Tuesday, July 9, 2019

Cat Noises, Strange Justice: Kachinsky Suspended As Judge

Breaking news from the Wisconsin Supreme Court of the judicial suspension of  Brendan Dassie's former attorney

We conclude that Judge Kachinsky's judicial misconduct warrants a three-year suspension of eligibility for the position of reserve municipal judge, commencing July 3, 2018, with the condition that before requesting an appointment by the chief judge to serve as a reserve municipal judge, Judge Kachinsky must successfully petition this court to establish his fitness to serve in that capacity.

Allegations

The allegations of judicial misconduct in this matter fall under three headings. Most of the allegations of misconduct relate to Judge Kachinsky's interactions with M.B., the full-time manager for the Village of Fox Crossing Municipal Court. The second category of allegations are related to an email that Judge Kachinsky sent to a member of the village board regarding his interactions with members of the village administration and the village's filing of a complaint with the Judicial Commission. The third category of allegations relates to an email that Judge Kachinsky sent to the village's police chief regarding a case that was pending before him. Judge Kachinsky sent copies of that email to the village's attorney and a police records clerk, but did not send a copy to the defendant or defense counsel or otherwise notify the defendant that he had sent the email.

The court recites at length the history of M.B. and Judge Kachinsky.

They were Facebook friends when he hired her. Initially, the relationship was pleasant but became uncomfortable after he had serious health issues.

It then became like a bad story from The Office with Kachinsky in the role of Michael Scott from Hell

"[i]t is complicated because I am both the boss and a close friend."

As her concerns increased things got worse

On three occasions during that week, Judge Kachinsky came to the municipal court offices. He sat close to M.B.'s desk, facing her. He did nothing except tap his pen and make "cat noises." On one visit, Judge Kachinsky continued this extremely odd behavior for 45 minutes. During one of the visits, Judge Kachinsky also told M.B. a story about a dog being raped and then repeated the story a second time.

He persisted in the face of warnings

On June 29, 2017, Judge Kachinsky sent another email to [Human Resources Manager] Malone stating that while he had not made a final decision on whether to fire M.B., she had until 5:00 p.m. that day to decide if she accepted his list of "rules" regarding their professional and personal relationship. The Judicial Conduct Panel found that by these emails, Judge Kachinsky demonstrated that he believed he could terminate M.B.'s employment for declining to have a low-level personal relationship with him...

Rather than take the village attorney's letter to heart, Judge Kachinsky elevated his conduct. After receiving the letter, he posted to his Facebook page that "[t]he sh— is not over. I might have an employee termination today. Not mine." The Judicial Conduct Panel found that while the post did not explicitly name M.B., the only conclusion a reader could draw was that M.B. was about to be fired because she was the only employee he supervised either at the municipal court or in his private law practice.

At 12:50 a.m. on Saturday, July 8, 2017, Judge Kachinsky sent an email to Human Resources Manager Malone, with a blind copy to M.B. The email stated that Judge Kachinsky was "unfriending" Malone on Facebook. The email stated, "At least I told you directly. Some cowards don't." The Judicial Conduct Panel found that the "coward" reference was directed toward M.B. Judge Kachinsky admitted in his answer to the Judicial Commission's complaint that this email had been spiteful in tone and that his conduct in sending the email had not exhibited patience, dignity, or courtesy.

A particularly disturbing event occurred on July 17, 2017. While alone with M.B. in the municipal court office, Judge Kachinsky lunged over M.B.'s desk, knocking some items off of it. While he did so, Judge Kachinsky whispered to M.B., "Are you afraid of me now?" This conduct frightened M.B. The Judicial Conduct Panel found that this action by Judge Kachinsky "was an attempt to intimidate M.B. into acquiescing in his fixation on a personal relationship with her."

It continued and led to an injunction

This permanent injunction did not cause Judge Kachinsky to cease his communications with M.B. Over a weekend less than two weeks after the permanent injunction was entered, Judge Kachinsky left a color poster on his desk where M.B. would see it. The poster had a picture of the village manager's face, with the following accompanying caption: "I am from the government and I am here to help you. WWRD #notmetoo." The Judicial Conduct Panel found that this was reasonably perceived to be a communication directed toward M.B. and that it was not a communication related to the operation of the municipal court.

The court here did not address his separation of powers argument

We need not decide the separation of powers issue raised by Judge Kachinsky. Whether or not he was legally obligated to abide by the directives given by representatives of the village, he was obligated by the relevant provisions of the Code of Judicial Conduct to maintain high standards of personal conduct and to act in a manner that promotes the integrity of the judiciary. We fail to see how staring at a court employee for 45 minutes while tapping a pencil and making cat noises constitutes the maintenance of high standards of personal conduct or promotes the integrity of the judiciary. Indeed, it does just the opposite. Serving the people as a judicial officer does not allow a judge to impose his/her every opinion about personal interactions on subordinate court personnel or to force those subordinates to be the judge's personal friends.

Judges are entitled to ensure that their subordinate employees perform their work responsibilities in appropriate manners. Judge Kachinsky's pattern of obsessive conduct about whether M.B. liked him as a friend clearly passed well over the line and brought the municipal court he administered into public disrepute. His repeated conduct led not only to the public entry of both temporary and permanent harassment injunctions against him, but ultimately resulted in his arrest and the lodging of criminal charges against him. While he was acquitted of the single felony charge that the district attorney chose to take to trial, the lack of a criminal conviction on that single charge does not mean that he is innocent of any ethical violations. The notoriety that resulted from his insistence that M.B. had to be not only his court clerk, but also his friend, certainly caused the residents of the Village of Fox Crossing who appeared in his court to question whether he had the temperament and stability to preside over their cases in a proper manner. Ultimately, we need not review every action in the lengthy summary of Judge Kachinsky's interactions with M.B. We agree with the Judicial Conduct Panel that Judge Kachinsky's interactions with M.B., as found by the Judicial Conduct Panel, apart from his comment to her to "cool your jets," constituted violations of SCRs 60.02 and 60.03(1).

Sanction

As is the case in most attorney and judicial disciplinary proceedings, there is no case with identical facts and rule violations. We view this matter, however, as involving serious misconduct. While his misconduct did not involve the performance of his judicial duties in the courtroom, it did occur in the context of the operation of the court over which he had been elected to preside. Although he claims that he was merely attempting to foster an environment that would be best for the operation of the municipal court, it is clear from his actions that he was intent on forcing M.B., his subordinate, to comply with his personal desire that M.B. should also be his personal friend—someone who would discuss life experiences with him, engage in activities that he favored, and conform to what he viewed as proper friend etiquette, such as exchanging holiday greetings. Even if his intentions had been to benefit the municipal court, the effect of his behavior was the opposite. His actions, which cannot be dismissed as merely odd or quirky, caused real harm both to the particular staff member (by causing her fear, discomfort, and considerable stress) and to the effective operation and public standing of the municipal court. His actions also negatively affected the village as a whole, which had to mediate between him and M.B., a village employee.

In the end, we agree with the Judicial Conduct Panel that, in light of the fact that Judge Kachinsky is no longer an active municipal court judge, an appropriate form of discipline for his misconduct would be to suspend his eligibility to serve as a reserve municipal judge. While we recognize that there are factual differences with both Van Susteren and Gorenstein, we conclude that Judge Kachinsky's misconduct has some similarities to the misconduct in those cases and warrants a substantial period of suspension. We therefore suspend Judge Kachinsky's eligibility for appointment as a reserve municipal judge for a period of three years.

The name Van Susteren rings a bell. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2019/07/kachinsy-suspended-as-judge.html

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