Disciplinary Counsel v. Lemons

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Disciplinary Counsel v. Lemons, Slip Opinion No. 2022-Ohio-3625.]

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. 2022-OHIO-3625

DISCIPLINARY COUNSEL v. LEMONS.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Disciplinary Counsel v. Lemons, Slip Opinion No.

2022-Ohio-3625.]

Judges—Misconduct—Violations of the Code of Judicial Conduct—A judge’s good

intentions do not excuse him or her from complying with the Code of

Judicial Conduct—Public reprimand.

(No. 2022-0713—Submitted July 12, 2022—Decided October 13, 2022.)

ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme

Court, No. 2021-040.

_______________________

Per Curiam.

{¶ 1} Respondent, Judge Richard Alan Lemons, of Portsmouth, Ohio,

Attorney Registration No. 0030054, was admitted to the practice of law in Ohio in

1985. He has been a judge of the Scioto County Court of Common Pleas, Probate

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and Juvenile Division, since February 2015. Lemons previously served as a

magistrate in the same court from January 2011 to February 2015.

{¶ 2} In December 2021, relator, disciplinary counsel, charged Lemons

with violating the Code of Judicial Conduct for independently investigating facts

in a juvenile-court matter, failing to recuse himself from that case, and failing to

perform the duties of judicial office fairly and impartially. Lemons stipulated to

the charged misconduct, and the parties jointly recommended that he be publicly

reprimanded. After a hearing, the Board of Professional Conduct issued a report

finding that Lemons had engaged in the stipulated misconduct and agreeing with

the parties’ recommended sanction. Pursuant to Gov.Bar R. V(17)(B)(3), the

parties filed a joint waiver of objections.

{¶ 3} Based on our review of the record, we adopt the board’s finding of

misconduct and agree that a public reprimand is the appropriate sanction in this

case.

Misconduct

Lemons’s home visit

{¶ 4} On Thursday, January 12, 2017, D.M., a father of five children, was

arrested on a charge of corrupting a juvenile with drugs and held in the Scioto

County Jail. At the time, D.M. had legal custody of his three oldest children while

a relative had custody of his two youngest children; the children’s mother was

incarcerated. On the evening of D.M.’s arrest, a caseworker for the Scioto County

Children Services Board (“SCCSB”) visited the home where D.M. had resided with

the three children and their grandfather. Later that evening, SCCSB put in place an

in-home safety plan for the children—as an alternative to removing them.

{¶ 5} The following day, a school resource officer contacted Greg Dunham,

one of Lemons’s staff members, expressing concern for the well-being of D.M.’s

children. Dunham and a probation officer visited D.M.’s home, which Dunham

described as “filthy.” According to Dunham, the water had been turned off, the

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toilet was overflowing with human waste, the floor was littered with dog feces, the

refrigerator was not working, and the children had no beds. Dunham reported his

concerns to Lemons and to SCCSB, which sent a caseworker to D.M.’s home that

evening to investigate Dunham’s referral.

{¶ 6} SCCSB again decided not to remove the children from the home.

After Dunham advised Lemons of SCCSB’s decision, the judge talked to the

caseworker on the telephone. According to Lemons, he asked the caseworker

whether she would be comfortable leaving the children of SCCSB’s director in the

home and she responded, “Your Honor, I would not leave my dog there.”

{¶ 7} The next day, Saturday, January 14, Lemons, accompanied by law-

enforcement officers, conducted his own investigation of D.M.’s residence, during

which Lemons confirmed the same conditions that Dunham had observed. Lemons

also observed that the grandfather had a wall heater with an open flame that was

within a few feet of his oxygen tanks; a cooler in the kitchen—which presumably

was a substitute for the broken refrigerator—stored only dirty dishes; a child, who

was not dressed appropriately for the cold weather, used the oven to warm himself;

and the upstairs bedrooms, which were colder than the remainder of the house, had

only mattresses on the floor—without box springs.

{¶ 8} After the home visit, Lemons returned to his chambers and issued an

entry—“[u]pon the court’s own motion” and without a case number—finding that

two of D.M.’s children in the home were in imminent danger and ordering SCCSB

to place the two children in its temporary custody and investigate the matter.1 The

judge also scheduled a hearing for three days later, on January 17. Court staff

notified SCCSB of Lemons’s emergency order, and SCCSB promptly removed the

two children from D.M.’s home. Lemons did not send a copy of the emergency

1. The whereabouts of D.M.’s oldest child—who was 17 at the time—was not known, and Lemons

did not refer to him in the January 14 emergency order.

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order to D.M. or the children’s mother, although the judge later acknowledged that

the parents were statutorily required to be notified of his order.

{¶ 9} The court did not hold the scheduled hearing on January 17, because,

according to Lemons, SCCSB had not yet completed its investigation. On

Wednesday, January 18, SCCSB filed a new complaint alleging that all five of

D.M.’s children were dependent because their parents were incarcerated and no

other relatives could care for them.2 SCCSB requested an ex parte order giving it

custody of the children pending final adjudication and disposition. Lemons granted

the ex parte order and presided over a January 19 probable-cause hearing.

{¶ 10} At the hearing, SCCSB did not present any evidence about the

conditions of D.M.’s home and Lemons did not inform the parties—including the

parents, who both appeared for the hearing, although they remained incarcerated—

that he had visited D.M.’s residence. Lemons, however, mentioned the home’s

conditions during the hearing. For example, after D.M. asked whether his children

would be placed with their grandmother, Lemons responded:

Well, they’re in custody right now, and this case will

determine where they go. * * *

We need homes, um, that they can go to, and the homes have

to be CLEAN homes. They have to be homes where there are beds

that aren’t just mattresses laying on the floor that are stinking, filthy,

dirty. They have to be, there has to be, plenty of food, not just

enough where the kids can barely survive.

Um, so in other words, I’m not going to put them back in a

home similar to the home that they came from.

2. According to SCCSB’s filing, the relative who had legal custody of D.M.’s two youngest children

advised SCCSB that she could no longer care for them.

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(Capitalization sic.) Lemons also said that if the grandmother’s residence looked

like D.M.’s home, “that’s a NO” (capitalization sic) and that any possible home for

the children would need to have running water and mattresses with box springs.

{¶ 11} Lemons continued presiding over the children’s dependency

proceedings, including the adjudication and dispositional hearings in April 2017.

In 2019, Lemons granted SCCSB permanent custody of the two children who were

the subject of Lemons’s January 14, 2017 emergency order. However, at no time

during the 2017 or 2019 proceedings did Lemons inform the parties or their counsel

that he had personally inspected D.M.’s home and that his inspection was the basis

for the January 14 emergency order, which essentially triggered the entire custody

action.

Lemons’s explanation for his actions

{¶ 12} During his disciplinary hearing, Lemons said that he had

investigated D.M.’s home and issued the emergency order because he was upset

with SCCSB for refusing to remove the children and wanted to “force [SCCSB] to

do their job.” Lemons explained that when he transitioned from magistrate to

judge, Scioto County was the epicenter of the opioid epidemic and that as the

problem worsened, “every parent[ ] seemed to be high and strung out.” But

SCCSB, Lemons claimed, was not investigating or filing enough cases. Because

of SCCSB’s inaction, the juvenile court was flooded with calls from grandparents,

school representatives, and hospital employees asking the court to take some sort

of action. The relationship between the juvenile court and SCCSB, Lemons said,

became contentious, and when he visited D.M.’s home in January 2017, Lemons

did not trust SCCSB’s judgment.

{¶ 13} Lemons admitted, however, that he had allowed his frustration with

SCCSB to get the better of him and that he should not have independently

investigated the facts by personally inspecting D.M.’s home. Lemons also testified

that due to several factors—including the fact that SCCSB has since disbanded—

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the county children’s-services agency that took its place is currently “taking care of

[its] own business” and the juvenile court no longer receives as many desperate

phone calls from schools or hospitals. The juvenile court, Lemons claims, now has

a “great” relationship with the children’s-services agency.

{¶ 14} Lemons also explained why he had initially believed that his recusal

from the dependency cases was not necessary. SCCSB’s complaint, the judge

noted, alleged only that D.M.’s children were dependent because their parents were

unavailable to care for them; SCCSB did not pursue the matter as a neglect case

based on the conditions of D.M.’s home. Therefore, Lemons believed, the home’s

conditions were not relevant to the proceedings. But Lemons admitted that in

hindsight, he should have recused himself because his impartiality might have been

reasonably questioned due to his home visit. Lemons also agreed to recuse himself

from any of the remaining dependency cases involving D.M.’s children.

The board’s findings of misconduct

{¶ 15} The board concluded that Lemons violated three rules of the Code

of Judicial Conduct. First, the board found that there was “no question” that

Lemons violated Jud.Cond.R. 2.9(C), which prohibits a judge from independently

investigating facts in a matter and requires a judge to consider only the evidence

presented and any facts that may properly be judicially noticed. By conducting the

wellness check of D.M.’s residence—which included thoroughly inspecting the

house and interacting with the children and their grandfather—Lemons, the board

concluded, “made an independent investigation of facts pertinent to what became a

formal custody case brought before him as a judge” and that his investigation was

the “sole basis” for his January 14 emergency order removing two of the children

from D.M.’s home.

{¶ 16} Second, the board found that Lemons violated Jud.Cond.R.

2.11(A)(1), which requires a judge to disqualify himself or herself in any

proceeding in which the judge’s impartiality might reasonably be questioned,

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including when the judge has a personal bias or prejudice concerning a party or a

party’s lawyer or personal knowledge of facts that are in dispute. The board

concluded that Lemons’s reason for not recusing himself—that SCCSB had

pursued the matter solely as a dependency case rather than a neglect case—was

“flawed for two reasons.” As a legal matter, the board noted, SCCSB’s entire case

was precipitated by Lemons’s home inspection and January 14 emergency order,

notwithstanding the fact that SCCSB did not mention the home conditions in its

complaint or arguments. Further, as a factual matter, the board observed that the

living conditions of D.M.’s home “were very much on [Lemons’s] mind regardless

of the legal posture of the case,” as evidenced by Lemons’s exchange with D.M.

contrasting the conditions in D.M.’s home with what would be acceptable.

{¶ 17} Third, the board found that Lemons violated Jud.Cond.R. 2.2, which

requires a judge to “uphold and apply the law” and “perform all duties of judicial

office fairly and impartially.” Lemons, the board found, “effectively usurped

SCCSB’s legal authority” by disregarding its decision to leave D.M.’s children in

place, “then conducting his own investigation and, sua sponte, initiating a custody

action.” (Emphasis sic.) And Lemons took those actions, the board found, because

he was frustrated with SCCSB. The board concluded that no matter how well-

intentioned, Lemons “could not be both the source of a private referral based on his

personal knowledge and an impartial arbiter of the issues as a judge.” (Emphasis

sic.)

{¶ 18} We adopt the board’s findings of misconduct.

Sanction

{¶ 19} When imposing sanctions for judicial misconduct, we consider all

relevant factors, including the ethical duties that the judge violated, the aggravating

and mitigating factors listed in Gov.Bar R. V(13), and the sanctions imposed in

similar cases.

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{¶ 20} The board found the presence of one aggravating factor—that

Lemons had engaged in multiple offenses. See Gov.Bar R. V(13)(B)(4). As for

mitigating factors, the board found that Lemons has a clean disciplinary record and

had lacked a dishonest or selfish motive, made full and free disclosures to the board

and had a cooperative attitude toward the disciplinary proceedings, and submitted

evidence of good character and reputation. See Gov.Bar R. V(13)(C)(1), (2), (4),

and (5).

{¶ 21} To determine the appropriate sanction, the board considered five

cases in which we imposed public reprimands or stayed six-month suspensions on

judges who had engaged in fairly similar misconduct—mostly by creating an

appearance of partiality or failing to perform their duties fairly and impartially. In

Disciplinary Counsel v. Winters, 166 Ohio St.3d 149, 2021-Ohio-2753, 184 N.E.3d

21, we imposed a conditionally stayed six-month suspension on a judge who had

engaged in inappropriate ex parte communications on Facebook, failed to disclose

those communications, and failed to disqualify himself from several cases in which

his impartiality could reasonably be questioned. In Disciplinary Counsel v.

Goulding, 162 Ohio St.3d 482, 2020-Ohio-4588, 165 N.E.3d 1244, we imposed a

conditionally stayed six-month suspension on a judge who, in an attempt to assist

his friends, had interfered in another judge’s case by setting bail and securing a

defendant’s release from jail and also had engaged in ex parte communications with

that defendant.

{¶ 22} In Disciplinary Counsel v. Medley, 93 Ohio St.3d 474, 756 N.E.2d

104 (2001), we publicly reprimanded a judge for creating the appearance of bias by

accepting a phone call from a newly arrested person, picking her up from the police

station and driving her home, and later presiding over her criminal proceeding.

Similarly, we publicly reprimanded a judge in Disciplinary Counsel v. Runyan, 108

Ohio St.3d 43, 2006-Ohio-80, 840 N.E.2d 623, for attempting to take corrective

action against a police detective and, in doing so, engaging in activities that went

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well beyond his judicial authority and ethical constraints. The judge also failed to

recuse himself from a case in which he had previously represented a party. And in

Ohio State Bar Assn. v. Goldie, 119 Ohio St.3d 428, 2008-Ohio-4606, 894 N.E.2d

1226, we publicly reprimanded a judge for failing to remain faithful to the law when

she denied three defendants due process in a flagrant disregard of their

constitutional and statutory rights.

{¶ 23} The board found—and we agree—that Lemons’s misconduct was

not as serious as the misconduct in the cases cited above. For example, the board

noted that unlike the judges in Goulding and Runyan, Lemons had not been

influenced by personal relationships or self-interest. Rather, the board concluded

that Lemons had been “motivated by the best of intentions” and that his actions had

likely benefited D.M.’s children by removing them from an environment without

capable caregivers. The board also noted that in Runyan and Goldie, we issued

public reprimands for misconduct arising out of multiple cases but that Lemons’s

misconduct “was confined to a single chain of events.” However, the board

concluded that “the isolated nature of this incident and [Lemons’s] good intentions

do not excuse his disregard for ethical standards that are designed to promote

fairness and impartiality.”

{¶ 24} After reviewing the record in this case and the sanctions that we have

imposed for comparable misconduct, we agree that a public reprimand is the

appropriate sanction here. Lemons’s good intentions do not excuse him from

complying with the Code of Judicial Conduct. See Disciplinary Counsel v. Elum,

133 Ohio St.3d 500, 2012-Ohio-4700, 979 N.E.2d 289, ¶ 26, quoting Disciplinary

Counsel v. Hoague, 88 Ohio St.3d 321, 324, 725 N.E.2d 1108 (2000), quoting

Disciplinary Counsel v. Ferreri, 85 Ohio St.3d 649, 654, 710 N.E.2d 1107 (1999)

(a judge’s “understandably strong feelings” about an arresting officer’s misconduct

“ ‘ “do not excuse a judge from complying with the judicial canons and the

Disciplinary Rules” ’ ”).

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Conclusion

{¶ 25} Richard Alan Lemons is hereby publicly reprimanded for his

misconduct in this case. Costs are taxed to Lemons.

Judgment accordingly.

KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART, and BRUNNER, JJ.,

concur.

O’CONNOR, C.J., concurs, with an opinion.

_________________

O’CONNOR, C.J., concurring.

{¶ 26} I join the majority opinion. Respondent Judge Richard Lemons’s

breach of the Code of Judicial Conduct is true enough, and I therefore agree with

the Board of Professional Conduct that a public reprimand is necessary. The public

reprimand we impose today will remain a part of Lemons’s disciplinary record.

{¶ 27} I write separately, however, because Lemons’s disciplinary record

unfortunately will not illuminate that he was not acting in self-interest but in the

interests of D.M.’s children who were living in an unsafe and unsanitary

environment. Standing alone, the disciplinary record will not inform the public of

the majority opinion’s recognition that Lemons was motivated by the best of

intentions. Not only do I agree with that characterization of Lemons’s intentions,

but I would go a step further and observe that his actions ultimately benefited

D.M.’s children by removing them from a dangerous environment devoid of

capable caregivers and that left the children at risk of a tragedy occurring at any

minute.

{¶ 28} It was the responsibility of the Scioto County Children Services

Board to ensure the safety of D.M.’s children. Lemons felt compelled to act only

when others had neglected their duty to remove the children from an unsafe

environment. It is undeniable that Lemons went beyond what the Code of Judicial

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Conduct permits and must be sanctioned. But in my mind, he is also to be

commended for securing the safety of D.M.’s children.

_________________

Joseph M. Caligiuri, Disciplinary Counsel, and Michelle R. Bowman and

Michelle A. Hall, Assistant Disciplinary Counsel, for relator.

Montgomery Jonson, L.L.P., and Lisa Zaring, for respondent.

_________________

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