Thursday, April 23, 2020

Ex Parte Comments Draw Conditionally-Stayed Suspension

A magistrate's in court ex parte comments drew a conditionally-stayed six-month suspension from the Ohio Supreme Court

On August 2, 2017, Walter Gerino filed a petition for a civil stalking protection order against his neighbor, Paul Fish. The following day, Fish filed a counterpetition against Gerino. On August 16, 2017, Porzio, while serving as a magistrate, held a full hearing on both petitions. Gerino and Fish appeared pro se and both testified on their own behalf. After the close of evidence, Porzio requested that the parties exit the courthouse separately and that Fish leave first.

After Fish walked out of the courtroom, Porzio engaged in a 23-minute conversation with Gerino and his witnesses. Porzio repeatedly criticized Fish and commented on his credibility. She stated that Mr. Fish was “such a liar,” “made himself look like a fool,” was “clueless,” and acted “like he’s 10 years old.” She also discussed the evidence, explained the legal standard for obtaining a civil stalking protection order, and indicated how she intended to decide the matter—that is, early in her conversation with Gerino, she stated that neither party had proved his case.

In addition to discussing substantive matters, Porzio made offhand and unnecessary comments about the parties’ religions and ethnic backgrounds. For example, she stated, “[Fish] said he was a minister. What’s the story with that? * * * A Christian minister even though he’s Jewish” and “Do Jewish people have halos? I think they have angels though, right? * * * The Catholics got lots of angels or uh * * * Halos.” Porzio also used inappropriate slang and profanity, such as stating that some of Fish’s testimony had been “such bull shit.” She said to Gerino, “[A]t the end of this, who looked like * * * an asshole and who looked like a good guy?” At one point, Porzio left the courtroom to confront Fish, who had apparently remained seated in the hallway outside the courtroom. At that point, one of Gerino’s witnesses stated, “She don’t like him, does she?”

A few months later, Porzio issued a magistrate’s decision granting Gerino a five-year civil protection order and denying Fish’s counterpetition— despite the fact that she had previously told Gerino that neither party had proved his case. At her disciplinary hearing, Porzio admitted that someone in Fish’s position might assume that her ex parte communication with the opposing party had influenced her decision.

Sanction factors

The board did not find the existence of any of the aggravating factors listed in Gov.Bar R. V(13)(B). The board stressed, however, that Porzio’s casual comments on the parties’ religions and her other offhand comments demonstrate that she needs to better understand how her words might suggest actual or implicit
bias—both in her position as a magistrate and as a practicing attorney.

In mitigation, the board found that Porzio has a clean disciplinary record in over 40 years of practice, she lacked a dishonest or selfish motive, she had a cooperative attitude toward the disciplinary proceedings, and other penalties had been imposed for her misconduct—namely, she was terminated from her position as a magistrate. See Gov.Bar R. V(13)(C)(1), (2), (4), and (6). The board also cited Porzio’s significant character evidence, including testimony from a former common pleas court judge and various character letters demonstrating her competence, professionalism, and integrity as a magistrate. See Gov.Bar R. V(13)(C)(5). Indeed, Porzio had served for about 30 years as a magistrate in three different courts, held officer positions in the Ohio Association of Magistrates, and taught numerous continuing-legal-education (“CLE”) seminars for other magistrates. As the board noted, Porzio’s mitigating evidence suggests that her conduct in this case was an aberration from her normal behavior. Finally, the board noted that Porzio expressed remorse at her disciplinary hearing by testifying that she was “horrified” at how she had acted and acknowledging that her conduct had been “wrong all the way around.” The board also noted, however, that not all the hearing-panel members were convinced of the sincerity of Porzio’s testimony.

Bottom line

We agree with the board that a sanction greater than a public reprimand is warranted in this case. Porzio not only announced her intended decision to one party during a lengthy ex parte communication, she ridiculed the absent party, made inappropriate comments about the parties’ religions, used profanity, and later failed to recuse herself from the case, despite having had the time to review the audio recording of her ex parte communication and reflect on how her actions might have reasonably created at least the appearance of partiality. Rather than promoting the evenhanded administration of justice, these actions erode the public’s confidence in the integrity and impartiality of the judiciary...

[She] is hereby suspended from the practice of law in Ohio for six months, with the entire suspension stayed on the conditions that (1) within six months of our disciplinary order, she complete four hours of CLE in the area of judicial ethics, with two of those hours relating to actual or implicit bias, in addition to the other requirements of Gov.Bar R. X and (2) she commit no further misconduct. If Porzio fails to comply with either condition, the stay will be lifted and she will serve the entire six-month suspension.

(Mike Frisch)

Bar Discipline & Process, Judicial Ethics and the Courts | Permalink


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