Thin skin

In 2 recent cases, judges were sanctioned for inappropriate reactions to public criticism.

The West Virginia Judicial Investigation Commission publicly admonished a magistrate for (1) making statements to a reporter in response to a police captain’s criticism of his bond in a case and a heated exchange during a meeting with the police about the criticism; (2) swearing at a police officer during a telephone call about the bond in another case; and (3) asking lawyers who appear before him and a bail bondsman to submit letters in support of him to Judicial Disciplinary Counsel.  Public Admonishment of Gaujot (West Virginia Judicial Investigation Commission April 25, 2022).

In early November 2021, the magistrate arraigned a defendant charged with severely damaging several police cruisers.  Police Captain Matthew Solomon told a local newspaper reporter that he was concerned that the magistrate had set the bond too low.  The magistrate told the reporter that he gave the defendant a low bond to make sure “the department gets restitution.”  The magistrate also “insinuated” that the law enforcement officers had beat up the defendant, stating, “He’d taken some knocks.  I mean his face was all swollen and I was kinda like ‘yikes,’ that he’d kinda done, he’d paid for that.”  His comments were reported in the newspaper.

After the article was published, the magistrate met with Captain Solomon and Police Chief Eric Powell.  During the meeting, the magistrate loudly addressed Captain Solomon’s decision to complain to the press about the bond.  According to Captain Solomon, the magistrate was belligerent and shouted vulgarities at him.  The magistrate’s behavior was so bad that Captain Solomon left the meeting to diffuse the situation.  Chief Powell said that he had to threaten to have the magistrate removed before he would calm down.

In his sworn statement, the magistrate admitted that he had a heated verbal exchange at the beginning of the meeting and that he had been “livid.”  The magistrate denied saying the vulgarity claimed but admitted saying that Captain Solomon’s speaking to the reporter was “an a**hole decision.”  The magistrate insisted that the meeting with police, his demeanor, and the use of the phrase “a**hole decision” were appropriate and that it was “just men being blunt in an attempt to work through their differences.”  However, when Judicial Disciplinary Counsel pointed out that the law enforcement officers saw an unequal balance of power between them, the magistrate admitted that the incident was inappropriate.

In November 2021, the magistrate arraigned a mother charged with the felony offense of gross child neglect with risk of serious injury after a single vehicle crash that caused injury to several children.  The prosecuting attorney requested a bond of $250,000.  The magistrate, who sits in Monongalia County, thought that she should be given a personal recognizance bond and called a Preston County Magistrate to discuss the prosecutor’s request.  During the call, the other magistrate put Magistrate Gaujot on hold and then returned to the call with the police captain who had investigated the crash.  Captain Tichnell insisted that the magistrate set the bond requested by the prosecutor and threatened that, if the magistrate set a PR bond, he would dismiss the charge against the mother, file more serious charges, and file a judicial ethics complaint.  According to Captain Tichnell, the magistrate repeatedly responded in a vulgar manner. 

In his sworn statement, the magistrate stated that Captain Tichnell was emotional on the phone and would not let him speak.  The magistrate believed Captain Tichnell’s tone, demands, and threat were out of line but admitted that he swore at Tichnell and that his conduct was inappropriate.

The Commission stated:

A judge must have a thick skin.  Not everyone will agree with the decisions that judges must make in cases on a daily basis.  There will always be at least one party who will disagree with the decision and they are free to openly criticize the judge if they so choose.  However, judges are constrained by the rules from replying to criticisms and shall not do so when they involve a matter that is pending or impending in any court.

Judicial temperament is an absolute requirement.  Not only does a judge set the tone of his/her courtroom but he/she in large part owes his/her reputation to acts of courtesy, civility and consideration.  Judges must also realize that how people view the judge is how they view the court system as a whole.  In order to gain respect, a judge must give respect even in difficult circumstances.

Judges are often perceived as the most powerful person in his/her county.  In other words, the balance of power is never equal where a judge is involved and it is usually heavily tipped in his/her favor.  Therefore, a judge must at all times take into consideration how he/she is viewed by his/her opponent before commenting.  A simple negative comment by a judge may be viewed by his/her opponent as a threat.  Therefore, judges should choose their words wisely.  Respondent failed to follow these precepts.

* * *

The Ohio Supreme Court suspended a judge for 6 months for berating a litigant who had criticized the judge at a board of commissioners meeting because he presided in cases in which his daughter was an attorney, for allowing his daughter to interrogate the litigant, and for subsequently appearing at a commissioners’ meeting to accuse the litigant of “publicly disparaging and slandering” him and his daughter.  Disciplinary Counsel v. O’Diam (Ohio Supreme Court April 28, 2022) ().  The suspension was stayed conditioned on the judge committing no further misconduct and completing 6 hours of continuing judicial education on demeanor, civility, and professionalism.  The Court adopted the findings of the Board of Professional Conduct, which were based on stipulations.

The judge practiced estate-planning, trust, and probate law as a majority shareholder of a law firm.  His daughter, Brittany O’Diam, joined the firm in 2010 and remained at the firm after the judge was appointed Greene County probate judge in 2013.  The firm’s shareholders made regular payments to the judge for his shares until March 2021.

In January 2018, Carolee Buccalo’s granddaughter retained Brittany to represent her in the administration of Carolee’s estate.  In May, Brittany filed an application to probate the will in Greene County.  Brittany also filed 7 waivers of disqualification signed by the beneficiaries of the estate.  3 of the waivers were from Carolee’s son Grant Buccalo, in his personal capacity, as a trustee, and as a guardian for one of his brothers.  The waivers disclosed the judge’s familial relationship to Brittany and his position as a former shareholder and creditor of her law firm, acknowledged that those circumstances may disqualify the judge from presiding over cases in which attorneys from the firm represented the executor, but stated that the signatories trusted that the judge would act impartially and fairly. 

On May 26, 2019, at a public meeting of the Greene County Board of Commissioners, Grant Buccalo expressed his belief that the judge should recuse himself from cases in which his family members represent parties.  Buccalo added that when people leave the courtroom, they need to feel that they “got a fair shake” and that the system “wasn’t rigged.”  Buccalo spoke for approximately 2 ½ minutes and stated that he merely wanted to ensure that the commissioners were aware of the judge’s practice; he did not specifically mention his mother’s estate or express any concern regarding the case, although he did state that he planned to file a grievance with Disciplinary Counsel.

The judge’s chief deputy clerk informed the judge of Buccalo’s statements to the commissioners, and the judge obtained a video recording of the meeting.  The judge then scheduled a status conference in Carolee’s estate case and ordered the executor and the 3 local beneficiaries, including Buccalo, to appear, cautioning that, “Failure to attend this Status Conference will be deemed contempt of court.”

At the status conference, the judge thanked the beneficiaries “for showing up on such short notice,” explained that a “very disturbing incident [had] taken place with the estate,” stated that he needed to get it resolved that day, and played the recording of Buccalo’s comments at the commissioners’ meeting.  He called Buccalo to the stand, placed him under oath, and informed him that any false statements would constitute perjury.  He then cross-examined Buccalo for nearly an hour.

For example, the judge told Buccalo to read the waiver of disqualification into the record and then asked him, “Is there anything in the second paragraph that you don’t understand?”  Becoming emotional as the judge questioned him, Buccalo explained that he was “an emotional mess” when he signed the waiver and had not read it closely.  The judge asked:  “[D]id anybody not ever advise you that before signing your name on a document, you should read it?”  Buccalo answered, “[O]f course.”

When the judge asked Buccalo if he believed that the commissioners were “over” his court, Buccalo testified, “I think they have some influence.  I might be wrong on that.”  The judge replied, “You are.”  He then asked Buccalo whether he had ever read the Ohio Constitution and the U.S. Constitution and whether he was aware of the concept that the 3 branches of government are independent of each other. 

The judge also questioned Buccalo about how he was able to comment on the court and “trash” the judge to the commissioners given that the topic was not related to any item on the meeting agenda.  Buccalo explained that he had contacted the commissioners’ office before the meeting and was told that they would give him time to speak on the issue.  The judge responded, “So the board of commissioners knew what the topic was going to be * * * even though they’re well aware that they have nothing to do on the authority of a court” and “It was a public forum in which you could go make your argument without my knowledge, without me being there.  Seems to me it was basically a free shot.”  Buccalo replied, “Oh, no.  I didn’t look at it that way,” and the judge replied, “I do.”

The judge told Buccalo that he and the commissioners had had a “run-in” before and that they “almost went to blows” over the commissioners’ attempt to interfere with the administration of his court.  (The Court noted that, a month before the status conference, it had issued a peremptory writ prohibiting the judge “from enforcing orders related to a dispute he had had with the commissioners regarding courtroom space.”)  In response to Buccalo’s statement that the commissioners had changed their rules on public comment because people would “demagogue” them, the judge replied, “Isn’t that exactly what you did about me?  That you went in and demagogued me in front of the commissioners * * *.”  Buccalo stated, “I wouldn’t call it demagogue,” to which the judge responded, “I’ll tell you what I would call it.  I would call it slander.”  Although Buccalo attempted to explain, the judge interrupted, saying, “I need to move on * * *.”

After questioning Buccalo for almost an hour, the judge allowed Brittany to question him for more than 15 minutes.  Brittany asked a couple of questions about the waiver of disqualification and then said, “[D]o you expect that I should have known that you had an issue even though I received a signed waiver from you?”  Buccalo attempted to explain his concerns, stating, “I’m not trying to argue with you.”  Brittany replied:  “I am.”  Brittany repeatedly asked Buccalo whether he had ever raised concerns about the waiver to her.  When he said he had not, Brittany stated, “And yet you still thought it was appropriate to impugn my character as an attorney in the public forum of a public county commissioners meeting, as well as the character of the court, which has been addressed?”  Buccalo responded, “We might have differences of opinion,” to which Brittany replied, “We certainly do.”  Buccalo stated, “I’m not trying to be rude, but when I did public comments * * * I make a habit of not trying to make them personal.”  Brittany retorted, “You failed in this account.”

Brittany closed by telling Buccalo:  “You have cost this estate an extensive amount of money, an extensive amount of heartache and an extensive amount of stress that was all completely unnecessary had you just proceeded like an adult.”  Buccalo stated, “And I have no response to that,” to which Brittany replied, “No you do not.  It was not a question.  * * *  It was a statement,” and then claimed, “This is not an adversarial proceeding.”

After Brittany’s interrogation of Buccalo, the judge made remarks similar to his earlier statements.  Later that day, the judge issued a notice of disqualification.

A week after the status conference, the judge and Brittany attended a board of commissioners’ meeting.  After explaining that he and Brittany obtained waivers of disqualification whenever Brittany represents parties in uncontested cases before him, the judge told the board that, “[Buccalo] chose to be untruthful to you and the public, to unjustly smear myself and my daughter.  That is simply despicable.”  The judge then claimed, “We do not have a problem in probate court.  What we have is a problem with people improperly using this Board as a public forum to lodge unfounded and false accusations.”  After expressing his disappointment that the commissioners had permitted Buccalo to speak on the issue, the judge stated that “[t]his is not the proper forum to wage personal vendettas against any public official.”

The Court found that the judge had violated Rule 2.8(B) in 3 ways:  by failing to be patient, dignified, and courteous while interrogating Buccalo, by failing to “require Brittany—an attorney who was under his direction and control—to conduct herself in a patient, dignified, and courteous manner when she questioned Buccalo,” and by failing to be patient, dignified, and courteous while appearing before the county commissioners.  The Court noted that the judge had “planned his course of action against Buccalo—and had more than a week to contemplate whether it was appropriate for him to appear before the commissioners and publicly berate Buccalo for a second time.”  The Court rejected the judge’s argument that he was “carrying out [his] responsibilities as the judge” because “the purpose of the status conference was to determine whether the waivers that Buccalo signed remained valid and whether he could continue to preside over the case.”  The Court concluded that the judge’s “primary concerns were the effects that Buccalo’s public statements had on [his] reputation, his daughter’s reputation, and the reputation of his court and how those statements personally offended him.”

One thought on “Thin skin

  1. Pingback: Beyond defense of reputation | Judicial ethics and discipline

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