A former member of a state disciplinary board that hears complaints against judges and lawyers said how the board dismissed a complaint against a Clark County common pleas judge was rare but not unheard of.
Judge Douglas Rastatter was cleared of wrongdoing earlier this month after a two-day hearing when his attorneys asked for two of the six counts to be dismissed. The panel instead dismissed the entire case, which included allegations of failing to uphold the integrity of the judiciary.
Michael E. Murman, a private practice attorney with Murman & Associates in Lakewood, was a member of the Board of Grievances and Discipline at the Ohio Supreme Court from 2001 to 2003 and has since argued cases before the panel.
Even if there is enough in the complaint to constitute a violation, disciplinary panels can exercise discretion for judges who they feel are not likely to put themselves in similar situations again, Murman said.
“Our job is to protect the public from lawyer and judge misconduct. If it’s not necessary … what would be the point of sending this to the Supreme Court? It’s not about punishing lawyers and judges. Sanctions are a way to protect the public and the legal system,” Murman said.
Murman said Rastatter’s testimony and demeanor could have suggested to the panel that he had learned from mistakes.
He also said the friction with local defense attorneys Richard Mayhall and John R. Butz, who initiated the 13-page complaint, may have also played a role in the dismissal.
Disciplinary action against judges is rare in Ohio. For example, only four judges have been disbarred in more than 50 years.
Since 2007, less than 20 judicial misconduct cases have been filed with the Ohio Supreme Court, compared to more than 500 cases involving attorneys.
During that time, 10 judges have faced sanctions ranging from a public reprimand to disbarment. And each year, it’s estimated that only a handful of cases that have been brought before a state disciplinary panel involving lawyers and judges get dismissed.
In a six-count complaint, the Ohio State Bar Association accused Rastatter of violating a number of laws governing judges, including failing to follow the law and engaging in conduct prejudicial to the administration of justice.
Panelists Charles Coulson of Lake County, David Tschantz of Wayne County and Lynn Jacobs of Lucas County dismissed the case, citing insufficient evidence.
Afterward, Coulson, who led the panel, offered Rastatter support and admonished the appeals court.
“All of your responses with the court of appeals, I think they were correct. And some of their opinion language, I think, was inexplicable,” Coulson said.
Rastatter’s attorney, George Jonson, who has represented lawyers and judges accused of misconduct for years, asked the panel to dismiss two of the six charges.
“I wanted to ask for them to dismiss the whole thing, but I didn’t want to be greedy,” Jonson joked afterward.
Jonson said allegations of misconduct can sound serious but added that complainants must prove their case.
“They didn’t present any evidence that got them to clear and convincing standards,” Jonson said.
Rastatter held Butz and Mayhall in contempt and fined $2,000 after a 2006 capital murder trial in which the attorneys were accused of “manipulating the court” and trying to get the judge off the case.
The contempt charges were later reversed, but Mayhall said he began keeping records of Rastatter’s reversals and accusations of misconduct by other attorneys.
Rastatter’s opponents portrayed him during the disciplinary hearing as vindictive, biased, rude and disrespectful to attorneys, and ruling without regard to the law and higher courts.
His attorneys, Jonson and Lisa Zaring, however, said Rastatter had simply made mistakes as he struggled to make the transition from an assistant Clark County prosecutor to judge after he took the bench in January 2005.
Rastatter denied all misconduct charges, but admitted to struggling early in his career as judge.
When he was elected, he said his goal was to run a more efficient court, require directness and candor from all parties, and offer no-nonsense and “just grind out justice.”
He denied wrongdoing when asked about a confrontation with Mayhall and Butz during the capital murder case that led to the contempt charge against the two and which in part lead to the reversal of the death sentence Rastatter imposed on their client.
“I think they manipulated some evidence in order to judge-shop … and have the case sent to the only other judge that would hear a capital case. I didn’t know what I was going to do. I had more serious matters at hand, and that was the capital case,” Rastatter testified.
“I had not formed an opinion about the contempt charge. I don’t think I ever used the word contempt. I may have after they brought it up.”
Attorneys appointed by the bar association Laurence Turbow and Amelia Bower called other attorneys, including assistant prosecutor William Merrell and John Paul Rion of Dayton, who also feuded with Rastatter.
Rion accused Rastatter of “feigning” memory loss in a case in which he, the judge and a prosecutor agreed his client would remain free on bond as part of a plea agreement.
His client was found guilty, ordered to jail and Rastatter refused to meet with Rion and the prosecutor afterward, said Rion, who was later held in contempt and fined $500.
“I never made that agreement,” Rastatter testified.
He said in retrospect he should have talked to Rion and the prosecutor, but testified that he refused to speak with them then because “I wasn’t amenable to reconsidering my decision.”
Murman said judges are typically sanctioned for personal misconduct or misconduct in office or on the bench.
“To be disbarred a judge has to be involved in a crime,” Murman said.
Highland County Common Pleas Court Judge Jeffrey Hoskins was permanently disbarred by the Ohio Supreme Court in 2008, becoming the fourth judge to be disbarred in 50 years, according to The Columbus Dispatch.
Hoskins was disbarred for his dealings with a con artist that started with a $25,000 loan when he was that man’s attorney. After taking the bench, Hoskins devised a schemed to get the money back by convincing the con man to buy a building he had an interest in at an inflated price.
Other judges who have sanctioned include: Mason Municipal Court Judge George Parker, who in 2007 was suspended 18 months with six months stayed after he was charged with 31 counts of misconduct, including riding along on an arrest on a case he would preside over later.
Former Xenia Municipal Court Judge Susan Goldie received a public reprimand for imposing jail sentences “in flagrant disregard for the law.”
Van Wert Municipal Court Judge Phil Campbell was suspended for 12 months with six months stayed in 2010 for improperly questioning witnesses in a police investigation, pressuring the city law directors secretary to give him criminal investigation files compelling the Van Wert mayor to appear in his courtroom for questioning about an administrative matter and other violations.
Sanctions are pending against Massillon Municipal Court Judge Edward Elum who was accused of using foul language and addressing a man who was not following the condition of his probation without an attorney or prosecutor present.
Elum also ordered evidence in a case involving a police officer, which included lewd photographs and texts messages, be turned over to the court without providing a judicial reason.
“The (board) has not hesitated to impose discipline on judges. We would hope that judges could be saints, but that would be unrealistic,” Murman said.
“(Misconduct and disciplinary action) happen because judges are human. Fortunately, it doesn’t happen that frequently.”