Disciplinary Counsel v. Burge (Slip Opinion) , 2019 Ohio 3205 ( 2019 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Burge, Slip Opinion No. 2019-Ohio-3205.]
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. 2019-OHIO-3205
DISCIPLINARY COUNSEL v. BURGE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Burge, Slip Opinion No.
2019-Ohio-3205.]
Judges—Misconduct—Violations of the Code of Judicial Conduct and the Rules of
Professional Conduct for failure to act in a manner that promotes public
confidence in the judiciary, failure to uphold and apply the law and to
perform all duties of judicial office fairly and impartially, engaging in ex
parte communications, and committing an illegal act that reflects adversely
on the lawyer’s honesty or trustworthiness—One-year suspension, with six
months stayed on conditions.
(No. 2018-1759—Submitted March 27, 2019—Decided August 13, 2019.)
ON CERTIFIED REPORT by the Board of Professional Conduct, No. 2016-044.
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SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} Respondent, James Michael Burge, of Lorain, Ohio, Attorney
Registration No. 0004659, was admitted to the practice of law in Ohio in 1975.
Burge served as a Lorain County Common Pleas Court judge from 2007 until he
resigned on April 14, 2015 after a jury found him guilty on three counts of
tampering with records and three counts of falsification.
{¶ 2} On April 15, 2015, we suspended Burge’s license to practice law on
an interim basis based on the felony counts of tampering with records. In re Burge,
142 Ohio St. 3d 1235, 2015-Ohio-1427, 30 N.E.3d 957. On August 10, 2015, we
reinstated Burge after being notified that the tampering charges had been reduced
to misdemeanors due to an error in the jury-verdict forms. In re Burge, 143 Ohio
St.3d 1283, 2015-Ohio-3169, 40 N.E.3d 1144.
{¶ 3} In September 2018, relator, disciplinary counsel, filed an amended
complaint against Burge charging him with multiple violations of the Code of
Judicial Conduct and the Rules of Professional Conduct. The parties submitted
stipulations of fact, misconduct, and aggravating and mitigating factors. The matter
proceeded to a hearing before a three-member panel of the Board of Professional
Conduct. The panel adopted the parties’ stipulations, found that the evidence
established that Burge had engaged in the charged misconduct, and recommended
a one-year suspension with six months stayed. The board adopted the panel’s
findings of fact, conclusions of law, and recommended sanction. Burge objects to
the board’s report and recommendation, but only to the extent that the board did
not give him credit for time served under his previous interim felony suspension.
{¶ 4} Upon our review of the record, we accept the board’s findings of
misconduct and agree that a one-year suspension with six months stayed is the
appropriate sanction. We also order that Burge be credited with the time he served
under his interim felony suspension.
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I. Misconduct
A. Count One – Criminal Convictions
{¶ 5} Burge’s criminal convictions stem from his failure to accurately
report on his annual financial-disclosure statements—which he was required to file
as an elected official—his interest in Whiteacre North, L.L.C. (“Whiteacre”).
Burge and his wife owned a 50 percent share in Whiteacre, whose sole asset was
an office building located at 600 North Broadway in Lorain, Ohio.
{¶ 6} In September 1998, Whiteacre secured a $365,000 mortgage from
Lorain National Bank and the Whiteacre shareholders, including Burge, signed as
joint and several personal guarantors on the loan.
{¶ 7} Burge started his first term on the Lorain County Common Pleas
Court in January 2007. That month, the Whiteacre shareholders assigned their full
interests in Whiteacre to Shimane and Azurree Smith. The Smiths agreed to pay
$70,000 to the shareholders and assumed the debt owed to Lorain National Bank
on the property. Whiteacre’s mortgage, however, expressly prohibited such an
assignment. Moreover, none of the Whiteacre shareholders notified the bank of the
assignment or recorded the assignment. And Burge remained a personal guarantor
on the bank loan.
{¶ 8} Burge filed his financial-disclosure form for the 2010 calendar year
on January 27, 2011. Burge, however, did not list Lorain National Bank as a
creditor, Whiteacre as a business that he or his wife operated, or his ownership
interest in the building at 600 North Broadway.
{¶ 9} In February 2011, the Smiths defaulted on the agreement, and
ownership of Whiteacre reverted back to Burge and the other former Whiteacre
shareholders.
{¶ 10} In June 2011, Burge transferred his ownership interest in Whiteacre
to his wife for $1.00 without giving notice to Lorain National Bank. Burge also
remained a personal guarantor on the bank loan.
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{¶ 11} Burge submitted his 2011 financial-disclosure form on January 26,
2012, and his 2012 form on February 13, 2013. On both forms, Burge failed to list
Whiteacre as a business that he or his wife operated or his ownership interest in the
building at 600 North Broadway.
{¶ 12} In September 2014, the Lorain County Grand Jury indicted Burge on
12 counts of criminal conduct, ranging from felony offenses of tampering with
records and having an unlawful interest in a public contract to misdemeanor
offenses of falsification and soliciting improper compensation. In April 2015, a
jury found Burge guilty on three counts of tampering with records and three counts
of falsification. A visiting judge dismissed the remaining charges.
{¶ 13} After the guilty verdicts but before sentencing, Burge resigned from
the common pleas court. During sentencing on May 14, 2015, the judge granted
Burge’s motion to reduce the three felony charges to misdemeanors because the
verdict forms failed to specify the appropriate offense level for the tampering
charges. As a result, Burge was sentenced on six misdemeanor offenses and the
judge imposed fines totaling $3,000. The court of appeals affirmed Burge’s
convictions on direct appeal. State v. Burge, 9th Dist. Lorain No. 16A010936,
2017-Ohio-5836.
{¶ 14} Based on Burge’s convictions, the parties stipulated and the board
found that Burge 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 the judiciary and to avoid impropriety and the appearance of
impropriety) and Prof.Cond.R. 8.4(b) (prohibiting a lawyer from committing an
illegal act that adversely reflects on the lawyer’s honesty or trustworthiness).
B. Count Two – Failure to Disclose Relationships with Tenant-Lawyers
{¶ 15} Between February 2011 and June 2011, while Burge held an
ownership interest in Whiteacre, several tenants of 600 North Broadway regularly
appeared before Burge as counsel in the Lorain County Common Pleas Court.
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During this same time period, Burge appointed five of those attorneys to represent
indigent defendants in cases pending before him. In addition, Burge approved
court-appointed fees to two lawyers who were Whiteacre tenants. Yet Burge did
not recuse himself from any of those cases or disclose those relationships to the
prosecutors assigned to those cases.
{¶ 16} Against this backdrop, the parties stipulated and the board found that
Burge violated Jud.Cond.R. 1.2 and 3.11(C)(3) (prohibiting a judge from engaging
in otherwise permitted financial activities if they involve the judge in frequent
transactions or continuing business relationships with lawyers or other persons
likely to come before the judge’s court).
C. Count Three – Rude and Discourteous Behavior
1. The Slaby Letter
{¶ 17} While serving as a judge in July 2011, Burge wrote a letter on official
court stationary to three state representatives regarding his views on certain
proposed legislation. Lynn Slaby, a former judge on the Ninth District Court of
Appeals and, at that time, a state representative, had sponsored a bill that would
have required a prosecutor to consent to a defendant’s request to be tried before a
judge, rather than a jury. In his letter, Burge characterized Slaby and his proposed
legislation as “nothing more than the hobgoblin of a small-minded, mouth-
breathing, Tea Party type whose political style and abilities uniquely qualify him to
do nothing.” Among other insults hurled at Slaby, Burge’s letter also stated that
“[u]ntil recently, the Ninth District Court of Appeals * * * was nothing more than
an affirmative action program for intellectually challenged, Summit County
Republican lawyers. That’s how Lynn got elected.”
2. Derogatory Comments from the Bench
{¶ 18} Burge has stipulated that while presiding over court proceedings he
has referred to Caucasian defendants as “crackers” and African American or Latino
defendants as “homeboys.” Burge also admitted to other improper comments from
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the bench. For example, in 2012, Burge presided over the case of State v. Hatfield,
Lorain C.P. No. 11CR083687. Burge decided to continue sentencing because
Hatfield had been admitted into the Community Based Correctional Facility. At
the close of the proceeding, Burge commented to Hatfield’s lawyer, “I want you to
show this cracker [Hatfield] what I was going to do to him.” At that point,
Hatfield’s lawyer informed Hatfield that Burge had intended to sentence him to
three years in prison. Burge then interjected and the following exchange occurred:
[Burge]: I’m sick of you boy. You hear me?
[Hatfield]: Yes, Sir.
[Burge]: You foul up one more time, you’re going to the
pen.
[Hatfield]: Yes, Your Honor.
[Burge]: You know what? In fact, you’ve been such a
headache, I was looking forward to putting you in the pen. And I
would have paid 50 bucks to give you a beating before you went.
So you finish up that [Community Based Correctional Facility] and
you do everything right.
[Hatfield]: Yes, Your Honor. Thank you.
[Burge]: Come back next week. This is what I’ve got in
mind for you.
[Hatfield]: Yes, Sir.
[Burge]: The pen. I’m aggravated with myself that I can’t
do it.
{¶ 19} The same year, Burge presided over the trial of State v. Bernhardt,
Lorain C.P. No. 11CR084147. James Bernhardt had been convicted of possessing
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stolen property. During sentencing, Burge engaged in the following colloquy with
Bernhardt regarding how he came to possess the stolen property:
[Burge]: Now, if I were to believe you were that stupid, James, I
would just have Deputy Motelewski shoot you right now, because I
know you’re not going to make it through life. Just tell me you knew
it was stolen, that’s all.
[Bernhardt]: It was a possibility, yes, sir.
[Burge]: Possibility?
[Bernhardt]: Yes, sir.
[Burge]: Jesus Christ.
{¶ 20} As to count three of the complaint, the parties stipulated and the
board found that Burge violated Jud.Cond.R. 1.2 and 2.8(B) (requiring a judge to
be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court
staff, court officials, and others with whom the judge deals in an official capacity).
D. Count Four – The Boros Matter
{¶ 21} In 2014, Burge presided over the trial of State v. Boros, Lorain C.P.
No. 14CR088611. After Boros pleaded guilty but before he was sentenced, Burge
engaged in an improper ex parte communication with Boros in the Lorain County
Justice Center. Specifically, Burge admitted to talking with Boros after Boros
asked if he could withdraw his plea. Burge also admitted that he and Boros
discussed issues that Burge would consider during sentencing, namely Boros’s
mental health and related treatment.1
1. Shortly after the ex parte communication, Burge was placed under interim suspension for his
tampering charges and a visiting judge was appointed to preside over Boros’s sentencing hearing.
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{¶ 22} The parties stipulated and the board agreed that Burge’s
conversation with Boros violated Jud.Cond.R. 1.2 and 2.9(A) (prohibiting a judge
from initiating, receiving, permitting, or considering ex parte communications).
E. Count Five – The Nieves and Rivera Matters
1. State v. Nieves
{¶ 23} In 2012, Burge presided over a bench trial in the case of State v.
Nieves, Lorain C.P. No. 10CR081259. Samuel Nieves had been indicted on one
count of rape and one count of gross sexual imposition in a case involving a 14-
year-old girl. At the close of the state’s case, Burge granted a Crim.R. 29 motion
to acquit on the rape charge. The prosecutor objected to the acquittal, arguing that
Burge’s decision was contrary to controlling precedent. Burge refused to recognize
established case law, but did convict Nieves on the charge of gross sexual
imposition. Burge sentenced Nieves to a 17-month prison term, but less than four
months later, over the state’s objection, Burge granted a motion for judicial release.
{¶ 24} During his disciplinary hearing, Burge admitted that—despite being
aware of the correct legal standard for rape at the time—he disregarded established
precedent when he acquitted Nieves on the rape charge.
2. State v. Rivera
{¶ 25} In 2012, Burge presided over the case of State v. Rivera, Lorain C.P.
No. 12CR085527. During the proceedings, defense counsel informed Burge that
Rivera was fluent in Spanish but spoke broken English, which led Burge to question
Rivera’s ability to understand defense counsel’s request to change his plea. Rather
than postpone or reschedule the hearing, Burge decided to conduct the hearing in
Spanish and then translate what he and Rivera had discussed to the prosecutor and
Rivera’s attorney. Burge admitted that he had proceeded in this manner during
Rivera’s case despite R.C. 2311.14, which requires the court to appoint a qualified
interpreter whenever a party in a legal proceeding cannot readily understand or
communicate.
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{¶ 26} As to the allegations under Count Five, the parties stipulated and the
board agreed that Burge had engaged in professional misconduct in violation of
Jud.Cond.R. 1.2 and 2.2 (requiring a judge to uphold and apply the law and perform
the duties of judicial office fairly and impartially).
{¶ 27} We agree with the board and adopt these findings of fact and
misconduct.
II. Sanction
{¶ 28} When imposing sanctions for judicial and professional misconduct,
we consider several relevant factors, including the ethical duties violated, relevant
aggravating and mitigating factors, and the sanctions imposed in similar cases. See
Disciplinary Counsel v. Oldfield, 140 Ohio St. 3d 123, 2014-Ohio-2963, 16 N.E.3d
581, ¶ 17.
A. Aggravating and Mitigating Factors
{¶ 29} The board found the following aggravating factors: (1) Burge
committed multiple violations and (2) he exhibited a dishonest or selfish motive in
failing to disclose his relationship with Whiteacre and his receipt of rent payments
from the tenant-lawyers who appeared before him in court. See Gov.Bar R.
V(13)(B)(2) and (4).
{¶ 30} In mitigation, the board adopted the panel’s findings regarding the
following mitigating factors stipulated to by the parties: (1) no prior disciplinary
record, (2) full and free disclosure to the board and a cooperative attitude
throughout the proceedings, (3) evidence of good character and reputation, and (4)
the imposition of other penalties and sanctions (e.g., criminal convictions and
fines). See Gov.Bar R. V(13)(C)(1), (4), (5), and (6). The board also found that
Burge had acknowledged the wrongful nature of his conduct, and showed remorse
for his wrongdoing.
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B. Applicable Precedent
{¶ 31} The board recommended that Burge be suspended for one year, with
six months stayed on the condition of no further misconduct. In determining the
appropriate sanction, the board examined several disciplinary cases involving
judges and other attorneys holding public office. The sanctions in these cases
ranged from a six-month stayed suspension to an indefinite suspension. See
Disciplinary Counsel v. Elum, 133 Ohio St. 3d 500, 2012-Ohio-4700, 979 N.E.2d
289 (six-month stayed suspension); Ohio State Bar Assn. v. Mason, 152 Ohio St. 3d
228, 2017-Ohio-9215, 94 N.E.3d 556 (indefinite suspension). The board found that
the circumstances here were closest to Ohio State Bar Assn. v. Jacob, 150 Ohio
St.3d 162, 2017-Ohio-2733, 80 N.E.3d 440, which involved a municipal-court
judge who had been convicted of five misdemeanor offenses related to soliciting
prostitution and amending a charge in favor of a defendant without the prosecutor’s
consent. In Jacob, we imposed a two-year suspension, with one year stayed.
{¶ 32} We recognize that Burge’s misconduct was not identical to Jacob’s,
but we agree with the board that the sanction in Jacob is instructive. Burge and
Jacob were each convicted of several misdemeanor offenses, and we have
“historically imposed discipline” on attorneys who have engaged in criminal
conduct. Disciplinary Counsel v. Connor, 105 Ohio St. 3d 100, 2004-Ohio-6902,
822 N.E.2d 1235, ¶ 18. Burge, however, deserves a lesser sanction because unlike
Jacob, Burge fully acknowledged the wrongful nature of his conduct and showed
genuine remorse for his wrongdoing. See Jacob at ¶ 20. “The 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. Disciplinary Counsel v. O’Neill, 103 Ohio St. 3d 204, 2004-Ohio-4704,
815 N.E.2d 286, ¶ 33. 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
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unlikely to recur. Given the facts and the significant mitigating factors present here,
including evidence of sincere contrition, we find that the board’s recommended
sanction achieves the purposes outlined in O’Neill and is reasonable and
appropriate.
{¶ 33} For his part, Burge objects to the board’s recommended sanction, but
only to the extent that the board did not give him credit for time served under his
interim felony suspension. After review, we find that Burge is entitled to credit for
time served on the facts of this case.
III. Conclusion
{¶ 34} Accordingly, James Michael Burge is suspended from the practice
of law for one year, with six months of the suspension stayed on the condition that
he engage in no further misconduct. We also grant Burge credit for time served
under his interim felony suspension. If Burge fails to comply with the condition of
the stay, the stay will be lifted and he will serve the full one-year suspension. Costs
are taxed to Burge.
Judgment accordingly.
FRENCH, DEWINE, DONNELLY, and STEWART, JJ., concur.
O’CONNOR, C.J., and FISCHER, J., would not grant credit for time served
under the interim suspension.
KENNEDY, J., dissents, with an opinion.
__________________
KENNEDY, J., dissenting.
{¶ 35} The majority, relying upon Ohio State Bar Assn. v. Jacob, 150 Ohio
St.3d 162, 2017-Ohio-2733, 80 N.E.3d 440, concludes that a one-year suspension
with six months stayed is the appropriate sanction for respondent James Michael
Burge’s misconduct. I disagree. Because I find that some of Burge’s misconduct
is similar to Jacob’s but that ultimately, Burge engaged in more misconduct than
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Jacob, I dissent and would impose, at a minimum, a two-year suspension, with one
year stayed—the same sanction we imposed against Jacob, id. at ¶ 21.
{¶ 36} When imposing sanctions for judicial misconduct, we “recognize the
important role that judges play in society and their concomitant duty to act in an
ethical manner.” Disciplinary Counsel v. O’Neill, 103 Ohio St. 3d 204, 2004-Ohio-
4704, 815 N.E.2d 286, ¶ 56. In O’Neill, we observed:
“Because they are so important to our society, judges must
be competent and ethical, and their actions must foster respect for
their decisions as well as for the judiciary as a whole. Given that
they hold positions of considerable authority and are entrusted with
a great deal of power and discretion, judges are expected to conduct
themselves according to high standards of professional conduct.
Indeed, it is often said that judges are subject to the highest standards
of professional behavior. Judges are held to higher standards of
integrity and ethical conduct than attorneys or other persons not
invested with the public trust.”
Id. at ¶ 57, quoting Shaman, Lubet & Alfini, Judicial Conduct and Ethics, Section
1.01, at 1 (3d Ed.2000). “The 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] institution.” Id. at ¶ 33.
{¶ 37} To begin, Burge, like Jacob, was charged with violations of the Code
of Judicial Conduct and the Rules of Professional Conduct for actions that resulted
in criminal convictions. See Jacob at ¶ 8.
{¶ 38} Jacob was convicted of five misdemeanors: three counts of soliciting
prostitution and two counts of falsification. Jacob, 150 Ohio St. 3d 162, 2017-Ohio-
2733, 80 N.E.3d 440, at ¶ 4. In this case, Count One of relator disciplinary
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counsel’s amended complaint stems from Burge’s criminal convictions of six
misdemeanors—three for tampering with records and three for falsification—for
his failure to accurately report on his required annual financial-disclosure
statements his interest in Whiteacre North, L.L.C. (“Whiteacre”), whose sole asset
was an office building at 600 North Broadway, Lorain, Ohio. The jury found Burge
guilty of the three counts of falsification in violation of R.C. 2921.13(A)(7), a first-
degree misdemeanor, and the three counts of tampering with records in violation of
R.C. 2913.42(A)(1), a third-degree felony, with which he was charged. See State
v. Burge, 9th Dist. Lorain No. 16CA010936, 2017-Ohio-5836, ¶ 9-10. It was only
because the trial court failed to specify the appropriate level of offense in the jury-
verdict forms that the felony tampering counts were reduced to misdemeanor
convictions. Id. at ¶ 11.
{¶ 39} Based on the convictions, the Board of Professional Conduct found
that Burge had 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 the judiciary and to avoid impropriety and the appearance of
impropriety) and Prof.Cond.R. 8.4(b) (prohibiting a lawyer from committing an
illegal act that adversely reflects on the lawyer’s honesty or trustworthiness).
{¶ 40} However unlike Jacob, Burge also engaged in financial misconduct.
Count Two pertains to a five-month period when Burge held an ownership interest
in Whiteacre and remained silent as to his financial relationship with attorneys who
appeared before him and were tenants of Whiteacre’s office building. Specifically,
Burge appointed five of those attorneys to represent indigent criminal defendants
and approved the payment of court-appointed-attorney fees to two others in cases
pending before him. Burge directly benefited financially from those attorneys. For
this misconduct, the board found that Burge violated Jud.Cond.R. 1.2 and
3.11(C)(3) (prohibiting a judge from engaging in otherwise permitted financial
activities if they involve the judge in frequent transactions with or continuing
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business relationships with lawyers or other persons likely to come before the
judge’s court).
{¶ 41} Similar to Burge, Jacob also engaged in impropriety on the bench by
amending a charge and falsifying an entry. Jacob, 150 Ohio St. 3d 162, 2017-Ohio-
2733, 80 N.E.3d 440, at ¶ 4, 6. But Burge did more; his conduct was broader in
scope than Jacob’s isolated impropriety on the bench.
{¶ 42} In Count Three, Burge was charged with using official court
stationary to write a letter insulting a state representative who had previously been
an appellate judge. Also, while presiding over criminal cases, he directed racially
inappropriate and demeaning comments toward criminal defendants. For this
misconduct, the board found that Burge violated Jud.Cond.R. 1.2 and 2.8(B)
(requiring a judge to be patient, dignified, and courteous to litigants, jurors,
witnesses, lawyers, court staff, court officials, and others with whom the judge
deals in an official capacity).
{¶ 43} In Count Four, Burge was charged with allegations of improper ex
parte communication with a criminal defendant over whose trial Burge had
presided. For this misconduct, the board found that Burge violated Jud.Cond.R.
1.2 and 2.9(A) (prohibiting a judge from initiating, receiving, permitting, or
considering ex parte communications).
{¶ 44} Moreover, in Count Five, Burge was charged with refusing to apply
controlling precedent in a criminal trial. This resulted in the defendant’s acquittal
on a rape charge, although the defendant was convicted of a lesser included offense.
In another criminal matter, he failed to appoint a qualified interpreter for a Spanish-
speaking defendant; instead, Burge acted as the interpreter. For this misconduct,
the board found that Burge violated Jud.Cond.R. 1.2 and 2.2 (requiring a judge to
uphold and apply the law and perform the duties of judicial office fairly and
impartially).
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{¶ 45} The misconduct alleged in Counts Three, Four, and Five is closer to
Judge O’Neill’s. In O’Neill, we imposed a two-year suspension with one year
stayed for judicial misconduct that included ex parte conversations, failure to
follow the law, misrepresentations in the course of her judicial duties, and being
intemperate on the bench. 103 Ohio St. 3d 204, 2004-Ohio-4704, 815 N.E.2d 286,
¶ 20, 28, 55. However, Burge’s violations are not as numerous or persistent as
those committed by Judge O’Neill.
{¶ 46} I agree with the majority that there is no one case like Burge’s case.
Majority opinion at ¶ 31-32. By imposing a one-year suspension with six months
stayed, the majority focuses mainly on Burge’s misdemeanor convictions. The
majority reasons that Burge’s misconduct is unlikely to recur because all of it
occurred during his time as a judge and was related to his judicial duties and
responsibilities and he has since resigned his position as judge. Majority opinion
at ¶ 32. This court has not previously minimized judicial misconduct because the
respondent was no longer serving as a judge when we issued our judgment. See,
e.g., Jacob, 150 Ohio St. 3d 162, 2017-Ohio-2733, 80 N.E.3d 440; Ohio State Bar
Assn. v. McCafferty, 140 Ohio St. 3d 229, 2014-Ohio-3075, 17 N.E.3d 521. In fact,
Jacob also resigned, and although this court considered that in mitigation, we still
considered all his misconduct and suspended him for two years with one year
stayed. Jacob at ¶ 20-21.
{¶ 47} The majority’s decision to rely on Jacob but to impose upon Burge
a lesser sanction than Jacob received raises many questions. Is the majority saying
that Jacob’s crimes are worse than Burge’s intentional acts of financial misconduct?
Or does Jacob’s failure to acknowledge the wrongful nature of all his misconduct,
id. at ¶ 9, 12, make his misconduct more significant than Burge’s egregious
behavior from the bench?
{¶ 48} Maybe the majority is saying that Burge’s misconduct from the
bench was nothing more than an aberration because he will no longer serve as a
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judge. Or does the majority believe that because Burge will return to the practice
of law as a lawyer and not as a judge, and therefore cannot engage in the judicial
misconduct that occurred while he was on the bench, he should not be held
accountable to the degree that other judges have been?
{¶ 49} The majority’s reasoning fails to take into account the primary
purpose in disciplining a judge—“to protect the public, guarantee the evenhanded
administration of justice, and maintain and enhance public confidence in the
integrity of [the judicial system],” O’Neill, 103 Ohio St. 3d 204, 2004-Ohio-4704,
815 N.E.2d 286, at ¶ 33. This purpose is satisfied only by considering all of Burge’s
misconduct and not focusing so heavily on the criminal convictions, as the majority
does, see majority opinion at ¶ 31-32. “Judges are accountable for much more than
merely conducting themselves within the bounds of the criminal law.” Disciplinary
Counsel v. Hoskins, 119 Ohio St. 3d 17, 2008-Ohio-3194, 891 N.E.2d 324, ¶ 41.
(Judge permanently disbarred for deceitful conduct and various abuses of his office
despite the fact that his actions did not result in criminal convictions).
{¶ 50} All of Burge’s misconduct has had a profound effect on the integrity
of the judiciary. “ ‘Where those whose job it is to enforce the law break it instead,
the public rightfully questions whether the system itself is worthy of respect.’ ”
Disciplinary Counsel v. Gallagher, 82 Ohio St. 3d 51, 53, 693 N.E.2d 1078 (1998),
quoting In re Hughes, 640 N.E.2d 1065, 1067 (Ind.1994). Additionally,
“ ‘discourtesy * * * on the part of a judge is particularly egregious because it
undermines respect for the law in a most insidious manner,’ ” leaves the affected
litigant “ ‘without recourse,’ ” and results in “ ‘an irreparable loss of respect for the
system that tolerates such behavior.’ ” O’Neill at ¶ 37, quoting In re Kellam, 503
A.2d 1308, 1312 (Me.1986).
{¶ 51} When imposing sanctions for judicial and professional misconduct,
we consider several relevant factors, including the ethical duties violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), any other relevant
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factors, and the sanctions imposed in similar cases. Mason, 152 Ohio St. 3d 228,
2017-Ohio-9215, 94 N.E.3d 556, at ¶ 13. The aggravating factors are that Burge
committed multiple violations and exhibited a dishonest or selfish motive in failing
to disclose his relationship with Whiteacre and his receipt of rent payments from
the tenant-lawyers who appeared before him in court. Gov.Bar R. V(13)(2) and
(4). Additionally, in accordance with the court’s independent review and final
authority in disciplinary cases, see Ohio State Bar Assn. v. Reid, 85 Ohio St. 3d 327,
708 N.E.2d 193 (1999), paragraph one of the syllabus, I find that Burge engaged in
a pattern of misconduct, Gov.Bar R. V(13)(B)(3), and harmed vulnerable persons,
for example, the criminal defendants to whom he uttered racially inappropriate and
demeaning comments, Gov.Bar R. V(13)(B)(8). In mitigation, Burge has no prior
disciplinary record, he made full and free disclosure to the board and had a
cooperative attitude throughout the proceedings, he presented evidence of good
character and reputation, and other penalties and sanctions were imposed. Gov.Bar
R. V(13)(C)(1), (4), (5), and (6).
{¶ 52} After considering all of Burge’s misconduct, i.e., his criminal
convictions and his misconduct on the bench, in addition to the mitigating and
aggravating factors and the sanctions imposed in Jacob and O’Neill, I would
impose a two-year suspension with one year stayed on the condition that he commit
no further misconduct. This sanction would show that we hold judges to the highest
possible standards of ethical conduct and would restore integrity to the judiciary
and the public’s confidence in it.
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Scott J. Drexel, Disciplinary Counsel, Joseph M. Caligiuri, Chief Assistant
Disciplinary Counsel, and Jennifer A. Bondurant, Assistant Disciplinary Counsel,
for relator.
Montgomery, Rennie & Jonson, George D. Jonson, and Lisa M. Zaring, for
respondent.
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SUPREME COURT OF OHIO
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