Should a state judge be campaigning against a state criminal justice reform initiative when talking to potential jurors?!?!?

I have been more than a bit troubled by the fact that Ohio Supreme Court Chief Justice Maureen O'Connor has been serving for months as the campaigner-in-chief against an interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot here in Ohio.  Originally called the "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment," the initiative now is just known within Ohio as Issue 1 (and the Drug Enforcement and Policy Center at OSU has been hosting public panels about Issue 1 under the title Ballot Insights, and has created a Resources Page for Issue 1 and a Commentary Page on Issue 1).  One of my concerns has been that her visible role has put her in lock-step with advocacy by Ohio's prosecutors, and also seemingly has made many Ohio state judges feel comfortable speaking out against Issue 1 while making it hard for other state judges to feel comfortable speaking out for Issue 1.

Whatever one thinking about a judge or justice discussing their views on a ballot initiative in public, I am especially troubled by this story out of Cleveland that prompts the question in the title of this post.  The piece is headlined "Cuyahoga County judge politicks against Issue 1 to potential jurors inside courthouse," and here are the details:

A Cuyahoga County judge who is a vocal critic of a sentencing reform initiative on the ballot for the Nov. 6 election has taken his opposition to residents forced to show up for jury duty at the Justice Center.

Multiple times in recent weeks, Common Pleas Court Judge David Matia has used the time usually reserved for a judge to welcome the hundreds of potential jurors to their mandatory civic duty to instead deliver a spiel in which he explicitly urged them to vote against Issue 1.

Administrative and Presiding Judge John J. Russo does not object to Matia's actions, which Matia insisted in a Monday phone interview did not violate any judicial ethics rules. Judges are allowed to take public stances on issues that "directly affect the administration of justice," and it is up to a particular judge to determine when and where it is appropriate to make those comments, according to a 2002 advisory opinion by the Ohio Supreme Court's Board of Commissioners on Grievances and Discipline.

"Whether it's a group of jurors or a bingo hall, it doesn't matter," Matia said. "The opportunity to educate the public should not be ignored by members of the judiciary."

But Matia's choice to deliver the message as part of the regular duties of his seat on the bench -- to a group of people with no choice to leave -- raises serious ethical questions, a legal expert said. "He's got a right to announce his views," Charles Geyh, a law professor at Indiana University, told cleveland.com. "What I don't like is he is using his judicial office as a vehicle for addressing a captive audience. That's where he's abusing the prestige of his judicial office."...

Matia said he has spoken to potential jurors three times. He said he has done so in addition to the judge on the schedule twice, and spoke on Wednesday in place of the judge who was supposed to address the room when that judge did not show up. He said he hit the usual talking points he hits when he speaks in public about the issue, and urged a "no" vote. "It's not a political issue," he said. "This is a matter directly affecting the administration of justice, and frankly it's our duty to educate the public on this issue and how it will affect the administration of justice."

Russo said in a statement through a spokesman that he "was made aware that his colleague has been speaking to jurors" about the measure. "Judge Matia is an elected Cuyahoga County official and is speaking to constituents about an issue that impacts the administration of justice in the state," Russo said in the statement.

Rick Dove, director of the court's Board of Professional Conduct, said this situation is not explicitly spelled out in any judicial ethics rules, or addressed in any advisory opinions. Dove pointed to the 2002 opinion, which came in response to a complaint filed over a judge's public endorsement of a proposed constitutional amendment that dealt with expanding the use of drug treatment in sentencing....

The board wrote that judges could address certain legal issues that affect the administration of justice, and that it was not inappropriate for judges to do so in newspaper editorials, radio and TV ads, public forums and other mediums. "No rule within the Ohio Code of Judicial Conduct, provides a list of appropriate forums for judicial speech," the board wrote. "A judge must exercise his or her discretion regarding appropriate forums for speaking to the public regarding the law, the legal system, and the administration of justice."

But Matia's advocacy did not occur at a forum or a public meeting where people came voluntarily to hear thoughts about the issue. It came inside the courthouse, to a group of people who had been summoned to perform a mandatory government duty. Matia carried the authority of being a judge inside the courthouse and acted within the scope of his judicial office when he took the stance, all to an audience who was not free to leave, Geyh argued. "He seems to be exploiting his role as judge to create this opportunity to vent his ideological point of view with respect to this view of legislation," Geyh said.

Matia called his advocacy at the courthouse "a non-issue, ethics wise." He sent a copy of the 2002 opinion to cleveland.com Monday in a text message after the phone interview for this story. "Just remember to vote no on [Issue] 1," Matia wrote, adding a smiley-face emoticon.

I am squarely with Professor Geyh on this one, and I have concerns about Judge Matia's actions that go beyond the specifics of talking about Issue 1 to a captive audience inside a courthouse. At least some of these prospective jurors are going to be asked to participate in cases that might involve applications of the laws and policies that are the subject-matter of Issue 1, and I worry about how the judge's comments may be impacting the jury pool beyond how the judge has become a campaigner for a partisan position in the courthouse.

Prior related posts:

• Interesting and intricate Ohio drug sentencing initiative poised to qualify for November 2018 ballot 
• Ohio gubernatorial candidate talking up criminal justice reform while advocating for state constitutional drug sentencing initiative
• Events and resources covering Ohio sentencing and prison reform ballot initiative known now as Issue 1 
• Excited to hear Shon Hopwood speak about earned prison credit as Ohio considers ballot initiative known now as Issue 1
• Despite fear-mongering opposition ads, drug sentencing and prison reform initiative polling strong in Ohio