rejecting the recommended sanction of a stayed six-month suspension and imposing a stayed one-year suspension because “a sanction more rigorous than the board’s recommendation is required for the harm caused by respondent’s improprieties”
How later courts described this case
- rejecting the recommended sanction of a stayed six-month suspension and imposing a stayed one-year suspension because “a sanction more rigorous than the board’s recommendation is required for the harm caused by respondent’s improprieties”
Written by the judges who cited it.
The opinion
[Cite as Disciplinary Counsel v. Russo, 124 Ohio St.3d 437, 2010-Ohio-605.]
DISCIPLINARY COUNSEL v. RUSSO, JUDGE.
[Cite as Disciplinary Counsel v. Russo, 124 Ohio St.3d 437, 2010-Ohio-605.]
Judges — Misconduct — Three violations of the Canons of the former Code of
Judicial Conduct — Mitigation found — One-year license suspension,
conditionally stayed.
(No. 2008-2360 ⎯ Submitted December 2, 2009 ⎯ Decided February 25, 2010.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 08-049.
__________________
Per Curiam.
{¶ 1} We must decide in this case the appropriate sanction for
respondent, a judge who has been convicted twice on charges of disorderly
conduct because of physical altercations with a girlfriend. Respondent admits that
his behavior violated ethical standards incumbent on the Ohio judiciary. The
Board of Commissioners on Grievances and Discipline has recommended a six-
month suspension of his license to practice, with the suspension stayed in full on
conditions, including two years of probation and the obligation to manage his
alcohol dependency. We accept the admissions of judicial misconduct; however,
to further ensure that respondent refrains from such conduct in the future, we
order a one-year suspension of his license to practice, to be stayed on the
recommended conditions.
{¶ 2} Respondent, Joseph Russo of Cleveland, Ohio, Attorney
Registration No. 0037923, was admitted to the practice of law in Ohio in 1987
and has served as a judge in the Cuyahoga County Juvenile Court since 1998. In
2008, relator, Disciplinary Counsel, charged respondent with violations of the
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Canons of the Code of Judicial Conduct that were then in effect:1 Canon 1,
requiring a judge to uphold the integrity and independence of the judiciary; Canon
2, requiring a judge to respect and comply with the law and act at all times in a
manner that promotes public confidence in the integrity and impartiality of the
judiciary; and Canon 4, requiring a judge to avoid impropriety and the appearance
of impropriety in all the judge’s activities.
{¶ 3} The board initially considered the case on a consent-to-discipline
agreement, filed pursuant to the Rules and Regulations Governing Procedure on
Complaints and Hearings of the Board of Commissioners on Grievances and
Discipline (“BCGD Proc.Reg.”) 11. The parties stipulated in that agreement to
the charged misconduct, referred to the alcohol abuse that contributed to cause the
misconduct, and proposed a six-month suspension of respondent's license, all
stayed. The board accepted the agreement and recommended the agreed-upon
sanction.
{¶ 4} Upon review of the board's certified report, we rejected the
recommendation and returned the cause to the board “for further proceedings,
including consideration of a more severe sanction.” Disciplinary Counsel v.
Russo, 120 Ohio St.3d 1498, 2009-Ohio-381, 900 N.E.2d 617. A panel of the
board then heard the case and, based on the parties’ stipulations and evidence,
again found violations of former Canons 1, 2, and 4. The panel also again
recommended a stayed six-month suspension from practice, this time enumerating
specific conditions for the stay⎯that respondent be placed on probation for two
years, maintain his sobriety, comply with his Ohio Lawyers Assistance Program
(“OLAP”) recovery contract, and commit no further misconduct. The board
adopted the panel's findings of misconduct and recommendation.
{¶ 5} The parties have not objected to the board’s report
1. These Canons were superseded by a new Code of Judicial Conduct on March 1, 2009.
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January Term, 2010
Misconduct
{¶ 6} Judicial misconduct must be shown by clear and convincing
evidence. Ohio State Bar Assn. v. Reid (1999), 85 Ohio St.3d 327, 708 N.E.2d
193, paragraph two of the syllabus. “Clear and convincing evidence” has been
defined as “ ‘that measure or degree of proof which is more than a mere
“preponderance of the evidence,” but not to the extent of such certainty as is
required “beyond a reasonable doubt” in criminal cases, and which will produce
in the mind of the trier of facts a firm belief or conviction as to the facts sought to
be established.’ ” Id. at 331, 708 N.E.2d 193, quoting Cross v. Ledford (1954),
161 Ohio St. 469, 53 O.O. 361, 120 N.E.2d 118, paragraph three of the syllabus.
The proof of respondent’s improprieties meets this standard.
{¶ 7} In the early morning hours of September 6, 2006, respondent and
his girlfriend became embroiled in an argument while driving home after dinner
and drinks at a restaurant. When the argument escalated into a physical
altercation, they stopped at a gas station, where the fight continued. Both were
arrested and charged with “disorderly conduct⎯intoxicated,” a minor
misdemeanor. Later that month, respondent signed a waiver admitting his guilt
and paid a $100 fine.
{¶ 8} In the early morning hours of July 4, 2007, another physical
altercation ensued after an argument between respondent and his girlfriend, this
time at the couple’s condominium. A neighbor called police, but by the time
police arrived, respondent had left the condominium to check into a nearby hotel.
{¶ 9} Police interviewed the girlfriend, who asked for a domestic-
violence temporary protection order. Police also interviewed respondent, who
initially denied the fight. When police told him of the domestic-violence charge,
however, he claimed that his girlfriend had attacked him. The next day, the
Rocky River Municipal Court granted a domestic-violence temporary protection
order against respondent.
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{¶ 10} In early March 2008, the domestic-violence charge was amended
to “disorderly conduct⎯persistent,” a misdemeanor of the fourth degree.
Respondent pleaded no contest and was convicted. Later that month, respondent
received a 30-day suspended jail sentence and was ordered to continue counseling
for alcohol abuse and anger management. He was also placed on probation for
one year and was fined $250.
{¶ 11} By engaging in the foregoing criminal activity, respondent failed to
uphold the integrity of the judiciary, failed to comply with laws and promote
public confidence in the judiciary, and failed to avoid impropriety and the
appearance of impropriety. We therefore accept his admissions to having violated
former Canons 1, 2, and 4.
Sanction
{¶ 12} We decide disciplinary matters on a case-by-case basis.
Disciplinary Counsel v. Gallagher (1998), 82 Ohio St.3d 51, 52, 693 N.E.2d
1078. In determining the appropriate sanction to impose for respondent's
violations of the Code of Judicial Conduct, we consider all relevant factors,
including the duties he violated, the injury caused by his misconduct, and the
sanctions imposed in similar cases. We then weigh the aggravating and
mitigating factors listed in BCGD Proc.Reg. 10(B) to see whether extenuating
circumstances warrant a more lenient or severe sanction. See Disciplinary
Counsel v. Kaup, 102 Ohio St.3d 29, 2004-Ohio-1525, 806 N.E.2d 513, ¶ 11;
Disciplinary Counsel v. Evans (2000), 89 Ohio St.3d 497, 501, 733 N.E.2d 609;
Disciplinary Counsel v. Medley (2001), 93 Ohio St.3d 474, 477, 756 N.E.2d 104.
{¶ 13} Judges are subject to the highest standards of ethical conduct.
Mahoning Cty. Bar Assn. v. Franko (1958), 168 Ohio St. 17, 23, 5 O.O.2d 282,
151 N.E.2d 17. In violating the duties set forth in former Canons 1, 2, and 4,
respondent diminished public confidence in the judiciary. As we observed in
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January Term, 2010
Disciplinary Counsel v. O’Neill, 103 Ohio St.3d 204, 2004-Ohio-4704, 815
N.E.2d 286, ¶ 33:
{¶ 14} “An independent and honorable judiciary is indispensable to
justice in our society. Canon 1 of the Code of Judicial Conduct. The primary
purpose of judicial discipline is to protect the public, guarantee the evenhanded
administration of justice, and maintain and enhance public confidence in the
integrity of this institution. Kloepfer v. Comm. on Judicial Performance (1989),
49 Cal.3d 826, 864-865, 264 Cal.Rptr. 100, 782 P.2d 239. Judicial misconduct
undermines these goals and, in so doing, demeans the judicial system itself. See
In re Probert (1981), 411 Mich. 210, 225, 308 N.W.2d 773.”
{¶ 15} The board’s recommended six-month suspension from practice, all
conditionally stayed, is within the range of sanctions that we have ordered for
judges who have committed misdemeanor offenses precipitated by substance
abuse. As the board observed, at one end of the spectrum is a case in which we
suspended a municipal court judge from practice for two years. Disciplinary
Counsel v. Ault, 110 Ohio St.3d 207, 2006-Ohio-4247, 852 N.E.2d 727, ¶ 19.
That judge had persuaded doctors to overprescribe painkilling medication for
several years and had been convicted twice of attempting to obtain a dangerous
drug by deception, a misdemeanor. Because of his commitment to sobriety and
the fact that his abuses had not impaired his performance on the bench, we stayed
his two-year suspension on the condition that he continue to receive treatment for
his drug addiction. Id. at ¶ 22.
{¶ 16} As a midrange sanction, the board cited a case in which a common
pleas judge received a six-month suspension because he had been convicted
multiple times of driving a motor vehicle while under the influence of alcohol and
had a prior disciplinary record. Disciplinary Counsel v. Connor, 105 Ohio St.3d
100, 2004-Ohio-6902, 822 N.E.2d 1235. We also stayed that suspension and
allowed the judge to remain on the bench because his two years of sobriety and
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his uncompromised performance as a judge showed that he posed no risk to the
public, provided that he complied with his treatment regimen. Id. at ¶ 20-21. As
the least egregious example, the board referred to a case in which a Supreme
Court justice was publicly reprimanded for a single conviction of driving a motor
vehicle while under the influence of alcohol. In Re Complaint Against Resnick,
108 Ohio St.3d 160, 2005-Ohio-6800, 842 N.E.2d 31, ¶ 4.
{¶ 17} Here, respondent concedes that he suffers from alcohol
dependency. He has satisfied the test in BCGD Proc.Reg. 10(B)(2)(g)(i) through
(iv) for attributing mitigating effect to this condition. He has provided reliable
proof that (1) he is alcohol dependent, (2) the dependency contributed to cause the
misconduct, (3) he has been sober since the incident in July 2007 due to having
successfully completed an approved treatment program, and (4) he is able to
return to the ethical professional practice of law, providing he remains in
recovery.
{¶ 18} The board, in adopting the panel’s report, found:
{¶ 19} “Following the 2007 incident, Respondent voluntarily contacted
Dr. Gintautas Sabataitis for an alcohol evaluation. Respondent has continued
counseling with Dr. Sabataitis as required by his sentence in the 2007 criminal
case.”
{¶ 20} “Respondent has completed a two-year outpatient treatment
program administered by Dr. Sabataitis.”
{¶ 21} “At the recommendation of Dr. Sabataitis, Respondent is
participating in the 12-step [Alcoholics Anonymous] recovery program.”
{¶ 22} “Respondent asserts, and Dr. Sabataitis agrees, that his alcoholism
did not interfere with his performance of his judicial duties except for
occasionally making him tardy for his work.”
{¶ 23} “Dr. Sabataitis recommends that Respondent must continue to
refrain from the use of alcohol and to remain compliant with the AA protocols.”
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January Term, 2010
{¶ 24} “Paul A. Caimi, OLAP Associate Director, testified that
Respondent has successfully completed a two-year OLAP contract. Respondent
voluntarily renewed the contract on August 12, 2009, for an additional two year
period. Respondent passed all random drug tests while he has been under contract
with OLAP. Mr. Caimi has weekly contact with Respondent, and in Caimi’s
opinion, Respondent has a good attitude and is satisfactorily working his
program.”
{¶ 25} The board found that respondent is of good character and
reputation in the greater Cleveland legal community and that the following
considerations also weighed in his favor:
{¶ 26} “1. Respondent has no prior disciplinary record.
{¶ 27} “2. Respondent made a timely good faith effort to rectify the
consequences of his misconduct.
{¶ 28} “3. Respondent made full and free disclosure to, and cooperated
fully with the investigation by Disciplinary Counsel concerning his misconduct.
{¶ 29} “4. Respondent admitted his guilt and paid the fine assessed in the
2006 criminal case.”
{¶ 30} The board found no aggravating factors.
{¶ 31} We accept the board’s findings with respect to aggravation and
mitigation; however, a sanction more rigorous than the board’s recommendation
is required for the harm caused by respondent’s improprieties. We therefore order
that respondent be suspended from the practice of law in Ohio for one year. The
suspension is stayed, however, on the conditions that respondent complete a two-
year probation in accordance with Gov.Bar R. V(9), fully comply with the terms
of his current OLAP contract, completely refrain from the use of alcohol, and
commit no further violations of either the Code of Judicial Conduct or the Rules
of Professional Conduct. If respondent fails to comply with the conditions of this
stay, the stay will be lifted, and he will be suspended from practice for one year.
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{¶ 32} Costs are taxed to respondent.
Judgment accordingly.
MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
Jonathan E. Coughlan, Disciplinary Counsel, and Robert R. Berger,
Assistant Disciplinary Counsel, for relator.
Mary L. Cibella, for respondent.
______________________
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