Sunday, March 16, 2014

Appellate Judge Blasts Indicted Cincinnati Trial Judge; Meanwhile Ohio Supreme Court Continues to Aggressively Sanction Attorneys for Judicial Criticism

The Cincinnati Enquirer reports:
In her many fights with prosecutors and defense attorneys, Hamilton County Juvenile Court Judge Tracie Hunter often said she was doing what was best for the children she took an oath to protect.

In a scorching Friday ruling, though, a higher court blasted Hunter for harming children,
Judge Tracie Hunter
calling her decision to terminate a mother's custody "egregious."

"We find that (Hunter's) judgment was not only unreasonable but also utterly unconscionable," Appeals Court Judge Sylvia Hendon wrote in Friday's decision. Fellow Appeals Court Judges Pat Fischer and Pat DeWine concurred.


[Hunter's] magistrate ruled that custody of two children would be transferred from their mother and given to the Department of Job & Family Services. Hunter held a Nov. 12, 2012, hearing and said she would rule in 60 days.

Instead, she waited so long to rule on the custody case that the Hamilton County public defender asked the Cincinnati-based 1st District Court of Appeals to force Hunter to rule on that and more than a dozen other cases because the delays were hurting the children involved.

Hunter eventually ruled, two days after the appeals court ordered her to and 11 months after she held the first hearing. Her ruling, though, blasted the mother's attorney for not presenting a better defense. More importantly, Hunter admitted in that decision that she did "not have time to rectify that shortcomings of Mother's legal arguments."
Hunter had previously been suspended by the Ohio Supreme Court after she was indicted on criminal allegations of theft in the office for misusing county credit cards, backdating court documents, and   improperly inserting herself into the firing of her brother, a former juvenile court employee.

As the Cincinnati Enquirer article notes:  "The ruling is unusual because judges rarely criticize other judges' rulings, much less with such scathing language."
Ohio Appellate Judge
Sylvia Hendon

And therein lies the irony.  Ohio is the second most aggressive state (after Indiana) in disciplining attorneys for criticism of judges, with eight Rule 8.2 cases. Six of those Rule 8.2 cases have been handed down in the last 3 1/2 years. Of the eight Rule 8.2 cases, seven involved matters where the attorney put his accusation of judicial misconduct in court filings.  One of those seven cases involved an attorney who was disciplined for filing disciplinary grievances accusing a judge for not following Ohio law with respect to the issuance of ex parte protective orders.  That attorney was indefinitely suspended and won't be allowed to practice again in Ohio unless he can prove he is mentally healthy.

In employing the most strict "reasonable attorney" standard for enforcing Rule 8.2, the Ohio Supreme Court stated in the Pullins case "[w]e have recognized that ethical rules prohibiting false statements impugning the integrity of judges are necessary 'to preserve public confidence in the fairness and impartiality of our system of justice.""  So then why wouldn't Judge Hendon's harsh statements about Judge Hunter also not cross that line?  If anything, Judge Hendon's statements about Judge Hunter, which have been picked up by numerous media outlets, would have even more of an effect of undermining the public's confidence in the judiciary than Ohio attorneys including judicial criticism in filings that quite likely would never be picked up by a media outlet?

The answer is that Rule 8.2 is being enforced by the Ohio Supreme Court not to protect the public, but rather to protect their judicial colleagues from criticism.

1 comment:

  1. Criticism might by scathing, but the appellate court remanded the case back to whom - the object of its scathing criticism, the same judge? And expect that NOW the judge will be fair, after being so harshly criticized by the appellate court? I think, under such circumstances, a remand to another judge would have been in order.

    I agree with your comment that it appears that Rule 8.2 is used in order to shield judges from criticism by attorneys, and would add that it is done because attorneys who are trained to pick up errors of law and violations of rules of conduct and constitutional rights and happen to see the judge's behavior on a day-to-day basis are the most believable and most capable and eloquent critics of the judiciary available.

    Which leads to a question, are attorneys suspended so that they are not believed by the voters? As an attorney (New York) I advocate for removal of attorney regulation from the hands of the judiciary, because it makes no sense for attorneys who are supposed to challenge judicial decisions in appellate court and on motions to recuse, to have their licenses and livelihoods in the hands of objects of their criticism.