The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Winters, Slip Opinion No. 2021-Ohio-2753.]
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. 2021-OHIO-2753
DISCIPLINARY COUNSEL v. WINTERS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Winters, Slip Opinion No.
2021-Ohio-2753.]
Attorneys—Misconduct—Violations of the Code of Judicial Conduct—Multiple
violations arising from ex parte communications using social media—
Conditionally stayed six-month suspension.
(No. 2021-0442—Submitted May 12, 2021—Decided August 17, 2021.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2020-053.
______________
Per Curiam.
{¶ 1} Respondent, Bruce Alan Winters, of Port Clinton, Ohio, Attorney
Registration No. 0039779, was admitted to the practice of law in Ohio in 1988.
He was elected as the sole judge of the Ottawa County Court of Common Pleas
General and Domestic Relations Divisions in 2008. He was reelected in 2014 and
2020.
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{¶ 2} In a September 2020 complaint, relator, disciplinary counsel,
charged Winters with multiple violations of the Code of Judicial Conduct arising
from his ex parte communications with Keith Blumensaadt regarding multiple
cases that were pending before him in the Ottawa County Court of Common
Pleas. Winters waived the right to a probable-cause hearing, and the case was
assigned to a three-member hearing panel of the Board of Professional Conduct.
{¶ 3} The parties submitted extensive stipulations in which Winters
admitted that he had committed all of the alleged misconduct; he also agreed to
the aggravating and mitigating factors and recommended sanction of a
conditionally stayed six-month suspension. Based on the stipulations, the parties’
33 stipulated exhibits, and Winters’s hearing testimony, the panel made findings
of fact and misconduct and agreed with the parties’ recommended sanction with
two revisions—it removed the condition that the continuing-education sanction be
in addition to what Winters is already required to complete under Gov.Jud.R. IV,
and it recommended that Winters pay the costs of these proceedings. The board
adopted the panel’s report in its entirety. Based on our review of the record, we
adopt the board’s findings of misconduct and recommended sanction, with the
added condition that Winters must complete the continuing-education sanction in
addition to what is already required by Gov.Jud.R. IV.
I. FACTS AND MISCONDUCT
A. Winters’s Relationship with Blumensaadt
{¶ 4} Before Winters was admitted to the practice of law, he worked as a
probation officer for the Ottawa County Juvenile Court, and he served as
Blumensaadt’s probation officer in the early 1980s. Winters testified that he had
minimal contact with Blumensaadt for the 30-year period between serving as his
probation officer and presiding over his criminal case as a common pleas court
judge.
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{¶ 5} In June 2016, Winters issued civil stalking protection orders
(“CSPOs”) that required Blumensaadt to stay at least 500 feet away from his
brother, Todd Blumensaadt Sr., and his nephew, Todd Blumensaadt Jr., both of
whom resided on South Bass Island, Put-in-Bay Township. The CSPOs were set
to expire on May 3, 2021.
{¶ 6} In June 2017, an Ottawa County grand jury indicted Blumensaadt on
12 felony counts and one misdemeanor. Blumensaadt was arrested and
incarcerated during the pendency of the case. At his disciplinary hearing, Winters
testified that he had disclosed his prior relationship with Blumensaadt to the
prosecutor and defense counsel and that both of them agreed that he could preside
over Blumensaadt’s criminal case.
{¶ 7} On June 28, 2019, Winters approved a plea agreement in which
Blumensaadt pleaded guilty to two felonies and one misdemeanor. Winters
sentenced Blumensaadt to time served for the felony counts and a 180-day jail
term for the misdemeanor count, which was suspended on the condition that
Blumensaadt not enter Put-in-Bay for one year. Blumensaadt and the prosecutor
agreed to the sentences, and Blumensaadt was released from custody.
{¶ 8} Within 30 days of Blumensaadt’s release, he and Winters became
Facebook “friends.” They regularly communicated with each other from July 22
through December 19, 2019, using the Facebook Messenger application.1 In
addition to exchanging messages, Winters and Blumensaadt had several audio
conversations through the application in which they discussed personal and
professional matters—including multiple cases over which Winters presided.
1. The Facebook Messenger application allows users to exchange instant private messages, photos,
and audio and video recordings and to engage in real-time audio and video conversations. See
Google Play, Messenger–Text and Video Chat for Free,
https://play.google.com/store/apps/details?id=com.facebook.orca&hl=en_US&gl=US (accessed
July 20, 2021) [https://perma.cc/4B8N-FU4Y]; see also Apple Store, Messenger,
https://apps.apple.com/us/app/messenger/id454638411 (accessed July 20, 2021)
[https://perma.cc/6GTE-GL99].
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B. Winters’s Ex Parte Communications
{¶ 9} On August 21, 2019, an Ottawa County grand jury indicted A.M. on
charges of possession of cocaine and tampering with evidence. The day before
A.M.’s arraignment, Blumensaadt sent Winters a Facebook message stating that
A.M. had sold heroin to his daughter and requesting that Winters not give A.M. a
“bond he can make.” At the arraignment, Winters released A.M. on a
recognizance bond. The following month, Blumensaadt sent Winters a message
stating, “I see [A.M.] moved in are [sic] neighborhood on 14th street, I can’t wait
to get out of here.”
{¶ 10} Winters subsequently presided over A.M.’s trial. A jury found
A.M. guilty of tampering with evidence and in February 2020, Winters sentenced
him to 24 months in prison with credit for time served. Winters never disclosed
to the parties that he had received ex parte communications from Blumensaadt
regarding A.M.’s case.
{¶ 11} The parties stipulated and the board found that Winters’s conduct
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 and to avoid impropriety and the appearance of impropriety), 2.9(A)
(prohibiting a judge from initiating, receiving, permitting, or considering ex parte
communications except in certain circumstances), and 2.9(B) (requiring a judge
who receives an unauthorized ex parte communication bearing upon the substance
of a matter to promptly notify the parties of the substance of the communication
and to provide the parties with an opportunity to respond).
{¶ 12} The parties also stipulated and the board found that Winters
violated those same rules by engaging in ex parte communications with
Blumensaadt regarding several other cases over which Winters presided without
disclosing those communications to the parties.
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C. Winters’s Failure to Disqualify Himself
{¶ 13} The parties also stipulated and the board found that Winters had
failed to disqualify himself from several cases in which his ex parte
communications might reasonably have drawn his impartiality into question,
resulting in three violations of Jud.Cond.R. 2.11(A) (requiring a judge to
disqualify himself in any proceeding in which the judge’s impartiality might
reasonably be questioned). The conduct giving rise to the Jud.Cond.R. 2.11(A)
violations is discussed below.
1. Blumensaadt’s Custody Case
{¶ 14} Blumensaadt’s wife, Michelle, filed a complaint for divorce in July
2018. Winters referred the case to his magistrate, and his only involvement in the
proceeding was signing the final judgment entry in May 2019 granting custody of
the Blumensaadts’ minor son to Michelle.
{¶ 15} In August 2019, Blumensaadt sent Winters a Facebook message
informing him that Michelle had agreed to transfer custody of their son to
Blumensaadt but that neither of them could afford an attorney. He asked Winters
if there was a form that they could use to achieve the custody transfer. Winters
directed Blumensaadt to a form on this court’s website and informed him that it
would cost approximately $1,000 to retain counsel to handle the matter.
{¶ 16} On September 6, 2019, Blumensaadt filed a pro se motion for
change of parenting time. Throughout the month, Blumensaadt sent Winters
several messages with information pertinent to his pending motion. Winters
occasionally responded, with comments like “Interesting!” and “That’s sad.” On
one occasion, Blumensaadt invited Winters and his family to a private dinner that
was being hosted by his brother, Bill. Winters initially responded, “I don’t know
what my schedule is tomorrow [but] I’ll be in touch.” He later declined the
invitation stating, “I guess I really shouldn’t since you have a case pending in my
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court. Thanks for asking. Let[’s] get this done . . . Before your personal injury
case gets filed😊.”
{¶ 17} Blumensaadt continued to send Winters messages, claiming that his
son was afraid of visiting Michelle and speculating that she did not want to go to
court because “she’s lied about everything.” He also informed Winters that
Michelle had retained an attorney and that they would soon be filing an agreement
in court. Winters responded, “Glad you have it worked out. Sorry, I’ve been very
busy with a trial.” That same day, Michelle’s attorney filed a proposed consent
agreement regarding the transfer of custody from Michelle to Blumensaadt.
{¶ 18} On September 30, 2019, Winters signed an order designating
Blumensaadt as the residential parent and legal custodian for his son and
establishing a parenting schedule for Michelle. Blumensaadt sent Winters a
message stating that he had received the order and Winters replied, “Good deal!”
2. Modification of CSPOs to Permit Blumensaadt to Attend His Mother’s
Funeral
{¶ 19} On September 14, 2019, Blumensaadt sent Winters a message
stating that Blumensaadt’s mother had a terminal illness and had less than one
year to live. Through the end of November, they exchanged personal messages
every few days about Put-in-Bay residents, politics, or events, along with a few
messages regarding the declining health of Blumensaadt’s mother and
Blumensaadt’s strained relationship with Todd Sr. and Todd Jr.—the brother and
nephew who had obtained CSPOs against him.
{¶ 20} On November 30, 2019, Blumensaadt sent Winters a message
stating, “Hey I have a question about my mom, when she passes and that
protective order, call me when you get a chance please!” Within an hour, Winters
initiated an audio conversation with Blumensaadt through Facebook Messenger
and instructed him to file a motion asking the court to temporarily modify the
CSPOs to allow him to attend his mother’s funeral where Todd Sr., Todd Jr., and
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January Term, 2021
other protected persons named in the CSPOs would be present. A few days later,
they spoke for 30 minutes through Facebook Messenger about potential
modifications to the CSPOs.
{¶ 21} On December 10, Blumensaadt sent a message to Winters stating
that his attorney had filed a motion and asking Winters to “get [an] order together
ASAP.” Blumensaadt’s attorney had also filed a motion in Blumensaadt’s
criminal case seeking permission for Blumensaadt to travel to South Bass Island
for his mother’s funeral; the state did not object.
{¶ 22} On December 17, Todd Sr. and Todd Jr. each filed objections to
Blumensaadt’s motion to modify the CSPOs. Blumensaadt sent a message to
Winters that same day stating, “Todd doesn’t want me there, now what[?]”
Winters did not respond. In another message sent later that day, Blumensaadt
accused his brother of using the protection order as a weapon. Winters
responded, stating that the magistrate would have a hearing. At Blumensaadt’s
request, Winters initiated an audio conversation through Facebook Messenger
later that night; they discussed Todd Sr.’s personal objections to Blumensaadt’s
attendance at his mother’s funeral, but they did not discuss the legal objections
filed by Todd Sr. and Todd Jr. regarding Blumensaadt’s request for modification
of the CSPOs.
{¶ 23} On December 18, Blumensaadt followed up with a message
reminding Winters that the CSPOs allowed him to attend his son’s school
functions, even if the protected persons were present. He sent another message to
Winters later that day asking if there was any word about the arrangements, and
Winters responded, “A deputy will accompany you. No need for consent, no need
for a hearing and the Sheriff is onboard [sic].” Two days later, Winters granted
Blumensaadt’s motion to modify the CSPOs without conducting a hearing on the
objections of Todd Sr. and Todd Jr. He also granted the motion to travel that had
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been filed in Blumensaadt’s criminal case. Both orders incorporated the travel
schedule that Blumensaadt had conveyed to Winters in a Facebook message.
3. Criminal Case Related to Blumensaadt’s Personal-Injury Claim
{¶ 24} On July 27, 2019, Blumensaadt was injured when his motorcycle
was struck from behind by a vehicle driven by D.F. On September 9, 2019, a bill
of information was filed in the Ottawa County Court of Common Pleas charging
D.F. with two misdemeanor counts of operating a vehicle under the influence
(“OVI”), one misdemeanor count of failing to maintain space between moving
vehicles, and two felony counts of aggravated vehicular assault. Winters presided
over the case.
{¶ 25} From September 9, 2019, through January 25, 2020, Blumensaadt
and Winters exchanged messages regarding Blumensaadt’s injuries and D.F.’s
criminal case. On October 11, 2019, the state and D.F. jointly requested that D.F.
be accepted into a pretrial diversion program. A few days later, Blumensaadt sent
Winters the following message:
Then this guy who hit me wants to plead no contest to ovi
felony, not a chance, he doesn’t want to admit guilt so he can get
out of liability, over my dead body, [the prosecutor] should no
better, I’m waiting to hear what him and [my attorney] have
figured out on that yet, he blows twice over legal limit and
admitted to drinking, I don’t think he has a chance at jury trial,
he’s been offered 1 ovi felony and 1 unasheered clear distance
misdemeanor and diversion program, he should be happy with no
jail time, but no, he wants his cake and eat it to.
(Misspellings sic.)
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January Term, 2021
{¶ 26} On November 14, 2019, Blumensaadt sent the following message
to Winters: “Doctor says I more than likely won’t be able to work again because
of accident, back and legs go numb and give out after 10 to 15 minutes of
standing because of crushed disk. Nice[.] Can anything else go wrong[?]”
{¶ 27} In December 2019, Winters granted the motion to place D.F. in a
diversion program. Before D.F.’s plea-change-and-diversion hearing,
Blumensaadt sent Winters a message stating that he understood that Winters was
in a difficult position as a judge in a small county, that he respected Winters, and
that he hoped the case would not change their relationship.
D. Court Adopts Board’s Findings of Misconduct
{¶ 28} Based on the conduct described above, we find that Winters (1)
engaged in inappropriate ex parte communications with Blumensaadt regarding
the substance of multiple cases that were pending before him and (2) failed to
promptly notify the parties of those communications and give them an
opportunity to respond. We further find that Winters’s conduct failed to promote
public confidence in the independence, integrity, and impartiality of the judiciary
and created an appearance of impropriety. We therefore adopt the board’s
findings that Winters violated Jud.Cond.R. 1.2, 2.9(A), and 2.9(B) by his ex parte
communications on four counts: (1) the matter involving A.M., (2) the custody
transfer, (3) the modification of the CSPOs, and (4) the matter involving D.F.
{¶ 29} We also agree with the Board’s finding that Winters’s unauthorized
ex parte communications with Blumensaadt could reasonably call his impartiality
into question with respect to each of the cases in which Blumensaadt was a party
and the criminal case related to Blumensaadt’s personal-injury claim. We
therefore adopt the board’s findings that Winters committed three violations of
Jud.Cond.R. 2.11(A) by failing to disqualify himself from those proceedings.
{¶ 30} In addition, we note that Winters stipulated that his conduct in
modifying the CSPOs to permit Blumensaadt to attend his mother’s funeral
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violated Jud.Cond.R. 2.2 (requiring a judge to uphold and apply the law and to
perform all duties of judicial office fairly and impartially). However, neither the
panel nor the board addressed that stipulation. We find that Winters’s decision to
modify the CSPOs without disclosing his ex parte communications and without
conducting a hearing on the objections of the protected persons was unfair to
Todd Sr. and Todd Jr. and could reasonably call into question Winters’s
impartiality—even though he appears to have reached the correct result in those
matters. We therefore find that Winters’s conduct violated Jud.Cond.R. 2.2, as
stipulated by the parties.
II. SANCTION
{¶ 31} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
{¶ 32} As for aggravating factors, the parties stipulated and the board
found that Winters had engaged in a pattern of misconduct that involved multiple
offenses. See Gov.Bar R. V(13)(B)(3) and (4). As for mitigating factors, the
parties stipulated that Winters has no prior discipline, acted without a dishonest or
selfish motive, made full and free disclosure to the board and exhibited a
cooperative attitude toward the disciplinary proceedings, and submitted evidence
of his good character and reputation in the community. See Gov.Bar R.
V(13)(C)(1), (2), (4), and (5). In addition to adopting those factors, the board
found that Winters had expressed genuine remorse for his misconduct and that he
had terminated his social-media accounts.
{¶ 33} The parties jointly recommended that Winters be suspended from
the practice of law for six months, stayed in its entirety on the conditions that he
(1) complete at least three hours of judicial-ethics education focused on ex parte
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communication or the use of social media by judicial officers, in addition to the
requirements of Gov.Jud.R. IV and (2) engage in no further misconduct.
{¶ 34} In determining the appropriate sanction for Winters’s misconduct,
the board considered numerous cases with sanctions ranging from a public
reprimand to permanent disbarment. See, e.g., Disciplinary Counsel v. Stuard,
121 Ohio St.3d 29, 2009-Ohio-261, 901 N.E.2d 788 (publicly reprimanding a
judge who engaged in a series of ex parte communications with an assistant
prosecutor whom he had asked to draft a sentencing order in a capital case);
Disciplinary Counsel v. Medley, 93 Ohio St.3d 474, 756 N.E.2d 104 (2001)
(publicly reprimanding a judge who drove a defendant home after her arrest, then
failed to recuse himself from presiding over the defendant’s criminal case);
Disciplinary Counsel v. Terry, 147 Ohio St.3d 169, 2016-Ohio-563, 63 N.E.3d 88
(permanently disbarring a judge who was convicted in federal court of one count
of conspiracy to commit mail fraud and two counts of honest-services mail fraud
for providing judicial favors in exchange for contributions to his election
campaign).
{¶ 35} Between the two extremes of public reprimand and permanent
disbarment, the board considered Disciplinary Counsel v. Porzio, 160 Ohio St.3d
77, 2020-Ohio-1569, 153 N.E.3d 70. In Porzio, we imposed a conditionally
stayed six-month suspension on a magistrate who, like Winters, had engaged in ex
parte communications that gave the appearance of bias against one of the parties
to litigation over which she had presided. Porzio’s communication consisted of a
single conversation with one of the parties and that party’s witnesses at the
conclusion of a hearing on a petition and counterpetition for a civil stalking
protection order. Both parties appeared pro se, and Porzio asked the parties to
leave the courthouse separately at the conclusion of the hearing. After the first
party left the courtroom, Porzio commented to the remaining party and his
witnesses that neither party had proved his case and that the other party was “such
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a liar,” “made himself look like a fool,” was “clueless,” and acted “like he’s 10
years old.” Id. at ¶ 7. A few months after making those statements, Porzio issued
a decision granting a civil protection order to the party with whom she had
engaged in the ex parte communication and denying the counterpetition of the
other party. There were no aggravating factors, and significant mitigating factors
were present. Porzio had a clean disciplinary record in her more than 40 years of
practice, lacked a dishonest or selfish motive, exhibited a cooperative attitude
toward the disciplinary proceedings, lost her job as a result of her misconduct, and
presented significant evidence of her competence, integrity, and professionalism
as a magistrate.
{¶ 36} The board also noted that in Disciplinary Counsel v. Elum, 148
Ohio St.3d 606, 2016-Ohio-8256, 71 N.E.3d 1085, we disciplined a judge who
injected himself into and attempted to resolve a landlord-tenant dispute that was
not on his docket. Like Winters, Elum lacked a dishonest or selfish motive,
cooperated with the disciplinary process, and submitted significant character and
reputation evidence. At his disciplinary hearing, Elum acknowledged that he let
his heart get in the way and admitted that he was not a proper person to mediate
the dispute. Acknowledging that Elum had previously been disciplined for
injecting himself into an internal police-department investigation, we imposed a
conditionally stayed one-year suspension for his second offense.
{¶ 37} In contrast to Porzio and Elum, both of whom engaged in isolated
incidents of misconduct, Winters engaged in inappropriate ex parte
communications and failed to disqualify himself from several cases in which his
impartiality could reasonably be questioned. However, the record does not
suggest that Winters’s misconduct led him to reach any improper or biased
outcome. While the board acknowledged that Winters’s decision to allow
Blumensaadt to attend his mother’s funeral with a sheriff’s escort appeared to be
the correct result, it appropriately admonished him that “all litigants are entitled to
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have their disputes heard by a judicial officer [who] is free of any possible bias
and [who] is not engaged in back-channel discussions with one of the parties
about the very topic that is being decided.”
{¶ 38} Recognizing that Winters accepted responsibility for his
misconduct, fully cooperated in relator’s investigation, and had taken steps to
remediate his conduct by terminating his social-media accounts, the board
recommended that he be suspended from the practice of law in Ohio for six
months with the entire suspension stayed on the conditions that he (1) complete at
least three hours of continuing judicial education on the subject of ex parte
communications or appropriate use of social media by judicial officers, (2) refrain
from committing further misconduct, and (3) pay the costs of these proceedings.
{¶ 39} After reviewing the record in this case and the sanctions that we
have imposed for comparable misconduct, we agree that a conditionally stayed
six-month suspension is appropriate.
III. CONCLUSION
{¶ 40} Accordingly, Bruce Alan Winters is suspended from the practice of
law in Ohio for six months, with the entire suspension stayed on the conditions
that he (1) complete a minimum of three hours of continuing judicial education
approved by relator on the subject of ex parte communications or appropriate use
of social media by judicial officers, in addition to the requirements of Gov.Jud.R.
IV, (2) refrain from further misconduct, and (3) pay the costs of these
proceedings. If Winters fails to comply with any condition of the stay, the stay
will be lifted and he will serve the entire six-month suspension. Costs are taxed to
Winters.
Judgment accordingly.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
_________________
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Joseph M. Caligiuri, Disciplinary Counsel, and Karen H. Osmond and
Donald M. Scheetz, Assistant Disciplinary Counsel, for relator.
Charles J. Kettlewell, L.L.C., and Charles J. Kettlewell, for respondent.
_________________
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