposition to
candidates for public office the least restrictive alternative. As we noted in
Grendell with regard to Jud.Cond.R. 3.2 (which prohibited judges from voluntarily
appearing before a governmental body, except in certain circumstances), there are
a variety of alternatives that are less restrictive on speech than a ban on speech,
including the mandatory recusal of a judge when his or her “impartiality might
reasonably be questioned,” Jud.Cond.R. 2.11(A), and the removal of a judge who
refuses to recuse in an affidavit-of-disqualification proceeding under R.C. 2701.03
and other statutes. See Grendell at ¶ 42-43. “Subsequent recusal”—or
disqualification—“is a far less restrictive means than a broad-reaching, upfront
prohibition.” Id. at ¶ 43.
{¶ 58} According to the dissent, subsequent recusal is not a viable less
restrictive alternative, and the dissent presents a hypothetical in which all judges on
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a county’s court of common pleas publicly endorse a candidate for county
prosecutor, who subsequently wins office. Dissenting opinion, ¶ 122. The judges
would have to recuse in any case brought by the prosecutor, the dissent says,
thereby “reduc[ing] the workload for those judges and requir[ing] the inefficient
and potentially costly appointment of visiting judges.” Id.
{¶ 59} However, “‘[t]he First Amendment does not permit the State to
sacrifice speech for efficiency.’” Natl. Institute of Family & Life Advocates v.
Becerra, 585 U.S. 755, 775 (2018), quoting Riley v. Natl. Fedn. of the Blind of N.
Carolina, Inc., 487 U.S. 781, 795 (1988). And the proponent of enforcing a
restriction on speech must do more than “show that a proposed less restrictive
alternative has some flaws,” Ashcroft v. Am. Civ. Liberties Union, 542 U.S. 656,
669 (2004), or imposes some cost.
{¶ 60} In any case, the dissent’s hypothetical is unlikely to occur. The Code
of Judicial Conduct bars judges from engaging in extrajudicial activities that “will
interfere with the proper performance of the judge’s judicial duties,” Jud.Cond.R.
3.1(A), or that “will lead to frequent disqualification of the judge,” Jud.Cond.R.
3.1(B). So the conduct at issue in the dissent’s hypothetical is already covered by
the judicial-conduct rules.
{¶ 61} And the dissent underestimates how demanding the strict-scrutiny
standard is. In fact, in the First Amendment context, the United States Supreme
Court has “held only once that a law triggered but satisfied strict scrutiny—to
uphold a federal statute that prohibited knowingly providing material support to a
foreign terrorist organization.” Free Speech Coalition, Inc. v. Paxton, 606 U.S.
461, 484 (2025). And the case in which the law was upheld “involved an unusual
application of strict scrutiny,” id., because the Court’s analysis relied on the
deference due to the executive branch’s evaluation of the facts in the realm of
national security and foreign affairs. Our rule banning public endorsements by
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judges is not like those “truly extraordinary circumstances,” id. at 485, in which a
ban on fully protected speech is constitutional.
{¶ 62} Next we consider the State’s interest in ensuring the independence
of the judiciary. Judicial independence includes the structural independence of the
judiciary as one of the three branches of power in the tripartite-government scheme
created by the Ohio Constitution. But in Grendell, we rejected the idea that limits
on judges’ speech were needed to maintain the separation of powers—“a speech
restriction doesn’t protect against one branch of government exercising the power
of another” (emphasis in original), Grendell, 2025-Ohio-5239, at ¶ 53. Maintaining
structural independence “is not the sort of state interest that can be used to justify a
restriction on speech,” id. at ¶ 57.
{¶ 63} Then there is the independence of the judge him or herself. The
United States Court of Appeals for the Sixth Circuit has said that a state has a
“compelling interest in keeping its judges above the partisan fray of trading political
favors.” Winter v. Wolnitzek, 834 F.3d 681, 691 (6th Cir. 2016). Judges “are
supposed to follow the rule of law—no matter current public opinion, no matter the
views of the political branches, no matter the views of the parties that support
them.” Id. at 695. The Sixth Circuit panel in Winter went on to hold that
Kentucky’s version of Jud.Cond.R. 4.1(A)(3) withstood strict scrutiny because “[a]
ban on such endorsements . . . guards against the risk that, once a judge is elected,
he will not be able to (and he will not be perceived as being able to) referee disputes
involving elected officials he did or did not endorse.” Id. at 691-692. In doing so,
however, the panel adopted an extremely narrow construction of Kentucky’s
endorsement-ban provision, distinguishing endorsements from “expressions of
agreement with a political party’s platform or another candidate’s views,” id. at
691. The panel found unconstitutional a related Kentucky provision that prohibited
judicial candidates from making speeches for or against a political party or
candidate. Id. at 689-690. A different Sixth Circuit panel later applied Winter in
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holding that Jud.Cond.R. 4.1(A)(3) is constitutional. Platt v. Bd. of Commrs. on
Grievances & Discipline of Ohio Supreme Court, 894 F.3d 235, 263 (6th Cir.
2018).
{¶ 64} A judge’s personal independence is necessarily closely related to the
judge’s impartiality. And we have already rejected the proposition that a ban on
endorsing or opposing a candidate for public office is narrowly tailored to advance
the State’s interest in ensuring judicial impartiality and the appearance of
impartiality. Our analysis there applies equally here: Jud.Cond.R. 4.1(A)(3) is
overinclusive in that it bans speech about candidates who will never be parties
before the judge and there are less restrictive alternatives, such as recusal and
disqualification. Seeking to uphold a judge’s personal independence from other
political actors is no different. We therefore disagree with the Sixth Circuit’s
conclusion in Platt that the rule’s ban on endorsements by judges is constitutional.
{¶ 65} Lastly, we consider the State’s interest in maintaining the integrity
of the judiciary. We have recognized that the State’s interest in judicial integrity is
compelling. In re Judicial Campaign Complaint Against O’Toole, 2014-Ohio-
4046, ¶ 26; see also Williams-Yulee v. Florida Bar, 575 U.S. 433, 445 (2015)
(recognition of same by the United States Supreme Court). Corruption is the
antithesis of integrity, see Black’s Law Dictionary (12th Ed. 2024) (entry for
“corruption”), so maintaining judicial integrity involves preventing judicial
corruption. Importantly, the United States Supreme Court “has recognized only
one permissible ground for restricting political speech: the prevention of ‘quid pro
quo’ corruption or its appearance.” Fed. Election Comm. v. Cruz, 596 U.S. 289,
305 (2022).
{¶ 66} Quid pro quo corruption is the exchange of an official act for
something of value. McCutcheon, 572 U.S. at 192 (plurality opinion). And we
understand that “[a]n endorsement is a thing of value: it may attract voters’
attention, jumpstart a campaign, give assurance that the candidate has been vetted,
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or provide legitimacy to an unknown candidate and indicate that he or she is capable
of mounting a successful campaign.” French v. Jones, 876 F.3d 1228, 1240 (9th
Cir. 2017). But when campaign-speech regulations have been upheld as targeting
quid pro quo corruption, “the speaker is not using speech to persuade action, but
rather as a means of compelling action from a voter or candidate through reward,
coercion, blackmail, bribery, or other corrupt methods.” Garten Trucking, L.C. v.
Natl. Labor Relations Bd., 139 F.4th 269, 278 (4th Cir. 2025). The ban on
endorsements by judges does not regulate that type of speech.
{¶ 67} In any case, Jud.Cond. 4.1(A)(3) is not narrowly tailored to advance
the State’s interest in maintaining judicial integrity and preventing judicial
corruption. Jud.Cond.R. 4.1(A)(3) is not limited to prohibiting the endorsement of
or opposition to a candidate for public office that amounts to corruption or that
leads to the appearance of corruption. Instead, this ethics rule is overinclusive and
restricts political speech when there is no quid pro quo exchange of something of
value for an official act by the judge. An endorsement is not inherently corrupt—
“‘endorsements often are exchanged between political actors on a quid pro quo
basis,’” Platt, 894 F.3d at 263, quoting Winter, 834 F.3d at 691. That is,
endorsements are much more commonly made without the promise of an official
act in exchange. Further, there are less restrictive alternatives: Jud.Cond.R.
4.1(A)(3) could have been drafted to restrict only endorsements that involve
corruption or create the appearance of corruption. It was not.
{¶ 68} For these reasons, Jud.Cond.R. 4.1(A)(3) is not narrowly tailored to
serve the State’s interest in maintaining judicial independence, integrity, and
impartiality. Simply put, the rule sweeps too broadly and chills an unacceptable
amount of core political speech. Since Jud.Cond.R. 4.1(A)(3) cannot survive strict
scrutiny, we decline to enforce it in this case.
{¶ 69} In addition, the board found that Rudduck’s public endorsements of
Brett violated Jud.Cond.R. 1.2, which, again, states that “[a] judge shall act at all
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times in a manner that promotes public confidence in the independence, integrity,
and impartiality of the judiciary, and shall avoid impropriety and the appearance of
impropriety.” The board relied on Comment [5] to this rule, which states that an
appearance of impropriety involves a reasonable perception that a judge has
violated the Code of Judicial Conduct. It therefore wrote in its report, “Having
concluded that [Rudduck] violated Jud.Cond.R. 4.1(A)(3), we also conclude that
[Rudduck] violated Jud.Cond.R. 1.2.”
{¶ 70} We have determined that Jud.Cond.R. 4.1(A)(3) is unconstitutional,
so a violation of it cannot serve as the predicate for finding that Rudduck also
violated Jud.Cond.R. 1.2. And to the extent that Jud.Cond.R. 1.2 prohibits the
public endorsement of or opposition to a candidate for public office, it is
unconstitutional in that it restricts core political speech without sufficient
justification. The same analysis applies to the board’s finding of a violation of
Jud.Cond.R. 1.3, to the extent that finding was premised on Rudduck’s
endorsement of Brett. However, the board found that Rudduck violated
Jud.Cond.R. 1.3 for other reasons, and we turn to those now.
Jud.Cond.R. 1.3
{¶ 71} Jud.Cond.R. 1.3 states that “[a] judge shall not abuse the prestige of
judicial office to advance the personal or economic interests of the judge or others,
or allow others to do so.” The board concluded that Rudduck’s four-part essay
violated Jud.Cond.R. 1.3 by using the prestige of his judicial office to advance his
and Brett’s personal interests. The board noted in its report, “[Rudduck’s] judicial
philosophy was under attack, several members of his family were under attack, the
election was only days away, and Facebook was the most effective way to quickly
spread his message to his followers.”
{¶ 72} In his essay, Rudduck mentioned his judicial office twice: first, in
the introduction when he referred to his first campaign for judicial office, and
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second, when he noted that he had ruled against Thomas in his foreclosure case and
explained why.
{¶ 73} Jud.Cond.R. 2.10(E) expressly permits a judge to “respond directly
or through a third-party to allegations in the media or elsewhere concerning the
judge’s conduct in a matter,” so long as it does not impair the fairness of a pending
or impending proceeding, see Jud.Cond.R. 2.10(A). So to the extent that the board
relied on Rudduck’s statements in response to “attacks” on his “judicial
philosophy” to find that he violated Jud.Cond.R. 1.3, that reliance was improper.
Further, because Rudduck was permitted under Jud.Cond.R. 2.10(E) to respond to
allegations about his conduct in Thomas’s foreclosure case, his reference to his
judicial office in that circumstance was not an abuse of the prestige of his judicial
office under Jud.Cond.R. 1.3.
{¶ 74} That leaves only Rudduck’s reference to his prior judicial campaign.
That, by itself, is not enough to demonstrate an abuse of the prestige of his judicial
office. Comment [1] to Jud.Cond.R. 1.3 gives the archetypal example of when a
judge abuses the prestige of his or her judicial office: “it would be improper for a
judge to allude to his or her judicial status to gain favorable treatment in encounters
with traffic officials.” See Disciplinary Counsel v. Doherty, 2020-Ohio-1422
(concluding that a judge violated Jud.Cond.R. 1.3 by stating that she was a judge
multiple times while interacting with an officer after a traffic accident);
Disciplinary Counsel v. Gonzalez, 2020-Ohio-3259 (same while interacting with
an officer during a traffic stop); Disciplinary Counsel v. Williams, 2017-Ohio-9100
(same while interacting with an officer during a traffic stop).
{¶ 75} Other disciplinary cases in which we have found violations of
Jud.Cond.R. 1.3 involved circumstances in which judges inappropriately
intervened in cases to further their personal interests. Recently, in Disciplinary
Counsel v. Kegley, 2025-Ohio-910, the judge violated Jud.Cond.R. 1.3 by using his
status as a judge to secure the release of his son from custody, even though his son’s
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release was contrary to the bond schedule the court had adopted. The judge
expressly identified himself as a judge in his interaction with a corrections officer
at the jail. Similarly, in Disciplinary Counsel v. Goulding, 2020-Ohio-4588, the
judge violated Jud.Cond.R. 1.3 by ordering the release on bond of the boyfriend of
his friends’ daughter. The boyfriend was facing felony child-pornography charges,
and his case was assigned to a different judge. In Disciplinary Counsel v. Marshall,
2019-Ohio-670, the judge violated Jud.Cond.R. 1.3 by making clear his status as a
judge while injecting himself into his juvenile daughter’s speeding case. And in
Disciplinary Counsel v. Hale, 2014-Ohio-5053, the judge violated Jud.Cond.R. 1.3
by unilaterally dismissing a speeding ticket for his personal attorney.
{¶ 76} Disciplinary Counsel v. Oldfield, 2014-Ohio-2963, is instructive
here. This court dismissed an allegation that the judge in that case violated
Jud.Cond.R. 1.3 by merely saying that she was a judge during a traffic stop. The
evidence in the case was contradictory, but according to the judge, she told an
officer that she was a judge in response to the question whether she was a lawyer,
and she told another officer that she was not seeking special treatment because she
was a judge. This court found that those circumstances were insufficient to prove
by clear and convincing evidence that the judge had abused the prestige of her
judicial office, and we dismissed the count alleging a violation of Jud.Cond.R. 1.3.
{¶ 77} Here, Rudduck made the following statement in his essay before
embarking on his defense of himself and his family: “There are more important
things in life than winning an election. Faith, family, friends, community,
reputation, and honesty, to name a few. Since 1985 when I first ran for judicial
office, these ‘more important things’ have been a cornerstone of our community.
We now live in a different era.”
{¶ 78} Applying an objective standard, see Oldfield at ¶ 5, this statement
does not create in reasonable minds a perception that Rudduck was improperly
using his judicial position to gain favor. He merely mentioned his position in the
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context of what was otherwise constitutionally protected speech defending himself
and his family from allegations of wrongdoing on social media.
{¶ 79} Lastly, to the extent that the board found that Rudduck violated
Jud.Cond.R. 1.3 by giving Brett a public endorsement, we reject that finding
because, as discussed above in our analysis of Jud.Cond.R. 4.1(A)(3), such an
application of Jud.Cond.R. 1.3 would violate the First Amendment.
{¶ 80} Thus, for lack of clear and convincing evidence, we dismiss the
count alleging that Rudduck violated Jud.Cond.R. 1.3.
A Word of Caution
{¶ 81} Lastly, although we conclude that Rudduck did not violate
Jud.Cond.R. 1.2, 1.3, or 4.1(A)(3), that does not mean that we approve of his
conduct. We recognize that it is highly unlikely that Rudduck would have heard a
case in which his son was an attorney or a party in the matter. Nonetheless, judges
are held to the highest standard of ethical conduct, Warner, 2024-Ohio-551, at
¶ 22, and judges must be cognizant of how their actions appear to the public. That
may mean that a judge should forgo making some public statements even if those
statements would constitute protected free speech. And here, it would have been
far more prudent for Rudduck to have abstained from posting about his son’s
candidacy on social media and thereby avoided any question of the propriety of his
actions.
Conclusion
{¶ 82} Judges do not give up their First Amendment right to engage in
political speech simply by assuming office. See Grendell, 2025-Ohio-5239, at
¶ 24. While we acknowledge that the State has a compelling interest in maintaining
judicial independence, integrity, and impartiality, Jud.Cond.R. 4.1(A)(3) sweeps
too broadly and restricts political speech beyond what is necessary to uphold those
state interests. We therefore conclude that applying the rule against Rudduck would
unconstitutionally infringe on his First Amendment rights.
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{¶ 83} Additionally, we conclude that Rudduck’s Facebook activity did not
violate Jud.Cond.R. 1.2 or 1.3.
{¶ 84} Accordingly, we dismiss the complaint against Rudduck.
Judgment accordingly.
__________________
FISCHER, J., dissenting.
{¶ 85} Today, this court, by majority vote, discards as facially
unconstitutional Ohio’s longstanding judicial anti-endorsement rule set forth in
Jud.Cond.R. 4.1(A)(3), which prohibits judges and judicial candidates from
publicly endorsing or opposing a candidate for another public office. No party to
this action has argued that the anti-endorsement rule in Jud.Cond.R. 4.1(A)(3) is
unconstitutional under the First Amendment to the United States Constitution; in
fact, the parties jointly waived their right to file any objections to the findings of
fact, conclusions of law, and recommended sanction of the Board of Professional
Conduct. Nevertheless, without 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.
{¶ 86} This court has the ultimate authority in Ohio over the practice of law
and disciplinary actions and the exclusive authority to promulgate rules governing
the practice of law. See Ohio Const., art. IV, § 2(B)(1)(g); Ohio Const., art. IV, §
5(B); State ex rel. Parisi v. Dayton Bar Assn. Certified Grievance Commt., 2019-
Ohio-5157, ¶ 26 (“this court is the ultimate arbiter of attorney discipline” and has
“the unique and complete responsibility . . . to regulate all matters related to the
practice of law”). In short, this court has the first and last word when it comes to
the Code of Judicial Conduct, and no one can stop this court from changing its
rules, as it does today. But just because this court has the power to do something
does not mean that it should, especially in the manner it does in this case. By
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effectively striking a rule from the Code of Judicial Conduct in a disciplinary
action—with no public notice and comment or briefing from the parties—this court
casts aside its typical rulemaking process.
{¶ 87} The majority’s opinion also comes as a surprise because it decides a
federal constitutional issue—one that this court has never confronted—without the
benefit of briefing and rejects well-reasoned decisions of several United States
Courts of Appeals upholding state anti-endorsement restrictions on judges and
judicial candidates against First Amendment challenges. See Platt v. Bd. of
Commrs. on Grievances & Discipline of the Ohio Supreme Court, 894 F.3d 235,
263 (6th Cir. 2018) (Ohio); Wolfson v. Concannon, 811 F.3d 1176, 1186 (9th Cir.
2016) (Arizona); Winter v. Wolnitzek, 834 F.3d 681, 691-692 (6th Cir. 2016)
(Kentucky); Wersal v. Sexton, 674 F.3d 1010, 1028 (8th Cir. 2012) (Minnesota).
{¶ 88} Even if this court had before it a First Amendment challenge to
Jud.Cond.R. 4.1(A)(3), I would hold that respondent John William Rudduck’s First
Amendment rights are not a defense to the disciplinary action at issue here. I would
adopt the board’s findings of fact, conclusions of law, and recommended sanction.
Because the court instead dismisses the complaint against Rudduck, I respectfully
dissent.
I. The Anti-Endorsement Rule and the First Amendment
{¶ 89} Relator, disciplinary counsel, charged Rudduck, in part, with a
violation of Jud.Cond.R. 4.1(A)(3), which prohibits a judge from publicly
endorsing or opposing another person for a public office. Jud.Cond.R. 4.1(A)(3)
aligns with Model Rule 4.1(A)(3) of the American Bar Association’s Model Code
of Judicial Conduct. See American Bar Association, Model Code of Judicial
Conduct (2020), available at https://www.americanbar.org/groups/professional
_responsibility/publications/model_code_of_judicial_conduct/model_code_of_ju
dicial_conduct_canon_4/ (accessed Feb. 3, 2026). The board found that Rudduck
had committed that violation and recommended that he be publicly reprimanded.
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And after we, in accordance with Gov.Bar R. V(17)(A), ordered the parties to
“show cause why the recommendation of the board should not be confirmed by the
court,” Rudduck and disciplinary counsel filed a joint waiver of objections
consistent with Gov.Bar R. V(17)(B)(3). Nevertheless, the majority has sua sponte
raised an argument to strike Jud.Cond.R. 4.1(A)(3) as facially unconstitutional. Sua
sponte raising the argument is wrong procedurally, and striking the rule is wrong
substantively.
A. The Parties Jointly Waived Objections
{¶ 90} As noted above, this court is the ultimate arbiter of attorney
discipline, and it is not required to adopt the sanction recommended by the board.
Disciplinary Counsel v. Sarver, 2020-Ohio-5478, ¶ 30; citing Cincinnati Bar Assn.
v. Powers, 2008-Ohio-4785, ¶ 21. And to ensure consistency in disciplinary
sanctions and to protect the public, “‘we examine each case individually and impose
the discipline we believe appropriate based on the unique circumstances of each
case.’” Toledo Bar Assn. v. Hales, 2008-Ohio-6201, ¶ 21, quoting In re
Disciplinary Action Against Ruffenach, 486 N.W.2d 387, 390 (Minn. 1992); see
also Mahoning Cty. Bar Assn. v. Macala, 2024-Ohio-3158, ¶ 46. But our
disciplinary authority is not unlimited.
{¶ 91} This court promulgated Gov.Bar R. V to establish the procedures for
evaluating and adjudicating attorney-discipline matters. See Gov.Bar R. V(2)(A).
And under Gov.Bar R. V(27)(A), attorney-discipline proceedings are subject to the
Rules of Civil Procedure. Gov.Bar R. V and the civil rules govern the parties
equally, and we will not disregard those rules, even when they limit our review.
See Disciplinary Counsel v. Mancino, 2018-Ohio-3017, ¶ 13, 18 (Fischer, J.,
concurring) (because Gov.Bar R. V provides no mechanism for reviewing counts
that were unanimously dismissed by a panel of the board, this court was constrained
from considering the dismissed allegations); Ackman v. Mercy Health W. Hosp.,
L.L.C., 2024-Ohio-3159, ¶ 19 (this court will not disregard the Rules of Civil
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Procedure).
{¶ 92} Our disciplinary proceedings are adversarial in nature. After the
board serves a respondent with a certified complaint in which a relator alleges
specific misconduct committed by the respondent, Gov.Bar R. V(10)(E) and V(11),
the respondent has an opportunity to file an answer responding to those allegations,
Gov.Bar R. V(12)(D). Thereafter, a three-member panel of the board conducts a
formal hearing that is governed by the Rules of Civil Procedure and the Rules of
Evidence. See Gov.Bar R. V(12)(C) and (F) and V(27)(A). The panel then
determines whether the matter should be dismissed or whether the respondent is
guilty of misconduct and should be sanctioned. Gov.Bar R. V(12)(G) and (I). If
the panel finds misconduct, it must submit a report of its findings of fact,
conclusions of law, and recommended sanction to the director of the board.
Gov.Bar R. V(I). The board then reviews the matter, and if it determines that a
sanction is warranted, it must file with this court a certified report of its findings of
fact, conclusions of law, and recommended sanction. Gov.Bar R. V(12)(J) and (K).
The respondent then has an opportunity to explain “why the report of the [b]oard
[should] not be confirmed and a disciplinary order entered.” Gov.Bar R. V(17)(A).
The respondent may (1) file objections to the board’s report, Gov.Bar R.
V(17)(B)(1), (2) file a no-objection brief in support of the recommended sanction
of the board, Gov.Bar R. V(17)(B)(2)(i), or (3) join with the relator in filing “a joint
waiver of objections,” Gov.Bar R. V(17)(B)(3). If the parties file a joint waiver,
“the case [is] immediately . . . submitted” to this court for consideration. Id.
{¶ 93} Although we must independently review the board’s report, as in any
adversarial proceeding, we are limited to considering the arguments raised and
briefed by the parties, see Epcon Communities Franchising, L.L.C. v. Wilcox Dev.
Group, L.L.C., 2024-Ohio-4989, ¶ 15; Disciplinary Counsel v. Gaul, 2023-Ohio-
4751, ¶ 11. The parties are responsible for raising their own arguments in a timely
manner and must bear the costs of their own mistakes. See Jones v. Cleveland
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January Term, 2026
Clinic Found., 2020-Ohio-3780, ¶ 24. We have warned parties in disciplinary cases
that we will not review objections unaccompanied by supporting arguments. See
Gaul at ¶ 11 (“we reluctantly consider the arguments [raised by the respondent in
his posthearing brief filed with the board] that have been incorporated by reference
[in his brief filed in this court], though we have no intention to do so in other cases
going forward” because S.Ct.Prac.R. 16.02(B)(4) requires the parties’ briefs to
contain arguments relevant to their positions); Disciplinary Counsel v. Hoover,
2024-Ohio-4608, ¶ 19, fn. 2 (following Gaul). To hold otherwise is to (1) render
unnecessary the three types of responses to our show-cause orders permitted under
Gov.Bar R. V(17)(B), (2) disregard the requirements set forth in the Rules of
Practice of the Supreme Court, see S.Ct.Prac.R. 16.02, and (3) ignore principles of
party presentation and judicial restraint, see Epcon at ¶ 14-16.
{¶ 94} Nevertheless, while the majority acknowledges that Rudduck has not
raised any constitutional argument challenging Jud.Cond.R. 4.1(A)(3), the majority
sua sponte raises and adjudicates a First Amendment facial constitutional challenge
to Jud.Cond.R. 4.1(A)(3). Majority opinion, ¶ 35-39. The majority overlooks the
fact that any constitutional issue was explicitly waived by the parties’ filing their
joint waiver of objections.
{¶ 95} Generally, when a party fails to timely raise an issue before a court,
that issue is deemed forfeited and an untimely argument raising the issue is
reviewed only for plain error. See Ohio Power Co. v. Burns, 2022-Ohio-4713,
¶ 40. When an issue is forfeited in a case governed by the civil rules, such as an
attorney-discipline case, see Gov.Bar R. V(27)(A), a plain-error review is “‘sharply
limited to the extremely rare case involving exceptional circumstances where the
error, left unobjected to at the trial court, rises to the level of challenging the
legitimacy of the underlying judicial process itself’ ” (emphasis added in Goldfuss),
Ohio Power Co. at ¶ 40, quoting Goldfuss v. Davidson, 1997-Ohio-401, ¶ 28; Jones
at ¶ 24 (plain-error review is not provided for in the Rules of Civil Procedure).
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{¶ 96} Waiver, however, is different from forfeiture. See State v. Rogers,
2015-Ohio-2459, ¶ 20-21. A waiver is an intentional relinquishment or
abandonment of a known right or privilege. State v. Blackburn, 2008-Ohio-1823,
¶ 17; Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Constitutional rights can be and
often are waived, and such waivers are generally found to be valid when they are
made in writing. See Blackburn at ¶ 17. There is no path for reviewing a waived
issue. See United States v. Jimenez, 512 F.3d 1, 7 (1st Cir. 2007) (“Not even plain-
error review is available to a party who has waived a claim of error.”).
{¶ 97} Here, disciplinary counsel alleged in his complaint that Rudduck
violated three rules of the Code of Judicial Conduct, including Jud.Cond.R.
4.1(A)(3) (a judge shall not publicly endorse or oppose a candidate for another
public office). Rudduck, in his answer, denied those allegations. At the hearing,
Rudduck did not challenge the constitutionality of Jud.Cond.R. 4.1(A)(3); rather,
he maintained that his actions did not violate that rule. He also did not challenge
the constitutionality of Jud.Cond.R. 4.1(A)(3) in his posthearing brief but merely
reiterated the arguments that he made at the hearing. But when given a final
opportunity to challenge the Jud.Cond.R. 4.1(A)(3) violation by objecting to the
board’s report, Rudduck chose to waive in writing his right to object. Thus,
Rudduck intentionally relinquished any objections related to the board’s conclusion
that he violated Jud.Cond.R. 4.1(A)(3), including constitutional objections, and we
must treat that waiver as we would any other intentional relinquishment of a right.
Because this issue was waived, we cannot review it.
{¶ 98} To review a waived issue is to turn precedent on its head. Unlike the
situations in Gaul and Hoover, in which the parties at least raised an objection to
the board’s report by referencing arguments made in posthearing briefs, here, the
parties waived any objections to the board’s report. It is inconsistent to tell parties
that we will not review objections that incorporate by reference arguments made in
posthearing briefs but then independently raise and review objections that were not
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January Term, 2026
raised by the parties at all. Promoting a more restrictive review by this court in a
disciplinary case in which the parties filed objections, see Gaul, 2023-Ohio-4751,
at ¶ 11, and Hoover, 2024-Ohio-4608, at ¶ 19, fn. 2, than in a case in which the
parties waived objections makes any objection rule superfluous.
{¶ 99} And contrary to the majority’s position, we should exercise judicial
restraint and “not decide constitutional questions unless it is absolutely necessary
to do so,” Epcon, 2024-Ohio-4989, at ¶ 17. “Constitutional judgments . . . are
justified only out of the necessity of adjudicating rights in particular cases . . . .”
Broadrick v. Oklahoma, 413 U.S. 601, 611 (1973), citing Marbury v. Madison, 5
U.S. 137, 178 (1803). “Indeed, ‘Ohio law abounds with precedent to the effect that
constitutional issues should not be decided unless absolutely necessary.’” Epcon
at ¶ 17, quoting Hall China Co. v. Public Util. Comm., 50 Ohio St.2d 206, 210
(1977). We have long held that “[c]onstitutional questions will not be decided until
the necessity for a decision arises on the record before the court.” (Emphasis
added.) State ex rel. Herbert v. Ferguson, 142 Ohio St. 496 (1944), paragraph two
of the syllabus. When a constitutional issue is waived, there is no need to decide
it, because the party has intentionally relinquished the right to have the court resolve
that issue. We must honor the party’s decision, perhaps through gritted teeth, and
not pursue the waived issue.
{¶ 100} Our having ultimate authority over attorney discipline does not
change this result. We are bound by the rules that we have promulgated, until those
rules are challenged by a party in a case or until we decide to revisit them through
our rulemaking authority. But the majority suggests that when any justice on this
court believes that a rule we promulgated is unconstitutional, even when no party
has raised that argument, the court must act swiftly to analyze the rule in order to
ensure that it comports with constitutional guarantees. Majority opinion at ¶ 35-
39. This, the majority says, is because our “power to regulate the practice of law is
not absolute” and our rules “‘“must comply with the state and federal constitutions
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like any other rules.”’” Id. at ¶ 38, quoting Shimko v. Lobe, 2004-Ohio-4202, ¶ 27,
quoting Christensen v. Bd. of Commrs. on Grievances & Discipline, 61 Ohio St.3d
534, 537 (1991). The majority, quoting an opinion concurring in judgment only,
asserts that sua sponte raising the waived and unbriefed First Amendment issue is
appropriate because we “‘are obligated in the first instance to ensure that the rule[s]
comport[] with constitutional guarantees.’” (Bracketed text in original.) Id. at ¶ 39,
quoting In re Application of Jones, 2018-Ohio-4182, ¶ 34 (DeWine, J., concurring
in judgment only).
{¶ 101} Notwithstanding that a separate opinion is not binding authority,
the separate opinion in In re Application of Jones does not stand for the proposition
that this court may, whenever it pleases, sua sponte raise and adjudicate waived
constitutional issues in disciplinary proceedings. While the majority in In re
Application of Jones did not rule on the constitutionality of the professional-
conduct rule at issue in that case, relying instead on the plain language of the rule
to resolve the case, In re Application of Jones at ¶ 11, 14-23, the constitutional
challenge had been raised and briefed by the parties, see id. at ¶ 11. The separate
opinion in In re Application of Jones did not concoct its own constitutional
argument out of thin air as the majority opinion does today.
{¶ 102} Obviously, the rules that we promulgate must comply with the state
and federal constitutions and we have an obligation to ensure that the rules are
constitutional. But that does not mean that we may disregard the proper avenues
by which the rules may be challenged. We necessarily consider the
constitutionality of a rule during our rulemaking process, and before we adopt or
revise a disciplinary rule, the public is permitted and encouraged to weigh in on the
rule through public comment. And we may analyze a rule when deciding a
disciplinary case in which the rule is challenged by the parties. By ignoring the
proper avenues of review in this case, the majority renders meaningless our
rulemaking process and our briefing requirements.
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{¶ 103} Nevertheless, the majority maintains that we can justify this
departure from precedent and our rules and procedures and ignore the doctrines of
party presentation, waiver, constitutional avoidance, and judicial restraint to decide
this waived issue because “this is not an ordinary case,” majority opinion at ¶ 36.
It is true that there are situations “in which a modest initiating role for a court is
appropriate.” United States v. Sineneng-Smith, 590 U.S. 371, 376 (2020). But it is
impossible to say that this court takes on a “modest initiating role” by raising,
arguing, and adjudicating an unbriefed, unraised constitutional issue that has never
been resolved by this court when the parties waived all objections to the board’s
report. This case does not fit the bill to permit such unchecked and unwelcome
interference. See State ex rel. GateHouse Media Ohio Holdings II, Inc. v.
Columbus Police Dept., 2025-Ohio-5243, ¶ 41 (in mandamus case in which the
relator bears the burden of establishing a right to the requested relief, the issue of
which version of a statute applies is not a necessary determination that should sua
sponte be raised by the court). We should not become advocates and raise issues
sua sponte for the parties, even in a disciplinary case, especially when the parties
actively waived their objections.
{¶ 104} But even assuming for the sake of argument that it is proper for this
court to sua sponte raise and address a constitutional issue that was waived by the
respondent, it should do so only in the extremely rare case involving exceptional
circumstances in which the error rises to the level that if left uncorrected would
undermine the legitimacy of the entire disciplinary process. See Ohio Power Co.,
2022-Ohio-4713, at ¶ 40; Jones, 2020-Ohio-3780, at ¶ 24; Goldfuss, 1997-Ohio-
401, ¶ 28. The majority does not explain how failing to address a First Amendment
argument challenging the validity of one judicial-conduct rule—an argument that
was concocted solely by justices of this court and that was unbriefed and explicitly
waived by the parties—would undermine the very legitimacy of this court’s
disciplinary process, especially when the recommended sanction in this case is a
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public reprimand, which is the least-severe sanction that this court can impose, see
Gov.Bar R. V(12)(A). Despite what the majority says, this is not an extraordinary
case, majority opinion at ¶ 36.
{¶ 105} This is a disciplinary action that can affect Rudduck’s license to
practice law, and he has a property interest in that license. See State v. Gideon,
2020-Ohio-6961, ¶ 12 (state regulation of occupations through a licensing process
give rise to protected property interests). Such an interest is protected only against
deprivations without due process of law. See Ohio Academy of Nursing Homes,
Inc. v. Barry, 56 Ohio St.3d 120, 126 (1990). And here, Rudduck received due
process of law. Rudduck, who is an attorney and who is also represented by
attorneys, fully participated in the disciplinary proceedings and has never raised
First Amendment concerns to challenge the alleged judicial-conduct violations.
And furthermore, he explicitly waived any objections to the board’s report. There
is no deprivation of due process here that would warrant extraordinary intervention
and advocacy by this court.
{¶ 106} The failure to resolve an unraised and unbriefed First Amendment
challenge to one of the judicial-conduct rules charged in a disciplinary case does
not undermine the legitimacy of the underlying disciplinary process itself. The
mere existence of a novel constitutional issue in a case does not elevate the status
of that case to the extremely rare, extraordinary case that overcomes application of
the forfeiture doctrine, let alone the waiver doctrine. Indeed, we have refused to
consider criminal defendants’ unbriefed constitutional arguments when their
freedom and even their lives were at stake. See, e.g., State v. Roberts, 2017-Ohio-
2998, ¶ 85 (refusing to consider a criminal defendant’s Sixth Amendment claim in
a death-penalty case because it was raised for the first time during oral argument).
And we have held that a party’s having failed to raise a double-jeopardy issue did
not undermine the legitimacy of the underlying judicial process such that we were
required to review that forfeited issue. See Risner v. Ohio Dept. of Natural
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January Term, 2026
Resources, Ohio Div. of Wildlife, 2015-Ohio-3731, ¶ 25-27. There is no support
for the assertion that the First Amendment issue raised by the majority must be
resolved to ensure the legitimacy of the disciplinary process.
{¶ 107} Furthermore, this is not an extraordinary case in which intervention
is needed because the unraised error could result in extreme penalties or sanctions
that could undermine the legitimacy of this court’s disciplinary process. Here, the
board recommended that Rudduck be subject to public reprimand, which, again, is
the least-severe sanction that this court can impose, see Gov.Bar R. V(12)(A). And
Rudduck is no longer a judge; he retired in 2024. There is no evidence that
Rudduck is licensed in another state, which would trigger reciprocal discipline
elsewhere if he were disciplined by this court. While attorney discipline is certainly
a serious matter, it is hard to perceive this case as being high stakes when even
Rudduck did not feel compelled to challenge the board’s report filed in this court—
he waived his right to object. For these reasons, this case is not a rare and
extraordinary case that could undermine the entire disciplinary process without this
court’s intervention.
{¶ 108} Indeed, the only case that I could find in which this court sua sponte
raised a constitutional issue that was not raised or briefed by the parties was in the
expedited election case State ex rel. Maxcy v. Saferin, 2018-Ohio-4035. In a four-
to-three decision, this court justified addressing a constitutional issue that had not
been raised or briefed by the parties by explaining that the parties could be forgiven
for failing to brief the issue, because our case law in the prior year had (allegedly)
diverted from well-settled law in an expedited elections matter. Id. at ¶ 14. The
majority in Maxcy determined that although briefing by the parties would be
helpful, it would be “impractical or impossible . . . given the compressed time frame
of an expedited election case.” Id. The majority explained that it was only “[i]n
these circumstances [that the court’s] prudential policy against addressing
arguments not raised by the parties [was] not a barrier to addressing and remedying
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a clear mistake before it [was] repeated again.” Id. Silence, the alternative, was
not appropriate, because that would permit the county boards of elections to follow
the (allegedly) erroneous case law when the court could simply “return to [its] near-
century of jurisprudence regarding how to address” the issue in that case. Id.
{¶ 109} The Maxcy court’s rationale for addressing an unraised and
unbriefed constitutional issue does not apply in this case. Unlike the parties in
Maxcy, the parties in this case cannot be absolved from failing to raise the
constitutional issue raised, analyzed, and adjudicated by the majority. Rudduck
should have known of the First Amendment issue and raised it, given that the
United States Court of Appeals for the Sixth Circuit grappled with this exact
question in Platt in 2018, see Platt, 894 F.3d at 263, a case issued nearly five years
before the alleged misconduct occurred in this case, more than six years before the
panel held its disciplinary hearing, and more than six and a half years before the
disciplinary proceedings reached this court. But Rudduck decided not to pursue the
issue or file any objections to the board’s report, as evidenced by the joint waiver
of objections.
{¶ 110} And unlike in Maxcy, this court cannot justify raising the First
Amendment issue sua sponte here—especially without first ordering the parties to
brief the issue—because we have never addressed the issue. And the majority’s
conclusion that Jud.Cond.R. 4.1(A)(3) is facially unconstitutional is at odds with
decisions from three federal courts of appeals. See Platt at 263 (Sixth Circuit);
Wolfson, 811 F.3d at 1186 (Ninth Circuit); Winter, 834 F.3d at 691-692 (Sixth
Circuit); Wersal, 674 F.3d at 1028 (Eighth Circuit). Thus, this is not a situation in
which we are merely returning to the jurisprudence in effect before a recent
departure; the majority advocates for a drastic change in the law—striking a
judicial-conduct rule that this court promulgated—based entirely on a
constitutional argument that was never raised or briefed but was instead actively
waived.
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{¶ 111} And also unlike Maxcy, this is not an expedited elections case; it is
a disciplinary proceeding. We are not on an expedited schedule that would require
us to sua sponte raise and decide an important constitutional issue without having
the parties weigh in. This case has been pending for over a year, and Rudduck is
no longer on the bench and has retired from the practice of law in Ohio. Thus, there
is no justification for raising this issue sua sponte or for not seeking guidance from
disciplinary counsel, who has a duty to investigate and prosecute allegations of
misconduct by judicial officers and attorneys, see Gov.Bar R. V(4)(A), and
Rudduck, who would bear the burden of establishing that Jud.Cond.R. 4.1(A)(3) is
unconstitutional, see State ex rel. Ohio Congress of Parents & Teachers v. State
Bd. of Edn., 2006-Ohio-5512, ¶ 34 (the party challenging the constitutionality of a
statute carries the burden of proof).
{¶ 112} As this court has recognized time and again, “justice is far better
served” when this court has the benefit of briefing and argument before it makes a
final determination. (Emphasis added.) Sizemore v. Smith, 6 Ohio St.3d 330, 333,
fn. 2 (1983). By sua sponte raising a constitutional challenge and concocting its
own argument to strike Jud.Cond.R. 4.1(A)(3) as facially unconstitutional, the
majority takes up its sword and carves a path for Rudduck on an unraised,
unbriefed, and affirmatively waived constitutional issue. In doing so, the majority
rejects the principles of party presentation, judicial restraint, and constitutional
avoidance. See Epcon, 2024-Ohio-4989, at ¶ 15, 17 (courts “should ordinarily
decide cases based on issues raised by the parties” and “should not decide
constitutional questions unless it is absolutely necessary to do so”). And it forgets
that this court has said: “We will not search the record or formulate legal arguments
on behalf of the parties, because we do not sit as self-directed boards of legal inquiry
and research, but preside essentially as arbiters of legal questions presented and
argued by the parties before us.” (Cleaned up.) GateHouse Media, 2025-Ohio-
5243, at ¶ 36.
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{¶ 113} I cannot condone the majority’s actions in this case. We must show
restraint and decide only the issues that are properly before us. If this court wants
to remove Jud.Cond.R. 4.1(A)(3) from the Code of Judicial Conduct, then it should
initiate proceedings under our rulemaking authority to amend the Code of Judicial
Conduct. If this court wants to rule on the constitutionality of Jud.Cond.R.
4.1(A)(3), then it should wait for a case in which the issue has been properly
presented. At the most, this court could use this case as a vehicle to encourage
future litigants to raise this issue. But this court should not fabricate an opportunity
to review the constitutionality of Jud.Cond.R. 4.1(A)(3) in this case. The public
and the bar deserve better from this court.
{¶ 114} For these reasons, I would not address the First Amendment issue
sua sponte, especially without at least giving the parties involved notice and an
opportunity to brief the issue. See Maxcy, 2018-Ohio-4035, at ¶ 28 (Fischer, J.,
dissenting) (recognizing the failure of the majority to order supplemental briefing
before deciding a constitutional issue sua sponte). Thus, I would not address the
constitutionality of Jud.Cond.R. 4.1(A)(3) and would simply independently review
the board’s findings of fact and determine whether they meet the elements of the
alleged judicial-conduct violations, and if so, determine the appropriate sanction.
B. The Anti-Endorsement Rule Does Not Violate the First Amendment
{¶ 115} Even though I would not reach the issue of the constitutionality of
Jud.Cond.R. 4.1(A)(3), because the issue was not raised and was affirmatively
waived by Rudduck, I am compelled to respond to the majority’s flawed
constitutional analysis. For purposes of a First Amendment analysis, I will assume
that Jud.Cond.R. 4.1(A)(3) is a content-based restriction on the political speech of
judges and judicial candidates and that to be constitutional, the restriction must
survive strict scrutiny. See Disciplinary Counsel v. Tamburrino, 2016-Ohio-8014,
¶ 18 (recognizing that “Jud.Cond.R. 4.3 is a content-based regulation of political
speech and therefore must withstand strict scrutiny”); Republican Party of
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Minnesota v. White, 536 U.S. 765, 774 (2002) (applying strict scrutiny to a
provision in a state’s judicial code of conduct that prohibited a judicial candidate
from announcing his or her views on disputed legal or political issues); Williams-
Yulee v. Florida Bar, 575 U.S. 433, 444 (2015) (plurality opinion) (“A State may
restrict the speech of a judicial candidate only if the restriction is narrowly tailored
to serve a compelling interest.”); but see Siefert v. Alexander, 608 F.3d 974, 983
(7th Cir. 2010) (refusing to apply strict scrutiny to a judicial anti-endorsement rule
by distinguishing a public endorsement by a judge from an announcement by a
judicial candidate of his or her views on disputed legal or political issues, which
was the type of speech at issue in White). Applying the strict-scrutiny test,
Jud.Cond.R. 4.1(A)(3) must be narrowly tailored to serve a compelling state
interest. See White at 774.
{¶ 116} The Code of Judicial Conduct is premised on the unique
governmental role of the judiciary, whose authority “‘turns almost exclusively on
its credibility and the respect warranted by its rulings.’” In re Judicial Campaign
Complaint Against O’Toole, 2014-Ohio-4046, ¶ 22, quoting Carey v. Wolnitzek,
614 F.3d 189, 194 (6th Cir. 2010). The Preamble to the Code of Judicial Conduct
sets forth the State’s interest in maintaining “[a]n independent, fair, and impartial
judiciary” and provides that “judges, individually and collectively, must respect and
honor the judicial office as a public trust and strive to maintain and enhance
confidence in the legal system.” Jud.Cond.R., Preamble [1]. The State’s interests
in promoting judicial integrity and public confidence in the judiciary are without a
doubt compelling state interests. See O’Toole at ¶ 26, quoting Landmark
Communications, Inc. v. Virginia, 435 U.S. 829, 848 (1978) (“‘There could hardly
be a higher governmental interest than a State’s interest in the quality of its
judiciary.’”).
{¶ 117} Canon 4 of the Code of Judicial Conduct provides: “A judge or
judicial candidate shall not engage in political or campaign activity that is
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inconsistent with the independence, integrity, or impartiality of the judiciary.” As
a general matter, the rules in Canon 4 “are intended to ensure that judges and
judicial candidates campaign in a way that fosters and enhances respect for, and
confidence in, the judiciary.” O’Toole at ¶ 25. Therefore, “Ohio has a compelling
interest in ensuring that ‘judicial campaigns are run in a manner so as not to damage
the actual and perceived integrity of state judges and the bar.’” Id. at ¶ 26, quoting
Berger v. Ohio Supreme Court, 598 F.Supp. 69, 75 (S.D.Ohio 1984).
{¶ 118} In striking Jud.Cond.R. 4.1(A)(3) under a strict-scrutiny analysis,
the majority identifies three state interests laid out in Canon 4—promoting judicial
impartiality, integrity, and independence—and concludes that Jud.Cond.R.
4.1(A)(3) is not narrowly tailored to advance those interests. With respect to the
State’s interests in judicial impartiality and independence, the majority reasons that
Jud.Cond.R. 4.1(A)(3) is overinclusive because it prohibits a judge from endorsing
or opposing candidates who would likely never be litigants before the judge and
because less restrictive alternatives exist, including mandatory recusal or
disqualification of a judge. Majority opinion at ¶ 56-57 (impartiality) and ¶ 62-64
(independence).
{¶ 119} The majority’s strict-scrutiny analysis strays too far from the
United States Supreme Court’s decision in White, 536 U.S. 765. In White, the Court
held that Minnesota’s announce clause in its judicial code of conduct, which
prohibited a judicial candidate from announcing his or her views on disputed legal
or political issues, violated the First Amendment. Id. at 768-770. In reaching its
holding, the Court considered whether Minnesota’s announce clause was narrowly
tailored to serve Minnesota’s interest in promoting judicial impartiality—meaning
a lack of bias toward a particular party in a proceeding. Id. at 775-776. The Court
reasoned that the announce clause was “barely tailored” to serve Minnesota’s
interest in promoting judicial impartiality “inasmuch as it [did] not restrict speech
for or against particular parties, but rather speech for or against particular issues.”
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(Emphasis in original.) Id. at 776. Here, Ohio’s judicial anti-endorsement rule is
aimed at restricting a judge from publicly expressing his or her opinion regarding a
particular person, i.e., a candidate, and it does not restrict a judge’s ability to speak
on issues. See Wersal, 674 F.3d at 1026 (“the endorsement clause does not regulate
speech with regard to any underlying issues, and thus the candidates are free to state
their positions on these issues, in line with White”); compare Disciplinary Counsel
v. Grendell, 2025-Ohio-5239, ¶ 34 (analogizing Jud.Cond.R. 3.2’s ban on judges
voluntarily testifying before a legislative body to the announce-clause restriction at
issue in White, because both deal with restricting judicial speech on issues).
{¶ 120} Unlike Minnesota’s announce clause that was at issue in White,
which targeted judicial campaign speech on disputed legal or political issues,
Ohio’s judicial anti-endorsement rule is aimed not at restricting judges’ speech in
their own campaigns but at preventing judges from publicly inserting themselves
into the campaigns of others. When a judge participates in another person’s
political campaign, “a judge’s impartiality can be put into question, and the public
can lose faith in the judiciary’s ability to abide by the law and not make decisions
along political lines.” Wolfson, 811 F.3d at 1184. The Sixth Circuit determined in
Winter that Kentucky’s judicial anti-endorsement rule was not overinclusive,
because it did not prohibit speech against an opponent and banned only the
endorsement of a candidate in a different race. Winter, 834 F.3d at 691-692.
Therefore, I would hold that Jud.Cond.R. 4.1(A)(3) is not fatally overinclusive.
{¶ 121} The majority also reasons that Jud.Cond.R. 4.1(A)(3) does not offer
the least restrictive means to further the State’s interest in promoting judicial
independence and impartiality, because a judge who endorses another candidate
may recuse if that endorsement could cause the judge’s independence or
impartiality to be questioned later in a case before the judge. Majority opinion at
¶ 57 (impartiality) and ¶ 64 (independence). “But recusal is no answer at all . . . .”
Wolfson at 1186. In rejecting a First Amendment challenge to Arizona’s judicial
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anti-endorsement rule, the United States Court of Appeals for the Ninth Circuit
reasoned in Wolfson that “[a] rule requiring judges to recuse themselves from every
case where they endorsed or campaigned for one of the parties could ‘disable many
jurisdictions’ and cripple the judiciary.” Id., quoting Williams-Yulee, 575 U.S. at
454-455. Similarly, the United States Court of Appeals for the Eighth Circuit in
Wersal upheld Minnesota’s judicial anti-endorsement rule against a First
Amendment challenge by determining that the rule was narrowly tailored to serve
Minnesota’s compelling interests of preserving impartiality and the appearance of
impartiality. Wersal at 1028. In doing so, the Eighth Circuit rejected the notion
that judicial recusals offered a less restrictive alternative to prohibiting judicial
endorsements, reasoning that “recusal would be an unworkable remedy because
candidates and judges would be free to endorse individuals who would become
frequent litigants in future cases, such as county sheriffs and prosecutors.” Id. at
1027-1028, citing Siefert, 608 F.3d at 987.
{¶ 122} Allowing judges and judicial candidates to endorse candidates in
other political races, so long as they recuse themselves from any proceeding
involving that endorsee or that endorsee’s opponent, could have an immobilizing
effect on the judicial system in Ohio. For instance, consider the situation in which
all the sitting judges on a court of common pleas publicly endorse a candidate for
county prosecutor and then that candidate is eventually elected and sworn into
office. A rule requiring all judges on that court to recuse themselves on every single
case brought by that prosecutor would substantially reduce the workload for those
judges and require the inefficient and potentially costly appointment of visiting
judges. See Bauer v. Shepard, 620 F.3d 704, 713 (7th Cir. 2010) (“the politician-
judge will be disqualified so often that he will have the equivalent of a paid
vacation, while other judges must work extra to protect litigants’ entitlement to
expeditious decisions”). And if judges refuse to recuse themselves from cases
involving a party whom they have endorsed, then the public will be left with serious
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doubts regarding the ability of those judges to remain impartial.
{¶ 123} Frequent judicial recusals would also seriously interfere with
Ohio’s system of electing judges. In Ohio, the election of judges is a
constitutionally mandated process. See Ohio Const., art. IV, § 6(A). A judge’s
recusal often means that a visiting judge (i.e., a retired judge or a judge from another
court) is appointed to preside over a matter. Thus, a rule encouraging judicial
recusals would undermine the voters’ right to elect their judges.
{¶ 124} The majority reasons that frequent judicial recusals will not be
more likely to occur in the absence of Jud.Cond.R. 4.1(A)(3), because other
provisions in the Code of Judicial Conduct will curtail that result. In support of that
assertion, the majority cites Jud.Cond.R. 3.1(A) (prohibiting judges from engaging
in extrajudicial activities that would interfere with judicial duties) and Jud.Cond.R.
3.1(B) (prohibiting judges from engaging in activities that would lead to frequent
disqualification). Majority opinion at ¶ 60. But as seen in this very disciplinary
action, that is not the case. Here, the majority found that Rudduck could not be
disciplined for publicly endorsing his son’s judicial campaign under either
Jud.Cond.R. 1.2 (requiring a judge to act at all times in a manner that promotes
public confidence in the independence, integrity, and impartiality of the judiciary)
or Jud.Cond.R. 1.3 (prohibiting a judge from abusing the prestige of the judicial
office to advance the personal or economic interests of the judge or others), because
doing so would infringe on Rudduck’s First Amendment rights. Id. at ¶ 70, 79.
{¶ 125} I do not underestimate the rigorous nature of the strict-scrutiny
analysis, as the majority contends, id. at ¶ 61. The majority points out that the
United States Supreme Court has only once held that a law survived strict scrutiny
in the First Amendment context, citing Free Speech Coalition, Inc. v. Paxton, 606
U.S. 461, 484 (2025). Id. As I have pointed out, however, the federal courts of
appeals that have considered whether judicial anti-endorsement rules survive strict
scrutiny have held that they do. See Platt, 894 F.3d at 263 (Sixth Circuit); Wolfson,
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811 F.3d at 1186 (Ninth Circuit); Winter, 834 F.3d at 691-692 (Sixth Circuit);
Wersal, 674 F.3d at 1028 (Eighth Circuit). I am concerned that the majority’s
restrictive position here will eventually call into question other rules that have the
effect of restricting the speech of lawyers and judges.
{¶ 126} With respect to the State’s interest in promoting judicial integrity,
the majority reasons that there is “‘only one permissible ground for restricting
political speech: the prevention of ‘quid pro quo’ corruption or its appearance.’”
Majority opinion at ¶ 65, quoting Fed. Election Comm. v. Cruz, 596 U.S. 289, 305
(2022). The majority then reasons that Jud.Cond.R. 4.1(A)(3) is not narrowly
tailored to prevent corruption or the appearance of corruption, because it does not,
by its terms, prohibit only those endorsements that amount to corruption or the
appearance of corruption. Id. at ¶ 67.
{¶ 127} The majority’s reliance on Cruz for the State’s interest in
promoting judicial integrity is puzzling. Cruz dealt with federal campaign-finance
restrictions on the repayment of a federal-office candidate’s personal loans to his
campaign from campaign funds raised after an election. Cruz at 293. Cruz has
nothing to do with state limits on judges’ speech to promote judicial integrity. To
be clear, judicial integrity is “a state interest of the highest order.” White, 536 U.S.
at 793 (Kennedy, J., concurring). “The power and the prerogative of a court to
[elaborate principles of law in the course of resolving disputes] rest, in the end,
upon the respect accorded to its judgments. The citizen’s respect for judgments
depends in turn upon the issuing court’s absolute probity.” Id.
{¶ 128} Endorsements, by their very nature, are often the result of political
back-scratching “‘exchanged between political actors on a quid pro quo basis.’”
Winter, 834 F.3d at 691, quoting Siefert, 608 F.3d at 984. In other words, handing
out a political endorsement is rarely a selfless act. Because endorsements are
almost always the result of quid pro quo politics, a judicial anti-endorsement rule
is narrowly tailored to a state’s “compelling interest in preventing judges from
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becoming (or being perceived as becoming) part of partisan political machines.”
Id.
{¶ 129} The majority also fails to identify the scope of the State’s interests
in prohibiting endorsements by judges and judicial candidates. The comments to
the Code of Judicial Conduct help clarify the intended reach of the rules. See Platt,
894 F.3d at 249 (“as with every provision of the Code [of Judicial Conduct,
Jud.Cond.R.] 4.1(A)(3)’s intended reach is clarified by comments, advisory
opinions, and staff letters”). In keeping with the State’s interests in promoting
judicial integrity, independence, and impartiality, Jud.Cond.R. 4.1(A)(3) is
specifically concerned with preventing judges from suggesting to the public that
they endorse the political campaign of a family member. Comment [5] to
Jud.Cond.R. 4.1 provides that “[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.” Comment [5] further explains that “[t]o
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.”
{¶ 130} The State’s interest in having judges avoid implying to the public
that they endorse the candidacy of their relatives, as outlined in Comment [5] to
Jud.Cond.R. 4.1, is precisely the issue in Rudduck’s case, and the board specifically
identified Comment [5] in its decision. Rudduck used a public Facebook account,
which identified him as “Judge at Clinton County Common Pleas Court” to share
multiple posts regarding his son’s campaign for a seat on the Clinton County
Municipal Court.
{¶ 131} I would hold that the judicial anti-endorsement rule in Jud.Cond.R.
4.1(A)(3) does not violate the First Amendment, because it is narrowly tailored to
serve the State’s compelling interests in promoting the integrity, independence, and
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impartiality of its judiciary. I would also hold that enforcement of Jud.Cond.R.
4.1(A)(3) in this disciplinary action does not violate Rudduck’s First Amendment
rights. I would uphold the board’s determination that Rudduck’s use of his
Facebook page to post and share information about his son’s judicial campaign
amounted to Rudduck’s publicly endorsing his son, in violation of Jud.Cond.R.
4.l(A)(3). I would therefore also adopt the board’s determination that Rudduck’s
public endorsement of his son violated Jud.Cond.R. 1.2, which requires a judge to
“act at all times in a manner that promotes public confidence in the independence,
integrity, and impartiality of the judiciary.”
II. Jud.Cond.R. 1.3 and Rudduck’s Facebook “Essay”
{¶ 132} The board also determined that Rudduck’s conduct violated
Jud.Cond.R. 1.3, which provides: “A judge shall not abuse the prestige of judicial
office to advance the personal or economic interests of the judge or others, or allow
others to do so.” The basis for the board’s determination that Rudduck’s conduct
violated Jud.Cond.R. 1.3 was a lengthy four-part essay that Rudduck posted to his
Facebook page, mainly defending his son against varying personal attacks after
Facebook froze his son’s account in the days just prior to the election.
{¶ 133} In declining to adopt the board’s findings and conclusions, the
majority applies Jud.Cond.R. 2.10(E), which allows a judge to “respond directly or
through a third-party to allegations in the media or elsewhere concerning the
judge’s conduct in a matter.” See majority opinion at ¶ 73. But only one part of
Rudduck’s four-part essay addressed allegations related to Rudduck’s own judicial
conduct in a matter. The bulk of Rudduck’s essay, as Rudduck conceded, was spent
defending his son.
{¶ 134} Rudduck testified that the “genesis” for his essay was his desire to
defend his son from defamatory statements. While I can certainly understand
Rudduck’s frustration as a parent and his perceived need to defend his son in light
of the social-media attacks against him, Rudduck’s essay contained highly personal
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information about his son, including his son’s medical history and his son’s having
been drunk while mourning the death of another judge, and addressed unfounded
allegations that his son had abused his children. Rudduck posted his essay on a
public Facebook account that identified him as a judge. Rudduck admitted that (1)
the essay he posted just days prior to the election in which his son was running
contained information that could influence a voter, (2) he posted the essay at a time
when his son’s Facebook account was restricted, and (3) by using his own Facebook
account to refute the attacks against his son, Rudduck could get the message out
quickly.
{¶ 135} I agree with the board’s finding that Rudduck’s four-part essay was
intended to defend his son’s character for purposes of his son’s election. I also
agree with the board’s finding that Rudduck abused the prestige of his judicial
office to advance his son’s personal interests. Therefore, I would adopt the board’s
conclusion that Rudduck’s conduct violated Jud.Cond.R. 1.3.
III. The Majority’s Word of Caution Is All Bark and No Bite
{¶ 136} Finally, the majority follows its analysis with a “word of caution,”
noting that although it will not discipline Rudduck for his conduct, it does not
“approve of his conduct.” Majority opinion at ¶ 81. The majority’s disapproving
of a judge’s conduct while at the same time refusing to discipline that judge is
essentially abdicating this court’s role in disciplinary matters. The majority warns
all judges that they “should forgo making some public statements even if those
statements would constitute protected free speech.” Id. Without the prospect of
potential discipline, however, the majority’s warning to judges is nothing more than
a hollow threat. “[J]udges are held to the highest possible standard of ethical
conduct.” Ohio State Bar Assn. v. McCafferty, 2014-Ohio-3075, ¶ 16. That is
precisely why we have the Code of Judicial Conduct. Chipping away at our
judicial-conduct rules will inevitably mean lowering our ethical standards. As
attorneys and judges, we agree to be bound by ethical rules in exchange for the
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privilege to practice law.
IV. Conclusion
{¶ 137} The majority goes too far in striking the judicial anti-endorsement
rule set forth in Jud.Cond.R. 4.1(A)(3) as a violation of the First Amendment.
Rudduck waived all objections to the board’s report and has never raised a First
Amendment challenge to Jud.Cond.R. 4.1(A)(3). At the very least, the parties
deserve to have the opportunity to brief this First Amendment issue. And
furthermore, the majority could have easily resolved Rudduck’s disciplinary action
on a narrower, as-applied basis. If a majority of the members of this court believe
that the judicial anti-endorsement rule should be set aside or modified, then they
should follow the court’s process for amending the Code of Judicial Conduct.
Doing so would not only avoid abdicating our role as arbiter and taking on the role
of advocate by raising constitutional issues on behalf of the parties (and ignoring
principles of party presentation, judicial restraint, and constitutional avoidance in
the process) but would allow for public notice of the proposed amendment and a
public-comment period during which any member of the public could weigh in on
the proposed amendments. Seeking public feedback is an important part of this
court’s rulemaking process.
{¶ 138} In sum, I would adopt the board’s findings of fact and conclusions
of law with respect to Rudduck’s conduct, and I would adopt the board’s
recommended sanction. Because the court does otherwise, I respectfully dissent.
__________________
Joseph M. Caligiuri, Disciplinary Counsel, for relator.
Montgomery Jonson, L.L.P., George D. Jonson, and Lisa M. Zaring, for
respondent.
__________________
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