Tuesday, August 17, 2021

Ex Parte Facebook Contacts Lead To Stayed Suspension Of Judge

Dan Trevas summarizes a decision on the web page of the Ohio Supreme Court

The Ohio Supreme Court today sanctioned an Ottawa County common pleas court judge for engaging in Facebook conversations over a six-month period with an offender who had both civil and criminal matters pending before the judge.

In a unanimous per curiam opinion, the Supreme Court issued a fully stayed six-month suspension to Judge Bruce Winters, the sole judge for the Ottawa County Common Pleas Court’s general and domestic relations divisions since 2008.

The Ohio Board of Professional Conduct recommended the stayed sanction, with conditions, after finding Judge Winters violated several provisions of the Code of Judicial Conduct when engaging in ex parte communications on social media with Keith Blumensaadt.

Between July and December 2019, Judge Winters and Blumensaadt used Facebook Messenger for written and audio conversations regarding matters before the court in which Blumensaadt had an interest. The Office of Disciplinary Counsel charged that Judge Winters violated judicial conduct rules by having undisclosed conversations with Blumensaadt concerning:

  • Criminal charges against a man whom Blumensaadt claimed had sold his daughter heroin
  • Alcohol-related criminal charges of a man whose vehicle struck and injured Blumensaadt, and the subsequent personal-injury case Blumensaadt intended to file
  • Modification of a civil stalking protection order (CSPO) secured by Blumensaadt’s family so that Blumensaadt could attend his mother’s funeral and other functions
  • Modification of a divorce decree that granted Blumensaadt custody of his son.

Judge and Probationer Reacquainted
Before Judge Winters began his law career, he was a probation officer for the Ottawa County Juvenile Court. In the early 1980s, he served as Blumensaadt’s probation officer. Judge Winters testified he had minimal contact with Blumensaadt for nearly 30 years until he presided over Blumensaadt’s 2017 criminal case.

In June 2017, Blumensaadt was indicted on 12 felony counts and one misdemeanor. At the time of the charges, Judge Winters disclosed to the prosecutor and Blumensaadt’s attorney the prior relationship the two had had decades ago. The attorneys agreed that the judge could still preside over Blumensaadt’s case.

In June 2019, Judge Winters approved a plea agreement in which Blumensaadt pleaded guilty to two felonies and the misdemeanor. Blumensaadt had been in jail more than a year when he was sentenced, and Judge Winters agreed to limit his felony sentence to the time already served and issued a 180-day jail sentence for the misdemeanor.

The jail sentence was suspended on the condition that he not travel to Put-In-Bay for one year. At the time of the sentencing, Blumensaadt’s movements were limited by a 2016 CSPO granted to his brother Todd Blumensaadt Sr. and nephew, Todd Blumensaadt Jr., both of whom lived on South Bass Island in Put-In-Bay Township.

Editor's note: Put-in-Bay Township is a small island in Lake Erie north of Sandusky.

Judge Engaged in Social-Media Exchanges
Within in 30 days of Blumensaadt’s release from custody, he and Judge Winters became Facebook “friends” and regularly communicated through Facebook Messenger.

In August 2019, a man identified as A.M. in court records was charged with possession of cocaine and tampering with evidence. Days before A.M.’s arraignment, Blumensaadt messaged Judge Winters and asked the judge not to give A.M. “a bond he can make.” Blumensaadt complained to the judge about A.M. moving into the neighborhood where he lived and alleged A.M. sold heroin to his daughter.

A jury convicted A.M. of one charge, and Judge Winters sentenced A.M. to two years in prison with credit for time served while awaiting his trial. Judge Winters never disclosed to the parties in A.M.’s case that he had been discussing the matter with Blumensaadt.

The disciplinary counsel and Judge Winters stipulated, and the board agreed, that the judge violated three judicial conduct rules, including the requirement that a judge who receives an unauthorized ex parte communication bearing on a matter before the court notify the parties in the case and give them an opportunity to respond.

The disciplinary counsel and Judge Winters also stipulated that he violated the rules by failing to disqualify himself from several cases because his conversations with Blumensaadt “might reasonably have drawn his impartiality into question.”

Conversations Continue during Matters Involving Facebook Friend
In August 2019, Blumensaadt sent Judge Winters a Facebook message informing him his ex-wife agreed to transfer custody of their son to Blumensaadt, but neither could afford an attorney. He asked the judge if there was a form they could use, and the judge directed Blumensaadt to the court’s website and told him it would cost $1,000 to hire an attorney to handle the matter.

Throughout the months as the matter was pending, the two had several Facebook conversations, and at one point Judge Winters advised Blumensaadt to finish the custody matter before “your personal injury case gets filed.”

Weeks prior to filing the custody matter, Blumensaadt was injured when a man identified as D.F. struck Blumensaadt when he was riding his motorcycle. D.F. was charged with operating a vehicle under the influence, aggravated vehicular assault, and other charges.

Blumensaadt became aware the prosecutors and D.F.’s lawyers were discussing a plea agreement in which D.F would be placed in a pretrial diversion program. Blumensaadt complained to Judge Winters that the plea could allow D.F to escape liability and influence his personal-injury lawsuit.

The judge granted D.F. entrance to the diversion program, and Blumensaadt sent Judge Winters a note stating he understood the difficult position of a judge in a small county and that he respected the decision.

Protection Order Modified without Notifying Family
In addition to the pending matters before the common pleas court, Blumensaadt messaged Judge Winters to tell him Blumensaadt’s mother had less than a year to live and was seeking a modification to the protective order so he could attend a funeral, even though his brother, nephew, and other protected persons would be there.

When Blumensaadt sought a modification of his CSPO, the brother and nephew filed objections. Judge Winters assigned the matter to a magistrate and continued to have Facebook conversations with Blumensaadt about the matter.

Judge Winters resolved the matter by telling Blumensaadt a sheriff’s deputy would accompany him to the funeral so there would be no need for the family’s consent to the change or a hearing. The judge then granted the modification without hearing the objections of the brother and nephew.

Supreme Court Reviewed Misconduct   
The board found Judge Winters engaged in inappropriate communications with Blumensaadt, failed to promptly notify the parties of the communications, and did not give them opportunities to respond in all four matters.

In disciplinary cases, the Court considers aggravating circumstances that could increase the penalty and mitigating factors that could lead to a lesser sanction.

The board noted that Judge Winters engaged in a pattern of misconduct that involved multiple offenses. The board also found the judge had no prior discipline, acted without a dishonest or selfish motive, fully disclosed his misconduct, cooperated in the investigation, and expressed genuine remorse for his actions. He also closed his social-media accounts.

The Court’s opinion noted that while Judge Winters’ impartiality could be questioned because of his actions, the record did not indicate the judge’s misconduct “led him to reach any improper or biased outcome.”

The Court stayed the suspension with the conditions that Judge Winters complete three hours of continuing judicial education on the subject of ex parte communications or appropriate use of social media by judicial officers in addition to any required continuing judicial education, commit no further misconduct, and pay the costs of the proceedings. 

2021-0442Disciplinary Counsel v. WintersSlip Opinion No. 2021-Ohio-2753.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/08/dan-trevas-summarizes-a-decision-on-the-web-page-of-the-ohio-supreme-court-the-ohio-supreme-court-today-sanctioned-an-ottawa.html

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

Comments

Post a comment