Disciplinary Counsel v. Carr , 2022 Ohio 3633 ( 2022 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Carr, Slip Opinion No. 2022-Ohio-3633.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2022-OHIO-3633DISCIPLINARY COUNSEL v. CARR.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Carr, Slip Opinion No.
2022-Ohio-3633.]
Judges—Misconduct—Violations of the Code of Judicial Conduct—Multiple
violations, including improperly issuing capias warrants, engaging in
improper plea bargaining and ex parte communications, issuing arbitrary
dispositions, improperly using capias warrants and bonds to compel
payment of fines and costs, exhibiting lack of decorum and dignity
commensurate with judicial office, abusing contempt power, and failing to
recuse—Indefinite suspension with conditions for reinstatement—
Immediate suspension from judicial office without pay.
(No. 2021-1518—Submitted April 12, 2022—Decided October 18, 2022.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2020-054.
__________________
SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} Respondent, Pinkey Suzanne Carr, of Cleveland, Ohio, Attorney
Registration No. 0061377, was admitted to the practice of law in Ohio in 1993.
Since January 2012, she has served as a judge of the Cleveland Municipal Court.
She previously served for 13 years as an assistant prosecuting attorney for
Cuyahoga County.
{¶ 2} In a March 2021 amended complaint, relator, disciplinary counsel,
charged Carr with five counts of judicial misconduct. Each count set forth
numerous instances of misconduct that occurred over a period of two years and
shared common elements that fall into one or more of the following categories: (1)
issuing capias warrants and making false statements, (2) engaging in ex parte
communications and improper plea bargaining and rendering arbitrary dispositions,
(3) using capias warrants and bonds to improperly compel payment of fines and
court costs, (4) exhibiting a lack of decorum and dignity in a judicial office, and (5)
abusing contempt power and failing to recuse herself from contempt proceedings
in which she had a conflict.
{¶ 3} The parties entered into 583 stipulations of fact and misconduct that
span 126 pages and submitted more than 350 stipulated exhibits. The hearing
before a three-member panel of the Board of Professional Conduct was bifurcated
to afford Carr additional time to develop mitigating evidence.
{¶ 4} The panel accepted the parties’ stipulations of fact and misconduct
and issued a 58-page report recounting limited—but representative—examples of
Carr’s admitted misconduct. The panel found that Carr “ruled her courtroom in a
reckless and cavalier manner, unconstrained by the law or the court’s rules, without
any measure of probity or even common courtesy” and that she “conducted
business in a manner befitting a game show host rather than a judge of the
Cleveland Municipal Court.” The panel concluded that Carr’s actions “could not
help but seriously compromise the integrity of the court in the eyes of the public
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and all who had business there.” After weighing the applicable aggravating and
mitigating factors, the panel recommended that Carr be suspended from the practice
of law for two years and that certain conditions be placed on her reinstatement to
the profession. The board adopted the panel’s findings of fact, conclusions of law,
and recommended sanction. The board further recommended that, in accordance
with Gov.Jud.R. III(7)(A), Carr be immediately suspended from judicial office
without pay for the duration of her disciplinary suspension.
{¶ 5} Carr raises three objections to the recommended sanction. She argues
that the board applied the wrong legal standard and failed to accord proper
mitigating effect to her mental-health disorders. She further contends that the
circumstances here support the imposition of a two-year suspension with 18 months
conditionally stayed.
{¶ 6} We adopt the board’s findings of misconduct. For the reasons that
follow, we overrule Carr’s objections, reject the two-year suspension recommended
by the board, indefinitely suspend Carr from the practice of law, and immediately
suspend her from judicial office without pay for the duration of her disciplinary
suspension.
I. MISCONDUCT
A. Count One—Issuing Capias Warrants and Making False Statements
{¶ 7} In March 2020, Judge Michelle Earley, the administrative and
presiding judge of the Cleveland Municipal Court, issued an administrative order
suspending most courthouse activity in an effort to help prevent the spread of
COVID-19. Judge Earley ordered that all civil and criminal cases set for hearing
between March 16 and April 3, 2020, be rescheduled for three weeks after the
originally scheduled date. The order directed the clerk of courts to issue
summonses to all of the affected criminal defendants, compelling them to appear
on the newly scheduled date, and similarly directed that all parties to the affected
civil cases be notified of the postponement.
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{¶ 8} Despite Judge Earley’s order, Carr did not reschedule cases set on her
docket. On Monday, March 16, she presided over her regular docket—including
eight criminal cases in which the defendants had not been jailed. In each of those
cases, Carr issued capias warrants for the defendants who did not appear in court.
Her verbal statements on the record and her journal entries noted the defendants’
failure to appear; she issued capias warrants for their arrest and set bonds ranging
from $2,500 to $10,000.
{¶ 9} In contrast, Carr waived fines and court costs for defendants who were
“brave enough” to appear in court despite the potential for exposure to COVID-19.
And Carr informed the public defender assigned to her courtroom that defendants
represented by that office should continue to appear in court contrary to the court’s
press release regarding the administrative order.
{¶ 10} On Tuesday, March 17, Carr presided over her regular docket as
though the administrative order had never been issued. Only a few nonjailed
defendants and their counsel appeared. Carr issued capias warrants and set bonds
for seven defendants who did not appear. When the public defender assigned to
Carr’s courtroom asked whether his clients should plan to be in court the following
day, Carr stated that they should. The public defender then mentioned the
administrative order and asked if there was any concern regarding COVID-19, but
Carr replied that not everyone watches the news and that the public defender should
not tell people to not show up, because she would be in court. Shortly after the
public defender left the courtroom, Carr turned to her staff and mocked him, calling
him a “little idiot.”
{¶ 11} After clearing her March 17 docket, Carr learned that pursuant to the
administrative order, Matthew Woyma, the person responsible for scheduling the
court’s cases, had cancelled her civil docket for March 26. In open court, she
instructed her bailiff to tell Woyma “to get his ass back on that phone and put all
[her] civil cases back on.” Woyma had already sent written notices of
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postponement to all parties. As a result of Carr’s directive, Woyma had to notify
every party to appear in court as originally scheduled.
{¶ 12} On March 17, The Plain Dealer published an article on its website,
Cleveland.com, with the headline “Cleveland judge flouts court’s postponements
amid coronavirus pandemic, issues warrants for no-shows.” See
https://www.cleveland.com/court-justice/2020/03/cleveland-judge-flouts-courts-
postponements-amid-coronavirus-pandemic-issues-warrants-for-no-shows.html
(accessed July 25, 2022) [https://perma.cc/4U2E-U9UM]. Carr continued to
conduct hearings.
{¶ 13} Throughout the morning of March 18, Carr criticized Cleveland.com
for accurately reporting that she was issuing warrants for people who did not come
to court. Between proceedings, Carr granted an interview to a reporter from a local
television station in which she claimed that the Cleveland.com article was “untrue”
and “reckless.” She also denied issuing any arrest warrants for defendants who had
failed to appear for proceedings in her courtroom that week. After the interview,
Carr continued to talk with the reporter who asked, “And you are not, to be clear,
you are not issuing any warrants?” Carr replied, “Absolutely not.” However, that
statement was untrue.
{¶ 14} In a text-message exchange with Judge Earley later that day, Carr
continued to falsely characterize her actions. When Judge Earley asked Carr if she
was issuing warrants for people who failed to appear, Carr responded, “Too late to
ask that ridiculous question. My [journal entries] reflect corona day 1, 2, or 3. Time
case was called and no defendant or [failed to appear] in which my journalizer notes
NO WARRANT TO ISSUE.” (Capitalization sic.) That statement was patently
false because none of Carr’s journal entries included the phrase “no warrant to
issue.” On March 20, the print edition of The Plain Dealer published an editorial
about Judge Carr’s continuing to hold court in spite of the administrative order.
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Judge Carr Put People at Risk in Defying Order of Court, The Plain Dealer (Mar.
20, 2020) E2.
{¶ 15} The board found that Carr’s failure to follow the administrative order
proved to be a costly burden to the administration of justice. When Judge Earley
learned that Carr had, in fact, issued arrest warrants, she had to review all of Carr’s
entries, recall the warrants, set bonds, and issue summonses for the next court
appearances. She also had to reschedule the civil cases that Carr had reset for
March 26.
{¶ 16} The Office of the Public Defender for Cuyahoga County filed a
complaint in the Eighth District Court of Appeals seeking writs of mandamus and
prohibition to compel Carr’s compliance with the administrative order. That office
also filed an affidavit of disqualification with the chief justice of this court, alleging
that Carr had acted with a “calculated bias and disregard” for the welfare of those
named in the affidavit and all other defendants appearing before her. The court of
appeals granted alternative writs of mandamus and prohibition, sua sponte, ordering
Carr to comply with Judge Earley’s March 13, 2020 administrative order and
issuing a stay of all orders and capias warrants issued by Carr after that date, and
the chief justice disqualified Carr from presiding over the criminal and traffic cases
of nonjailed defendants for the duration of Judge Earley’s order.
{¶ 17} The board found that Carr “very publicly flouted her disregard of a
court order that was designed to ensure the safety of the public and the court’s
personnel during the pandemic,” that she punished members of the public who
followed the administrative order and lied about it to the press and to the presiding
administrative judge of her court, and that she thereby created the very danger that
the order sought to prevent—the spread of the coronavirus in open court.
{¶ 18} The parties stipulated, the board found, and we agree that Carr’s
conduct violated Jud.Cond.R. 1.2 (requiring a judge to act at all times in a manner
that promotes public confidence in the independence, integrity, and impartiality of
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the judiciary, and to avoid impropriety and the appearance of impropriety), 2.2
(requiring a judge to uphold and apply the law and to perform all duties of judicial
office fairly and impartially), 2.5(B) (requiring a judge to cooperate with other
judges and court officials in the administration of court business), and 2.8(B)
(requiring a judge to be patient, dignified, and courteous with litigants, jurors,
witnesses, lawyers, and others with whom the judge deals in an official capacity)
and Prof.Cond.R. 8.4(c) (prohibiting a lawyer from engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation) and 8.4(d) (prohibiting a lawyer
from engaging in conduct that is prejudicial to the administration of justice).
B. Count Two—Ex Parte Communications, Improper Plea Bargaining, and
Arbitrary Dispositions
{¶ 19} The parties’ stipulations describe 34 cases in which Carr engaged in
ex parte communications and improper plea bargaining with defendants and made
arbitrary rulings between May 2019 and December 2020.
{¶ 20} In open court on June 15, 2020, Carr unabashedly told her staff,
“[T]he prosecutor isn’t here. Let’s see how much we can get away with.”
Similarly, in open court on June 18, 2020, Carr told one defendant, “Well the
prosecutor isn’t here, so we need to get as many of these done before he or she gets
here * * *.” She then offered that defendant a plea deal that he accepted. Carr
admitted that she routinely conducted hearings without a prosecutor being present
so that she could avoid complying with the requisite procedural safeguards set forth
in R.C. 2937.02 et seq. (requiring a judge to inform the accused, among other
things, of the nature of the charge, the identity of the complainant, the right to
counsel, and the effect of a plea of guilty, not guilty, or no contest) and Crim.R. 11
and Traf.R. 10 (both requiring a judge to engage in a personal colloquy with the
accused to ensure that a plea is knowingly and voluntarily entered). Carr also
unilaterally recommended pleas to unrepresented defendants when no prosecutor
was present and accepted the pleas without explanation or discussion of the
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consequences of entering the plea, as required by Crim.R. 11 and Traf.R. 10. In at
least 6 of the 34 cases identified in this count, Carr unilaterally amended the charges
against the defendant and falsely attributed those amendments to the prosecutor in
her judgment entries.
{¶ 21} After unilaterally entering no-contest pleas on behalf of defendants,
Carr routinely found them not guilty of the charged offenses. But even when she
found defendants guilty, she arbitrarily waived fines and costs without any inquiry
into the defendant’s ability to pay. She then falsified her journal entries to conceal
her actions. In fact, Carr frequently stated that she was waiving fines and costs
based on the defendant’s birth date or its proximity to the date of the hearing, a
holiday, her own birthday, or the birth dates of her family and friends—even when
the prosecutor was present in her courtroom. Carr’s entries in at least 24 of the 34
cases identified in Count Two falsely stated that she had conducted ability-to-pay
hearings and had determined that the defendants were unable to pay fines or costs.
{¶ 22} For example, M.T. was charged with speeding, a fourth-degree
misdemeanor, and a seatbelt violation, a minor misdemeanor. He was arraigned
before Carr on June 15, 2020. Earlier in the day, Carr had waived a defendant’s
fine and costs simply because the defendant’s birthday was in June. With no
prosecutor present, Carr told M.T., “I’ll give you the same deal, even though your
birthday is in September.” She then asked M.T. whether he would like to plead
guilty to a nonmoving violation. M.T. nodded his head, and Carr replied, “Yeah,
yeah, yeah. I see your birthday is in September. We’ll waive your fine and cost.
Okay. Good-bye. You’re free to leave.”
{¶ 23} M.T. did not orally enter a plea, nor did Carr advise him of the
consequences of entering a plea. Yet Carr dismissed his speeding charge and
entered a guilty plea to the seatbelt offense. On the journal entry, Carr wrote, “Fine
& cost waived.” She also checked boxes falsely indicating that she had conducted
a hearing regarding M.T.’s ability to pay a fine and costs and that she had found
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him indigent and waived costs when, in fact, she had conducted no such hearing.
The prosecutor entered the courtroom as Carr spoke with M.T., but he took no part
in M.T.’s case. After the prosecutor informed Carr that he was the prosecutor for
her courtroom that day, Carr said, “Oops, prosecutor’s here,” and her staff laughed.
{¶ 24} Similarly, M.H. was charged with fourth-degree-misdemeanor
open-container and loud-noise offenses. The prosecutor was not present when
M.H. appeared before Carr for his arraignment. Carr asked M.H. how he wanted
to proceed, and he stated that he wanted to plead no contest to both offenses. Carr
suggested that she amend the loud-noise charge to a minor misdemeanor and let
him plead to that offense so that he would not have an alcohol-related offense on
his record. She also told him that that course of action would allow him to avoid a
mandatory fine of $75 and require him to pay just $5, plus court costs. On the
journal entry under “Prosecutor Amends Charge,” Carr wrote “601.08,” which
refers to the charge of attempting to commit an offense. See Cleveland Codified
Ordinances 601.08. However, it was Carr—not the prosecutor—who unilaterally
amended the charge.
{¶ 25} Carr’s practice of issuing journal entries falsely attributing amended
charges to the prosecutor or falsely stating that she had conducted ability-to-pay
hearings may violate Ohio laws, including R.C. 2921.13, which provides that a
person who knowingly makes a false statement (1) in any official proceeding, (2)
on a form, record, or other writing that is required by law, or (3) in a document that
purports to be a judgment and is filed with the clerk of a court of record, commits
the offense of falsification, a first-degree misdemeanor. See R.C. 2921.13(A)(1),
(11), and (13); see also R.C. 2921.13(F)(1).
{¶ 26} Based on the parties’ stipulations and the evidence adduced at the
hearing, the board found that Carr’s conduct violated Jud.Cond.R. 1.2, 2.2, 2.8(B),
and 2.9(A) (prohibiting a judge from initiating, receiving, permitting, or
considering ex parte communications, except in specifically enumerated
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circumstances) and Prof.Cond.R. 8.4(c) and 8.4(d). We adopt these findings of
misconduct.
C. Count Three—Improper Use of Capias Warrants and Bonds to
Compel Payment of Fines and Costs
{¶ 27} Under Loc.R. 4.07 of the Cleveland Municipal Court, at the time of
sentencing, a defendant may request time to pay their fines and costs. The
sentencing judge may grant that request and set the payment due date. The
defendant is then directed to the clerk’s office to complete a time-to-pay (“TTP”)
contract. See Loc.R. 4.07(A)(1). If the defendant cannot pay the fine by the due
date, the defendant can file a motion to set an ability-to-pay hearing, which the
clerk’s office sets before the sentencing judge. See Loc.R. 4.07(B)(3)(b).
{¶ 28} In her answer to relator’s amended complaint, Carr stated that she
was “unaware of the dictates of Local Rule 4.07 of the Cleveland Municipal Court.”
However, in her testimony during the disciplinary hearing, Carr stated that in 2017,
her bailiff told her that the clerk’s office had a very low success rate when it came
to actually collecting fines levied by the court. Carr interpreted the bailiff’s
statements as a suggestion that she ignore Loc.R. 4.07, and she followed that
suggestion. As a result, when a defendant was convicted of an offense, Carr would
set a date for the defendant to pay his or her fines and costs. Immediately after
imposing the defendant’s sentence and without any motion by the defendant, Carr
would set her own ability-to-pay hearing to occur a few days after the TTP due
date—without notifying the defendant or the clerk’s office. When the defendants
failed to appear for those hearings, Carr would issue a capias warrant and set a bond
between $2,500 and $25,000 based on the defendant’s failure to pay fines and costs
that were typically just hundreds of dollars. She would then write on the journal
entry, “Post bond or pay fines and costs in full. No [Community Work
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Service]/TTP.”1 She would also stamp on the journal entry “DEFENDANT DOES
NOT QUALIFY FOR IN THE NEIGHBORHOOD OR OVER THE COUNTER.
JUDGE PINKEY S. CARR.”2 (Capitalization sic.)
{¶ 29} Carr admitted that by precluding defendants from participating in
those programs, she ensured that they would be arrested and held on the bonds set
in her journal entries. Carr stipulated that “by tying the bond to the amount of the
fine and costs, [she was] compelling the payment of fines and costs through
incarceration, which is contrary to the law.” See R.C. 2947.14 (requiring a judge
to conduct a full hearing regarding an offender’s ability to pay a fine—during which
the offender has the right to be represented by counsel, to testify, and to present
evidence—and permitting a judge to commit an offender to a jail or workhouse
upon finding that the offender is able to pay a fine but refuses to do so).
{¶ 30} The board noted that this court had issued Carr a bench card
outlining court practices for collecting costs and fines in adult courts; the bench
card is replete with citations to caselaw and statutes indicating that a person’s ability
to pay must be considered when assessing and collecting fines. See Collection of
Court Costs & Fines in Adult Trial Courts, available at
https://www.supremecourt.ohio.gov/publications/jcs/finescourtcosts.pdf (accessed
Aug. 2, 2022) [https://perma.cc/M9LH-APX8]. The bench card states that a formal
hearing under R.C. 2947.14 “is the sole and exclusive method for imposing a jail
sentence for willful refusal to pay a fine.” Id., citing R.C. 2947.14 and State v.
Ellis, 2d Dist. Montgomery No. 22189, 2008-Ohio-2719. Although Carr was
admittedly aware of the requirements of Loc.R. 4.07 and R.C. 2947.14, she
stipulated that she set up illusory hearings in the manner described above, and she
1. Community Work Service is a program for people who do not have the funds to pay fines.
2. In the Neighborhood and Over the Counter are public-service programs through the Cleveland
Municipal Court clerk’s office that are designed to encourage people with outstanding warrants and
tickets to obtain new court dates without the fear of being arrested.
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admitted that her conduct resulted in the arrest of six defendants, five of whom were
incarcerated for some period of time as a result.
{¶ 31} Carr admitted at the disciplinary hearing that her use of capias
warrants and incarceration as a means to compel the payment of fines and costs by
tying the bond to the amount of the fine and costs essentially created a modern-day
debtors’ prison. The board found that Carr eventually discontinued this approach
to enforcing the payment of fines and costs and that she gave a “characteristically
colorful explanation for doing so” in open court:
You notice I’m no longer the bill collector for the Clerk’s Office.
I’m not your b-i-t-c-h. See, you get it? Collect your own money.
There you go, player, mm-hmm. Collect your own money, player,
mm-hmm. I’m not your b-i-t-c-h. Run tell that, mm-hmm. Mm-
hmm. How you like them apples? Suckas.
{¶ 32} Carr stipulated and the board found that her conduct with respect to
Count Three violated Jud.Cond.R. 1.2 and 2.2 and Prof.Cond.R. 8.4(d). We adopt
these findings of misconduct.
D. Count Four—Lack of Decorum and Dignity Consistent with
Judicial Office
{¶ 33} In addition to violating statutes, rules, and court orders designed to
protect the legal interests of the public and the litigants in courtrooms throughout
this state, Carr presided over her courtroom from a bench covered with an array of
dolls, cups, novelty items, and junk that her own counsel found to resemble a flea
market. Carr testified that her bench had been that way since 2012, but that she had
cleared it off a few months before her disciplinary hearing. She also violated rules
governing appropriate courtroom dress, order, and decorum. From the appearance
of her bench to the way she dressed and the way she treated the attorneys, litigants,
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and staff in her courtroom, Carr undermined public confidence in the independence,
integrity, and impartiality of the judiciary.
{¶ 34} Cleveland Municipal Court’s website addresses appropriate
courtroom dress and decorum for the public. See Courtroom Decorum,
https://clevelandmunicipalcourt.org/judicial-services/administrative-services
/central-scheduling/courtroom-decorum#:~:text=Appropriate%20dress%20is%20
required%2C%20including,exposed%20shoulders%2C%20and%20visible%20un
dergarments (accessed Aug. 2, 2022) [https://perma.cc/PT67-RF3A]. It states that
all persons entering the court “shall conduct themselves with deference for the
Court, displaying respect for the law, the judge or magistrate, parties, counsel,
deputy bailiffs, and staff.” Id. It further identifies shorts and tank tops as
“[p]otentially inappropriate dress.” Id.{¶ 35} Despite the dress and decorum expectations for the general public,
Carr presided over her courtroom wearing workout attire, including tank tops, t-
shirts (some bearing images or slogans), above-the-knee spandex shorts, and
sneakers.
{¶ 36} Carr was aware that the public took notice of her unconventional
appearance. She once told a defendant’s counsel, “Your client was scared to come
in. Officer Gray said he asked her, ‘Well, where is the Judge?’ She was like, ‘She
in there,’ and he was like, ‘The one in the T-shirt?’ He said, ‘I’m calling my
lawyer.’ He said, ‘Un-uh. This couldn’t be real.’ ” She then explained to counsel,
“I dressed up Monday, Tuesday, and Wednesday. It’s not happening today, and
tomorrow is a national holiday, Juneteenth. I’m not doing it, okay?”
{¶ 37} The board found that Carr reveled in her lack of decorum, telling one
defendant who apologized for his own attire, “You see how I’m dressed? I have on
my Cavs’ T-shirt.” After another defendant expressed surprise that he had been
found not guilty, Carr responded, “You can trust me. I know I’m not dressed like
a judge, but I’m really the judge.”
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{¶ 38} During a series of proceedings in open court, Carr maintained a
dialogue with her staff and defendants about the television series P-Valley, which
is set in a Mississippi strip club. Carr routinely referred to one of her bailiffs, Alicia
Gray, as “Ms. Puddin” (or some variation thereof) in open court, and she asked one
defendant if he knew “Ms. Puddin from P-Valley.” She teased another bailiff about
driving to P-Valley to “find him that little girl with the curly blonde hair.” And in
another display of inappropriate humor, she announced from the bench in open
court, “You know what my P-Valley, my name gonna be Passion. I got to go to
that class though so I can learn how to climb that pole.”
{¶ 39} Although Carr frequently behaved as though the rules of courtroom
decorum did not apply to her, she did not hesitate to correct defendants for
seemingly minor infractions. The video evidence shows that she repeatedly
admonished defendants for standing with their hands crossed or in their pockets
instead of at their sides and screamed at them when they indicated that they had not
heard what she said. Carr also resented being called “ma’am” and berated
defendants who attempted to show their respect for her by using that honorific.
When male defendants referred to her as “ma’am,” Carr would chastise them,
calling them “little boy.”
{¶ 40} On multiple occasions, Carr joked that she would be amenable to
some form of bribe in return for a lenient sentence. In open court, she engaged in
dialogues with defendants about accepting kickbacks on fines and arranging “hook-
ups” for herself and her staff for food and beverages, flooring, and storage facilities.
For example, E.W. appeared before Carr on July 22, 2020, to request that she grant
him driving privileges in his 2018 case for driving under the influence of drugs or
alcohol. After being informed that E.W. worked for an automotive company, Carr
told her staff, “I got us another hookup. We could get our cars fixed here,” and she
stated that she had already gotten them some flooring and carpet. E.W. told her to
bring their cars in and that the company would love to take care of them. Carr
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replied, “Always getting us the hookups. Don’t worry, we don’t have to pay. It’s
on him.”
{¶ 41} Reinstatement of E.W.’s driving privileges was subject to a
mandatory $50 fee. But when E.W. indicated to Carr that he did not have the money
to pay the fee, Carr said, “Well who’s going to pay his $50. Puddin gets paid today,
so does Mike. They both got $50, after all, you hooking us up. Maybe they will
pay your $50. $50 fee waived. All right. You’re all set.” On the journal entry,
Carr wrote “No Bitching Necessary.” She then passed the journal entry to a bailiff
and told him, “Show that [judgment entry] to Ms. Puddin.” As Gray read the entry,
Carr broke out laughing while her bailiff called the next case.
{¶ 42} During Carr’s disciplinary hearing, her counsel questioned her about
her undignified manner in the courtroom, including her loud, boisterous behavior,
her use of a singsong tenor, and on at least one occasion, her use of a really loud
voice when speaking to a defendant, as though the defendant would be more likely
to understand her if she talked louder and slower. But Carr offered no explanation
for her behavior.
{¶ 43} The parties stipulated and the board found that Carr’s conduct with
respect to this count violated Jud.Cond.R. 1.2, 2.2, 2.8(A) (providing that a judge
shall require order and decorum in proceedings before the court), and 2.8(B). We
adopt these findings of misconduct.
E. Count Five—Abuse of Contempt Power and Failure to Recuse
1. A.B.’s Arraignment and First Contempt Charge
{¶ 44} In May 2019, 20-year-old A.B. and her 19-year-old sister C.B. were
arraigned before Carr. The sisters had been charged with misdemeanor counts of
assault and disorderly conduct for allegedly assaulting a 16-year-old girl. Although
Carr normally denied defendants personal bond when they were charged with a
violent offense, she initially decided to release A.B. and C.B. on personal bond,
provided that they wore global-positioning system (“GPS”) monitors.
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{¶ 45} For reasons that are unclear from the video recording of the
arraignment, Carr made A.B. the focus of her attention. Early in the proceeding,
Carr stated, “Hi, I’m up here,” suggesting that A.B. may have looked away from
Carr as she read the no-contact order that was a condition of A.B. and C.B.’s
release. Carr said to Maggie Walsh, the public defender representing the sisters,
that A.B. “is going to get plenty of time with me.” While Walsh conferred with her
clients, Carr gave a monologue in a singsong voice about how nice it would be to
have “company” in her courtroom, and she expressed her hope that A.B.’s case
would be assigned to her. She paused from time to time to laugh or hum a tune.
{¶ 46} A few minutes after Carr resumed her docket, she said, “I knew I
chose wisely. I could tell, that little pleasin’ personality of hers.” At that point,
A.B. muttered something to the deputy about the way she was being treated and
Carr snapped, “What did she say? She said this Court is fucked. What did she say?
Oh, okay. Corny as fuck. Okay, corny as fuck.” A.B. responded, “I said corny the
way you’re treating me. Like, I didn’t do—,” then Carr interrupted her, saying,
“Oh, no problem. Uh-huh. Close your mouth. Don’t interrupt my courtroom. You
don’t want to have a problem with me. I told you that when—.” At that point A.B.
said something else. Carr raised her voice and twice told A.B., “Close your mouth.”
As A.B. continued to talk, Carr said to A.B., “Say one more thing,” and then to her
bailiff, “Take her in the back for me, please. Uh-huh. Bye bye.”
{¶ 47} A.B. left the courtroom in tears and remained in the lockup area for
several hours until Carr had her brought back to the courtroom. At that time, court
staff informed Carr that while in the holding cell, A.B. had repeatedly referred to
Carr as a “bitch” so loudly that another judge had to close his courtroom doors.
After Walsh informed Carr that A.B. wanted to apologize to the court, Carr said
that she did not need her apology. Carr informed A.B. that she was being charged
with two counts of contempt of court and one count of obstruction of official
business.
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{¶ 48} After A.B. was led out of the courtroom, Carr had her brought back
in because A.B. was upset that she never had a chance to explain herself. When
Walsh encouraged A.B. to speak, A.B. said, “It doesn’t matter. You don’t care.”
But she continued, saying, “It doesn’t matter. I’ve been trying to say anything. I
don’t even know what to say. If I say anything, it’s just going against me. It doesn’t
matter.”
{¶ 49} Carr asked A.B., “You think it’s acceptable behavior to call me 50
bitches and say that the courtroom—this is some corny ass shit?” A.B. said, “No,
I’m trying to explain myself. I walked up to the stand. You read the paper. You
didn’t even let me talk. You automatically changed your attitude from happy to
just anything, like you was just basing me off of what—basically, just reading me
off of a piece of paper.” Carr started to explain that she had summoned the public
defender to provide A.B. with legal counsel before she was equipped for GPS
monitoring, and then she accused A.B. of rolling her eyes. A.B. denied rolling her
eyes and said that she was about to cry, but Walsh claimed that A.B. was not crying.
As A.B. was led from the courtroom, Carr told Walsh that she could tell A.B. had
a “screw loose.”
{¶ 50} Carr charged A.B. with three counts of contempt of court in violation
of R.C. 2705.02. In an affidavit supporting those charges, Carr stated that A.B.
“while in a courtroom, * * * did repeatedly refer to the court as a ‘bitch,’ and called
the courtroom ‘shit.’ ” But Carr did not personally hear A.B. say anything
disrespectful. On the contrary, court staffers had informed Carr that A.B. had
mumbled a disparaging remark about the way she had been treated in the courtroom
and that A.B. had called her a “bitch” several times while in the holding cell, outside
of Carr’s presence.
2. A.B.’s First Contempt Hearing
{¶ 51} Despite Carr’s embroilment with A.B., she failed to recuse herself
from A.B.’s contempt case. On June 4, 2019, Carr called that case shortly before
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9:00 a.m. A.B. was not present, because she had an appearance before another
judge on the underlying assault charge. Carr asked A.B.’s counsel if he wanted to
request a continuance to contact A.B.; then she said, “I would love to issue a capias,
no bond.” After A.B. arrived in the courtroom, Carr entered a not-guilty plea to all
three charges on A.B.’s behalf, released her on a personal bond, and set a hearing
date.
{¶ 52} On August 13, 2019, A.B. appeared in Carr’s courtroom with
counsel. She withdrew her not-guilty plea and pleaded guilty to the first charge of
contempt, a fourth-degree misdemeanor. The prosecutor dismissed the remaining
charges. Before imposing a sentence, Carr offered an inaccurate summary of
A.B.’s actions at her arraignment, falsely stating that A.B. had said, “I don’t have
to look at you.”
{¶ 53} Carr sentenced A.B. to 30 days in jail with 15 days suspended and
five years of active probation; she imposed a $250 fine, which she suspended, and
ordered A.B. to complete anger-management classes and read an apology letter
aloud in open court on September 4.
3. Presentation of A.B.’s Apology Letter and Second Contempt Charge
{¶ 54} On September 4, A.B. appeared in court with her apology letter.
A.B.’s attorney was late, and rather than wait for the attorney to arrive, Carr
proceeded with the hearing. Despite the fact that A.B. had completed the sentence
that Carr imposed on August 13, Carr ordered her to submit to random substance-
abuse testing and to write an additional letter entitled “How would you feel if I
called your mother a bitch?”
{¶ 55} Carr continued to torment A.B. before her attorney arrived and gave
the courtroom audience her own—not entirely accurate—version of A.B.’s
underlying offense and behavior at her May 2019 arraignment.
{¶ 56} A.B. interjected that Carr’s recitation of the case to the courtroom
audience was inaccurate, and she continuously interrupted Carr. After one
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interjection, Carr asked, “What did she say?” Her bailiff responded, “This is
bullshit.” Carr responded, “This is some bullshit? Juanita, put her in the holding
cell for me. Uh-hmm. Contempt charge again. Thank you. Appreciate it. In the
holding cell. Bye-bye. I’m not finished with this.” A.B. attempted to interrupt
Carr on several occasions to explain that she had not said what was attributed to her
but had said, “Oh my goodness.” A.B., who was then hysterical, was taken to the
holding cell.
{¶ 57} Later that morning, A.B.’s counsel appeared before Carr with A.B.
Carr informed him of the events that had transpired and stated that she would be
filing new contempt charges. When A.B.’s counsel asked why Carr had proceeded
in his absence when she knew that A.B. was represented by counsel, Carr stated
that she was just accepting the written apology from A.B. and that her bailiff had
attempted to call the attorney.
{¶ 58} Carr failed to recuse herself from A.B.’s second contempt case. In
October 2020, A.B. pled no contest to the second contempt charge. Carr sentenced
her to 30 days in jail and ordered her to pay a $250 fine before suspending that
sentence and waiving costs.
{¶ 59} A.B. appealed the five-year community-control sanction imposed in
her first contempt case, arguing that it was an improper penalty. The court of
appeals agreed and vacated that sanction. See Cleveland v. [A.B.], 2020-Ohio-
5180, 163 N.E.3d 153 (8th Dist.).
4. Findings of Misconduct with Respect to Count Five
{¶ 60} The board found that the video of A.B.’s arraignment demonstrated
that Carr “took an immediate dislike to A.B.” and that it was not apparent that A.B.
had done anything to warrant 15 days in jail, mandatory drug testing, or five years
of active probation. The board noted that A.B. did not act out physically, refuse a
lawful order, fail to cooperate, or engage in any conduct that required her to be cited
in contempt as a means to alleviate an immediate threat to the administration of
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justice. See, e.g., Disciplinary Counsel v. Bachman, 163 Ohio St.3d 195, 2020-
Ohio-6732, 168 N.E.3d 1178, ¶ 24 (stating that because of the summary nature of
punishment for a direct-contempt conviction, the obstruction must pose an
imminent—not a likely or probable—threat to the administration of justice);
Disciplinary Counsel v. Repp, 165 Ohio St.3d 582, 2021-Ohio-3923, 180 N.E.3d
1128.
{¶ 61} During her disciplinary hearing, Carr admitted that charging A.B.
with the first contempt for rolling her eyes in court and cursing in lockup was an
abuse of her discretion. She further admitted that she had antagonized A.B. from
the bench, acted in a rude and discourteous manner, and instigated the incident that
led her to cite A.B. in contempt for the second time. Carr offered no real
explanation for failing to recuse herself from the contempt cases.
{¶ 62} Based on the parties’ stipulations and the evidence presented, the
board found that Carr’s conduct with respect to A.B. violated Jud.Cond.R. 1.2, 2.2,
and 2.8(B) and that her failure to recuse herself from A.B.’s contempt cases violated
Jud.Cond.R. 2.11(A)(1) (requiring a judge to disqualify herself in any proceeding
in which the judge’s impartiality might reasonably be questioned, including when
the judge has a personal bias or prejudice concerning a party or personal knowledge
of the facts that are in dispute in the proceeding) and 2.11(A)(2)(d) (requiring a
judge to disqualify herself in any proceeding in which the judge’s impartiality
might reasonably be questioned, including circumstances in which the judge is
likely to be a material witness in the proceeding). We adopt these findings of
misconduct.
II. DETERMINING THE APPROPRIATE SANCTION
A. The Board’s Findings Regarding Aggravating and Mitigating Factors
{¶ 63} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated, the
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aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
{¶ 64} The parties stipulated and the board found that four aggravating
factors and three mitigating factors are present in this case. Aggravating factors
consist of Carr’s dishonest or selfish motive, a pattern of misconduct, multiple
offenses, and the vulnerability of and resulting harm to the victims of her
misconduct. See Gov.Bar R. V(13)(B)(2), (3), (4), and (8). Mitigating factors
consist of Carr’s clean disciplinary record, her full and free disclosure to the board
and cooperative attitude toward the proceedings, and her good character and
reputation.
{¶ 65} Although the parties stipulated that Carr’s counsel had advised the
authors of the 57 character-reference letters about the nature of the charges against
Carr, the board noted that some of those letters “specifically state[d] that the author
[had] no [personal] knowledge of the allegations and stipulated facts in this matter.”
Moreover, the board found that as a result of Carr’s misrepresentations to her own
counsel, Carr’s answer to relator’s amended complaint and her counsel’s
correspondence soliciting character-reference letters from witnesses each falsely
stated that Carr had negligently checked the box on court forms denoting that
defendants had failed to appear in court and that Carr did not realize that a warrant
would issue for those defendants. But Carr, in fact, had also verbally ordered the
warrants to issue in each of those cases.
{¶ 66} In addition to the mitigating factors stipulated by the parties, Carr
sought to establish that a mental disorder was a contributing cause of her
misconduct. Gov.Bar R. V(13)(C)(7) provides that a disorder may be a mitigating
factor when all of the following are present: a diagnosis by a qualified healthcare
professional, a determination that the disorder contributed to cause the misconduct,
evidence of a sustained period of successful treatment, and a prognosis from a
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qualified healthcare professional that the attorney will be able to return to the
competent, ethical practice of law under specified conditions.
{¶ 67} To support her contention, Carr presented the reports and testimony
of Jason R. Riebe, Psy.D, a forensic and clinical psychologist who conducted a
three-part, independent psychological evaluation of Carr in May and June 2021 and
issued a report regarding that evaluation in July 2021. Riebe testified that in August
2021, he transitioned to serve as Carr’s treating psychologist.
{¶ 68} Dr. Riebe diagnosed Carr with a generalized-anxiety disorder and
with a mood disorder due to menopause, sleep apnea, and stress. Dr. Riebe
conceded, however, that “mood disorder” is no longer recognized as a separate
diagnostic category in the Diagnostic and Statistical Manual of Mental Disorders
(5th Ed.2013). While he described the term “mood disorder” as a broad
classification for several types of depressive disorders and explained that Carr
experienced significant depressive symptoms, he did not diagnose her with a
depressive disorder.
{¶ 69} Although he acknowledged that menopause and sleep apnea are very
common conditions, he testified that in his opinion, Carr’s physical disorders
contributed to her mental disorders and that her mental disorders contributed to her
professional misconduct.
{¶ 70} The board was troubled by Dr. Riebe’s limited knowledge of the
facts and lack of familiarity with the breadth of Carr’s misconduct. For example,
Dr. Riebe had access to more than seven hours of video from Carr’s courtroom, but
he admitted that he only viewed 15 to 30 minutes of that video. He further
acknowledged that his diagnoses and opinions were confined to what he had
observed in the small sample of video that he had reviewed and that he could offer
no analysis or opinion about other instances of misconduct set forth in relator’s
complaint. Although Dr. Riebe stated in his report that he had reviewed the
pleadings in this disciplinary case, the board found that he was unaware of the
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potential consequences of Carr’s failure to abide by the administrative order that
was issued at the beginning of the COVID-19 pandemic, nor was he aware of the
legal proceedings related to her noncompliance with that order. And Dr. Riebe
testified that he was unaware of Carr’s dishonesty in her answer to the charge of
wrongfully issuing capias warrants in violation of the administrative order.
{¶ 71} The board also noted that Dr. Riebe relied primarily on information
provided by Carr and that his findings were undermined by her dishonesty. For
example, Carr lied to Dr. Riebe when she told him that she was unaware of Judge
Earley’s March 13, 2020 order until April 2020, and she blamed her bailiff for her
purported ignorance when, in fact, she was fully aware of the order on March 16.
She also told Dr. Riebe that she had committed some “unintentional clerical errors”
when, in fact, she had intentionally falsified numerous journal entries. The board
was also troubled by the fact that although Carr’s misconduct included a pervasive
and disturbing pattern of lies, Dr. Riebe testified that there was no correlation
between her mental disorders and her dishonesty.
{¶ 72} Dr. Riebe testified that Carr is “a very sick individual” who requires
“an extended course [of treatment] for a year. And * * * more if need be.” He
recommended that Carr begin a course of cognitive-behavioral and supportive
psychotherapy consisting of weekly sessions. He also recommended that she meet
with a psychiatrist and other physicians for a complete review of her medication
regimen. In addition, he opined that Carr was capable of competently and ethically
performing the activities required of a lawyer and a judge. But the board found,
“Dr. Riebe walks a razor-thin line in testifying that [Carr] suffers from serious
mental disorders that require a regimen of medication and at least a year of weekly
sessions with a psychiatrist and a psychotherapist, but nevertheless is not so
seriously impaired as to render her incapable of continuing to serve as a judge.”
{¶ 73} As of the November 2021 hearing on mitigation, Carr had been in
treatment for less than 90 days. Dr. Riebe noted that while Carr had complied with
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treatment and was making progress, she still required an extended course of
treatment and possessed personality traits that presented challenges to that
treatment. Specifically, he found that her tendency to present herself in a favorable
light, her lack of self-awareness, and her reluctance to discuss her problems could
signal an unwillingness to commit to treatment. In his testimony before the panel,
he also agreed that personality traits can be long-standing and difficult to change.
{¶ 74} Although the board accepted Dr. Riebe’s diagnoses and treatment
recommendations, it did not accept his conclusion that Carr’s misconduct—having
occurred primarily in 2019 and 2020—could be attributed to his post hoc
observation of anxiety and depressive symptoms in May 2021. By that time, Carr’s
disciplinary action had been pending for eight months. The medical records
summarized in Dr. Riebe’s report establish that Carr had been diagnosed with
menopause and sleep apnea several years before her misconduct occurred.
Moreover, those same medical records do not document any signs of depression or
anxiety during the time when her misconduct occurred. On the contrary, they state
that Carr’s menopausal symptoms had improved with medication and that Carr was
sleeping well. Indeed, at many of her medical appointments, she reported that she
was doing well or feeling great.
{¶ 75} Finally, in contrast to Dr. Riebe’s assessment that Carr suffered from
anxiety and an unspecified depressive disorder at the time of her misconduct, the
board found that the 57 letters attesting to Carr’s character and the testimony of two
character witnesses submitted on Carr’s behalf describe a person who was “the very
antithesis of depressed and anxious.” Those character witnesses attested to the
positive character and cheerful nature Carr exhibited in church, in her community-
service activities, and in her social interactions with others. One character witness
described Carr as “always pleasant, respectful, witty, humorous, hard working and
the life of the party,” while another stated that she adored Carr’s “positive vibe.”
Yet a third stated that Carr’s “easy, outgoing nature and quick wit make her a joy
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to be around both in crowds and one-on-one” and that Carr “is the sun around which
all her friends revolve.”
{¶ 76} Notably, in a character-reference letter, Gray (one of Carr’s bailiffs,
whom she referred to as “Ms. Puddin”) suggested that Carr’s depression and
anxiety were the result, rather than the cause, of her disciplinary problems:
Judge Carr has definitely changed since all the articles in the
newspaper and this case began in March of 2020. She is still caring
and pleasant but more serious and very slow to respond. Judge Carr
loves her job, the defendants and employees. But when we take our
lunchtime walks, people often ask her if she’s still a judge because
of all the negative newspaper articles. Although she never says
anything, I know it bothers her because it upsets me.
{¶ 77} On those facts, the board found that Carr had failed to establish a
causal link between her current mental disorders and her past misconduct and
questioned whether the short duration of Carr’s treatment and her reluctance to
accept her therapist’s opinion of her condition would have been sufficient to
establish a sustained period of successful treatment as required by Gov.Bar R.
V(13)(C)(7)(c). Nevertheless, the board attributed some mitigating effect to Carr’s
voluntary commitment to comprehensive mental- and physical-health evaluations,
her adherence to Dr. Riebe’s treatment plan, and her decision to enter into a contract
with the Ohio Lawyers Assistance Program (“OLAP”). See Gov.Bar R. V(13)(A)
(directing the board to consider all relevant factors and the aggravating and
mitigating factors set forth in that rule in determining the appropriate sanction for
professional misconduct).
{¶ 78} The board also acknowledged that Carr appeared to sincerely regret
her misconduct and her betrayal of the public trust. Carr testified that she has
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sought counsel from Cuyahoga County Common Pleas Court Judge Joan
Synenberg, whom she considers to be a mentor, and has solicited constructive
criticism from practicing attorneys and court personnel. While the board accepted
Carr’s representations that her behavior has improved, it noted that Carr could not
escape sanction simply because her improved conduct did not appear to pose an
imminent threat to the public at the time of her disciplinary hearing.
B. Carr’s Objections to the Board’s Rejection of Her Diagnosed Mental
Disorders as a Mitigating Factor
{¶ 79} Carr objects to the board’s rejection of her mental disorders as a
mitigating factor and contends that the board applied the wrong legal standard in
evaluating those disorders. She seeks to have the case remanded for further analysis
under the appropriate legal standard. Specifically, Carr contends that the board
applied a “causal link” standard when the rule calls for proof that the disorder
“contributed to cause the misconduct,” Gov.Bar R. V(13)(C)(7)(b). We find that
Carr’s argument presents a distinction without a difference.
C. The Board Properly Rejected Carr’s Mental Disorders as a Mitigating
Factor
{¶ 80} In summarizing the requirements of Gov.Bar R. V(13)(C)(7), we
have previously stated that in order to qualify as a mitigating factor, there must be
(a) a diagnosis by a qualified health-care professional, (b) a
causal relationship between the disorder and the misconduct, (c) a
sustained period of successful treatment, and (d) a prognosis from a
qualified health-care professional that the attorney will be able to
return to the competent, ethical, and professional practice of law.
(Emphasis added.) Warren Cty. Bar Assn. v. Vardiman, 146 Ohio St.3d 23, 2016-
Ohio-352, 51 N.E.3d 587, ¶ 14, fn. 3. See also Disciplinary Counsel v. Engel, 154
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Ohio St.3d 209, 2018-Ohio-2988, 113 N.E.3d 481, ¶ 11, fn. 1; Disciplinary Counsel
v. Joltin, 147 Ohio St.3d 490, 2016-Ohio-8168, 67 N.E.3d 780, ¶ 22 (finding that
“the evidence was insufficient to establish that Joltin suffered from a mental
disorder that was causally related to his misconduct” [emphasis added]); Cleveland
Metro. Bar Assn. v. King, 159 Ohio St.3d 122, 2019-Ohio-4715, 149 N.E.3d 444,
¶ 10 (finding that an attorney had not sufficiently demonstrated that his mental or
alcohol-use disorders were “causally related to his misconduct,” [emphasis
added]); Disciplinary Counsel v. Rumizen, 156 Ohio St.3d 575, 2019-Ohio-2519,
130 N.E.3d 283, ¶ 12 (rejecting a respondent’s mental disorder as a mitigating
factor when “the board found the causal connection between the disorder and his
underlying misconduct ‘to be thin, at best’ ” [emphasis added]). Under this
caselaw, there must be a causal nexus between a respondent’s mental disorders and
the misconduct in order for the respondent’s mental disorders to qualify for
mitigating effect—i.e., the disorders must be shown to have “contributed to cause”
the misconduct.
{¶ 81} In this case, the board cited numerous reasons for rejecting Dr.
Riebe’s opinion that Carr’s diagnosed mental disorders contributed to cause her
misconduct, not the least of which are (1) Dr. Riebe’s lack of familiarity with the
full extent of Carr’s misconduct, (2) his admission that Carr’s diagnosed disorders
did not account for her repeated acts of dishonesty, (3) evidence demonstrating that
Carr did not exhibit symptoms of depression or anxiety in other aspects of her life
or report such symptoms to her treating medical professionals, and (4) Carr’s
admission that she had engaged in the same types of misconduct alleged in Count
Two of relator’s amended complaint prior to 2018 and that her conduct in those
instances was not affected by her physical or emotional issues but that it was just
her judicial style.
{¶ 82} We conclude that the board applied the proper legal standard in
evaluating Carr’s mental disorders for mitigating effect and that the evidence
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overwhelmingly supports the board’s rejection of Dr. Riebe’s opinion that those
disorders contributed to cause Carr’s misconduct. We also reject Carr’s contention
that Disciplinary Counsel v. Johnson, 131 Ohio St.3d 372, 2012-Ohio-1284, 965
N.E.2d 294, and Disciplinary Counsel v. Chambers, 125 Ohio St.3d 414, 2010-
Ohio-1809, 928 N.E.2d 1061, support her request to have this case remanded to the
board “for the limited scope of consideration of mitigating evidence.” Both
Johnson and Chambers were before this court on default proceedings. After the
respondents in those cases filed objections to the respective board reports and
recommendations, we remanded those cases to the board for further proceedings,
and in Johnson, we limited those proceedings to the consideration of supplementary
mitigating evidence. Because Carr fully participated in this disciplinary
proceeding, in which the hearing was bifurcated to afford her two additional months
to develop her mitigating evidence, neither Johnson nor Chambers has any
application here. We therefore overrule Carr’s objection on this point.
{¶ 83} Having thoroughly reviewed the record, we adopt the board’s
findings regarding the relevant aggravating and mitigating factors.
D. The Board Recommends That Carr Be Suspended for Two Years with
Conditions on Reinstatement, and Carr Objects
{¶ 84} After weighing Carr’s “breathtaking number of infractions,” the
aggravating and mitigating factors, and the sanctions we have imposed on
magistrates and judges who have engaged in similar—although fewer—acts of
misconduct, the board recommended that we suspend Carr from the practice of law
for two years with no stay and immediately suspend her from judicial office without
pay for the duration of her disciplinary suspension.
{¶ 85} Carr objects to the recommended sanction, arguing that it does not
comport with the facts of her misconduct, the aggravating or mitigating factors
present in this case, or the relevant caselaw. She contends that if those factors are
properly credited and weighed, her conduct warrants a sanction no greater than a
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two-year suspension with 18 months conditionally stayed. After considering Carr’s
arguments, the numerosity and breadth of her misconduct, the aggravating and
mitigating factors, and the cases cited by the board, we overrule Carr’s objections
and find that the appropriate sanction is an indefinite suspension.
E. Carr’s Misconduct Warrants an Indefinite Suspension
{¶ 86} We hold judges to the highest standards of professional behavior
because they are invested with the public trust. See Disciplinary Counsel v.
O’Neill, 103 Ohio St.3d 204, 2004-Ohio-4704, 815 N.E.2d 286, ¶ 57. Canon 1 of
the Code of Judicial Conduct requires judges to “uphold and promote the
independence, integrity, and impartiality of the judiciary,” and to “avoid
impropriety and the appearance of impropriety.” “ ‘The primary purpose of judicial
discipline is to protect the public, guarantee the evenhanded administration of
justice, and maintain and enhance the public confidence in the integrity of [the
judiciary].’ ” Disciplinary Counsel v. Burge, 157 Ohio St.3d 203, 2019-Ohio-3205,
134 N.E.3d 153, ¶ 36, quoting O’Neill at ¶ 33. However, sanctions may also serve
to deter other judges and attorneys from engaging in similar misconduct. See, e.g.,
Disciplinary Counsel v. Horton, 158 Ohio St.3d 76, 2019-Ohio-4139, 140 N.E.3d
561, ¶ 60, citing In re Judicial Campaign Complaint Against Brigner, 89 Ohio St.3d
1460, 732 N.E.2d 994 (2000), citing In re Judicial Campaign Complaint Against
Morris, 81 Ohio Misc.2d 64, 675 N.E.2d 580 (1997).
{¶ 87} In this case, the board considered several cases in which we imposed
sanctions consisting of partially stayed term suspensions on judges for misconduct
bearing some resemblance to Carr’s.
{¶ 88} For example, in Disciplinary Counsel v. Medley, 104 Ohio St.3d
251, 2004-Ohio-6402, 819 N.E.2d 273, we imposed an 18-month suspension with
six months conditionally stayed on a judge who unilaterally negotiated and
accepted one criminal plea outside the presence of the prosecutor and repeatedly
engaged in ex parte communications with litigants. Medley also falsified a single
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journal entry to conceal an ex parte communication with a politically connected
judgment debtor and issued arrest warrants to facilitate the collection of default
judgments in small-claims proceedings. Like Carr, Medley engaged in a pattern of
misconduct, but he had previously been publicly reprimanded for other judicial
misconduct and refused to acknowledge the wrongful nature of his conduct.
Nonetheless, he cooperated in the disciplinary proceedings and presented evidence
of his good character and unlike Carr, he did not act with a selfish or dishonest
motive.
{¶ 89} The board found, and we agree, that Carr’s misconduct is readily
distinguishable from that of Medley based on the sheer number of Carr’s offenses.
While Medley accepted a single plea in violation of procedural standards and
falsified a single journal entry to conceal an ex parte communication, Carr routinely
undertook both actions. And while both Medley and Carr improperly used arrest
warrants and bonds to compel the collection of judgments or fines, there is no
suggestion that Medley ever attempted to conceal those actions with false journal
entries as Carr did on numerous occasions.
{¶ 90} In Disciplinary Counsel v. Parker, 116 Ohio St.3d 64, 2007-Ohio-
5635, 876 N.E.2d 556, we imposed an 18-month suspension with six months
conditionally stayed on a judge whose acts of misconduct were similar in quality
and character to Carr’s misconduct in this case, even though the acts of misconduct
themselves differed. Parker intemperately, unreasonably, and vindictively ejected
a spectator from his courtroom without cause and briefly jailed her for contempt,
twice attempted to coerce plea agreements, and routinely mistreated criminal
defendants and other participants in his courtroom. He also presided over a
criminal case after participating in the defendant’s arrest and abused the 9-1-1
emergency-response system.
{¶ 91} The aggravating and mitigating factors in Parker were virtually
identical to those present here, except that Carr harmed multiple vulnerable victims
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and largely cooperated in the resulting disciplinary proceeding, while Parker
impeded the investigation of his misconduct. Although Carr was charged with
fewer counts of misconduct than Parker, all but one of those counts involve
repeated instances of the same misconduct. But with the exception of Parker’s
repeated mistreatment of courtroom participants (conduct that Carr also routinely
engaged in), Parker’s other acts of misconduct involved isolated incidents that were
not repeated on a large scale.
{¶ 92} On the facts presented here, we conclude that Carr’s refusal to
comply with Judge Earley’s administrative order during the COVID-19 pandemic,
improper ex parte communications, improper plea bargaining and issuance of
arbitrary dispositions, improper use of capias warrants and bonds to compel the
payment of fines, falsification of entries, failure to recuse herself from a case in
which she became personally embroiled with a defendant, and lack of proper
courtroom decorum—namely, her dress, her unkempt bench, her undignified and
demeaning treatment of defendants, and her efforts to obtain free or discounted
goods and services—warrant a greater sanction than the 18-month partially stayed
suspensions that we imposed in Medley and Parker.
{¶ 93} We have imposed suspensions of six months and of one year for
misconduct arising from single instances of abuse of a court’s contempt power. See
Bachman, 163 Ohio St.3d 195, 2020-Ohio-6732, 168 N.E.3d 1178 (magistrate’s
conduct in summarily holding a woman in direct contempt of court and jailing her
for screaming outside his courtroom warranted a six-month suspension); Repp, 165
Ohio St.3d 582, 2021-Ohio-3923, 180 N.E.3d 1128 (judge’s repeated harassment
of a spectator who sat silently in his courtroom, including holding her in contempt
and jailing her for refusing to comply with his unlawful order that she submit to a
drug test, warranted a one-year suspension).
{¶ 94} In Bachman, we held that an abuse of judicial power is a significant
violation of the public trust, particularly when it deprives a person of his or her
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liberty. Id. at ¶ 33. We therefore rejected the board’s recommendation of a fully
stayed six-month suspension. Finding it necessary to send a strong message to the
judiciary, to deter similar violations in the future, and to make crystal clear to the
public that abuse of the contempt power will not be tolerated, we suspended
Bachman for six months for his single incident of misconduct.
{¶ 95} The deprivation of numerous defendants’ liberty occasioned by
Carr’s misconduct vastly exceeds the one- or two-day jail stays occasioned by the
misconduct of Bachman and Repp. At least five of the victims identified in Count
Three of this case spent time in jail as a result of Carr’s improper use of capias
warrants. And A.B. served 15 days in jail as a result of Carr’s abuse of her contempt
power. Furthermore, by issuing capias warrants for defendants who failed to appear
for hearings in her courtroom between March 16 and March 18, 2020—hearings
that Judge Earley had ordered to be continued—Carr created a risk that dozens of
people would be wrongfully arrested and jailed if they were unable to pay their
fines. On these facts, Carr’s misconduct warrants a sanction far greater than the
six-month and one-year suspensions imposed, respectively, in Bachman and Repp.
{¶ 96} The board accorded substantial mitigating effect to Carr’s
cooperation in the disciplinary proceedings and her commitment to a mental-health-
treatment program. It found that but for those factors, her conduct would warrant
an indefinite suspension. Carr now argues that in addition to those factors, her clean
disciplinary record, and evidence of her good character and reputation, this court
should find mitigation based on her diagnosed mental disorders and the purported
imposition of another penalty or sanction by virtue of pervasive negative media
coverage. We have already rejected Carr’s mental disorders as a mitigating factor
based on the insufficiency of the evidence regarding their contribution to her
misconduct. We likewise decline to find that truthful media reports of Judge Carr’s
flagrant disregard of the administrative order suspending most courthouse activity
in the early days of the COVID-19 pandemic constitute the imposition of a penalty
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or sanction that warrants mitigating effect under the purview of Gov.Bar R.
V(13)(C)(6). And while we acknowledge that Carr submitted letters from 57
people attesting to her good character and reputation, those letters were procured
with a false narrative in which Carr characterized her blatant and intentional
misconduct as a series of inadvertent mistakes. The remaining mitigating factors
are simply insufficient to overcome the sheer volume of Carr’s misconduct,
including her disregard for the rule of law, and the harm that her misconduct caused
to the litigants in her courtroom and the honor and dignity of the judiciary.
{¶ 97} Carr’s unprecedented misconduct involved more than 100 stipulated
incidents that occurred over a period of approximately two years and encompassed
repeated acts of dishonesty; the blatant and systematic disregard of due process, the
law, court orders, and local rules; the disrespectful treatment of court staff and
litigants; and the abuse of capias warrants and the court’s contempt power. That
misconduct warrants an indefinite suspension from the practice of law.
III. CONCLUSION
{¶ 98} Accordingly, Pinkey Suzanne Carr is indefinitely suspended from
the practice of law in Ohio. Pursuant to Gov.Jud.R. III(7)(A), she is immediately
suspended from judicial office without pay for the duration of her disciplinary
suspension. In addition to the requirements of Gov.Bar R. V(25), Carr’s
reinstatement shall be conditioned on her submission of (1) a report from a qualified
healthcare professional stating that she is able to return to the competent, ethical,
and professional practice of law and (2) proof of compliance with her October 30,
2021 OLAP contract and any amendment or extension thereof. Costs are taxed to
Carr.
Judgment accordingly.
O’CONNOR, C.J., and FISCHER, MYERS, SADLER, and BRUNNER, JJ., concur.
KENNEDY, J., concurs in part and dissents in part, with an opinion joined by
DEWINE, J.
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BETH A. MYERS, J., of the First District Court of Appeals, sitting for
DONNELLY, J.
LISA L. SADLER, J., of the Tenth District Court of Appeals, sitting for
STEWART, J.
_________________
KENNEDY, J., concurring in part and dissenting in part.
{¶ 99} I agree with the majority’s determination that respondent, Pinkey
Suzanne Carr, committed professional misconduct as found by the Board of
Professional Conduct. But because the board’s recommended sanction of a two-
year suspension from the practice of law would remove Carr from serving as a
member of the judiciary, in my view, that sanction would protect the public from
future misconduct. I disagree with the majority’s decision to increase the sanction
and impose an indefinite suspension. I therefore dissent from the sanction imposed
by the majority.
{¶ 100} The focus of our judicial-discipline system is not punishing the
offender. Disciplinary Counsel v. O’Neill, 103 Ohio St.3d 204, 2004-Ohio-4704,
815 N.E.2d 286, ¶ 53. Rather, “[t]he primary purpose of judicial discipline is to
protect the public, guarantee the evenhanded administration of justice, and maintain
and enhance public confidence in the integrity of [the judiciary].” Id. at ¶ 33. And
the public would be protected if we imposed the board’s recommended sanction of
a two-year suspension in this case.
{¶ 101} Under R.C. 1901.10(B), “[a] vacancy in the office of [municipal
court] judge exists upon the [judge’s] * * * absence from official duties for a period
of six consecutive months.” A term suspension of more than six months, then,
would cause Carr to be removed from judicial office. That consequence of Carr’s
misconduct, by itself, would protect the public from future misconduct, because
Carr cannot abuse judicial power if she no longer holds judicial office. See
Disciplinary Counsel v. Burge, 157 Ohio St.3d 203, 2019-Ohio-3205, 134 N.E.3d
34January Term, 2022
153, ¶ 32 (“All of Burge’s misconduct occurred during his time as a judge and was
related to his judicial duties and responsibilities; since he resigned from the
common pleas court following his criminal convictions, his misconduct is unlikely
to recur”). It would also assure the evenhanded administration of justice and foster
public confidence in the judiciary.
{¶ 102} Importantly, because Carr was a full-time judge at the time of her
misconduct, none of her misconduct involved the handling of client matters. Yet
the majority’s decision to indefinitely suspend Carr may result in her inability to
practice law even after she completes two years of that suspension. Readmission
following an indefinite suspension is not automatic. Compare Gov.Bar R.
V(24)(C) with Gov.Bar R. V(25)(D)(1). In addition to having to wait two years
before applying for readmission to the practice of law, Gov.Bar R. V(25)(A)(1), an
indefinitely suspended attorney must demonstrate by clear and convincing evidence
that he or she possesses all the mental, educational, and moral qualifications
required of an attorney and that he or she is now a proper person to be readmitted
to the practice of law in Ohio, notwithstanding the previous disciplinary action,
Gov.Bar R. V(25)(B)(5). Carr’s misconduct in this case—i.e., engaging in
improper plea bargaining and issuing arbitrary dispositions, improperly using
capias warrants and bonds to compel the payment of fines, falsifying entries,
lacking proper courtroom decorum—does not demonstrate that she is incapable of
the competent and professional practice of law. During her indefinite suspension,
then, Carr will not only have lost her judicial office, but she may also lose the
privilege to practice law as an attorney if a future majority of this court denies her
readmission. Our primary purpose in judicial-discipline cases is to protect the
public—and because Carr would be removed from judicial office by imposition of
a two-year suspension, imposing a greater sanction appears punitive.
{¶ 103} The majority examines four cases that the board relied on involving
“misconduct bearing some resemblance to Carr’s.” Majority opinion, ¶ 87. In each
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of these cases, this court imposed term suspensions; in none of them did we remove
the disciplined judicial officer from the practice of law for more than a year. See
Disciplinary Counsel v. Medley, 104 Ohio St.3d 251, 2004-Ohio-6402, 819 N.E.2d
273, ¶ 43 (18-month suspension with six months conditionally stayed);
Disciplinary Counsel v. Parker, 116 Ohio St.3d 64, 2007-Ohio-5635, 876 N.E.2d
556, ¶ 130 (18-month suspension with six months conditionally stayed);
Disciplinary Counsel v. Bachman, 163 Ohio St.3d 195, 2020-Ohio-6732, 168
N.E.3d 1178, ¶ 36-37 (six-month suspension); Disciplinary Counsel v. Repp, 165
Ohio St.3d 582, 2021-Ohio-3923, 180 N.E.3d 1128, ¶ 33 (one-year suspension). In
distinguishing these cases, the majority concludes that Carr’s misconduct warrants
a sanction greater than an actual suspension for one year, but it fails to muster any
caselaw supporting its position that an indefinite suspension is the appropriate
sanction.
{¶ 104} “When imposing sanctions for judicial misconduct, we consider,”
among other things, “the sanctions imposed in similar cases.” Disciplinary Counsel
v. Berry, 166 Ohio St.3d 112, 2021-Ohio-3864, 182 N.E.3d 1184, ¶ 14. A review
of our caselaw reveals that when this court has indefinitely suspended judicial
officers for misconduct, the judicial officer faced allegations of criminal conduct.
See Disciplinary Counsel v. Kelly, 121 Ohio St.3d 39, 2009-Ohio-317, 901 N.E.2d
798, ¶ 1 (indefinitely suspending magistrate who embezzled funds from a county
agency); Disciplinary Counsel v. McAuliffe, 121 Ohio St.3d 315, 2009-Ohio-1151,
903 N.E.2d 1209, ¶ 1-2, 30 (indefinitely suspending judge convicted of arson,
fraud, and conspiracy); Ohio State Bar Assn. v. McCafferty, 140 Ohio St.3d 229,
2014-Ohio-3075, 17 N.E.3d 521, ¶ 2, 26 (indefinitely suspending judge convicted
of multiple counts of lying to the FBI during corruption investigation); Ohio State
Bar Assn. v. Mason, 152 Ohio St.3d 228, 2017-Ohio-9215, 94 N.E.3d 556, ¶ 1-3
(indefinitely suspending judge convicted of felonious assault and domestic
violence); Disciplinary Counsel v. Horton, 158 Ohio St.3d 76, 2019-Ohio-4139,
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January Term, 2022
140 N.E.3d 561, ¶ 1, 3, 79 (indefinitely suspending judge who sexually harassed
staff, misused county resources for his judicial campaign, and was convicted of
failing to file an accurate campaign statement).
{¶ 105} I agree with the majority that Carr’s misconduct is more serious
than the misconduct that occurred in Medley, Parker, Repp, and Bachman and that
it warrants a greater sanction than was imposed in those cases. But Carr did not
commit misconduct leading to a criminal conviction, as was the case when we have
indefinitely suspended judicial officers. In my view, imposing an actual suspension
from the practice of law for two years would be sufficient to protect the public from
future misconduct. I therefore dissent from the majority’s decision to impose an
indefinite suspension.
DEWINE, J., concurs in the foregoing opinion.
_________________
Joseph M. Caligiuri, Disciplinary Counsel, and Michelle A. Hall, Assistant
Disciplinary Counsel, for relator.
Koblentz & Penvose, L.L.C., Richard S. Koblentz, Nicholas E. Froning, and
Bryan L. Penvose, for respondent.
_________________
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