Disciplinary Counsel v. Hunter , 2023 Ohio 4168 ( 2023 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Hunter, Slip Opinion No. 2023-Ohio-4168.]
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. 2023-OHIO-4168DISCIPLINARY COUNSEL v. HUNTER.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Hunter, Slip Opinion No.
2023-Ohio-4168.]
Judges—Misconduct—Felony conviction—Violations of Code of Judicial Conduct,
including permitting family, social, political, financial, or other interests or
relationships to influence the judge’s judicial conduct or judgment—
Indefinite suspension, with credit for time served under interim felony
suspension.
(No. 2023-0472—Submitted June 28, 2023—Decided November 21, 2023.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2022-037.
______________
DONNELLY, J.
{¶ 1} Respondent, Tracie M. Hunter, of Cincinnati, Ohio, Attorney
Registration No. 0061225, was admitted to the practice of law in Ohio in 1993. She
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served as a judge of the Hamilton County Court of Common Pleas, Juvenile
Division, from May 2012 until January 2014, when she was indicted by a Hamilton
County grand jury.
{¶ 2} Hunter’s indictment was based on conduct that she had allegedly
undertaken in her role as a juvenile-court judge. On October 14, 2014, a jury
returned a guilty verdict on a single count of having an unlawful interest in a public
contract in violation of R.C. 2921.42(A)(1), a fourth-degree felony. The court
sentenced Hunter to six months in jail followed by one year of nonreporting
probation and ordered her to pay the court costs.
{¶ 3} On October 21, 2014, we suspended Hunter from the practice of law
on an interim basis based on her felony conviction. See In re Hunter, 141 Ohio
St.3d 1212, 2014-Ohio-4667, 21 N.E.3d 1070. That suspension remains in effect.
{¶ 4} After Hunter’s state appellate and federal habeas corpus efforts to
overturn her conviction failed, relator, disciplinary counsel, filed a complaint in
August 2022 alleging that the conduct underlying Hunter’s criminal conviction
violated five rules of the Code of Judicial Conduct. Following a hearing, a three-
member panel of the Board of Professional Conduct issued a report in which it
found that Hunter had committed the charged misconduct and recommended that
Hunter be indefinitely suspended from the practice of law with credit for the time
she had served under her interim felony suspension. The board adopted the panel’s
findings of fact, conclusions of law, and recommended sanction.
{¶ 5} Hunter objects to the board’s report and recommendation and asks
that the complaint be dismissed, that the board’s findings and recommendations be
set aside, and that she be immediately reinstated to the practice of law. For the
reasons that follow, we overrule Hunter’s objections and adopt the board’s findings
of misconduct and aggravating and mitigating factors and its recommended
sanction.
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I. MISCONDUCT
A. The Board’s Findings of Misconduct
{¶ 6} The facts underlying Hunter’s conviction are set forth in the opinion
of the First District Court of Appeals affirming that conviction. The court of
appeals stated:
The [state] alleged that [Judge] Hunter had an unlawful
interest in a public contract, in violation of R.C. 2921.42(A)(1).
According to the testimony presented during trial, the charge
stemmed from the termination proceedings against [Stephen]
Hunter, an employee of the Hamilton County Juvenile Court’s
Youth Center (“Youth Center”) and Hunter’s brother.
[Stephen] Hunter was employed as a juvenile corrections
officer. On July 7, 2013, [Stephen] Hunter was involved in an
incident in which he was alleged to have hit a youth in the intake
department of the detention center. As a result of that incident,
Dwayne Bowman, the superintendent of the Youth Center,
recommended that the court terminate [Stephen] Hunter and that a
hearing be scheduled for that purpose.
[Stephen] Hunter was informed of the decision on July 25,
2013. Shortly after 10:30 that evening, [Judge] Hunter sent an email
to all employees of the Youth Center in which she identified a
number of safety concerns, which she said had been brought to her
attention as a result of an email she had sent out previously. She
said that she would schedule a closed meeting to discuss the issues
with the corrections officers.
Bowman testified that the email was troubling. He said that
he was concerned that the email “would cause confusion with the
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staff at the youth center. Mr. Hunter’s termination process was still
occurring and [he believed] that it could jeopardize that process.”
Bowman noted that many of the items on [Judge] Hunter’s list
echoed the main explanations that [Stephen] Hunter had given for
his actions during the July 7 incident, suggesting that the email was
Hunter’s way of inserting herself into the proceedings. Brian Bell,
assistant superintendent of the Youth Center, had similar concerns,
testifying that he felt that “she was going to speak to the residents
about it to conduct basically her own investigation.”
On July 29, 2013, Hunter sent an email to Bowman in which
she requested that he send her a number of documents [concerning
the youth her brother had allegedly struck]. The email demanded
“copies of all incident reports related to [the youth] and any and all
JCOs [junior correctional officers] involving [the youth] and other
staff, prior or subsequent to alleged incident with JCO Hunter.
“All incidents reported during any time frame that [the
youth] was detained at the Youth Center, shall be included.
“Please provide copies of all drug tests performed of [the
youth] during all times at Youth Center. Medical reports of any
positive drug tests shall also be included, including the substances
detected.
“Please forward all copies of all incidents reported involving
[the youth] with police.”
Bowman replied by asking [Judge] Hunter if she wanted
only the incident reports, or if she also wanted “other documents
related to [the] investigation.” Bowman testified that he had asked
that clarifying question because Hunter was requesting
documentation that was “above and beyond the information that we
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would normally provide to someone not directly involved in the
investigation or someone from the investigative team.” He was
concerned at that point and was “trying to protect the integrity of the
disciplinary process, of the investigation, * * * and also to give the
judge the opportunity to clarify that she was not asking for that kind
of information, but just the information of the incident.” Rather than
restraining her query, Hunter replied that she wanted “all
documentation of every incident and every employee pertaining to
[the youth] during his stay at the Youth Center * * *.”
Bowman testified that this exchange was very stressful for
him. He said that he was greatly concerned because “[i]t was
something that [he] had not experienced before for a judge to be
directly involved in an incident there at the Youth Center. Certainly
the fact that this was the brother of the judge.” Likewise, Bell
testified that he had never seen a judge directly involved in the
disciplinary process of a Youth Center employee. According to
Bell, the types of documents provided to [Judge] Hunter would not
have been provided to an employee under any circumstances.
Bowman provided the documents to [Judge] Hunter that day.
[Stephen] Hunter testified that [Judge] Hunter then provided the
documents to him, which he in turn brought to his attorney that
evening. His attorney testified that she only accepted some of the
documents. His attorney testified that she refused to accept some of
the documents because it would have been “unethical” for her to
take them and that she was “concerned that [she] might have to make
an ethical report to the Supreme Court about the person that gave
him” the documents.
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The next morning, [Stephen] Hunter appeared with his
attorney for the hearing. Bell testified that, under normal
circumstances, the first hearing is continued because the employee
receives his discovery packet at the first hearing and usually requires
time to review the documents. [Stephen] Hunter’s counsel was able
to proceed with the hearing that day, which concluded after several
hours. [Stephen] Hunter was eventually terminated.
(Ellipses sic.) State v. Hunter, 1st Dist. Hamilton Nos. C-140684, C-140704, and
C-140717, 2016-Ohio-123, ¶ 4-12.
{¶ 7} Hunter sought discretionary review of the court of appeals’ judgment
in this court. On her motion, we stayed the execution of that judgment pending our
decision, 144 Ohio St.3d 1465, 2016-Ohio-209, 44 N.E.3d 292, but in May 2016,
we declined to accept jurisdiction over her appeal, see 145 Ohio St.3d 1470, 2016-
Ohio-3028, 49 N.E.3d 1313.
{¶ 8} Shortly thereafter, Hunter filed a petition for a writ of habeas corpus
in the United States District Court for the Southern District of Ohio and obtained
an emergency stay of the execution of her sentence. In her petition, she alleged
several violations of her constitutional rights during her trial arising from alleged
prosecutorial misconduct, the trial court’s jury-polling procedure, and the
accelerated calendaring of her appeal.
{¶ 9} In May 2017, a federal magistrate issued a report recommending that
Hunter’s habeas corpus petition be denied with prejudice. Hunter objected to the
magistrate’s report. In May 2019, the federal district court overruled Hunter’s
objections, denied her habeas corpus petition, and vacated the stay of execution of
her sentence. Hunter v. Hamilton Cty. Court of Common Pleas, S.D. Ohio No.
1:16-cv-561, 2019 WL 2281542 (May 29, 2019).
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{¶ 10} Hunter appealed that judgment to the United States Court of Appeals
for the Sixth Circuit. On July 22, 2019, the Hamilton County Court of Common
Pleas ordered that Hunter’s sentence be executed. She served her jail sentence and
was discharged from probation in July 2020. In January 2022, the Sixth Circuit
affirmed the judgment of the district court denying Hunter’s habeas corpus petition.
Hunter v. Ohio Atty. Gen., 6th Cir. Nos. 19-3515 and 19-3550, 2022 WL 154341(Jan. 18, 2022). Seven months later, relator filed this disciplinary case.
{¶ 11} At the panel hearing, relator called Hunter to testify on cross-
examination and introduced 15 exhibits. Hunter presented testimony from five
witnesses.
{¶ 12} Hunter contended that the criminal charges against her were
politically motivated because she was the first black Democrat elected as a judge
of the Hamilton County Juvenile Court and sought to implement change. Hunter
and her witnesses offered testimony that Hunter had actively worked to reform the
court’s procedures and operations and implement improvements in the juvenile-
detention facility.
{¶ 13} Hunter agreed that she was convicted of the fourth-degree felony
offense of having an unlawful interest in a public contract under R.C.
2921.42(A)(1). But she maintained that the evidence presented at her trial did not
warrant a conviction under the language of that statute.
{¶ 14} The board found that the evidence adduced at Hunter’s disciplinary
hearing clearly and convincingly demonstrated that Hunter’s conduct violated
Jud.Cond.R. 1.1 (requiring a judge to comply with the law), 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), 1.3 (prohibiting a judge from abusing
the prestige of judicial office to advance the personal or economic interests of the
judge or others), 2.4(B) (prohibiting a judge from permitting family, social,
political, financial, or other interests or relationships to influence the judge’s
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judicial conduct or judgment), and 3.5 (prohibiting a judge from knowingly
disclosing or using nonpublic information acquired in a judicial capacity for any
purpose unrelated to the judge’s judicial duties).
B. Hunter’s Objections to the Proceedings Before the Board
{¶ 15} In her objections to the board’s report, Hunter asserts that she was
denied due process of law in four respects: relator’s formal complaint was both
unduly delayed and premature, relator denied her discovery request, the panel
excluded her exhibits at the hearing, and the panel denied her request for an
extension of time to retain new counsel and file a posthearing brief. We are not
persuaded by these arguments.
{¶ 16} A disciplinary proceeding is neither a criminal nor a civil
proceeding, and consequently, the standards of due process for attorney- and
judicial-discipline proceedings are not the same as those in criminal matters. In re
Judicial Campaign Complaint Against Carr, 76 Ohio St.3d 320, 322, 667 N.E.2d
956 (1996). We have held that due-process rights in disciplinary proceedings have
been adequately protected when the respondent has been “ ‘afforded a hearing, the
right to issue subpoenas and depose witnesses, and an opportunity for preparation
to explain the circumstances surrounding his actions.’ ” Disciplinary Counsel v.
Tamburrino, 151 Ohio St.3d 148, 2016-Ohio-8014, 87 N.E.3d 158, ¶ 21, quoting
Disciplinary Counsel v. Character, 129 Ohio St.3d 60, 2011-Ohio-2902, 950
N.E.2d 177, ¶ 76.
{¶ 17} Hunter’s first argument that relator deprived her of due process is
that relator filed his complaint at an improper time. Hunter takes issue with
relator’s failure to file the disciplinary complaint when her direct appeal concluded
with our denial of discretionary jurisdiction in May 2016. Under Gov.Bar R.
V(18)(C), relator was prohibited from bringing a disciplinary proceeding against
Hunter to hearing until all direct appeals from her conviction were concluded.
Hunter’s criminal sentence had been stayed and was not executed until July 2019.
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Her case remained incomplete and active until the Sixth Circuit affirmed the federal
district court’s decision denying her habeas corpus petition in January 2022.
Therefore, we cannot fault relator for waiting until August 2022 to bring
disciplinary charges against Hunter.
{¶ 18} Hunter also faults relator for filing the complaint before the trial
court ruled on her 2019 motion for leave to file a delayed petition for postconviction
relief. Yet Hunter cites no legal rule or precedent that would require relator to delay
the filing of Hunter’s disciplinary complaint until every proceeding related to her
underlying conviction has been resolved. On these facts, we find that Hunter’s first
argument has no merit.
{¶ 19} In her second due-process argument, Hunter asserts that relator
withheld exculpatory evidence and refused to provide Hunter with copies of certain
of her 2013 emails. Hunter claims that she sought relator’s help in obtaining her
juvenile-court emails because the prosecutor had unlawfully withheld them in her
criminal case. However, there is no evidence in the record to demonstrate that
Hunter requested discovery or filed a formal request for the production of
documents pursuant to Civ.R. 34 or that she filed a motion for an order to compel
discovery pursuant to Civ.R. 37. Therefore, we find that Hunter’s second argument
is without merit.
{¶ 20} Third, Hunter argues that the panel deprived her of her right to
defend herself against relator’s complaint by strategically and improperly
excluding all her exhibits from evidence. The day before the hearing, the panel
chair issued an order excluding five of Hunter’s exhibits that were offered for the
purpose of contesting the validity of her criminal conviction. The panel chair noted
that three other exhibits that Hunter submitted also would be inadmissible for that
purpose, but the chair reserved ruling on their admissibility in the event that Hunter
offered them for another purpose (e.g., in mitigation or as a defense to an element
of an alleged rule violation requiring proof beyond the existence of Hunter’s felony
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conviction). Hunter did not attempt to offer any of those exhibits as evidence
during her disciplinary hearing. Thus, her claim that the panel deprived her of a
fair hearing by excluding all her exhibits is without merit.
{¶ 21} Hunter’s fourth argument—that she was denied the right to file a
posthearing brief after her attorney sought to withdraw as her counsel on the
morning that her closing argument was due—is likewise without merit. Hunter
asserts that the 14-day period that the panel chair granted her to find new counsel
and file a posthearing brief was insufficient. In this case, Hunter has been afforded
a hearing, the right to issue subpoenas and depose witnesses, and the opportunity
to explain the circumstances surrounding her actions. The board also gave her eight
weeks to file a posthearing brief. Gov.Bar R. V confers no right on any party to
file a closing brief before the board. Moreover, this court, not the panel or the
board, is the final arbiter of attorney discipline. See Cincinnati Bar Assn. v.
Heitzler, 32 Ohio St.2d 214, 220, 291 N.E.2d 477 (1972). For these reasons and
because Hunter has availed herself of the opportunity to raise her objections to the
board’s report and recommendation in this proceeding before we make a final
determination in her case, we cannot find that her right to due process has been
infringed.
{¶ 22} Accordingly, we overrule Hunter’s objections to the proceedings
before the board.
C. Hunter’s Objection to the Board’s Findings of Misconduct
{¶ 23} In her next objection, Hunter raises several arguments that her
criminal conviction was unjust and cannot form a proper basis for any finding that
she has engaged in judicial misconduct.
{¶ 24} A certified copy of Hunter’s December 19, 2014 entry of conviction
on a single count of having an unlawful interest in a public contract in violation of
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R.C. 2921.42(A)(1)1 was admitted into evidence during Hunter’s disciplinary
hearing. We are bound by Gov.Bar R. V(18)(B), which provides: “A certified copy
of the entry of conviction of an offense * * * shall be conclusive evidence of the
commission of that offense * * * in any disciplinary proceedings instituted against
a judicial officer or an attorney based upon the conviction * * *.” Consequently,
we have held that “a disciplinary proceeding is not an appropriate forum in which
to collaterally attack a criminal conviction.” Greater Cleveland Bar Assn. v.
Chvosta, 62 Ohio St.2d 429, 430, 406 N.E.2d 524 (1980). Hunter cannot challenge
the fact of her criminal conviction in this disciplinary proceeding. We therefore
overrule her objection to the board’s findings of misconduct.
{¶ 25} The board correctly determined that Hunter’s felony conviction
conclusively demonstrates that she violated Jud.Cond.R. 1.1 by engaging in
conduct that violated the law. That criminal conviction combined with the facts
acknowledged by the First District Court of Appeals in that case also clearly and
convincingly support the board’s conclusions about the remaining four rule
violations.
{¶ 26} The court of appeals’ recitation of the evidence presented at Hunter’s
trial demonstrates that upon being informed of the potential termination of her
brother’s employment, Hunter sent an email to all employees of the Hamilton
County Juvenile Court Youth Center identifying numerous safety concerns that
resembled the main explanations her brother had given for his actions that were
under investigation. Hunter, 2016-Ohio-123 at ¶ 7. Hunter requested many
documents—including some that “would not have been provided to any employee
1. R.C. 2921.42(A)(1) prohibits a public official from “[a]uthoriz[ing] or employ[ing] the authority
or influence of the public official’s office to secure authorization of any public contract in which the
public official, a member of the public official’s family, or any of the public official’s business
associates has an interest.”
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under any circumstances,” id. at ¶ 10—and her brother testified that she provided
those nonpublic documents to him and that he took them to his attorney, id. at ¶ 11.
{¶ 27} Those facts support the board’s inference that Hunter acted to protect
her brother’s job and that her actions in that regard violated her duty under
Jud.Cond.R. 1.2 to act at all times in a manner that promotes public confidence in
the independence, integrity, and impartiality of the judiciary. They also support the
board’s conclusion that she abused the prestige of her judicial office to advance the
personal or economic interests of her brother in violation of Jud.Cond.R. 1.3, that
she permitted her familial relationship with her brother to influence her judicial
conduct in violation of Jud.Cond.R. 2.4(B), and that she knowingly disclosed
nonpublic information acquired in her judicial capacity for a purpose unrelated to
her judicial duties in violation of Jud.Cond.R. 3.5. We therefore adopt the board’s
findings of misconduct.
II. SANCTION
A. The Board’s Recommended Sanction
{¶ 28} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
{¶ 29} In this case, the board found two aggravating factors. First, Hunter
engaged in her criminal conduct relative to her brother’s employment with the
juvenile court and that she therefore acted with a selfish motive. See Gov.Bar R.
V(13)(B)(2). The board also found that Hunter refused to acknowledge the
wrongful nature of her conduct. See Gov.Bar R. (V)(13)(B)(7). Although it
acknowledged that Hunter’s refusal was grounded in her sincere belief that her
conduct did not violate the plain language of R.C. 2921.42(A)(1), the board
nonetheless found that her failure to acknowledge any wrongdoing after exhausting
her direct appeals, combined with her expressed intention to pursue additional
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collateral attacks on her criminal conviction, constitutes an aggravating factor. See
Disciplinary Counsel v. Doumbas, 149 Ohio St.3d 628, 2017-Ohio-550, 76 N.E.3d
1185, ¶ 11 (attributing aggravating effect to an attorney’s failure to acknowledge
the wrongfulness of his conduct when at the time of his disciplinary proceeding he
had exhausted direct appeals and expressed an intention to continue collaterally
attacking his criminal conviction).
{¶ 30} The board also found three mitigating factors. First, Hunter had no
prior discipline. See Gov.Bar R. V(13)(C)(1). She also presented extensive
testimony and evidence regarding her good character and reputation, which
included her work as a community and child advocate, her role as a church pastor
and her leadership positions in a multistate church conference, and her efforts to
implement changes to protect the rights and dignity of the children served by the
juvenile court. See Gov.Bar R. V(13)(C)(5). Finally, the board found that Hunter
had had other penalties and sanctions imposed for her misconduct, including the
loss of her judgeship, a jail sentence, an order to pay more than $17,000 in court
costs, and her nearly nine-year interim felony suspension. See Gov.Bar R.
V(13)(C)(6).
{¶ 31} In determining the appropriate sanction for Hunter’s misconduct, the
board noted that in every reported case in which a sitting judge has been convicted
of a felony, this court has either permanently disbarred or indefinitely suspended
the judge. However, the board found that Hunter’s misconduct was significantly
less egregious than the misconduct of others who were disbarred for felony offenses
that they committed while serving as judges. See Disciplinary Counsel v. Terry,
147 Ohio St.3d 169, 2016-Ohio-563, 63 N.E.3d 88 (the respondent had been
convicted of felony counts of conspiracy to commit mail fraud and honest-services
mail fraud for providing judicial favors in exchange for contributions to his election
campaign); Disciplinary Counsel v. McAuliffe, 121 Ohio St.3d 315, 2009-Ohio-
1151, 903 N.E.2d 1209 (the respondent had been convicted of felony counts of mail
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fraud, use of fire to commit mail fraud, conspiracy to use fire to commit mail fraud,
and money laundering for burning down his house in order to defraud an insurance
company); Disciplinary Counsel v. Gallagher, 82 Ohio St.3d 51, 693 N.E.2d 1078(1998) (respondent had been convicted of a single felony count of distributing
cocaine). Recognizing that Hunter’s misconduct arose from a relatively brief,
isolated incident, the board recommends that we adopt relator’s proposed sanction
of an indefinite suspension from the practice of law with credit for the significant
time that Hunter has served under her interim felony suspension.
B. Hunter’s Objections to the Board’s Recommended Sanction
{¶ 32} Hunter challenges the aggravating factors found by the board and the
board’s recommendation that she be indefinitely suspended from the practice of
law. Hunter asserts that she could not have acted with a selfish motive as found by
the board because she received no personal benefit or economic inurement and she
did not secure a public contract or anything of value for her brother. As the board
found, however, engaging in misconduct to protect a friend has been found to
constitute a selfish motive. See Disciplinary Counsel v. Pappas, 141 Ohio St.3d 1,
2014-Ohio-3676, 21 N.E.3d 260, ¶ 14 (attorney made false averments of law-firm
ownership in an effort to quash a subpoena for a friend’s financial records in the
friend’s divorce proceeding). Although Hunter may not have personally benefitted
from her misconduct, she was convicted of a felony by employing the power of her
judicial office in an attempt to help her brother keep his public employment when
it was jeopardized. Therefore, the board properly found that Hunter had acted with
a selfish motive to protect a family member.
{¶ 33} Hunter also challenges the board’s finding that she refused to
acknowledge the wrongful nature of her conduct. Specifically, Hunter challenges
the board’s reliance on Doumbas, 149 Ohio St.3d 628, 2017-Ohio-550, 76 N.E.3d
1185, ¶ 11 for the proposition that an expressed intention to continue collaterally
attacking a criminal conviction after exhausting appeals can support a finding that
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a respondent has failed to acknowledge the wrongful nature of his or her conduct.
She attempts to distinguish the facts of this case from those in Doumbas on the
ground that she had a collateral attack of her criminal conviction pending at the
time relator filed his complaint and that she should not be forced to confess to a
crime that she did not commit. She argues that in the interest of justice, relator
should have waited until that postconviction proceeding concluded to initiate this
disciplinary proceeding.
{¶ 34} Nevertheless, Hunter had no direct appeal pending when relator filed
his complaint. Rather, Hunter had filed only a motion for leave to file a delayed
petition for postconviction relief and/or a motion for relief from judgment. “[A]
postconviction proceeding is not an appeal of a criminal conviction but, rather, a
collateral civil attack on the judgment.” State v. Calhoun, 86 Ohio St.3d 279, 281,
714 N.E.2d 905 (1999). Furthermore, we have already found that Gov.Bar R.
V(18)(C) authorized relator to bring disciplinary proceedings against Hunter once
all her direct appeals were concluded. We used that same reasoning to deny a stay
pending the resolution of a collateral proceeding to vacate, set aside, or correct
McAuliffe’s criminal sentence filed after McAuliffe’s disciplinary hearing but
before this court decided his disciplinary case. See McAuliffe, 121 Ohio St.3d 315,
2009-Ohio-1151, 903 N.E.3d 1209, ¶ 8, 13-17. We therefore overrule Hunter’s
objection to the board’s finding that she refused to acknowledge the wrongfulness
of her conduct.
{¶ 35} In her final objection, Hunter argues that the board’s recommended
sanction of an indefinite suspension is a de facto disbarment. And she claims that
rather than compare her case to others in which judges and lawyers were convicted
of the same offense, the board erroneously compared the facts of her case to others
in which judges committed far worse crimes that involved personal economic
benefit or serious harm to victims. For the reasons that follow, we overrule
Hunter’s objection and adopt the board’s recommended sanction.
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{¶ 36} As the board noted, our jurisprudence does not contain any cases in
which a judge was convicted of any felony and received a disciplinary sanction less
than an indefinite suspension or permanent disbarment. The board did compare the
facts of Hunter’s case to others involving more egregious misconduct—Terry,
McAuliffe, and Gallagher—but those comparison cases all involved the more
severe sanction of disbarment and were used to illustrate why disbarment is not
appropriate in Hunter’s case.
{¶ 37} Hunter asserts that her conduct is more appropriately compared to
the conduct at issue in Disciplinary Counsel v. Schmidt, 134 Ohio St.3d 557, 2012-
Ohio-5712, 983 N.E.2d 1310. Schmidt pleaded guilty to several misdemeanor
charges for conduct related to the private law practice he maintained while serving
as the Greene County treasurer. Id. at ¶ 10. For example, he violated R.C.
2921.42(A) for accepting a nominal fee from the probate court’s guardian account
for serving as a guardian for indigent and mentally-ill persons in need of legal
representation. Id. at ¶ 4. He also violated R.C. 2921.43(A)(1) (soliciting or
receiving improper compensation) for charging law firms for real-property title
reports that included tax information that he was required to maintain in his role as
the county treasurer. Id. at ¶ 6. We determined that Schmidt’s conduct adversely
reflected on his fitness to practice law and imposed a 12-month conditionally stayed
suspension for his offense. Id. at ¶ 11, 18.
{¶ 38} However, Schmidt’s conduct is readily distinguishable from
Hunter’s because Schmidt was not a judge and his criminal offenses were not
felonies. “An independent and honorable judiciary is indispensable to justice in
our society.” Disciplinary Counsel v. O’Neill, 103 Ohio St.3d 204, 2004-Ohio-
4704, 815 N.E.2d 286, ¶ 33. Therefore, we have stated that “[j]udges are subject
to the highest standard of ethical conduct.” Gallagher, 82 Ohio St.3d at 52, 693
N.E.2d 1078, citing Mahoning Cty. Bar Assn. v. Franko, 169 Ohio St. 17, 23, 151
N.E.2d 17 (1958).
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{¶ 39} We acknowledge that the misconduct for which Hunter was
convicted does not rise to the level of misconduct that we found warranted
permanent disbarment in Terry, McAuliffe, and Gallagher. But given that Hunter’s
conviction under R.C. 2921.42(A)(1) arose from conduct that she undertook in her
role as a judge, it is far more significant than an attorney’s violation of the same
statute in Schmidt. Based on Hunter’s criminal conviction and the factual findings
set forth in the court of appeals’ opinion affirming that conviction, Hunter has been
found to have violated the law, abused the prestige of her judicial office to advance
the personal interests of another, allowed a familial relationship to influence her
judicial conduct or judgment, and disclosed or used nonpublic information acquired
in her judicial capacity for her brother’s benefit, and she has thereby failed to act at
all times in a manner that promotes public confidence in the independence,
integrity, and impartiality of the judiciary. On these facts, we are not persuaded by
Hunter’s arguments that she should receive any sanction less than an indefinite
suspension.
{¶ 40} Finally, we recognize that Hunter has served nearly nine years under
her interim felony suspension. Given that an attorney or judge who has been
indefinitely suspended from the practice of law may ordinarily petition this court
for reinstatement after just two years, see Gov.Bar R. V(25)(A), we agree that the
board’s recommended sanction of an indefinite suspension with credit for the time
that Hunter has served under her interim felony suspension is the appropriate
sanction in this case. Because Hunter will be eligible to petition this court for
reinstatement immediately upon the issuance of our decision and order in this case,
this sanction cannot be considered a de facto disbarment.
III. CONCLUSION
{¶ 41} Tracie M. Hunter’s objections are overruled, and she is indefinitely
suspended from the practice of law in Ohio with credit for the time she has served
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under the interim felony suspension imposed on October 21, 2014. Costs are taxed
to Hunter.
Judgment accordingly.
KENNEDY, C.J., and GALLAGHER and STEWART, JJ., concur.
FISCHER, J., concurs in part and dissents in part, with an opinion joined by
LEWIS, J.
BRUNNER, J., not participating.
SEAN C. GALLAGHER, J., of the Eighth District Court of Appeals, sitting for
DEWINE, J.
RONALD C. LEWIS, J., of the Second District Court of Appeals, sitting for
DETERS, J.
_________________
FISCHER, J., concurring in part and dissenting in part.
{¶ 42} I agree with the majority opinion that respondent, former Hamilton
County Juvenile Court judge Tracie M. Hunter, violated five rules of the Code of
Judicial Conduct through conduct that led to her conviction for a fourth-degree
felony offense of having an unlawful interest in a public contract. I also agree with
the majority opinion’s adoption of the Board of Professional Conduct’s
recommendation that we indefinitely suspend Hunter from the practice of law;
however, I disagree with the majority’s decision to give Hunter credit for the time
that she has served under her interim felony suspension. Hunter committed a felony
offense, acted with a selfish motive, and has taken no responsibility for her
actions—she has consistently and unfairly blamed others for her prosecution and
hardships. This court should indefinitely suspend Hunter from the practice of law
with no credit for the time she has already served. Thus, I respectfully concur in
part and dissent in part.
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Disbarment is generally the appropriate sanction for a judge who has been
convicted of a felony offense
{¶ 43} “[J]udges are held to the highest possible standard of ethical
conduct.” Ohio State Bar Assn. v. McCafferty, 140 Ohio St.3d 229, 2014-Ohio-
3075, 17 N.E.3d 521, ¶ 16. “The primary purposes of judicial discipline are to
protect the public, to guarantee the evenhanded administration of justice, and to
bolster public confidence in the institution.” Id. at ¶ 20.
{¶ 44} Although we decide disciplinary matters on a case-by-case basis, we
review similar disciplinary cases to determine the appropriate sanction.
Disciplinary Counsel v. Gallagher, 82 Ohio St.3d 51, 52, 693 N.E.2d 1078 (1998).
When a judge commits a felony offense while in office, disbarment is not an
uncommon sanction. See, e.g., id. (judge disbarred after a felony conviction for
distributing cocaine); Disciplinary Counsel v. Mosely, 69 Ohio St.3d 401, 632
N.E.2d 1287 (1994) (judge disbarred after felony convictions for interfering with
commerce by extortion); see also In re Hughes, 640 N.E.2d 1065 (Ind.1994) (judge
disbarred following felony convictions for theft). A majority of this court
determines that Hunter’s misconduct does not rise to a level that warrants
disbarment. While I agree with the majority’s conclusion, I must emphasize that
for me, it is a really close call.
{¶ 45} We have disbarred a number of judges for conduct that resulted in
felony convictions. In Mosely, this court disbarred a municipal-court judge who
had been convicted of six felony counts of interference with commerce by extortion
for conspiring to use his judicial position to unlawfully obtain property. Id. at 402-
403. In Gallagher, this court disbarred a common-pleas-court judge who had
pleaded guilty to one felony count of distributing cocaine. Id. at 51, 53. In
Disciplinary Counsel v. McAuliffe, 121 Ohio St.3d 315, 2009-Ohio-1151, 903
N.E.2d 1209, this court disbarred a municipal-court judge who had been convicted
of several felonies: two counts of mail fraud, one count of use of fire to commit
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mail fraud, one count of conspiracy to use fire to commit mail fraud, and two counts
of money laundering. Id. at ¶ 1-2. And in Disciplinary Counsel v. Terry, 147 Ohio
St.3d 169, 2016-Ohio-563, 63 N.E.3d 88, this court disbarred a common-pleas-
court judge who had been convicted of multiple felonies: one count of conspiracy
to commit mail fraud and two counts of honest-services mail fraud in connection
with his judicial duties. Id. at ¶ 1, 18.
{¶ 46} There have been very few cases in this state in which a judge who
has been convicted of a felony offense has not been disbarred, and among the cases
in which we indefinitely suspended the judge, I find none in which this court gave
credit for the time already served under the interim felony suspension. When this
court has indefinitely suspended from the practice of law judges who were
convicted of felony offenses, we have not given them credit for the time they had
already served. See, e.g., Disciplinary Counsel v. Crane, 56 Ohio St.3d 38, 38-39,
564 N.E.2d 96 (1990); McCafferty, 140 Ohio St.3d 229, 2014-Ohio-3075, 17
N.E.3d 521, at ¶ 26. It is unclear why this court decided to indefinitely suspend
Crane rather than disbar her other than that decision’s being consistent with the
board’s recommendation. Crane at 39. In McCafferty, this court determined that
McCafferty’s conduct required a severe sanction because she had lied to the FBI,
but we determined that her conduct did not require the severest sanction of
disbarment, because she had not engaged in a pattern of premeditated criminal
conduct. Id. at ¶ 24. But in McCafferty, three members of this court voted for
disbarment because McCafferty had been convicted of a felony offense. Id. at
¶ 27-28 (Lanzinger, J., dissenting).
{¶ 47} The board determined that Hunter’s conduct was less egregious than
the conduct in cases in which this court had disbarred an attorney, because Hunter’s
conduct was related solely to the matter of her brother’s employment with the
juvenile court and took place within a relatively short amount of time—it was not
part of an ongoing course of conduct. While Hunter’s misconduct may have been
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January Term, 2023
committed within a short time frame, Hunter took several steps, utilizing her
position as a judge, to aid her brother. Furthermore, Hunter, through her
misconduct, violated five rules of the Code of Judicial Conduct, including
Jud.Cond.R. 1.3 (prohibiting a judge from abusing the prestige of judicial office to
advance the personal or economic interests of the judge or others), 2.4(B)
(prohibiting a judge from permitting family, social, political, financial, or other
interests or relationships to influence the judge’s judicial conduct or judgment), and
3.5 (prohibiting a judge from knowingly disclosing or using nonpublic information
acquired in a judicial capacity for any purpose unrelated to the judge’s judicial
duties). The abuse of her position in office for the benefit of her brother may have
occurred only once, but once is enough. See McCafferty at ¶ 29, 32 (Lanzinger, J.,
dissenting) (judge should have been disbarred because she had used or intended to
use her influence over cases in her courtroom to advance the interests of local
officials and a businessman).
{¶ 48} And while I acknowledge that Hunter has had no prior discipline,
has presented extensive testimony of her good character and reputation, and has
had other penalties and sanctions imposed for her misconduct, these mitigating
factors deserve little weight in our analysis. See Gallagher, 82 Ohio St.3d at 53,
693 N.E.2d 1078 (mitigating factors have little relevance when judges engage in
illegal conduct involving moral turpitude); see also Hughes, 640 N.E.2d at 1067
(Ind.1994) (when a judge has committed a felony offense and has thereby violated
the public’s trust, mitigating factors cannot overshadow such egregious conduct).
Mitigating factors cannot overshadow felonious conduct by a judge, because such
conduct violates the public’s trust and injures the public’s confidence in 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.” Hughes
at 1067.
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{¶ 49} Furthermore, Hunter has unequivocally expressed to this court
through her brief and at oral argument that she does not acknowledge any
wrongdoing and instead blames this court, the board, disciplinary counsel, and
other legal professionals for her legal situation. Hunter takes on the role of victim,
alleging that “the Ohio Supreme Court, in concert with the Hamilton County
Prosecutor’s Office, and Ohio and Hamilton County Republican Parties” have used
“unprecedented legal intervention and aggressive intimidation” to try to prevent
Hunter from becoming a Hamilton County Juvenile Court judge. Hunter maintains
that her case “exposes that the Ohio Supreme Court operates a clandestine, arbitrary
system of discipline and applies different standards of law and ethics, depending
on the ethnicity and political affiliation of the accused.” Hunter further expresses
that the board “hypocritically and discriminatorily allows members of the bar with
powerful family members, political connections and money [who] openly violate
the Ohio Rules of Professional Conduct and the Ohio Code of Judicial Conduct to
avoid discipline and escape prosecution, but targets lawyers that report and expose
them for removal.” She asserts that her case reveals “two systems of justice,” one
for her and one for “the elite.” During her oral argument, Hunter alleged that
disciplinary counsel acted hypocritically in charging her with violations of the Code
of Judicial Conduct after she was convicted of a fourth-degree felony offense but
not charging other members of the bench who she believes have also committed
wrongdoing but who have never been charged with crimes. Hunter believes that
her case demonstrates that the entirety of the legal system is colluding against her.
But this assertion could not be further from the truth.
{¶ 50} While Hunter claims that she is “innocent” of the crime she was
found guilty of committing, she does not deny taking some of the actions that led
to her conviction. Rather, Hunter frames her conduct as performing her “legal and
ethical obligation to investigate all employee incidents that impacted her court” and
maintains that she was unable to perform that duty properly because she was denied
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access to judicial training before taking office—even though she admits that she
received judicial training well before the incident in question occurred. But the fact
of the matter is that after a five-week jury trial, a jury found that Hunter had
committed a fourth-degree felony of having an unlawful interest in a public
contract. And Hunter’s challenges to her conviction have failed in the First District
Court of Appeals, this court, in a United States District Court, and the United States
Court of Appeals for the Sixth Circuit. State v. Hunter, 1st Dist. Hamilton Nos.
C-140684, C-140704, and C-140717, 2016-Ohio-123, ¶ 38 (Hunter’s conviction
was supported by sufficient evidence); State v. Hunter, 145 Ohio St.3d 1470, 2016-
Ohio-3028, 49 N.E.3d 1313 (discretionary appeal not accepted); Hunter v.
Hamilton Cty. Court of Common Pleas, S.D.Ohio No. 1:16-cv-561, 2019 WL
2281542, *11 (the evidence at trial “strongly supports the jury’s verdict that Hunter
was guilty of having an unlawful interest in a public contract”); Hunter v. Ohio
Atty. Gen., 6th Cir. Nos. 19-3515 and 19-3550, 2022 WL 154341, *6 (Jan. 18, 2022)
(affirming district court’s denial of Hunter’s habeas corpus petition). While Hunter
claims that her conviction is the result of a vendetta against her, she cannot deny
and we cannot ignore that a 12-person jury, three appellate-court judges, one federal
magistrate, and one federal district-court judge have upheld Hunter’s conviction
based on the evidence presented against her. While Hunter is certainly free to
believe that she committed no wrongdoing, she cannot deny that all minds that have
reviewed the evidence in her case disagree.
{¶ 51} It would be one thing if Hunter simply declared her innocence or her
belief that she did not commit a crime and acknowledged that the system of justice
(a system through which she has exhausted most if not all of her legal remedies and
a system that she swore to uphold as a lawyer and as a judge) disagrees with her
interpretation of the facts of her case, her reading of the criminal statute, and her
overall analysis of her legal situation. But Hunter has not simply maintained her
innocence; rather, she has smeared the names of various lawyers and judges in the
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process. Whether another judge or lawyer has committed wrongdoing outside of
her case has no relevance in the determination whether Hunter herself has
committed wrongdoing. As the saying goes, two wrongs do not make a right.
Hunter has accepted no responsibility for her actions and in explaining to this court
why she is not responsible, she has shown an unprecedented lack of respect for this
court, disciplinary counsel, the board, and other legal professionals. Hunter’s
refusal to acknowledge the wrongful nature of her conduct is an aggravating factor
that should weigh heavily against her.
{¶ 52} Hunter’s case differs only slightly from those in which we disbarred
judges from the practice of law. See, e.g., Gallagher, 82 Ohio St.3d 51, 693 N.E.2d
1078. And Hunter’s case is hardly distinguishable from Crane, 56 Ohio St.3d 38,
564 N.E.2d 96, or McCafferty, 140 Ohio St.3d 229, 2014-Ohio-3075, 17 N.E.3d
521, in which we ordered indefinite suspensions with no credit for the time already
served. For this court to be consistent with the disciplinary sanctions it has
previously imposed on judges who have been convicted of felony offenses while in
office, it must impose on Hunter an indefinite suspension with no credit for the time
she has already served under the interim felony suspension.
Conclusion
{¶ 53} “When a judge’s felonious conduct brings disrepute to the judicial
system, the institution is irreparably harmed.” Gallagher at 53. In sanctioning a
judge who has been convicted of a felony offense, we aim to protect the public and
the integrity of our judicial system. Id. Judges who commit such offenses deserve
“the full measure of our disciplinary authority.” Id.{¶ 54} Hunter was convicted of a felony offense, acted with a selfish
motive, and has taken no responsibility for her actions and continues to blame
others for her legal situation. While Hunter has presented evidence to support
several mitigating factors, those factors should be given little weight in our analysis,
since Hunter committed the felony offense while serving as a judge and the offense
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January Term, 2023
was a significant misuse of power. In this case, we should impose upon Hunter an
indefinite suspension from the practice of law with no credit for time already
served. Because the majority’s judgment imposes a lesser sanction, I respectfully
dissent in part.
_________________
Joseph M. Caligiuri, Disciplinary Counsel, and Donald M. Scheetz,
Assistant Disciplinary Counsel, for relator.
Tracie M. Hunter, pro se.
_________________
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