ethics

Judges Driving Under The Influence

It has, yet again, been a busy week for judicial disciplinary charges this week.

Portage County Common Pleas Court Judge Becky Doherty may face further disciplinary action as a result of an OVI case brought against her.  On February 2019, Judge Doherty was arrested and charged with driving under the influence of alcohol after she drove a vehicle belonging to an Akron woman off a snowy on-ramp to Interstate 76 eastbound at Route 43 in Brimfield and crashed into a ditch at about 9:15 p.m.  She later pled guilty to the charge, a first-degree misdemeanor.

As a result, on May 20, 2019, the Office of Disciplinary Counsel filed disciplinary charges against Judge Doherty with the Board of Professional Conduct requesting sanctions against her for violations of the Code of Judicial Conduct.  She was charged with failure to act in a manner that promotes public confidence in the judiciary and failure to avoid the appearance of impropriety.  The formal hearing on the matter will occur on October 22, 2019.

Chief Assistant Disciplinary Counsel Joe Caligiuri stated that the sanction on this first offense will likely be a stayed suspension or a public reprimand.

In the meantime, the office of Disciplinary Counsel also filed disciplinary charges against Franklin County Domestic Relations Court Judge Monica Hawkins for her conviction for driving while under the influence of alcohol.  Hawkins was arrested in Pickerington on January 31, 2019, with a blood-alcohol level of .199%, nearly twice the legal limit.  Judge Hawkins informed the arresting officer that she was a judge and said she had not been drinking.  She was later convicted of the charge.  The Office of Disciplinary Counsel charged her with failing to comply with the law and failing to act in a manner that promotes public confidence in the judiciary, violations of the Code of Judicial Conduct.  The charges could result in the suspension of her license to practice law.  A suspension carries a heavy penalty as it means that she would also be suspended from the bench as a requirement for holding judicial office is to be able to practice law in Ohio.

ethics

Judge Suspended For Attempting To Influence Daughter’s Speeding Ticket

In February, former Scioto County Common Pleas Court Judge William Marshall was suspended for six months following attempts to influence the outcome of his daughter’s speeding ticket.

When a police officer stopped her, Judge Marshall’s daughter telephoned him.  Judge Marshall spoke with the police officer, who, thereafter, issued a speeding ticket to his daughter.  Later Judge Marshall stated:  “There used to be a code in this county — I’m a Judge and he should not have written my daughter a speeding ticket.”  Thereafter, Judge Marshall attempted to discuss the matter with an Assistant Prosecutor assigned to the case.  Feeling uncomfortable, the Assistant Prosecutor asked the City Prosecutor to handle Judge Marshall’s daughter’s case.

About a month later, Judge Marshall requested the presiding magistrate to appoint counsel to his daughter.  He confided to the Magistrate off the record that he disliked the trooper and wanted to get him in trouble.  When the trooper declined to meet with the Judge to discuss the matter as part of a settlement, the Judge called him a vulgar name.

At trial, both the trooper and Judge Marshall testified.  Judge Marshall requested to be considered an expert on the recalibration of police radar due to his employment in 1994 as a city prosecuting attorney.  He stated he went to the academy many times to be taught how the radar equipment worked. He claimed the only way the trooper could prove the accuracy of the radar was to bring the tuning forks into court. He requested that the court delay a decision until after the trooper had done so.

The magistrate was prepared to issue an order; however, the prosecuting attorney requested that she write it but delay releasing it as he had a felony trial before Judge Marshall the following week and he did not want it to be influenced by an adverse decision in his daughter’s traffic case.  The magistrate delayed issuing the opinion.  She found Judge Marshall’s daughter to be a juvenile traffic offender and set a disposition hearing.

Judge Marshall then called the magistrate indicating that she could not rule against his daughter unless there was an expert testifying to the accuracy of the radar equipment. Ultimately, the Judge accused her of questioning his credibility before ending the telephone call. The magistrate announced the decision and imposed court costs and points.

After the Office of Disciplinary Counsel filed the Complaint against Judge Marshall, he resigned from office.  Entering into a consent to discipline, Mr. Marshall agreed to violations of several judicial rules, including failing to act at all times in a manner that promotes public confidence in the judiciary, abusing the prestige of judicial office, and exhibiting bias or prejudice in the performance of his judicial duties.  The Supreme Court of Ohio issued a six-month suspension.

 

ethics

Judge Reprimanded For Presiding Over Former Client’s Case

Mahoning County Probate Judge Robert Rusu, Jr. was publicly reprimanded for presiding over several cases in which he formerly represented a party.  Appointed to the bench in July, 2014, Rusu was elected into office later that year.  Upon taking judicial office, Judge Rusu neglected to inform some of his clients that he would no longer be representing them in the legal matters.

In one matter, Mr. Rusu represented an executor of an estate.  When he took judicial office, he informed his client he could no longer represent her but referred her to his law office associate who assumed her representation.  Judge Rusu ultimately adopted a Magistrate’s Decision regarding the matter.  He indicated that he did not believe his presiding over the matter would be a problem because all parties were represented by counsel, they resolved the matter and they never formally appeared before him.  According to the disciplinary case, the Office of Disciplinary Counsel identified approximately 170 cases in which Mr. Rusu represented a client and later took some action in their case while a Judge in Probate Court.  Approximately 120 of those cases involved a deputy clerk issuing form letters using a stamp to place the Judge’s signature on the letter.

Additionally, the disciplinary complaint alleged that Judge Rusu failed to notify many of his clients with dormant cases that he had been appointed to the bench, thereby denying them the opportunity to be advised to obtain replacement counsel or to request the return of their files.

Because there was no evidence that Mr. Rusu’s former clients were harmed or that their cases resulted in anything less than evenhanded justice, Judge Rusu was given a public reprimand for this misconduct.

ethics

FATHER/SON CONNECTION INSUFFICIENT FOR JUDICIAL DISQUALIFICATION

In a surprising decision, the Board of Professional Conduct ruled that no ethics violation occurred when Justice Patrick DeWine presided on filed by his father, Attorney General Michael DeWine’s office.  For background information about this case, see October 3, 2018, blog post.

Interestingly, this case never went to hearing.  Rather, it was decided after oral arguments on the parties’ filed Motions for Summary Judgment.  Granting Justice DeWine’s July 20, 2018 Motion for Summary Judgment, the Board ruled that Justice DeWine’s failure to recuse himself from cases in which his father’s office was involved did not amount to an appearance of impropriety.  Nor did it violate Canons 1, 2 or 4 of Ohio’s Code of Judicial Conduct.

“[T]he property test for determining whether a judge’s participation in a case presents an appearance of impropriety is . . . an objective one,” the Board said.  A judge need only step aside where a reasonable and objective observer would harbor serious doubts about the judge’s ability to remain impartial.  Justice DeWine cited a plethora of legal authority stating that judges need only step aside in familial situations where the family member is actually involved in the case.  This precedent, administered at both the Common Pleas and Appellate levels, applies equally at the Supreme Court level, the Board opined.

Citing State v. Beasley (2018), 152 Ohio St.3d 1468, 2018-Ohio-1796, the Board noted that in disqualification cases involving family members, the chief justices have focused on whether the judge’s family members have a potential for financial gain.  Interestingly, in Beasley, decided May 9, 2018, the defendant in a criminal action requested the Supreme Court of Ohio to reconsider the Chief Justice’s denial of a Motion of Disqualification against Justice DeWine because the AG’s office prosecuted the case against him.  The Supreme Court declined noting that the County Prosecutor and not the AG’s office prosecuted the matters against Beasley.

The Board noted that 41 other states have rules similar to Ohio’s Rule 2.11 regarding judicial disqualification.  Several of them have relied upon Ohio’s decisions in deciding their own cases.  Finally, the Board relied upon the U.S. Supreme Court decision Cheney v. United States Dist. Court (2004), 541 U.S. 913, 915-16, wherein Chief Justice Scalia refused to disqualify himself based upon his friendship with Vice-President Dick Cheney and their involvement in a social activity involving duck hunting.

The Board noted that “[w]hat the public may believe to be an appearance of impropriety is not necessarily consistent with the legal definition of an appearance of impropriety.”

The Board also saw no violation of Canon 4 (publicly endorse or oppose a candidate for another public office or engaging in political or campaign activity in that is inconsistent with the independence, integrity or impartiality of the judiciary) in Justice DeWine’s appearing in photographs swearing in his father as Attorney General calling them family photographs not requiring disqualification.  And it found no violation of Canon 2 prohibiting a judge from conveying or permitting others to convey the impression that any person or organization is in a position to influence the judge.

The unanimous decision was rendered by Fairfield Municipal Judge Joyce A. Campbell, Mercer County Common Pleas Court Judge Jeffrey Ingraham and Montgomery County Common Pleas Court Judge Michael Krumholz.

ethics

Conflicts Abound When AG and Justice Are Father And Son

The ABA/BNA Lawyers’ Manual on Professional Conduct, reported that an ethics complaint is currently pending against Ohio Supreme Court Justice Patrick DeWine for failing to recuse himself on all cases in which the Ohio Attorney General’s office is involved.  Ohio Attorney General Michael DeWine is Justice DeWine’s father.

Prior to becoming Justice in 2017, Patrick DeWine served on both the Hamilton County Common Pleas Court and the 1st District Court of Appeals.  Justice DeWine has heard many cases in which the AG’s office has represented a party.  As Supreme Court Justice, he has heard 4 cases in which the Attorney General is named as a party.  He has never, however, remained on a case in which the Attorney General has personally appeared before him.

While on the Common Pleas Court in 2010, then Judge DeWine sought an ethics opinion from the Supreme Court of Ohio Board of Commissioners on Grievances and Discipline (now the Board of Professional Conduct) as to whether he could preside over cases in which the AG’s office was representing a party.  Although the Board never issued a written opinion, Justice DeWine states that its Secretary, Jonathan Marshall, orally told him that he must recuse only where his father personally appears before him.

In 2016, as a Court of Appeals judge, Justice DeWine again sought an ethics opinion as to when he must recuse himself when the AG’s Office is either a party or is representing a party.  This time he sought the opinion from private attorney Michael Close.  Mr. Close, agreeing with Mr. Marshall, opined that the Judge need only recuse when AG DeWine personally appears in the case.

In 2016, the Ohio Democratic Party sought its own ethics opinion from former Disciplinary Counsel Jonathan Coughlan, also a former member of the task force that drafted the current Code of Judicial Conduct.  Mr. Coughlan opined that Justice DeWine should recuse himself from all cases in which the AG’s office appears as counsel of record or files an Amicus brief.

In response, Justice DeWine again sought Mr. Close’s opinion.  Mr. Close reiterated that Justice DeWine need recuse only when his father personally appears before him.

Shortly after being sworn in as Justice, two separate litigants requested that Justice DeWine recuse himself from their cases because of the AG office’s involvement.  Justice DeWine declined.

Thereafter, Ohio’s Office of Disciplinary Counsel received grievances against Justice DeWine for his failure to recuse himself from the cases.  Pursuant to the Supreme Court Rules for the Government of the Judiciary, the matter was referred to the Chief Judge of the Court of Appeals, who appointed a three-member panel to review grievances.  All three judges found that further investigation of the grievances was warranted.

Pursuant to Rule, the Chief Judge of the Court of Appeals appointed Bradley N. Frick as Special Disciplinary Counsel to investigate and/or prosecute the ethics matters against Justice DeWine. On February 14, 2018, Mr. Frick filed an Amended Complaint against him alleging violations of several Canons of the Code of Judicial Conduct.

The Amended Complaint alleged that Justice DeWine violated Canons 1, 2 and 4 of the Code of Judicial Conduct when he failed to recuse himself on cases in which the AG’s office was a party or represented a party.  He also violated the Canons when he appeared with his father in photos on his father’s gubernatorial campaign thereby conveying the impression that AG DeWine could influence Justice DeWine. It states that concluding a father-son relationship has no impact on public perception of the judiciary ignores basic human nature.

The Amended Complaint further alleges that Justice DeWine violated Canons 1, 2 and 3 when he asked Hamilton County Prosecutor Joe Deters to find an internship position in the County Prosecutor’s office for his son, a freshman at Miami University.  Prosecutor Deters did so even though Justice DeWine’s son was not a law student.

The Amended Complaint alleges that Justice DeWine failed to promote the independence, integrity, and impartiality of the judiciary, engaged in the appearance of impropriety, engaged in prohibited campaign activity, and employed the authority of his office to secure authorization of a public contract for a family member.

The parties filed motions for summary judgment.  The hearing panel heard oral arguments in September 2018 and will rule on the motions in the near future.

Interestingly, the Supreme Court of Ohio recently denied a defendant’s Motion for Reconsideration due to Justice DeWine’s failure to recuse in State ex rel Beasley, 2018-Ohio-493.  In a concurring opinion, Justice Fischer wrote that the defendant waived his argument when he failed to request such recusal.  Citing a long line of cases in which chief justices have allowed judges to remain on cases notwithstanding familial relationships with government employees whose offices appear before them, Justice Fischer opined that defendant’s argument was without merit.

Whether Justice Fischer’s concurrence is a preview of precedent to be set in Justice DeWine’s ethics case remains to be seen.

At the very least, Justice DeWine’s ethics case points out the inherent difficulty in navigating conflicts of interest in situations where two public officials appear before one another.  Even the experts disagree.  Both sides’ arguments are plausible.  The state Attorney General’s office is involved in so many cases, it may not be feasible to require recusal where the AG is not actually appearing before the court.  On the other hand, a party could reasonably conclude that impartiality cannot occur where a Justice must rule upon a case in which his father’s office is a party or is representing a party.

The Attorney General is Ohio’s top cop.  In this situation, reasoning that “[s]alaried government attorneys simply ‘ “do[ ] not have the financial interest in the success of the departmental representation that is inherent in private practice” seems not to apply.  State ex rel Beasley, 2018-Ohio-493, par. 7.  Although it may not be financial, the AG certainly has an interest in the success of his office.  And that interest is every bit as important to him as is a private practitioner’s financial interest in his business.

Certainly, Justice DeWine knows that his decisions will impact the success of Attorney General DeWine’s office.  And, perhaps, the Attorney General’s re-election campaign.  Or in this case, his gubernatorial campaign.  Of course, Justice DeWine will want his father to do well in public office.  Such considerations simply cannot be ignored.  And citations to situations where the public employee’s position is of less consequence just do not seem to correlate.

Notwithstanding the long precedent that jurists are presumed to be impartial and public officials are presumed to have less interest in the outcome of a public case, it certainly seems to raise an eyebrow to allow a Justice of a state’s top court to preside over cases in which his father, the state’s top cop, stands to gain, even if indirectly.

No doubt this very serious and thorny issue must be addressed and decided.  Whether it should lead to ethics sanctions, possibly impacting the Justice’s law license, however, is another matter.  Given the high stakes and the fact that the citizens of Ohio elected both officials, it seems that, at the very least, some semblance of citizen input is called for.