The opinion
[This decision has been published in Ohio Official Reports at 94 Ohio St.3d 109.]
OFFICE OF DISCIPLINARY COUNSEL v. KARTO.
[Cite as Disciplinary Counsel v. Karto, 2002-Ohio-61.]
Judges—Misconduct—Six-month suspension including suspension from judicial
office without pay for the term of the suspension—Failing to uphold the
integrity and independence of the judiciary—Failing to comply with the
law and act in a manner that promotes public confidence in the integrity
of the judiciary—Failing to disqualify himself when he knows he is likely
to be a material witness—Failing to be faithful to the law and maintain
professional competence—Use of outdated statute or rule book at
sentencing—Failing to dispose of all judicial matters promptly, efficiently,
and fairly—Engaging in conduct prejudicial to the administration of
justice—Failing to perform the duties of the office impartially and
diligently—Engaging in ex parte communications—Failing to disqualify
himself when his impartiality might reasonably be questioned.
(No. 01-877—Submitted August 28, 2001—Decided January 16, 2002.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 99-77.
__________________
FRANCIS E. SWEENEY, SR., J.
{¶ 1} On July 3, 2000, relator filed a nine-count amended disciplinary
complaint against respondent, Judge Steven Ray Karto, Attorney Registration No.
0020890, who was admitted to the practice of law in the state of Ohio on November
4, 1977, and has served as the sole judge of Harrison County since April 1991.1
The amended complaint alleged that respondent had engaged in multiple violations
1. Relator filed an initial complaint against respondent on December 6, 1999.
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of the Code of Judicial Conduct and the Disciplinary Rules. Respondent answered,
and the matter was considered by a panel of the Board of Commissioners on
Grievances and Discipline of the Supreme Court (“board”).
{¶ 2} Counts I and II of the complaint involve the John P. Snodgrass
contempt proceedings. Respondent instituted these proceedings against Snodgrass,
the Director of the Harrison County Department of Human Services, because he
believed that Snodgrass had deliberately disobeyed an order to place an adjudicated
dependent child in foster care. Snodgrass, however, informed respondent that there
was no appropriate placement for the child, who needed therapeutic placement. At
the contempt hearing, Snodgrass’s attorney asked respondent to testify.
Respondent agreed to be called as a witness, removed his robe, and testified. Both
respondent and defense counsel made closing remarks, and then respondent
returned to the bench. Respondent ultimately held Snodgrass in criminal contempt,
but refused to impose a sentence, despite a request to do so. Since there was no
final, appealable order, Snodgrass could not appeal the ruling. The panel concluded
that respondent violated Canons 1 (a judge shall uphold the integrity and
independence of the judiciary), 2 (a judge shall comply with the law and act in a
manner that promotes public confidence in the integrity of the judiciary),
3(E)(1)(d)(v) (a judge shall disqualify himself when he knows he is likely to be a
material witness), 3(B)(2) (a judge shall be faithful to the law and maintain
professional competence), and 3(B)(8) (a judge shall dispose of all judicial matters
promptly, efficiently, and fairly in compliance with the Rules of Superintendence)
of the Code of Judicial Conduct, and DR 1-102(A)(5) (a lawyer shall not engage in
conduct prejudicial to the administration of justice).
{¶ 3} Count IV stems from the Patricia Smith contempt proceeding. After
respondent revoked the probation of Smith’s boyfriend, respondent and his bailiff
left the courthouse and walked past Smith and others. According to respondent,
Smith pointed her finger at him and made a “popping” sound like a gun. Believing
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that this was a threat, respondent ordered Smith to be in the court the following day.
Smith denied threatening respondent. Later, in the disciplinary case, Smith’s
friends corroborated her side of the story, but respondent’s bailiff testified that he,
too, had heard the “popping” sound. Respondent found Smith to be in civil
contempt and sentenced her to thirty days in jail and fined her $250. The sentence
was suspended on the condition that she did not cause any further problems.
{¶ 4} According to the stipulated facts, this proceeding took place without
the filing of a complaint or a case number, and without a journal entry
memorializing the proceedings. When asked why he did not advise Smith that she
had the right to be represented by counsel, respondent told the panel that he had
initially intended only to admonish Smith, not to bring contempt charges against
her. The panel found that respondent violated Canons 1, 2, 3 (a judge shall perform
the duties of the office impartially and diligently), and DR 1-102(A)(5).
{¶ 5} Count V involves respondent’s handling of juvenile proceedings
involving Jonathan and Doug Grim, Jr. The panel found that respondent had relied
on an outdated statute book and incorrectly sentenced Doug Grim, Jr. to ninety-day
concurrent sentences at Sargus Juvenile Detention Center.
{¶ 6} The panel further found that respondent had ex parte communications
with employees of the Juvenile Probation Department concerning the Grim
brothers. Kari Miles, an employee of the juvenile probation department, told
respondent that the boys had made threats against her and her property. Respondent
told her to contact the prosecutor’s office. She subsequently filed delinquency
complaints against the boys.
{¶ 7} Respondent issued arrest warrants to revoke the boys’ probation. A
juvenile probation officer removed the boys from school and brought them before
respondent. Although the boys indicated that they had an attorney to represent
them, respondent conducted the detention hearing without their attorney being
present, and had the boys question the state’s witness. Respondent ordered the
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brothers to be detained at Sargus Juvenile Detention Center until the adjudicatory
hearing could be held. Respondent, who was accused of being biased, agreed to
recuse himself from further proceedings but did so because he felt there was an
appearance of impropriety, since Miles was his employee.
{¶ 8} At the disciplinary hearing, Harrison County Prosecuting Attorney
Matthew Puskarich told the panel that respondent contacted him, and that
respondent had asked him to press felony charges against the boys. Although
respondent disputed this assertion, the panel accepted the prosecutor’s account and
found that respondent’s request to press felony charges indicated a bias and
prejudice on his part. The panel also found that respondent had violated Canons 1,
3(B)(2), 3(B)(7) (a judge shall not engage in ex parte communications), and 3(E)(1)
(a judge shall disqualify himself when his impartiality might reasonably be
questioned).
{¶ 9} With respect to Count VI, the panel found that on September 2, 1999,
respondent mistakenly informed Joseph Crites, convicted of a felony DUI, that his
appeal time had expired and that he consequently did not need appointed counsel.
Crites perfected his appeal acting pro se. Apparently realizing his mistake,
respondent granted Crites’s request for appointed counsel. The panel found no
clear and convincing evidence of disciplinary violations in this matter.
{¶ 10} Count VIII stems from respondent’s handling of a juvenile matter
involving Andrew Akers. Akers had been taking part in a juvenile diversion boot
camp-type program (“C-CAP”) and was brought into court when a C-CAP sergeant
discovered that Akers was not living at home and was not getting the medication
he needed. Akers told respondent that he did not want to be placed in foster care.
However, Akers was satisfied when respondent told him that he would be placed
in the Dunlap foster home, which was operated by the parents of a C-CAP
employee.
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{¶ 11} On July 24, 1997, respondent issued an order placing Akers in the
Dunlap foster home, which was located in Harrison County but licensed through
Guernsey County. A representative from Guernsey County Children Services
Board contacted Kristen Davia, a supervisor at the Harrison County Children
Services, and advised her that although the Dunlaps agreed to the placement, Akers
could stay with them for only a maximum of three days. Therefore, she urged Davia
to transfer Akers as quickly as possible. Davia arranged for Akers’s transfer the
next day.
{¶ 12} When respondent learned about this transfer, he presented the
Harrison County Sheriff’s Department with an ex parte order to return Akers to the
Dunlap foster home. The order was made at 12:07 a.m. on July 26, 1997. An
employee of Davia called her at home just after midnight to relay the judge’s
instructions that Akers was to be returned “immediately.” As a result, at 2:00 a.m.,
Akers was awakened and taken back to the Dunlap foster home. Three days later,
respondent issued an order returning Akers to the second foster home.
{¶ 13} Respondent contacted the Harrison County Prosecuting Attorney
and asked that arrest warrants be prepared for contempt for Davia and John
Snodgrass. Respondent told the prosecutor to advise Snodgrass that if Davia
resigned from Children Services, then he would not proceed with the contemplated
contempt action or bring other charges against Davia. The panel found no
violations of Canons 1, 2, or 3, but did find that respondent had violated DR 1-
102(A)(5).
{¶ 14} No violations were found in regard to Count IX, which alleged that
respondent’s combined behavior constitutes a pattern and practice of abusing the
contempt power.
{¶ 15} After finding that the above violations had occurred, the panel
recommended that respondent be suspended from the practice of law for one year,
with the entire suspension stayed, provided that respondent engage in no further
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misconduct. The board adopted the panel’s findings of fact and conclusions of law,
but disagreed with the recommended sanction. Instead, the board recommended
that respondent be suspended from the practice of law for one year, but with only
six months of the suspension stayed.
{¶ 16} Respondent objects to the board’s findings and to the board’s
recommended sanction. Respondent contends that his actions do not constitute
sanctionable judicial misconduct, but even if they do, he maintains that the
mitigating evidence in his favor supports a lesser sanction than that imposed.
{¶ 17} It is fundamental that in disciplinary proceedings, the relator must
prove by clear and convincing evidence the facts necessary to prove an ethical
violation. Ohio State Bar Assn. v. Reid (1999), 85 Ohio St.3d 327, 708 N.E.2d 193,
paragraph two of the syllabus. Under this standard, we find that relator has proven
by clear and convincing evidence that respondent has violated the Code of Judicial
Conduct with respect to Counts I, II, IV, V, and VIII. We also agree with the
board’s decision to dismiss Counts VI and IX on the ground that these violations
were not proven by clear and convincing evidence.2 Therefore, we adopt the
board’s findings of fact and conclusions of law.
{¶ 18} Regarding the Snodgrass and Smith contempt matters (Counts I, II,
and IV), respondent argues that he acted within his contempt power and that the
board erred in excluding expert testimony to support this conclusion. Contrary to
respondent’s position, we find that the panel was justified in excluding expert
testimony regarding respondent’s contempt power. The panel members consisted
of an attorney, a judge, and a layperson who had served on the board for several
years. These individuals were qualified to decide the issues of whether respondent
had abused his contempt power and whether his actions constituted judicial
2. Prior to the hearing, relator dismissed Counts III and VII of the complaint.
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misconduct. Therefore, since no expert testimony was necessary to decide these
issues, the panel chair properly excluded the expert testimony sought.
{¶ 19} As to the merits of these counts, we disagree with respondent’s
position that he violated no standards of the Code of Judicial Conduct and was
justified in instituting the contempt proceedings against these individuals. Canon
1 requires a judge to uphold the integrity and independence of the judiciary. Canon
2 provides that a judge shall respect and comply with the law and shall act at all
times in a manner that promotes public confidence in the integrity and impartiality
of the judiciary. Canon 3 states that a judge shall perform the duties of judicial
office impartially and diligently.
{¶ 20} Respondent clearly violated all three canons in his handling of the
Snodgrass and Smith contempt hearings. By his conduct, respondent used his
position as a judge to conduct legal proceedings without the proper formalities,
simply as a means to intimidate these individuals. We have previously stressed that
“[i]t is of utmost importance that the public have confidence in the integrity and
impartiality of the judiciary.” Disciplinary Counsel v. Allen (1997), 79 Ohio St.3d
494, 495, 684 N.E.2d 31, 32. Certainly, respondent’s handling of these contempt
proceedings not only throws doubts on respondent’s impartiality, but also weakens
the public’s perception of the integrity of the judiciary. Therefore, the manner in
which respondent conducted these proceedings indicates a clear abuse of his
judicial authority, and is in contravention of these three canons.
{¶ 21} Moreover, this court recently held that “[a] judge acts in a manner
‘prejudicial to the administration of justice’ within the meaning of DR 1-102(A)(5)
when the judge engages in conduct that would appear to an objective observer to
be unjudicial and prejudicial to the public esteem for the judicial office.” Cleveland
Bar Assn. v. Cleary (2001), 93 Ohio St.3d 191, 754 N.E.2d 235, syllabus. Though
respondent contended that he went after Snodgrass simply to impress upon him that
there are consequences for refusing to obey a valid court order, it is evident that
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respondent misused his contempt power and engaged in conduct prejudicial to the
administration of justice pursuant to DR 1-102(A)(5). Similarly, respondent
admitted that he initially called Smith into court only to admonish her. The fact
that he then decided to cite her for contempt and did so without formal proceedings
and without advising her of her right to counsel clearly indicates a violation of DR
1-102(A)(5).
{¶ 22} We also agree with the board’s implied finding that the refusal to
sentence Snodgrass and to enter a final, appealable order violated Canons 1, 2,
3(B)(2), and 3(B)(8). In addition, respondent’s decision to testify at the contempt
hearing was a violation of Canon 3(E)(1)(d)(v), which calls for judges to disqualify
themselves when their impartiality might reasonably be questioned due to their
knowledge that they are likely to become material witnesses in the proceeding.
Respondent’s decision to step off the bench, discard his robe, and testify as a
witness was inappropriate. His impartiality is surely called into doubt since he not
only initiated the contempt proceedings and issued the ruling in the case, but also
served as witness and prosecutor by making a closing statement. Under these
circumstances, the board was warranted in concluding that respondent had violated
the above canons.
{¶ 23} With respect to Count V, involving the Grim brothers, respondent
likewise contends that he committed no judicial misconduct. Although he admits
that he was mistaken in using an outdated statute book when sentencing Doug
Grim, Jr., he believes that this is not tantamount to judicial misconduct. He further
maintains that he was justified in having ex parte communications with the
probation officers, and that he conducted the detention hearing in a proper and
timely fashion. Finally, respondent argues that relator did not prove by clear and
convincing evidence that he told the prosecutor to bring felony charges against the
boys.
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{¶ 24} We find that relator has sustained its burden of proof by clear and
convincing evidence that respondent’s conduct violated Canons 1, 3(B)(2), 3(B)(7),
and 3(E)(1)(a) (a judge shall disqualify himself in a proceeding in which his
partiality might reasonably be questioned due to personal bias or prejudice
concerning a party), and DR 1-102(A)(5).
{¶ 25} Contrary to respondent’s assertions, his use of an outdated rule book
in sentencing Doug Grim, Jr. is a clear violation of Canon 3(B)(2). Respondent’s
sole explanation to the panel for using the outdated version was that the new version
had been stolen. However, this does not excuse him from abiding by his
responsibility to keep himself apprised of changes in the law and to sentence an
individual accordingly.
{¶ 26} We further find that there was clear and convincing evidence
presented to show that respondent violated the above canons and DR 1-102(A)(5)
by having improper ex parte communications and by acting improperly in the
handling of the boys’ detention hearing. The fact that the hearing was held
promptly is immaterial, particularly in light of the fact that respondent conducted
the hearing without the boys’ legal counsel being present and asked the juveniles
themselves to cross-examine the state’s witness. Moreover, even though
respondent ultimately recused himself, there is evidence that respondent was biased
and that he should have recused himself earlier. The testimony of Prosecuting
Attorney Matthew Puskarich that respondent instructed him to bring felony charges
against the boys indicates such a bias. Although respondent denies that he made
this request, there is testimony to the contrary, and we therefore defer to the panel’s
finding. See Disciplinary Counsel v. Zingarelli (2000), 89 Ohio St.3d 210, 217-
218, 729 N.E.2d 1167, 1174.
{¶ 27} We adopt the board’s conclusions of law regarding Count VI, the
Crites matter, finding no violations of Canon 3(B)(2) or DR 1-102(A)(4) (a lawyer
shall not engage in conduct involving dishonesty, fraud, deceit, or
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misrepresentation), or (A)(5). The evidence is insufficient to prove these
violations.
{¶ 28} With respect to Count VIII, the Akers matter, we agree with the
board’s finding that respondent violated DR 1-102(A)(5). By threatening Davia
with contempt proceedings and then indicating that he would forgo those
proceedings if she resigned her position at Children Services, respondent clearly
engaged in conduct prejudicial to the administration of justice, i.e., “conduct that
would appear to an objective observer to be unjudicial and prejudicial to the public
esteem for the judicial office.” Cleveland Bar Assn. v. Cleary, 93 Ohio St.3d 191,
754 N.E.2d 235, syllabus.
{¶ 29} Relator objects to the board’s finding that respondent did not violate
Canons 1 and 2 with respect to the Akers matter. Relator contends that just as he
did in the Smith and Snodgrass matters, respondent used the tools of his office for
personal purposes. Although we agree that there was a violation of DR 1-
102(A)(5), and that it was egregious for respondent to make such threats against
Davia, unlike in the Smith and Snodgrass matters, respondent did not carry through
with any contempt proceedings. Under these circumstances, we do not find that
respondent violated Canons 1 and 2.
{¶ 30} With regard to Count IX, we adopt the board’s conclusions of law
that there was insufficient evidence presented to establish a pattern of judicial abuse
by respondent concerning his contempt power. Although respondent has
committed two acts of judicial misconduct involving the abuse of his contempt
power, relator has not proven by clear and convincing evidence that there was a
pattern of abuse. Nor does relator object to the dismissal of this count.
Accordingly, we defer to the board’s opinion and dismiss Count IX.
{¶ 31} Having found that respondent committed judicial misconduct, we
must now decide the appropriate sanction. The panel, in recommending that
respondent receive a one-year suspension, with the entire year stayed, found several
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mitigating factors in respondent’s favor: a total absence of any prior disciplinary
record, excellent character references, full cooperation with the disciplinary
investigation, an unblemished record as a sitting judge, and much community
involvement. In making this recommendation, the panel turned to Disciplinary
Counsel v. Hoague (2000), 88 Ohio St.3d 321, 725 N.E.2d 1108, for guidance. In
Hoague, respondent was a municipal court judge who was found to have misused
his judicial office to achieve his personal goal of reprimanding people he believed
were guilty of reckless driving. In Hoague, we imposed a six-month suspension,
with the entire six months stayed. The board, however, found Hoague to be
inapposite, since that case involved a single act of misconduct, whereas this case
involves more than an isolated judicial act. Accordingly, the board imposed a one-
year sentence, with six months stayed on the condition that respondent commit no
further violations.
{¶ 32} We agree with the board that the behavior exhibited in this case is
more serious than the isolated incident involved in Hoague. As the board stated,
respondent used “the tools of his office granted to him by the State of Ohio not for
the intended purpose of impartially deciding cases but for some other and often
personal purposes.” While we agree with the board’s characterization of
respondent’s misconduct, we nevertheless depart from the board’s recommended
sanction. Instead, we find that a six-month suspension is the appropriate sanction,
given the nature of the misconduct and taking into consideration the evidence in
mitigation.
{¶ 33} Respondent is hereby suspended from the practice of law for six
months. Gov.Jud.R. III(7)(A) mandates that a disciplinary order suspending a
judge from the practice of law include a provision immediately suspending the
judge from judicial office without pay for the term of the suspension. Accordingly,
respondent is hereby suspended without pay from his position as judge of the
Harrison County Court of Common Pleas. Costs are taxed to the respondent.
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Judgment accordingly.
MOYER, C.J., RESNICK and LUNDBERG STRATTON, JJ., concur.
DOUGLAS and PFEIFER, JJ., dissent.
COOK, J., dissents.
__________________
PFEIFER, J., dissenting.
{¶ 34} Over the course of his judicial career, Judge Karto did some things
he would be better off not having done. Some of his judicial actions likely violated
Disciplinary Rules and the Code of Judicial Conduct. However, no one of those
missteps seems particularly egregious.
{¶ 35} I am especially concerned about the majority’s broad assertion that
the “use of an outdated rule book * * * is a clear violation of Canon 3(B)(2).”
Apparently, the single use of an outdated rulebook is the equivalent of professional
incompetence. It is an unduly harsh standard.
{¶ 36} Something about this investigation just doesn’t feel right. Subject
anyone to enough scrutiny and you will find unsightly blemishes. As the sole
common pleas judge in Harrison County, Judge Karto had ample opportunity to
come under scrutiny. One witness, who had been found in contempt of court by
Judge Karto, waited five years before complaining about Judge Karto’s behavior.
A dismissed grievance concerning delinquent statistical reporting was filed by the
wife of a part-time county judge. That same part-time county judge had had a
grievance filed against him by Judge Karto’s parents. Such small-town stone
throwing ought not to be dignified by our disciplinary process.
{¶ 37} The two most significant charges against Judge Karto revolve
around emotionally charged events involving the placement of children with foster
homes. It is not uncommon in such situations for judges and heads of
administrative agencies to butt heads. The ultimate responsibility is on the judge
to proceed in the best interests of the children. It is understandable that his tolerance
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might be stretched to the breaking point when he perceives others to be acting
contrary to court orders. It does not excuse his lack of strict adherence to the law,
but it explains it and suggests that he did not willfully breach his duties.
{¶ 38} Because not one of the grievances filed against Judge Karto is
egregious or the result of a willful breach of the judicial code, see Gov.Jud.R. I(1),
we should not allow ourselves to be overwhelmed by the multiplicity of grievances
filed. I remain unconvinced that any one of them, or even all of them in aggregate,
justify a suspension from the practice of law.
{¶ 39} To remove a sitting judge from office for violations that either
involved little harm or were capable of correction on appeal threatens the
foundation of an independent judiciary. I dissent because I believe the appropriate
sanction is a public reprimand.
DOUGLAS, J., concurs in the foregoing dissenting opinion.
__________________
COOK, J., dissenting.
{¶ 40} Because I would adopt the sanction recommended by the board, I
respectfully dissent.
{¶ 41} In assessing the sanction appropriate here, the board credited
aggravating circumstances, expressly noting respondent’s “refusal to acknowledge
the wrongful nature of his conduct and the presence of multiple offenses.” The
Guidelines for Imposing Lawyer Sanctions state that the board may consider such
factors “in favor of recommending a more severe sanction.” Rules and Regulations
Governing Procedures on Complaints and Hearings before the Board of
Commissioners on Grievances and Discipline of the Supreme Court, Section
10(B)(1), Guidelines for Imposing Lawyer Sanctions. See, also, ABA Center for
Professional Responsibility, Standards for Imposing Lawyer Sanctions (1991 &
Amend.1992), Standard 9.2. Though respondent’s filings with this court
characterize his testimony as showing remorse, the board found that “the
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respondent judge has shown little remorse or acceptance of responsibility for any
misconduct.” The majority’s decision, however, fails to accord sufficient weight
to these aggravating circumstances.
{¶ 42} The nature of the misconduct and the aggravating factors present in
this case warrant the recommended one-year suspension with six months stayed.
__________________
Jonathan E. Coughlan, Disciplinary Counsel, and Dianna M. Anelli,
Assistant Disciplinary Counsel, for relator.
Kegler, Brown, Hill & Ritter, Geoffrey Stern and Christopher J. Weber; and
Francesca T. Carinci, for respondent.
__________________
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