Disciplinary Counsel v. Stuard
901 N.E.2d 788, 121 Ohio St. 3d 29 (2009)
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Rule of Law:
A judge who engages in ex parte communication by delegating the drafting of a substantive judicial opinion to one party's counsel commits professional misconduct, as does the counsel who participates in preparing the opinion without the knowledge or consent of the opposing party.
Facts:
- Judge John M. Stuard presided over the capital murder trial of Donna Roberts, who was prosecuted by Christopher D. Becker and Kenneth N. Bailey.
- After a jury found Roberts guilty and recommended a death sentence, Judge Stuard privately asked prosecutor Becker to prepare the court's official sentencing opinion.
- Judge Stuard provided Becker with two pages of his personal notes on aggravating circumstances and mitigating factors to incorporate into the opinion.
- Becker drafted a 17-page sentencing opinion, which his co-counsel, Bailey, reviewed for editorial suggestions.
- Becker incorporated the suggestions and delivered the corrected draft back to Judge Stuard, who adopted it as his own.
- The entire process of drafting the opinion was conducted ex parte, without the knowledge, consent, or participation of Roberts's defense counsel.
- During the sentencing hearing, defense counsel discovered the collaboration by observing Becker appearing to silently read along from a document as Judge Stuard read the sentencing opinion from the bench.
Procedural Posture:
- Relator, Disciplinary Counsel, filed complaints with the Board of Commissioners on Grievances and Discipline against Judge Stuard, Christopher Becker, and Kenneth Bailey.
- The cases were consolidated and heard by a panel of the board.
- The panel found that Judge Stuard and Becker had committed ethical violations and recommended that each receive a public reprimand.
- The panel also recommended the dismissal of all charges against Bailey.
- The full Board of Commissioners on Grievances and Discipline adopted the panel's findings of fact, conclusions of law, and recommendations, referring the matter to the Supreme Court of Ohio for a final ruling.
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Issue:
Does a judge's ex parte request for a prosecutor to draft a death penalty sentencing opinion, and the prosecutor's compliance with that request, constitute professional misconduct warranting discipline?
Opinions:
Majority - Per Curiam
Yes. A judge engaging in ex parte communications by asking a prosecutor to draft a sentencing opinion, and the prosecutor who complies, both commit professional misconduct. The court found clear and convincing evidence that Judge Stuard violated Canons 2 and 3(B)(7) of the Code of Judicial Conduct, which demand that a judge act with integrity and refrain from ex parte communications on substantive matters. The court also found that Becker violated Disciplinary Rules 1-102(A)(5) and 7-110(B) by engaging in conduct prejudicial to the administration of justice and communicating ex parte with a judge. The court referenced its prior decision in the underlying criminal case, State v. Roberts, where it held that the judge committed prejudicial error by delegating responsibility for the sentencing opinion and described the collaboration as 'wholly inconsistent' with ethical constraints. The charges against Bailey were dismissed as his involvement was limited to editorial review and did not involve communication with the judge.
Analysis:
This decision strongly reaffirms the fundamental principle of judicial neutrality and the strict prohibition against ex parte communications on substantive matters. It clarifies that delegating a core judicial function, such as drafting an opinion, to an advocate for one party is a serious ethical breach that undermines public confidence in the judiciary. The case serves as a crucial precedent for both judges and attorneys, warning that even an established 'informal practice' of seeking assistance from one side is impermissible if it excludes the opposing party. The imposition of public reprimands, rather than a more severe sanction, indicates that mitigating factors like a clean disciplinary record and cooperation in the proceedings can influence the severity of the punishment.
