Wisconsin Judicial Commission v. Leonard D. Kachinsky , 387 Wis. 2d 823 ( 2019 )

2019 WI 82
SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP628-J
COMPLETE TITLE: In the Matter of Judicial Disciplinary
Proceedings Against the Honorable Leonard D.
Kachinsky
Wisconsin Judicial Commission,
Complainant,
v.
the Honorable Leonard D. Kachinsky,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST KACHINSKY
OPINION FILED: July 9, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the complainant, there were briefs filed by Jeremiah
Van Hecke and The Wisconsin Judicial Commission, Madison.
For the respondent, there were a briefs filed by Leonard
D. Kachinksy, Neenah.
2019 WI 82
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP628-J
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Judicial Disciplinary
Proceedings Against the Honorable Leonard D.
Kachinsky:
Wisconsin Judicial Commission, FILED
Complainant, JUL 9, 2019
v. Sheila T. Reiff
Clerk of Supreme Court
The Honorable Leonard D. Kachinsky,
Respondent.
JUDICIAL disciplinary proceeding. Judge suspended from
eligibility for reserve judge status with condition.
¶1 PER CURIAM. We review, pursuant to Wis. Stat.
§ 757.91 (2017-18),1 a judicial conduct panel's findings of fact,
1 Wisconsin Statute § 757.91 (2017-18) provides:
The supreme court shall review the findings of
fact, conclusions of law and recommendations under s.
757.89 and determine appropriate discipline in cases
of misconduct and appropriate action in cases of
permanent disability. The rules of the supreme court
(continued)
No. 2018AP628-J
conclusions of law, and recommendation for discipline for the
Honorable Leonard D. Kachinsky, a former municipal judge for the
Village of Fox Crossing Municipal Court. We conclude that Judge
Kachinsky's judicial misconduct warrants a three-year suspension
of eligibility for the position of reserve municipal judge,
commencing July 3, 2018, with the condition that before
requesting an appointment by the chief judge to serve as a
reserve municipal judge, Judge Kachinsky must successfully
petition this court to establish his fitness to serve in that
capacity.
¶2 Beginning in 1997, Judge Kachinsky served as a
municipal judge for 21 years, first for the Town of Menasha
Municipal Court and then for the Village of Fox Crossing
Municipal Court. On July 3, 2018, this court, in the exercise
of its superintending and administrative authority over the
courts of this state, issued an order prohibiting Judge
Kachinsky from exercising the powers of a municipal judge until
further order of this court. Judge Kachinsky did not seek
reelection in the 2019 spring election. Consequently, his term
as the Village of Fox Crossing Municipal Judge expired on April
30, 2019. Judge Kachinsky's years of service would ordinarily
render him eligible to serve as a reserve municipal judge
pursuant to Wis. Stat. § 800.065.
applicable to civil cases in the supreme court govern
the review proceedings under this section.
2
No. 2018AP628-J
¶3 The Wisconsin Judicial Commission originally received
an ethics complaint concerning Judge Kachinsky in June 2017.
When the Commission notified Judge Kachinsky that it was
investigating allegations of possible misconduct a few weeks
later, it advised him that he should "scrupulously avoid
retaliatory conduct or witness intimidation."
¶4 On April 4, 2018, the Judicial Commission filed a
formal complaint against Judge Kachinsky in this court. The
Judicial Commission's complaint alleged multiple violations of
the Code of Judicial Conduct (Chapter 60 of the Supreme Court
Rules (SCR)). Judge Kachinsky's answer admitted many of the
factual allegations in the complaint, but denied others or
offered explanations for his conduct. The Judicial Commission
filed an amended complaint in September 2018, in response to
which Judge Kachinsky filed an amended answer.
¶5 After the initial complaint had been filed, this court
referred the matter to the chief judge of the court of appeals,
who appointed three members of the court of appeals to serve as
the Judicial Conduct Panel.2 See Wis. Stat. § 757.87(3). The
Panel conducted an evidentiary hearing on February 7-8, 2019.
The Judicial Commission called a number of employees of the
Village of Fox Crossing as witnesses. Judge Kachinsky
represented himself and testified at the hearing.
2
Judges Joan F. Kessler, Mark D. Gundrum, and William W.
Brash, III were appointed to serve as the Judicial Conduct
Panel, with Judge Kessler acting as the presiding judge.
3
No. 2018AP628-J
¶6 Following the hearing, the Panel issued its Findings
of Fact, Conclusions of Law, and Recommendation. This court
ordered the parties to file simultaneous opening briefs and
response briefs regarding the Panel's findings and conclusions.
The parties did so.
¶7 The allegations of judicial misconduct in this matter
fall under three headings. Most of the allegations of
misconduct relate to Judge Kachinsky's interactions with M.B.,
the full-time manager for the Village of Fox Crossing Municipal
Court. The second category of allegations are related to an
email that Judge Kachinsky sent to a member of the village board
regarding his interactions with members of the village
administration and the village's filing of a complaint with the
Judicial Commission. The third category of allegations relates
to an email that Judge Kachinsky sent to the village's police
chief regarding a case that was pending before him. Judge
Kachinsky sent copies of that email to the village's attorney
and a police records clerk, but did not send a copy to the
defendant or defense counsel or otherwise notify the defendant
that he had sent the email.
Interactions with M.B.
¶8 The Village of Fox Crossing Municipal Court holds
court sessions lasting approximately 90-120 minutes
approximately three times per month on Thursday evenings. There
are only two individuals who worked at the municipal court
during the relevant time period. Judge Kachinsky held the part-
time elected position as municipal court judge. M.B. was the
4
No. 2018AP628-J
full-time court manager, whose position was supervised by Judge
Kachinsky. The municipal court judge and the court manager
shared a small office in the Village of Fox Crossing municipal
building.
¶9 Prior to the events at issue in this proceeding, when
a different person was the court manager, Judge Kachinsky was
physically in the municipal court offices on a very limited
basis, usually only arriving shortly before court sessions were
to begin and leaving shortly after the court sessions had ended.
¶10 Following the retirement of the prior court manager,
Judge Kachinsky hired M.B. as the court manager in the spring of
2016. At the beginning of M.B.'s employment, she and Judge
Kachinsky would have occasional conversations about their
personal lives and developed a friendship. They also engaged in
occasional joint activities outside of work, such as going on a
few runs in September and October 2016 that Judge Kachinsky
labelled "Judge K Challenge Runs."
¶11 Even before M.B. was hired as the municipal court
manager, she and Judge Kachinsky had been "friends" on the
Facebook social media website. Each had hundreds of "friends"
on that website, including a number of mutual "friends."
¶12 Judge Kachinsky experienced serious medical problems
from May 2016 to February 2017, which caused him at times to be
hospitalized. During this time period, Judge Kachinsky and M.B.
communicated about both work issues and other personal matters
in what the Judicial Conduct Panel describes as "a mutually
friendly and supportive fashion." In January 2017, M.B.'s
5
No. 2018AP628-J
mother, B.S., sent Judge Kachinsky a get well card. Judge
Kachinsky subsequently became Facebook "friends" with B.S.
¶13 The interactions between Judge Kachinsky and M.B.
became strained beginning in March 2017 due to a couple of
incidents that M.B. found concerning. First, in a public
comment to a post on M.B.'s Facebook page, Judge Kachinsky
stated that M.B. was "on her second honeymoon" at "an
undisclosed location." M.B. informed Judge Kachinsky that his
comment had been incorrect, and he apologized. When M.B. was
back at work a few days later, Judge Kachinsky and a friend
arrived at the municipal court office while M.B. was out of the
office. Judge Kachinsky then hid behind a counter. When M.B.
returned to the office, he popped up and shouted "roar," which
startled M.B. During this visit, Judge Kachinsky was
sufficiently loud and boisterous that his conduct disturbed
nearby village employees. In addition, a "selfie" picture was
taken during the visit. Following the visit, Judge Kachinsky
sent M.B. an email, in which he stated that he hoped his visit
had made her day and that the visit was something he was "more
than happy to do for my best friends." M.B. was disturbed by
Judge Kachinsky's conduct.
¶14 Approximately two weeks later, Judge Kachinsky asked
M.B. to be in additional pictures of them and the
office/courtroom. M.B. declined the request.
¶15 Having become concerned with Judge Kachinsky's conduct
toward her, M.B. sent an email to Judge Kachinsky on April 18,
2017, in which she stated that it would help her focus on her
6
No. 2018AP628-J
job if they kept their relationship work-related. Judge
Kachinsky, however, did not want to limit their relationship to
matters concerning M.B.'s job. In an April 20, 2017 email, he
agreed to minimize discussion of non-business matters during
business hours. He indicated that he wanted to continue having
discussions about matters in their everyday personal lives.
That same day Judge Kachinsky sent two additional emails to M.B.
The first stated, among other things, that he really liked to
stop by the office at least once a week. The second email, sent
later in the afternoon, indicated that Judge Kachinsky had
stopped by the municipal court office that day and stated that
"[i]t was nice to talk with you in person today." The very next
day Judge Kachinsky sent yet another email. In that email Judge
Kachinsky expressed that he had been upset because he sensed a
problem in their relationship, but that when he had stopped by
the office the day before, it had been "like old times." He
continued that "[i]t is complicated because I am both the boss
and a close friend."
¶16 On Saturday, April 22, 2017, Judge Kachinsky sent M.B.
an email stating that he would not bring in treats to the office
except on birthdays because M.B. had expressed concern about
having recently gained some weight while on a trip.
¶17 Three days later Judge Kachinsky told M.B. that he
knew her mother had visited her house the preceding weekend
because he had seen her mother's location on a "Nearby Friends"
application on Facebook. Judge Kachinsky testified at the
evidentiary hearing that he had not intentionally sought this
7
No. 2018AP628-J
information, which had automatically appeared on his cell phone,
and that he had told M.B. about it so that she could make her
mother aware that her cell phone was broadcasting information
about her location to others on the Facebook website. The
disclosure of this information, however, was upsetting to M.B.
The Judicial Conduct Panel noted that M.B. became visibly upset
when describing this event during the evidentiary hearing.
¶18 That same day Judge Kachinsky sent M.B. another email
stating that he was "always open to resuming the Judge K
Challenge [Runs] if it fits in your schedule once a month or
so." He continued that "[t]he exercise is good but the personal
rapport aspect of it is actually more important."
¶19 Judge Kachinsky's emails and his disclosure about
knowing the location of M.B.'s mother upset M.B. sufficiently
that they led her to lodge a complaint against Judge Kachinsky
with the village's Human Resources Manager, Lisa Malone. After
the complaint, the Village Manager, Jeffrey Sturgell, had a
telephone conversation with Judge Kachinsky in which he advised
Judge Kachinsky that M.B. was overwhelmed by Judge Kachinsky's
non-work communications. Sturgell believed that Judge Kachinsky
agreed to change his behavior because he did not want to lose
M.B. as an employee.
¶20 On May 4, 2017, the day after Sturgell spoke with
Judge Kachinsky, Malone met with Judge Kachinsky and M.B.
Malone explained to Judge Kachinsky the concerns with his
behavior. During the meeting the participants developed a
number of guidelines, including that no personal information
8
No. 2018AP628-J
about colleagues would be shared on social media, that all phone
and email communications would be related to business matters,
and that Judge Kachinsky would limit his visits to the office to
one time per week.
¶21 The Judicial Conduct Panel found that at the
conclusion of this meeting it should have been clear to Judge
Kachinsky that he was expected to limit his communications with
M.B. to work-related matters. Judge Kachinsky, however, ignored
the guidelines that had been developed. Indeed, his subsequent
conduct indicated that he was upset as a result of the meeting
and was determined to express his displeasure to M.B. and to
reject any limitation on communications to work-related matters.
¶22 On the following Monday, just three days after the
meeting, Judge Kachinsky sent M.B. an email that began with
personal information about what Judge Kachinsky had done over
the weekend.
¶23 On three occasions during that week, Judge Kachinsky
came to the municipal court offices. He sat close to M.B.'s
desk, facing her. He did nothing except tap his pen and make
"cat noises." On one visit, Judge Kachinsky continued this
extremely odd behavior for 45 minutes. During one of the
visits, Judge Kachinsky also told M.B. a story about a dog being
raped and then repeated the story a second time.
¶24 On Thursday of that week, Judge Kachinsky sent an
email to M.B. discussing their personal relationship that made
it clear he would not abide by any work-related limitations. He
claimed that "some short general conversation about
9
No. 2018AP628-J
interpersonal difficulties is really work related as we have to
get along well as personal and professional friends to do our
best." He also referenced an evaluation of M.B. that he would
be completing in the next week.
¶25 On Thursday, May 24, 2017, Judge Kachinsky sent
another email to M.B., in which he inquired about having a party
to celebrate his overcoming a medical problem that the two of
them had discussed at the end of 2016. M.B. replied that they
did not need to have a meeting about such a party, but Judge
Kachinsky continued to ask for her input about such a party,
including through an email sent to her home email account. In
that same email, Judge Kachinsky again brought up their personal
relationship, acknowledging that it was strained, which
concerned him. He asked if there was something either of them
could do that would "bring back the happy relationship that
existed from May 2016-March 2017."
¶26 M.B. sent a response email that having Judge Kachinsky
come into the office to discuss plans for this party "puts me on
the spot," which she did not want. This prompted a reply from
Judge Kachinsky. In the reply, Judge Kachinsky acknowledged
that he had made her uncomfortable and lamented the loss of
their discussions of personal matters: "I miss the short
discussions we had on how our households functioned and other
things that friends talk about. I hope I have not blown that
forever." Early the next day, which was the Friday prior to
Memorial Day, Judge Kachinsky sent another email stating that he
had decided not to have the party, but suggesting that they and
10
No. 2018AP628-J
their families could have a "get-together" at some point over
the summer.
¶27 That same day, Village Manager Sturgell learned of
Judge Kachinsky's ongoing attempts to initiate personal, non-
work conversations with M.B. Sturgell and the village's
attorney had a telephone conversation with Judge Kachinsky,
explained potential violations of the village's policy
prohibiting harassment in the workplace, advised him of the need
to maintain professional decorum at work, and told him to cease
communicating with M.B. about personal matters.
¶28 Judge Kachinsky sent M.B. an email over the ensuing
weekend, in which he stated that he wanted to "hit the reset
button." He claimed that it had not been clear to him that M.B.
wished to avoid after-hours activities with him. He stated that
he now understood, but he chastised M.B. for not telling him
directly. He then expressed that he still believed discussion
of personal matters was necessary:
My main concern is that a "work only" discussion
policy should not preclude normal "water cooler"
discussion of things like the Packers, Badgers, child
graduations, children having children, recent vacation
adventures, etc. I need to know what you consider to
be "over the line." . . . Walking on eggshells during
what should be relaxed casual conversations is not
good for productivity or mental health. Your ideas on
this are welcome.
Judge Kachinsky also complained about the fact that M.B. had
"defriended" him on Facebook, encouraged her to reverse that
decision, and stated that he wanted to "start over" with "new
rules." He claimed that being able to view her personal
11
No. 2018AP628-J
Facebook page allowed him to know what was going on in her life
that might impact her job performance and avoided the need for
him to ask her "the usual question about how vacation or the
weekend went."
¶29 When Village Manager Sturgell learned of Judge
Kachinsky's email over the Memorial Day weekend, he sent a
letter to Judge Kachinsky pointing out that he had violated the
village's direction not to discuss the personal relationship
with M.B. and reminding him that he was not to engage in any
communications with her that went beyond work matters.
¶30 Approximately two weeks later Judge Kachinsky sent an
email to M.B. entitled "Rule Violation." Judge Kachinsky
acknowledged that the email "violate[d] every principle we have
talked about regarding office conduct the last few weeks," but
that he was sending it despite that fact. The email continued,
"Feel free to report me to HR. I feel spunky this morning."
¶31 Judge Kachinsky's focus on his relationship with M.B.
continued. On June 22, 2017, he sent another email to her
suggesting that they "have a beer or wine summit . . . to
discuss the relationship issue." He suggested this "summit"
would be an occasion to "end the strict restrictions on no non-
work related discussions and replace it with use of respect and
common sense."
¶32 Two days later Judge Kachinsky sent yet another email
to M.B. This time, however, he sent it to her personal email
account because it involved some personal items and he wanted to
"keep it off a government computer." He sent another email
12
No. 2018AP628-J
later that same day, which was entitled "[M.B.] and Judge K
Relationship Rules effective 6-26-2017." Included in that email
were a set of "rules" that Judge Kachinsky was imposing for
specific categories of "activities." For example, under the
activity "In-chambers conversations," the rule stated as
followed: "To be work-related. However, can briefly discuss
outside activities (weekend and vacation plans, etc.) when does
not interfere with work activities. [']Treats' to be brought in
only on birthdays." Under "Out of office and after hours
activities," the rule stated, "Christmas only for exchange of
gifts etc. Initiation of any other activities by [M.B.] only
(Judge K Challenge Runs, wine at Holidays, etc.)." The chart
also had rules for activities labeled "Professional friendship"
and "Personal friendship." For the latter, the rule stated,
"Yes but not 'besties' and subject to limits above."
¶33 On June 26, 2017, Judge Kachinsky sent an email to
Human Resources Manager Malone, in which he claimed that the
seven incidents about which M.B. had complained were "minor" and
that her unwillingness to accept his view of how their
relationship should work would be detrimental to the municipal
court office. His email stated that he preferred not to work
with "such a person any longer than possible." He suggested
that Malone should advise M.B. to "give a little bit on the
work-only thing." If M.B. did not do so, he stated that "[t]he
alternative for me is to exercise my authority under Sec.
755.10(1) to terminate employment." The email stated that Judge
Kachinsky had communicated with other individuals about the
13
No. 2018AP628-J
municipal court manager position, discussed a possible
termination date for M.B., and stated that Judge Kachinsky had a
plan for obtaining resumes and quickly hiring a replacement
manager. On June 29, 2017, Judge Kachinsky sent another email
to Malone stating that while he had not made a final decision on
whether to fire M.B., she had until 5:00 p.m. that day to decide
if she accepted his list of "rules" regarding their professional
and personal relationship. The Judicial Conduct Panel found
that by these emails, Judge Kachinsky demonstrated that he
believed he could terminate M.B.'s employment for declining to
have a low-level personal relationship with him.
¶34 Later on June 29, 2017, the village's attorney sent a
letter to Judge Kachinsky via email, in which the attorney
informed Judge Kachinsky that his conduct toward M.B. was a
continued pattern of violating the village's policy against
harassment and that his threats to terminate M.B. constituted
retaliatory conduct, which if carried out would be a violation
of law. The letter once again directed Judge Kachinsky to cease
personal communications with M.B. and to cease making threats to
terminate her employment. The Judicial Conduct Panel found that
"[i]t is hard to imagine how the message could have been more
clear; Judge Kachinsky was putting the village at risk of a
potential lawsuit for his own personal reasons."
¶35 Rather than take the village attorney's letter to
heart, Judge Kachinsky elevated his conduct. After receiving
the letter, he posted to his Facebook page that "[t]he sh— is
not over. I might have an employee termination today. Not
14
No. 2018AP628-J
mine." The Judicial Conduct Panel found that while the post did
not explicitly name M.B., the only conclusion a reader could
draw was that M.B. was about to be fired because she was the
only employee he supervised either at the municipal court or in
his private law practice.
¶36 At 12:50 a.m. on Saturday, July 8, 2017, Judge
Kachinsky sent an email to Human Resources Manager Malone, with
a blind copy to M.B. The email stated that Judge Kachinsky was
"unfriending" Malone on Facebook. The email stated, "At least I
told you directly. Some cowards don't." The Judicial Conduct
Panel found that the "coward" reference was directed toward M.B.
Judge Kachinsky admitted in his answer to the Judicial
Commission's complaint that this email had been spiteful in tone
and that his conduct in sending the email had not exhibited
patience, dignity, or courtesy.
¶37 A particularly disturbing event occurred on July 17,
2017. While alone with M.B. in the municipal court office,
Judge Kachinsky lunged over M.B.'s desk, knocking some items off
of it. While he did so, Judge Kachinsky whispered to M.B., "Are
you afraid of me now?" This conduct frightened M.B. The
Judicial Conduct Panel found that this action by Judge Kachinsky
"was an attempt to intimidate M.B. into acquiescing in his
fixation on a personal relationship with her."
¶38 On July 20, 2017, while the municipal court was in
session, Judge Kachinsky told M.B. to "cool your jets" in a
voice loud enough for Malone to hear it in the back of the
courtroom. The Judicial Conduct Panel found, however, that
15
No. 2018AP628-J
there was not clear and convincing evidence that the comment had
been made in an aggressive or disrespectful manner.
¶39 At the conclusion of the court session that evening,
Judge Kachinsky ran into something on his way out of the
courtroom, causing his arm to bleed. Rather than find a paper
towel to stop the bleeding, Judge Kachinsky used his pay stub
envelope. He then left the blood-stained envelope on his desk
in the municipal court office, where it would be readily
observed by M.B. The Judicial Conduct Panel found Judge
Kachinsky's explanation that this was simply a way to remind
himself to buy some bandages to place in his desk to be
unconvincing. It determined that this was an attempt either to
intimidate M.B. or to elicit sympathy from her. In either
event, it was an intentional non-verbal communication that had
nothing to do with work.
¶40 Later that same evening Judge Kachinsky sent M.B. an
email once again bringing up their relationship. The email
contained the following statements:
In short, if you want to restore a happy workplace,
the first step is to stand up on your own and not use
the Administration as a crutch. . . . I can overlook
what I consider poor judgment in handling a situation.
I cannot tolerate a weakling unwilling to have free
and open discussions with the boss (or
insubordination). (Emphasis added.)
¶41 As a result of Judge Kachinsky's ongoing actions,
Village Manager Sturgell held another meeting with him on July
26, 2017, regarding the need to keep the relationship between
Judge Kachinsky and M.B. work-related. After that meeting,
16
No. 2018AP628-J
Judge Kachinsky went to the municipal court office, dropped a
white flag he had fashioned from some office supplies on M.B.'s
desk, and said, "Here you go, I surrender, you win."
¶42 Judge Kachinsky, however, was far from ending his
campaign. In an August 21, 2017 email to a local attorney,
Judge Kachinsky falsely stated that M.B. was "looking for new
employment," that there was a personality conflict between the
two of them, and that she was not facing "imminent termination."
¶43 On September 5, 2017, Judge Kachinsky left on his desk
a mock letter announcing his resignation, on which he wrote
"refused to sign." The letter was left in a place were M.B.
would see it. The Judicial Conduct Panel found that Judge
Kachinsky did this as a subtle communication to M.B. about their
ongoing conflict.
¶44 On October 27, 2017, Judge Kachinsky wrote a letter to
M.B. reprimanding her for forwarding to Village Manager Sturgell
two emails Judge Kachinsky had written to her. The letter
stated that she was required to discuss any concerns about the
emails with him first and that her forwarding of the emails to
Sturgell had constituted going "outside the chain of command
without a good reason."
¶45 On November 2, 2017, in the presence of both M.B. and
Human Resources Manager Malone, Judge Kachinsky mentioned both
Harvey Weinstein and Bill O'Reilly. He then stated loudly, "I
don't do that crap and you should get that through your thick
head." The Judicial Conduct Panel found that the comment was
directed to both of them.
17
No. 2018AP628-J
¶46 The next day after this outburst, Judge Kachinsky sent
a letter to M.B. stating that his October 27, 2017 letter of
reprimand had been intended to be a "teaching tool to catch your
attention." The email contained the following statements:
By this time next week some things are going to happen
that will cause a lot of fire and fury at the
Municipal Building. No, I am not resigning. Just be
psychologically prepared. Have a good weekend.
The Judicial Conduct Panel found that this was not related to
the work of the municipal court. It found that the email,
including the reference to "fire and fury," was so disturbing to
M.B. and to village officials that the village police were
notified. When the village police chief interviewed Judge
Kachinsky about the email, he giggled more than once in response
to the police chief's questions.
¶47 On Saturday, November 25, 2017, Judge Kachinsky sent
yet another email to M.B., with this one bearing the subject
line "Thanksgiving Greeting." The email referenced a pre-
Thanksgiving email in which Judge Kachinsky had wished M.B. and
her family a happy holiday. Although the prior email had not
requested a reply, Judge Kachinsky scolded M.B. for ignoring
him. The email also included the following statements:
Will not spend the next 1.5 years or 5.5 years working
with someone who actively despises me. I have told
you this many times. We are approaching the end of
the line on this.
In addition, the email discussed the ongoing Judicial Commission
investigation. The email concluded with the following
statements: "There was an allegation missing from the
18
No. 2018AP628-J
additional letter from the [Judicial Commission]. Please see
attached." The attachment to the email was a picture of a
kitchen sink. At the evidentiary hearing in this proceeding,
Judge Kachinsky admitted that the email had been sarcastic in
tone.
¶48 The next day Judge Kachinsky dropped off a second
reprimand letter to M.B. The letter reprimanded M.B. for
allegedly making false statements that Judge Kachinsky was
stalking or tracking her in her complaint to the human resource
manager and village manager six months earlier. Ultimately,
after reviewing a grievance M.B. filed about the reprimand
letter, Judge Kachinsky directed that the letter be removed from
M.B.'s personnel file.
¶49 On Saturday, December 23, 2017, Judge Kachinsky wrote
a third letter of reprimand to M.B. The alleged basis for this
reprimand was M.B.'s refusal to acknowledge or return Christmas
greetings by Judge Kachinsky and her failure to respond in a
positive way to his efforts to improve workplace rapport. Judge
Kachinsky also emailed the letter to M.B.'s personal email
account. He subsequently prepared a post to his Facebook page,
in which he used a sad face emoji and made the following
comment: "Len Kachinsky was feeling sad. Few things are sadder
than a co-worker who refuses to return a Merry Christmas
greeting out of spite." The Judicial Conduct Panel found that
it was clear to readers of this post that it was directed to
M.B. since she was his only co-worker/employee.
19
No. 2018AP628-J
¶50 A meeting was held on December 28, 2017, that involved
Village of Fox Crossing Police Captain Peter DeBoer, Judge
Kachinsky, and M.B. During the meeting, Judge Kachinsky
disclosed detailed information about where M.B., her parents,
her brother, and her sister lived, as well as who was the
sister's employer and where that employer was located. Although
the disclosure of this personal information was obviously
upsetting to M.B., Judge Kachinsky continued to discuss the
detailed information. The Judicial Conduct Panel found that a
reasonable person would have understood Judge Kachinsky's
disclosures to be threatening and offensive and that M.B., in
fact, perceived them to be an effort to upset and intimidate
her.
¶51 In an email sent approximately one week later, Judge
Kachinsky disclosed additional personal details about the value
of M.B.'s home and the nature of the financing she had obtained
to purchase the home. The Judicial Conduct Panel found that
there was nothing work-related about such information.
¶52 On January 14, 2018, Judge Kachinsky sent a letter to
M.B. that he labeled as a "Letter of Counseling: Failure to Obey
Lawful Order." In the letter, Judge Kachinsky recounted that he
had asked M.B. to forward to him information she might receive
about a farewell luncheon or party for two departing village
police officers. The letter said that this had been a "lawful
order" and that her failure to forward the requested information
to him had been "disrespectful."
20
No. 2018AP628-J
¶53 Judge Kachinsky's continuing conduct toward M.B. about
what he viewed as a failure to maintain a personal relationship
led her to file a petition seeking a harassment injunction. A
Winnebago County court commissioner considered the petition and
granted a temporary injunction on February 15, 2018. The court
commissioner's oral ruling stated that "All communication moving
forward should be work-related and essential to the functioning
of the Village of Fox Crossing Municipal Court."
¶54 Judge Kachinsky's emails to M.B. continued despite the
temporary injunction. On the same day that the temporary
injunction was issued, which was a Thursday on which a court
session was to be held in the evening, Judge Kachinsky sent an
email to M.B. indicating that he wanted her to observe him in a
closed setting prior to the court session to see if he showed
any signs of impairment. Such observation was not part of
M.B.'s job. Because she was not trained to make such
assessments, she refused Judge Kachinsky's directive/request.
¶55 Two weeks later Judge Kachinsky sent an email to M.B.
with a link to a newspaper article about a dispute between a
circuit court judge and a clerk in another county. Referencing
that dispute, the email included the comment that "[i]t could be
worse." The Judicial Conduct Panel found that this email was
not necessary or pertinent to the functioning of the municipal
court.
¶56 In June 2018 a Winnebago County circuit court
conducted a de novo review of the temporary injunction. It
affirmed the harassment injunction and extended it until May 1,
21
No. 2018AP628-J
2019. During the hearing, the circuit court judge advised Judge
Kachinsky that the court was issuing an injunction "prohibiting
any conduct or contact between you and [M.B.] other than that
absolutely necessitated through the course of your employment."
The written injunction order directed Judge Kachinsky to cease
harassment of M.B., to have no contact with her outside of work,
and to have no contact with M.B.'s family members. The written
injunction further specified that "[a]ll communications between
Respondent and Petitioner shall be limited to what is necessary
to perform the functions of the Village of Fox Crossing
Municipal Court. It further explained that "[c]ommunications
related to the personal relationship or personal rapport between
Respondent and Petitioner are not included in the operation of
the court and are prohibited under this section." (Emphasis
added.)
¶57 This permanent injunction did not cause Judge
Kachinsky to cease his communications with M.B. Over a weekend
less than two weeks after the permanent injunction was entered,
Judge Kachinsky left a color poster on his desk where M.B. would
see it. The poster had a picture of the village manager's face,
with the following accompanying caption: "I am from the
government and I am here to help you. WWRD #notmetoo." The
Judicial Conduct Panel found that this was reasonably perceived
to be a communication directed toward M.B. and that it was not a
communication related to the operation of the municipal court.
¶58 At some point over that same weekend, Judge Kachinsky
posted on his desk facing M.B.'s desk a copy of a page from the
22
No. 2018AP628-J
village's personnel policy manual, entitled "Sexual Harassment."
On the page Judge Kachinsky had highlighted the word "sexual"
seven times in yellow marker. Judge Kachinsky testified at the
evidentiary hearing that he had posted the policy to educate
M.B. and to demonstrate to her that his conduct did not meet the
criteria of sexual harassment. The Judicial Conduct Panel
found, however, that M.B. had not accused Judge Kachinsky of
sexual harassment. It further found that the posting of the
policy had no demonstrated connection to the operation of the
municipal court.
¶59 When M.B. arrived at work the following Monday, July
2, 2018, she observed both the poster and the copy of the sexual
harassment policy. M.B. believed that the two documents
violated the terms of the harassment injunction. Consequently,
either she or another village employee contacted the police, who
arrested Judge Kachinsky.3
¶60 On July 11, 2018, the state filed a criminal complaint
against Judge Kachinsky. The complaint charged Judge Kachinsky
with one count of felony stalking and two misdemeanor counts of
violating a harassment injunction. Shortly before the trial in
the criminal case, the district attorney's office dropped the
two misdemeanor counts. The case proceeded to trial solely on
3 As was noted above, on July 3, 2018, this court issued an
order in its superintending and administrative authority that
prohibited Judge Kachinsky from exercising the powers of a
municipal judge.
23
No. 2018AP628-J
the felony charge. A jury found Judge Kachinsky not guilty of
that felony charge.
¶61 Based on these facts, the Judicial Conduct Panel
concluded that Judge Kachinsky had violated SCRs 60.024 and
60.03(1)5 in a number of ways.6 Supreme Court Rule 60.02
requires that a judge, in every aspect of judicial behavior,
shall "participate in establishing, maintaining and enforcing
4 SCR 60.02 provides:
An independent and honorable judiciary is
indispensable to justice in our society. A judge
should participate in establishing, maintaining and
enforcing high standards of conduct and shall
personally observe those standards so that the
integrity and independence of the judiciary will be
preserved. This chapter applies to every aspect of
judicial behavior except purely legal decisions. Legal
decisions made in the course of judicial duty on the
record are subject solely to judicial review.
5 SCR 60.03(1) provides: "A judge shall respect and comply
with the law and act at all times in a manner that promotes
public confidence in the integrity and impartiality of the
judiciary."
6 The Judicial Commission further alleged that Judge
Kachinsky's conduct toward M.B. also violated SCR 60.04(1)(d),
which requires judges, in the performance of their "adjudicative
responsibilities" to be patient, dignified, and courteous to
litigants, jurors, witnesses, lawyers, and others with whom the
judge deals in an official capacity. The Judicial Conduct Panel
did not reach a decision as to whether Judge Kachinsky's conduct
had also violated SCR 60.04(1)(d) because it would have required
briefing on the scope of a judge's "adjudicative
responsibilities" and it did not have time to receive such
briefing and to render a decision on that issue of law.
Consequently, we also do not do not decide whether Judge
Kachinsky's conduct violated SCR 60.04(1)(d). It is not
necessary that we decide that issue in this case.
24
No. 2018AP628-J
high standards of conduct and shall personally observe those
standards . . . ." Supreme Court Rule 60.03(1) requires that a
judge shall "act at all times in a manner that promotes public
confidence in the integrity and impartiality of the judiciary."
The comment to that rule recognizes that "[p]ublic confidence in
the judiciary is eroded by irresponsible or improper conduct of
judges" and that "[a] judge must avoid impropriety and the
appearance of impropriety."
¶62 Specifically, the Judicial Conduct Panel ruled that
Judge Kachinsky had violated these two rules of judicial conduct
by engaging in the following conduct, which the panel concluded
had been irresponsible and improper conduct that was unbecoming
of a judge:
• After being told on May 4, 2017, by the village's
human resource manager that he should limit
communications with M.B. to work matters and should
limit visits to the municipal court office to one time
per week, unless otherwise needed, Judge Kachinsky
sent several emails to M.B. that included personal
matters; he visited the municipal court office three
times in one week, during which he made "cat noises"
while facing M.B.'s desk and told her a story about a
dog being raped; he insisted that he needed to have a
personal friendship with M.B.; and he invited her to
participate in a non-work activity.
• Following a May 26, 2017 phone call with the village
manager and the village attorney during which he was
25
No. 2018AP628-J
again told to maintain a professional decorum at work
and to avoid contacting M.B. regarding personal
matters, Judge Kachinsky sent M.B. an email asking to
"hit the reset" button on their relationship and to
reverse her decision to "unfriend" him on Facebook.
• Following a May 30, 2017 letter from the village
manager again informing Judge Kachinsky not to engage
M.B. in communications regarding non-work matters, he
sent her emails with personal greetings, invited her
to meet outside the office, and attempted to negotiate
work rules that required a personal friendship as a
condition of her employment. He also considered
terminating her employment for her refusal to agree to
have a personal friendship at work and he publicly
posted on Facebook that her employment might be
terminated.
• Following receipt of a June 29, 2017 letter from the
village's attorney, Judge Kachinsky copied M.B. on an
email in which he referred to her as a "coward,"
lunged over her desk and asked if she was now afraid
of him, left a bloody envelope on his desk for M.B. to
see, and directly called her a "weakling."
• After receiving a July 21, 2017 letter from the
Judicial Commission that cautioned him to avoid
retaliatory conduct or witness intimidation, Judge
Kachinsky engaged in several acts of retaliatory
conduct, including reprimanding M.B. on three separate
26
No. 2018AP628-J
occasions, sent M.B. a separate "counseling letter,"
sent her the "kitchen sink" email, continued to
threaten to terminate M.B.'s employment, sent an email
to a local attorney misrepresenting that M.B. was
seeking other employment, submitted a Facebook post
that denigrated M.B. for refusing to return a
Christmas greeting, and distressed M.B. by disclosing
that he knew detailed information about her and her
family members.
• In the fall of 2017 Judge Kachinsky continued to
reject any work-related limitations on his
communications with M.B., including dropping a white
flag on her desk, sending the "fire and fury" email to
M.B., which was so disturbing to M.B. that the police
had to become involved, and scolding her for not
responding to his Thanksgiving greetings.
• After a temporary harassment injunction had been
entered against him and the court commissioner had
told him to limit communication with M.B. to work-
related matters essential to the functioning of the
municipal court, Judge Kachinsky sent M.B. the email
asking her to observe him for signs of impairment
although that was not her job, and sent her the
February 27, 2018 email that her situation could be
worse, like the dispute between the circuit court
judge and the clerk of court in another county.
27
No. 2018AP628-J
• Finally, after having the permanent harassment
injunction entered against him, which advised him that
communication about his personal relationship with
M.B. was not work-related and was prohibited, Judge
Kachinsky placed the village manager's picture and
caption on his desk and posted the village's sexual
harassment policy, with the word "sexual" highlighted
throughout.
¶63 The Judicial Conduct Panel further concluded that the
judicial code violations described above had been willful. It
therefore ruled that those violations constituted judicial
misconduct pursuant to Wis. Stat. § 757.81(4)(a).
¶64 On the other hand, the Judicial Conduct Panel
concluded that Judge Kachinsky's comment to M.B. to "cool your
jets" did not constitute a violation of SCR 60.02 or SCR
60.03(1) because there was not clear and convincing evidence
that the remark had been disrespectful courtroom conduct. It
also found that some of his other conduct did not rise to the
level of a judicial code violation.
Communications with Village Board Member
¶65 The second category of allegedly improper conduct
related to a July 14, 2017 email Judge Kachinsky sent to a
member of the village board. By the date of the email, Judge
Kachinsky had been informed that an ethics complaint had been
lodged against him with the Judicial Commission. In the email
to Village Board member Dale McNamee, Judge Kachinsky asked what
role, if any, the village board had played in lodging the ethics
28
No. 2018AP628-J
complaint and what the board knew about his interactions with
M.B. and the village management. In the email, Judge Kachinsky
stated that "if the Village is the party pursuing the complaint
to the Judicial Commission, I think the Board should consider
defunding it in closed session." In the signature block in the
email, Judge Kachinsky identified himself as a judge.
¶66 The Judicial Conduct Panel found that although he
identified himself as a judge in his email, Judge Kachinsky had
not used his title to influence any action by the village board.
Consequently, the Judicial Conduct Panel concluded that Judge
Kachinsky had not violated SCR 60.03(2), which prohibits a judge
from using the prestige of a judicial office to advance the
judge's private interests.7
Ex Parte Communication with Police Chief
¶67 On July 24, 2017, Judge Kachinsky sent an email to the
village's chief of police that referenced a pending municipal
court case involving a charge of operating a motor vehicle while
intoxicated (OWI). Judge Kachinsky sent copies of the email to
the village's attorney, to M.B., and to a police records clerk,
7 SCR 60.03(2) provides:
A judge may not allow family, social, political
or other relationships to influence the judge's
judicial conduct or judgment. A judge may not lend the
prestige of judicial office to advance the private
interests of the judge or of others or convey or
permit others to convey the impression that they are
in a special position to influence the judge. A judge
may not testify voluntarily as a character witness.
29
No. 2018AP628-J
but did not send a copy to the defendant or to any attorney
representing the defendant. In the email Judge Kachinsky
suggested that the police chief or village attorney might want
to speak with the prosecutor or police in a neighboring
jurisdiction about the status of two OWI citations issued to the
defendant in that jurisdiction. The email explained that the
number of prior OWI convictions impacts the nature of the
current OWI charge and the associated penalties, and it further
indicated that the neighboring municipality may have lost
jurisdiction over their citations.
¶68 The Judicial Conduct Panel found that this email had
been for the purpose of determining whether the citations in the
other municipality had been converted to criminal OWI offenses
by operation of law and that the email had not been an ex parte
communication about the proceeding pending in the Village of Fox
Crossing Municipal Court. The Judicial Conduct Panel stated
that the email had not given any party a procedural or tactical
advantage. It therefore concluded that the Judicial Commission
had failed to prove that Judge Kachinsky had violated SCR
60.04(1)(g), which prohibits judges from initiating, engaging
in, or considering ex parte communications about a pending
action.8 The Judicial Conduct Panel determined that the email
8 SCR 60.04(1)(g) provides:
A judge may not initiate, permit, engage in or
consider ex parte communications concerning a pending
or impending action or proceeding except that:
(continued)
30
No. 2018AP628-J
had not related to the substance of the citation pending in
Judge Kachinsky's court and that it had been sent for scheduling
and administrative purposes.
Recommendation Regarding Discipline
¶69 Having determined that Judge Kachinsky had violated
SCRs 60.02 and 60.03(1) in multiple ways in his interactions
with M.B., the Judicial Conduct Panel turned to a discussion of
the nature of Judge Kachinsky's misconduct and the appropriate
level of discipline. It noted that, as explained in the
preamble to the Code of Judicial Conduct, both SCR 60.02 and SCR
60.03(1) are phrased in general terms that set forth principles
that their specific provisions are intended to foster, and
therefore constitute touchstones against which judicial conduct
is to be measured. Preamble to SCR ch. 60. Further the
Judicial Conduct Panel stated that such code provisions require
a judge to conduct himself or herself at all times in a manner
1. A judge may initiate, permit, engage in or
consider ex parte communications for scheduling,
administrative purposes or emergencies that do not
deal with substantive matters or issues on the merits
if all of the following conditions are met:
a. The judge reasonably believes that no party
will gain a procedural or tactical advantage as a
result of the ex parte communication.
b. When the ex parte communication may affect the
substance of the action or proceeding, the judge
promptly notifies all of the other parties of the
substance of the ex parte communication and allows
each party an opportunity to respond.
31
No. 2018AP628-J
that maintains the trust and confidence of the public in the
judicial system. See In the Matter of the Complaint Against
Seraphim, 97 Wis. 2d 485, 510, 294 N.W.2d 485 (1980) ("When a
judge, either in his official capacity or as a private citizen,
is guilty of such conduct as to cause others to question his
character and morals, the people not only lose respect for him
as a man, but lose respect for the court over which he presides
as well."). Consequently, the Judicial Conduct Panel considered
the degree to which the judge's personal conduct was indicative
of the judge's lack of respect for the legal system. Comment to
SCR 60.03(1).
¶70 The Judicial Conduct Panel stated that in this case,
it took "little discussion to conclude that Judge Kachinsky's
conduct toward [M.B.] was such that it would cause persons to
question his character and even more so, lose respect for his
willingness and ability to comply with and enforce restrictions
that make this a society of laws and justice rather than one of
selfish indulgence for a person's own desires." The Judicial
Conduct Panel stated that despite numerous interventions and
directives by not only village representatives, the police, a
circuit court commissioner, and a circuit court judge, Judge
Kachinsky persisted in engaging in conduct contrary to those
directives and "was driven solely by his own myopic view of what
his work relationship with [M.B.] should be." It further
explained that Judge Kachinsky was charged with knowledge of the
ethical code applicable to judges and that his violations of the
32
No. 2018AP628-J
code had been willful because they had been freely done in the
absence of any duress or coercion.
¶71 With respect to the appropriate level of discipline,
the Judicial Conduct Panel properly stated that the discipline
imposed on a judge should be responsive to the gravity of the
judge's misconduct and sufficient to protect the public from
unacceptable judicial behavior, given the seriousness of the
misconduct and the likelihood of its recurrence. See, e.g., In
re Judicial Disciplinary Proceedings Against Gorenstein, 147
Wis. 2d 861, 873, 434 N.W.2d 603 (1989); In re Judicial
Disciplinary Proceedings Against Aulik, 146 Wis. 2d 57, 77, 429
N.W.2d 759 (1988).
¶72 The Judicial Conduct Panel found Judge Kachinsky's
misconduct to be aggravated. It noted that Judge Kachinsky had
engaged in a pattern of multiple violations of the Code of
Judicial Conduct that had occurred over an extended period of
time. Further, Judge Kachinsky had repeatedly refused to modify
his conduct, although numerous individuals and even judicial
officials had told him that he needed to do so. The Judicial
Conduct Panel further found that Judge Kachinsky had used his
position as M.B.'s supervisor to satisfy his own personal
desires for more than a work relationship with M.B. Finally,
although the misconduct had occurred outside of the courtroom,
it had occurred within the municipal court office, and the
effect of his misconduct, including his disregard for directives
given to him, had seeped into the administration of the village
33
No. 2018AP628-J
and had created a public dispute, which had damaged the public's
respect for the judiciary.
¶73 The Judicial Conduct Panel determined that Judge
Kachinsky's misconduct was similar in nature and degree to that
found in In the Matter of the Complaint Against Van Susteren,
118 Wis. 2d 806, 815, 348 N.W.2d 579 (1984). In that case Judge
Van Susteren had engaged in personal conduct (refusing to comply
with a court order to probate his brother's estate) that had
showed a "disdain, if not outright contempt, for the very system
which he, as a judge, has sworn to administer." Id. This court
ultimately suspended Judge Van Susteren for a period of two
years as discipline for his misconduct. Similarly, Judge
Kachinsky had disregarded directives and showed a disdain for
systems put into place to avoid harassment in the workplace.
¶74 The Judicial Conduct Panel further compared Judge
Kachinsky's persistence in engaging in his misconduct to the
Gorenstein case. In that matter, Judge Gorenstein was found to
have repeatedly made insulting and offensive comments from the
bench to litigants, witnesses, and attorneys, as well as to have
made false statements about a state mental health facility and
its staff. 147 Wis. 2d at 862-63. The judicial conduct panel
in that case determined that Judge Gorenstein had committed
judicial misconduct on an "aggravated and persistent basis" by
"permitting his personal concept of justice to override the law,
administering his office without due regard to the integrity of
the legal system, [and] being intemperate and impatient." Id.
at 863. Although Judge Gorenstein had retired from his judicial
34
No. 2018AP628-J
office before the commencement of the judicial disciplinary
proceeding, this court suspended him from serving as a judge for
a period of two years. Id. at 863, 875.
¶75 The Judicial Conduct Panel found that Judge Kachinsky,
like Judge Gorenstein, had repeatedly allowed his personal
perceptions (about the nature of his relationship with the
municipal court manager) to interfere with his responsibilities
as a judge, although not to the same degree that Judge
Gorenstein had.
¶76 Ultimately, although it recognized that Judge
Kachinsky's term as the Village of Fox Crossing Municipal Judge
was about to expire on April 30, 2019, the Judicial Conduct
Panel stated that his removal from active judicial service did
not insulate him from discipline. See In the Matter of the
Complaint Against Sterlinske, 123 Wis. 2d 245, 258, 365
N.W.2d 876 (1985). Given that Judge Kachinsky's years of
service as a municipal judge would make him eligible to be
appointed as a reserve municipal judge under Wis. Stat.
§ 800.065, the Judicial Conduct Panel recommended that this
court suspend him from eligibility for service as a reserve
municipal judge for a period of at least one year and not more
than three years. It also recommended, in light of Judge
Kachinsky's persistent and aggravated conduct toward M.B., that
he be ineligible to serve as a reserve municipal judge in the
Village of Fox Crossing Municipal Court for as long as M.B. was
employed as the manager for that court.
35
No. 2018AP628-J
Judge Kachinsky's Response to the Judicial Conduct Panel's
Report
¶77 In light of the fact that Judge Kachinsky had already
been prohibited from exercising the powers of a municipal judge,
we modified the review process generally applicable to judicial
conduct proceedings to require the parties to submit
simultaneous opening and response briefs.
¶78 As the Judicial Commission objected only to the level
of discipline recommended by the Judicial Conduct Panel, we
focus on the arguments made in Judge Kachinsky's briefs.
¶79 Judge Kachinsky's primary argument is that the
Judicial Conduct Panel based its report on the erroneous
assumption that the village's Manager, Human Resources Manager,
and attorney had authority to regulate his interaction with the
municipal court manager. He asserts that those individuals had
no authority to interfere with his supervision of his clerk. He
points to Wis. Stat. § 755.10(1), which provides that a
municipal judge is to appoint the clerk and other personnel
authorized by the municipal counsel or board and that the
hiring, termination, hours of employment, and work
responsibilities of the court personnel are to be subject to the
municipal judge's authority. Judge Kachinsky asserts that
although the statute does not explicitly state that a municipal
judge is the supervisor of the municipal court clerk, the
statutory designation of the municipal judge as having authority
over hiring, termination, and work responsibilities gives the
municipal judge the usual responsibilities of a supervisor to
36
No. 2018AP628-J
oversee, motivate, evaluate, and correct the performance of the
municipal court clerk. As further support for this proposition,
Judge Kachinsky cites the Legislative Reference Bureau's
analysis of 2009 Senate Bill 383 (ultimately enacted as 2009
Wisconsin Act 402), which referenced a municipal judge's
"supervisory authority" in the context of stating that such
authority was a prohibited subject of collective bargaining.
¶80 In light of his supervisory authority as the municipal
judge, Judge Kachinsky argues that no other authority (except
for a higher court) could interject itself into his supervision
of court personnel. He frames this essentially as a separation
of powers problem, stating that having created the municipal
court as a co-equal branch of government, the village was
obligated to recognize the independence of the municipal court
as a co-equal branch of government. Thus, he asserts that the
village had no authority to monitor his in-person conversations
with M.B. to "protect" her from the possibility of physical or
emotional abuse, which he says, in any event, never occurred or
was likely to occur. Because the village lacked any authority
to interfere with his supervision of M.B., Judge Kachinsky
contends that he had no obligation to follow the directives of
the village's representatives and cannot be disciplined for
having failed to do so.
¶81 Judge Kachinsky makes clear in his opening brief that
he viewed his conduct toward M.B. as mere supervision of a
resistant employee in an effort to "restore a level of personal
rapport," which he continues to believe was a legitimate and
37
No. 2018AP628-J
laudable objective that is necessary for a workplace to perform
effectively. While he acknowledges that not everyone may agree
with how he tried to accomplish that goal, he argues that he was
free to accept or reject any "directives" issued by village
representatives. Indeed, he contends that he was also free to
accept or reject M.B.'s request to avoid any communications that
might be construed as personal by her.
¶82 We need not decide the separation of powers issue
raised by Judge Kachinsky. Whether or not he was legally
obligated to abide by the directives given by representatives of
the village, he was obligated by the relevant provisions of the
Code of Judicial Conduct to maintain high standards of personal
conduct and to act in a manner that promotes the integrity of
the judiciary. We fail to see how staring at a court employee
for 45 minutes while tapping a pencil and making cat noises
constitutes the maintenance of high standards of personal
conduct or promotes the integrity of the judiciary. Indeed, it
does just the opposite. Serving the people as a judicial
officer does not allow a judge to impose his/her every opinion
about personal interactions on subordinate court personnel or to
force those subordinates to be the judge's personal friends.
Judges are entitled to ensure that their subordinate employees
perform their work responsibilities in appropriate manners.
Judge Kachinsky's pattern of obsessive conduct about whether
M.B. liked him as a friend clearly passed well over the line and
brought the municipal court he administered into public
disrepute. His repeated conduct led not only to the public
38
No. 2018AP628-J
entry of both temporary and permanent harassment injunctions
against him, but ultimately resulted in his arrest and the
lodging of criminal charges against him. While he was acquitted
of the single felony charge that the district attorney chose to
take to trial, the lack of a criminal conviction on that single
charge does not mean that he is innocent of any ethical
violations. The notoriety that resulted from his insistence
that M.B. had to be not only his court clerk, but also his
friend, certainly caused the residents of the Village of Fox
Crossing who appeared in his court to question whether he had
the temperament and stability to preside over their cases in a
proper manner. Ultimately, we need not review every action in
the lengthy summary of Judge Kachinsky's interactions with M.B.
We agree with the Judicial Conduct Panel that Judge Kachinsky's
interactions with M.B., as found by the Judicial Conduct Panel,
apart from his comment to her to "cool your jets," constituted
violations of SCRs 60.02 and 60.03(1).
¶83 Judge Kachinsky also objects to the Judicial Conduct
Panel's findings that certain of his actions were meant to
intimidate M.B. or to retaliate against her for reporting his
conduct. He argues that the Judicial Conduct Panel's findings
in this regard were erroneous because his actions did not meet
the definition of "retaliation" under federal employment law.
We do not read the Judicial Conduct Panel's findings, however,
as constituting legal conclusions that Judge Kachinsky had
violated federal employment statutes or case law. We read the
Judicial Conduct Panel's comments about Judge Kachinsky's
39
No. 2018AP628-J
retaliatory actions in the vernacular sense. Whether or not a
judge's retaliatory conduct would be actionable under federal
employment law, a judge should not engage in retaliation against
subordinates who simply wish to limit their workplace
interactions to work-related topics. Reprimanding a subordinate
employee for not returning a Christmas greeting does not
demonstrate the maintenance and promotion of high standards of
conduct or create public confidence in the integrity of the
judge issuing such a petty reprimand.9 M.B. was required to
process case files and deal with the public as a manager of the
municipal court, not to satisfy Judge Kachinsky's personal
opinion that employees must also be personal friends.
¶84 Judge Kachinsky's brief also asserts that some of the
Judicial Conduct Panel's findings of fact were clearly
erroneous. The brief then goes through the numbered findings as
if it were an answer to a complaint. Most of the paragraphs
state either that Judge Kachinsky agrees with the particular
finding or that there was sufficient support for the finding in
the record. Judge Kachinsky does offer comments that attempt to
9 In his opening brief, Judge Kachinsky acknowledges that
his public Facebook post criticizing M.B. for not returning his
Christmas greeting "could be regarded as public venting that was
conduct below the high standards of a judge," but he asserts
that it was not retaliatory or intimidating. [Kachinsky opening
br. at 24] The rule at issue in this case, however, did not
require that the conduct be retaliatory or intimidating to be a
violation. Judge Kachinsky's focus on the elements of
retaliatory conduct under federal employment law is therefore
misplaced in this proceeding.
40
No. 2018AP628-J
explain his actions, but that does not render the Judicial
Conduct Panel's findings of fact clearly erroneous. We have
reviewed Judge Kachinsky's comments and find that he has failed
to prove that the findings of fact are clearly erroneous.
¶85 Next Judge Kachinsky contends that his email to M.B.
about the dispute in a circuit court in another county and his
posting of a copy of the village's sexual harassment policy did
not violate the harassment injunction against him, which he
contends was not as clear as the Judicial Conduct Panel
believed. Again, we need not decide whether or not those
actions legally constituted violations of the harassment
injunction, as we are not reviewing an appeal from the
harassment injunction proceeding. In this matter we are
reviewing whether Judge Kachinsky's actions constituted
violations of the Code of Judicial Conduct. Even if, arguendo,
those actions would not be determined to be violations of the
specific terms of the harassment injunction, we have no problem
in concluding that they constituted violations of the relevant
supreme court rules.
¶86 Finally, we turn to the matter of the appropriate
level of discipline. Judge Kachinsky argues that the Judicial
Conduct Panel's reliance on other precedents is flawed. He
asserts that his misconduct did not involve flouting clear-cut
legal obligations, making direct threats, or belittling M.B. He
contends that there were incidents in which the tension he felt
due to the conflict with village representatives boiled over
into inappropriate comments, emails, or Facebook posts, which he
41
No. 2018AP628-J
categorizes as demeanor violations. He suggests that an
appropriate level of discipline for the relatively minor
demeanor violations that he admitted would be a nine-month
suspension, following which he would be eligible for appointment
as a reserve municipal judge in the discretion of the chief
judge of the judicial administrative district.
¶87 On the other hand, the Judicial Commission also
factually distinguishes the cases cited by the Judicial Conduct
Panel, but from the opposite perspective. It contends that
there really has not been a comparable judicial disciplinary
case in this state. It argues that Judge Kachinsky's violations
were so numerous and so serious that he should be permanently
barred from eligibility for reserve municipal judge status.
¶88 As is the case in most attorney and judicial
disciplinary proceedings, there is no case with identical facts
and rule violations. We view this matter, however, as involving
serious misconduct. While his misconduct did not involve the
performance of his judicial duties in the courtroom, it did
occur in the context of the operation of the court over which he
had been elected to preside. Although he claims that he was
merely attempting to foster an environment that would be best
for the operation of the municipal court, it is clear from his
actions that he was intent on forcing M.B., his subordinate, to
comply with his personal desire that M.B. should also be his
personal friend—someone who would discuss life experiences with
him, engage in activities that he favored, and conform to what
he viewed as proper friend etiquette, such as exchanging holiday
42
No. 2018AP628-J
greetings. Even if his intentions had been to benefit the
municipal court, the effect of his behavior was the opposite.
His actions, which cannot be dismissed as merely odd or quirky,
caused real harm both to the particular staff member (by causing
her fear, discomfort, and considerable stress) and to the
effective operation and public standing of the municipal court.
His actions also negatively affected the village as a whole,
which had to mediate between him and M.B., a village employee.
¶89 In the end, we agree with the Judicial Conduct Panel
that, in light of the fact that Judge Kachinsky is no longer an
active municipal court judge, an appropriate form of discipline
for his misconduct would be to suspend his eligibility to serve
as a reserve municipal judge. While we recognize that there are
factual differences with both Van Susteren and Gorenstein, we
conclude that Judge Kachinsky's misconduct has some similarities
to the misconduct in those cases and warrants a substantial
period of suspension. We therefore suspend Judge Kachinsky's
eligibility for appointment as a reserve municipal judge for a
period of three years. In light of our July 3, 2018
superintending order prohibiting Judge Kachinsky from exercising
the powers of a municipal judge, we make the suspension
retroactive to the date of that order. In addition, because
Judge Kachinsky's misconduct demonstrates that he currently
lacks the judicial temperament and the insight into his actions
that are required for a judge to preside over and manage a
court, we also require him to petition this court and
successfully demonstrate to us that he is fit to serve as a
43
No. 2018AP628-J
reserve municipal judge before he may request an appointment to
serve as a reserve municipal judge from the chief judge of the
applicable judicial district.10
¶90 IT IS ORDERED that Leonard D. Kachinsky is suspended
from eligibility for appointment as a reserve municipal court
judge for a period of three years, commencing July 3, 2018.11
¶91 IT IS FURTHER ORDERED that before Leonard D. Kachinsky
may request appointment as a reserve municipal court judge by
the chief judge of the applicable judicial administrative
district under Wis. Stat. § 800.065, he must first file a
petition with this court and demonstrate through appropriate
evidence his fitness to serve as a reserve municipal court
judge.
10
Judge Kachinsky may not file such a petition in this
court until the three-year period of suspension has expired. We
also note that even if this court would find at that time that
Judge Kachinsky had demonstrated his fitness to serve once more
as a reserve municipal judge and would therefore grant his
petition, the chief judge of the applicable judicial
administrative district would still have discretion under Wis.
Stat. § 800.065 regarding whether to appoint him as a reserve
municipal judge.
11
In light of the resolution of this judicial disciplinary
proceeding, we terminate the prohibition that we placed on Judge
Kachinsky's exercise of the powers of a municipal judge in our
July 3, 2018 order issued under our superintending and
administrative authority over the courts of this state.
44
No. 2018AP628-J
1