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Disciplinary Counsel v. O'Neill9/7/2004
-year suspension with 18 months stayed. That sanction would not take away respondent's ability to earn a livelihood but would still provide her an opportunity to obtain counseling and to further develop the qualities that would allow her to continue to be an asset to the judiciary and bar. Respondent has been twice elected to the common pleas bench by the voters of Franklin County. It seems strange to me that we often show more compassion to attorneys and judges who break the law than we seem to be showing here.
{ } However, particularly because I believe that Count V is a serious infraction, I believe that respondent should be suspended for two years with the second year stayed upon conditions. I am hopeful that, with the satisfaction of those conditions, respondent can return as a valued member of the legal profession after serving the first year of her suspension.
PFEIFER, J., concurring in judgment only.
{ } I concur in judgment only because I have several concerns about this case. Judge Puffenberger's dissent from the report and recommendation of the board so well articulates my concerns that I herein incorporate his entire dissent, except for his recommended sanction.
{ } "The extensive allegations presented in this complaint are far reaching in substance and, in many instances, require Respondent to justify judicial determinations made many years before. This Board must be cautious not to infringe upon areas of our legal system wherein our judiciary has traditionally been granted extensive discretion in making judicial determinations. Inappropriate actions of one member of the judiciary must not be sanctioned in a manner that would have a 'chilling effect' on judges who may sometimes utilize methods which may be perceived as 'unconventional'. Judges are constantly making split second decisions in the courtroom and sometimes their motives for making these determinations can be placed in question. Our legal system has acknowledged this and provides proper avenues of recourse outside the disciplinary process. To require our judges to be placed under oath in a disciplinary setting and explain why a judicial determination was made is foreign to our legal system. In situations where the judicial determination was made years earlier, that task of explaining why the decision was made can be nearly impossible.
{ } "While it is not my intention to review the panel report case by case, I will generally address each of the counts in the Amended Complaint and conclude by formulating a more generalized dissent to both the findings and the recommendation.
{ } "In reviewing each of the Counts in the Amended Complaint, the Board must apply the standard of whether the violations have been proven by clear and convincing evidence. This is a high standard to meet and is more than a simple preponderance of the evidence.
{ } "In Count I, the panel report finds that Respondent engaged in ex parte communications. In Nezvalova, Disciplinary Counsel clearly failed to establish that the conversations were ex parte in nature. No one gained a procedural or tactical advantage as a result of the conversation which was administrative in nature. Two distinguished judges, Judge Corzine and Judge Parrott, testified that this was not an ex parte conversation. Likewise, the conversation in Smiley was administrative in nature and Judges Corzine, Parrott and former Judge Tracey testified that conversations such as this are not uncommon. Certainly the clear and convincing standard was not met to establish that any ex parte communications even occurred unless one were to totally disbelieve the testimony of not only Judge O'Neill, but also the testimony of Judge
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