More Facebook fails

Based on the report of the Board of Professional Conduct, the Ohio Supreme Court suspended a judge for 6 months without pay for communicating about 4 cases pending before him with a litigant on Facebook Messenger and on the phone.  Disciplinary Counsel v. Winters (Ohio Supreme Court August 18, 2021).  The Court stayed the suspension conditioned on the judge completing at least 3 hours of continuing judicial education on ex parte communications or use of social media by judicial officers, refraining from further misconduct, and paying the costs of the proceedings.

In the 1980’s, the judge had been Keith Blumensaadt’s probation officer.  In 2017, the judge presided as a judge over Keith’s criminal case with the agreement of counsel following his disclosure that he knew Keith.  On June 27, based on a plea agreement, Keith pleaded guilty to a felony count of unlawful possession of dangerous ordnance, a felony count of attempted possession of weapons under disability, and a misdemeanor count of attempted unlawful possession of dangerous ordnance.  The judge sentenced him to time served on the 2 felony counts.  On the misdemeanor count, the judge sentenced him to 180 days in the county detention facility suspended on condition that he not enter Put-In-Bay Township for 1 year unless escorted by the county sheriff’s office to remove his personal belongings. 

Sometime after conclusion of the criminal case, the judge and Keith became “friends” on Facebook.

Between July 22 and December 19, 2019, the judge and Keith exchanged ex parte messages on Facebook messenger about 4 cases over which the judge was presiding:  a drug possession case against a defendant whom Keith claimed had sold heroin to his daughter; Keith’s custody case with his ex-wife; a case in which Keith’s father and brother had obtained protection orders against him; and a criminal case against the other driver in a car accident in which Keith had been injured.  During this time, they also discussed personal and professional matters in several phone conversations.  The judge did not disclose the ex parte communications in any of the cases.

(The Facebook messages had numerous grammatical, spelling, capitalization, and punctuation errors that are not corrected in the summary below.)

For example, in a message via Facebook Messenger, Keith told the judge that Alberto Mendez had sold heroin to Keith’s daughter and requested that the judge not give Mendez a “bond he can make.”  The judge arraigned Mendez and released him on a recognizance bond.  A few days later, Keith messaged the judge, “I see Al Mendez moved in are neighborhood on 14th street, I can’t wait to get out of here.”

On May 20, 2019, the judge finalized the divorce of Keith and Michelle Blumensaadt and granted custody of their minor son, Axel, to Michelle.  On August 30, in a message via Facebook Messenger, Keith advised the judge that Michelle had agreed to transfer custody of their son to Keith.  In a message to the judge on September 5, Keith stated:

I stopped to say hello today, and I have a funny story to tell you about my son Axel, anyway Axel keeps riding his bike down to the court house everyday and I said don’t be in the parking lot it’s a busy place, he said okay So yesterday I went looking for him and he was at the court house again, so I ask him why do you keep going to the court house, and he said to see the judge Bruce Winters so I can tell him I want to live with you, so I can go to school!  I said what?  He said well I heard you talking to mom and he is the judge that has to sign the paperwork so I can go to school Here, so I went to tell him I want to live with you so I can get in school next week, I just cried, because he’s so smart and determined to go to school and live with me.  Anyway I picked up indigent form today to file motion and will file it Monday.  So watch for a kid on a red bike who is tracking you.  I told him not to go down there but I think he’s not listening to that, and I explained that there is a procedure we have to do, to enroll him in school.  I thought you would get a laugh out[.]

The judge replied:  “Yes he is!  That’s funny.  I’ll look for him and for sure talk to him if I see him.  I like his attitude.😊”

Between September 6 and September 30, the judge and Keith exchanged several private messages that included information relevant to Keith’s pending pro se motion for change of parenting time over which the judge was presiding.

For example, on September 7, Keith sent the judge a copy of a criminal judgment entry against Michelle and stated, “Just had to send this to you, Michelle stabbed me with a pen in 2016 and was ordered to take her bipolar meds and was charged with domestic violence, but if you let her tell the story I’m the one who’s on meds.”  Later that same day, in a reply to Keith’s message, the judge stated, “Interesting!”

On September 9, in a message via Facebook Messenger, Keith invited the judge and his family to a private dinner hosted by his brother Bill where oysters, crab, lobster, and ribeye would be served, saying, “Your my guest if your interested.”  The judge replied, “I don’t know what my schedule is tomorrow I’ll be in touch.”  On September 10, the judge declined Keith’s offer, stating, “I guess I really shouldn’t since you have a case pending in my court.  Thanks for asking.  Let get this done. . . .  Before your personal injury case gets filed.😊”

On September 30, in a message via Facebook Messenger, Keith told the judge:

By the way Michelle got a little huffy yesterday about Axel, because he won’t go to her house with her, and I told her he’s scared she won’t bring him back,,, should I bring him to hearing he wants to come and tell magistrate he wants to live with me.  He starts throwing up when she tells him she’s coming to pick him up and has anxiety attracts, and says he’s not going.  I think she has caused axel to be in-fear of her taking him away ,, It’s not good there, but she doesn’t see it, because she believes her lies.

On the same day, Keith sent the judge another message:

It seems Michelle doesn’t want to go to hearing and had attorney send over a agreement to sign, I’m going to have it gone over and everything looks good, I just don’t trust her.  She knows what Axel is going to say in court and it’s not good, so she just wants to see things my way as I said she would, I new she would, she’s lied about everything.

On September 25, in a message via Facebook Messenger, Keith advised the judge that he and Michelle had reached an agreement that would be filed soon.  Keith’s message stated:

Axel is happy with it, because she [Michelle] had to visit him here in Port Clinton, he refuses to go to her house and I don’t blame him, thank you for everything, I don’t think she understand what she had done to Axel mindset on past actions,,.  I’m overlooking a lot of her actions for Axel, because at the end of the day she is his mother and I don’t want him to hate her and I don’t want to hurt her legally, she deserves it but it’s not who I am, its easy to life to be irresponsible, and vindictive but it’s harder to turn the other cheek and move on!

The judge replied to Keith:  “Glad you have it worked out.”

There were additional Facebook Messenger communications between the judge and Keith about the case.  The judge did not disclose any of the communications to Michelle or her attorney.

In 2016, Keith’s father and brother, Todd Sr. and Todd Jr., had obtained civil stalking protection orders that required Keith to stay at least 500 feet away from them.  The orders were in effect until May 2021.

On November, 2019, at 8:22 p.m., in a message via Facebook Messenger, Keith stated to the judge, “Hey I have a question about my mom, when she passes and that protective order, call me when you get a chance please!”  On the same day at 9:09 p.m., the judge called Keith and spoke to him for 44 minutes.  During this call, the judge advised Keith to file a motion requesting that the protection orders be temporarily modified to allow Keith to attend his mother’s funeral even though Todd Sr. and Todd Jr. would also be present.  Subsequently, the judge and Keith exchanged numerous messages via Facebook Messenger and spoke on the phone about the declining health and subsequent death of Keith’s mother and modification of the protection orders.  The judge did not disclose any of the communications to Todd Sr., Todd Jr., or any of the attorneys.

For example, on December 18, at 4:48 p.m., in a message via Facebook Messenger, Keith asked the judge, “Any word on what’s going to happen with funeral[?]”  At 9:25 p.m., the judge replied, “A deputy will accompany you.  No need for consent, no need for a hearing and the Sheriff is onboard.”  Keith immediately replied, “You sure[?]  Thank you Bruce.”

On July 27, Keith was injured in a car accident.  The driver of the other car was Daniel Fishburn.  On September 9, Fishburn was charged with operating while under the influence, failing to maintain space between moving vehicles, and aggravated vehicular assault.  The judge presided over Fishburn’s criminal case.

Between September 9 and January 25, 2020, Keith and the judge exchanged multiple messages concerning Keith’s injuries and Fishburn’s criminal case.  The judge never disclosed the ex parte communications in the criminal case.

For example, on October 17, in a message via Facebook Messenger, Keith told the judge:

Then this guy who hit me wants to plead no contest to ovi felony, not a chance, he doesn’t want to admit guilty so he can get out of liability, over my dead body, [the prosecutor] should no better, I’m waiting to hear what him and [Keith’s attorney] have figured out on that yet, he blows twice over legal limit and admitted to drinking, I don’t think he has a change at jury trial, he’s been offered 1 ovi felony and 1 unasheered clear distance misdemeanor and diversion program, he should be happy with no jail time, but no, he wants his cake and eat it to.

On December 17, the judge granted the joint request for Fishburn to be admitted to the county prosecutor’s pretrial diversion program.  The judge set the matter for a plea change and diversion hearing on January 15, 2020.

On January 15, before Fishburn’s plea and diversion hearing, Keith said to the judge:

Bruce good morning.  I want you know, that I understand being in your position as a judge in a small community is a very hard job, trying to make everyone’s needs just, being put between difficult situations, but at the end of the day I still respect you and don’t dislike you in any way.  I’ve been in a lot of hard situations, and at the end of the day I don’t hold any remorse!  I still think you are great guy and I hope my case doesn’t change anything between us,, it’s a hard spot and it bothers me personally everyday, because I consider you a Good person!  And friend!!  It’s definitely a awkward situation my case, but I still like you, I can tell you don’t have conversations with me anymore and I understand!!!  I don’t have it in me, to not love and respect a good guy as yourself!  I’ve said to much, this dam case of mine has caused such problems in my life and don’t want my appeal to cause hard feeling!!  Dame I hate this whole Pib thing.

* * *
The Texas State Commission on Judicial Conduct publicly warned a judge for posting on Facebook support for judicial candidates, opposition to candidates for other offices, a negative comment about Scientology, and a meme about border crossings.  Public Warning of Baca Bennet and Order of Additional Education (Texas State Commission on Judicial Conduct August 16, 2021).  The Commission also ordered the judge to obtain 2 hours of instruction on racial sensitivity with a mentor.

During the 2018 election cycle, when she was not running, the judge made several posts to her Facebook page lauding the experience and/or qualifications of certain candidates for judicial office, defending those candidates against political attacks from others, or opposing the candidates’ opponents.

The judge posted about the campaign of Judge James Munford, including defending him against accusations that he was a “gun grabber” and a “RINO” and had abused his first wife decades before.  The judge also made negative comments about Judge Munford’s opponent’s voting record and urged the public to ignore the political attacks against Munford and to vote for him because of his superior experience and qualifications.

The judge also posted about the campaign of Judge Cynthia Terry, including posting about attending a “Meet and Greet Luncheon” hosted by Judge Terry, “liking” a post about the event, and sharing screenshots of Judge Terry’s campaign flyers.

The judge also promoted the campaign of Judge Alex Kim on her Facebook page, including sharing Judge Kim’s campaign materials and insinuating in a lengthy post that she had unique knowledge that the Kim’s opponent was unsuited for the position because he left “a baby in danger.”

In addition, the judge posted to Facebook the comment, “Robert Francis O’Rourke.  #fakemexican” about then-candidate for U.S. Senate, Beto O’Rourke.  The judge also remarked “Finally Gone!!!” about the loss in the primaries of State Representative Jason Vallalba and later responded with 2 laughing emojis to the comment, “I’m sure [Vallalba] will find a job, there are lots of local opportunities in both the hotel and food service industry.” 

The judge shared a link on Facebook to an article titled “Scientologist’s Facilities Closed After Police Find People Held Prisoner Inside,” with her comment, “Scientology is not a church.  It is an evil scam.”

The judge posted to her Facebook page a meme with an image of the Looney Tune character Wile E. Coyote reading a book with the title, “How to carry kids across the border . . . ,” followed by an image of Dora the Explorer, a Hispanic cartoon character, tied to a rocket and Wile E. Coyote attempting to light the fuse.  The judge removed the meme from her Facebook page soon afterwards and posted a retraction.

During her appearance before the Commission, the judge acknowledged that posting these materials on her personal Facebook page was inappropriate and stated that she regretted doing so.  The judge represented to the Commission that she has deactivated her personal Facebook page and will no longer participate in social media although she still maintains a campaign Facebook page that is run by a political consultant.

* * *

A 2-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics was published in the spring and summer 2017 issues of the Judicial Conduct ReporterPart 1 was a general introduction to the topic and a discussion of issues related to judicial duties:  “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and comments on pending cases.  Part 2 covered off-bench conduct:  conduct that undermines public confidence in the judiciary, commenting on issues, abusing the prestige of office, providing legal advice, disclosing non-public information, charitable activities, political activities, and campaign conduct.  Summaries of advisory opinions and cases up-dating the 2-part article are available on the Center for Judicial Ethics website.

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