Disciplinary Counsel v. Berry (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Berry, Slip Opinion No. 2021-Ohio-3864.]
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. 2021-OHIO-3864DISCIPLINARY COUNSEL v. BERRY.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Berry, Slip Opinion No.
2021-Ohio-3864.]
Attorneys—Misconduct—Code of Judicial Conduct—Violation of Jud.Cond.R. 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
and to avoid impropriety and the appearance of impropriety—
Conditionally stayed six-month suspension.
(No. 2021-0747—Submitted August 3, 2021—Decided November 3, 2021.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2021-005.
_______________________
Per Curiam.
SUPREME COURT OF OHIO
{¶ 1} Respondent, Judge Theodore Newton Berry, of Cincinnati, Ohio,
Attorney Registration No. 0042025, was admitted to the practice of law in Ohio in
1989. Berry has been a judge of the Hamilton County Municipal Court since 2006.
{¶ 2} In March 2021, relator, disciplinary counsel, charged Berry with
violating the Code of Judicial Conduct for sending inappropriate Facebook
messages and videos to a court employee. Berry stipulated to the charged
misconduct, and the parties jointly recommended that he be publicly reprimanded
for his behavior. After a hearing, a three-member panel of the board found that
Berry had engaged in the stipulated misconduct, agreed that he should be publicly
reprimanded, and recommended that he also complete sexual-harassment-
prevention training. The board issued a report adopting the panel’s finding of
misconduct but recommending that we impose a conditionally stayed six-month
suspension. Neither party has objected to the board’s report and recommendation.
{¶ 3} Based on our review of the record, we adopt the board’s finding of
misconduct and recommended sanction.
Misconduct
{¶ 4} In August 2019, Jane Doe1 began working as a court reporter for the
Hamilton County Municipal Court. Sometime thereafter, Berry sent her a friend
request on Facebook. At the time Doe accepted the request, she and Berry did not
know each other, as she was not a court reporter assigned to his courtroom. In
October 2019, Doe “liked” some pictures that Berry had posted on Facebook
relating to the courthouse, and he sent her a private message asking about her
connection to the courthouse. They exchanged messages, and Berry invited her to
stop by his chambers to meet in person.
{¶ 5} About a week later, Berry sent Doe a Facebook message wishing her
a good weekend and stating, “You’re ‘Lurking’ and didn’t come down to my
1. Presumably to protect her individual privacy rights and interests, the parties and the board did not
identify Doe in the public filings.
2
January Term, 2021
Chambers to visit.” Doe responded that she would stop by soon. After Doe and
Berry exchanged several more messages—on various topics, including their
respective divorces—he asked for her cell-phone number and suggested that they
talk over the weekend. The parties stipulated that if Doe had been called to testify
at Berry’s disciplinary hearing, she would have stated that she gave the judge her
phone number because she felt like she could not refuse, considering his status as a
judge.
{¶ 6} Berry called Doe on a Saturday. According to Doe, Berry sounded
intoxicated and used profanity, although Berry denied that he was drunk and had
no specific recollection of using profanity. Also during the call, Berry asked Doe
out to lunch but she declined.
{¶ 7} A few days later, Berry sent Doe a Facebook message asking her to
stop by his office and stating that he had “an ‘Offer you can’t Refuse’!!” Doe did
not stop by and later advised him in a message that she had gotten busy with work.
At his disciplinary hearing, Berry testified that he had intended to offer Doe tickets
to an event for her and her children.
{¶ 8} A couple days after asking Doe to stop by his office, Berry sent her a
Facebook message stating that he was on a “Staycation” and asking her out for
lunch or drinks. Specifically, his message stated:
I’d like to invite you to accompany me for lunch or for drinks after
work. I Hope I’m not being too forward or pushy in inviting to do
something. So, simply le[t] me know if you’d like to meet for lunch
or drinks this coming week or otherwise. I’m a “Big boy” so I know
how to accept and respect the word, “NO”. So please be Honest in
your response. Again, I hope you’re not offended because this is
not my intent whatsoever. So, kindly RSVP either way. TY!!
3
SUPREME COURT OF OHIO
{¶ 9} Doe did not respond to the message, and their Facebook
communications thereafter became increasingly one-sided. After sending the
message quoted above, Berry sent Doe 72 messages; she replied to only 15.
{¶ 10} A majority of the 72 messages were images, memes, or links to
videos that Berry had forwarded from the Internet. Many of those messages were
overtly partisan and vulgar. For example, Berry sent Doe a video showing smoke
and then flames emanating from the body of former President Donald J. Trump
while he attended a prayer session. Berry also sent Doe a profane cartoon image of
Santa Claus appearing to defecate down a chimney of United States Senator Mitch
McConnell’s house. With the cartoon image, the judge sent a message stating, “A
Special Delivery to ‘Moscow Mitch’ for Christmas, and for his upcoming, pre-
determined ‘Shit Show’ in the Complicit, pre-determined, pre-Judged, Senate
Impeachment ‘Trial’!!” In addition, Berry forwarded Doe a video from a comedian
playing a character known as the “Liberal Redneck,” who used profanity while
insulting supporters of former President Trump.
{¶ 11} Some of Berry’s messages contained links to videos containing
offensive and sexually suggestive content—though Berry did not personally create
the content. For example, he sent Doe a link to a video entitled “How to Build a
Resume for a Hoe,” in which a well-known actress used crude language while
joking about assisting female prostitutes with building a resume. Berry also sent
Doe a link to a viral video entitled “How To End A First Date,” in which a woman
and a man used sexually explicit language while purporting to be honest with each
other at the end of their first date. For example, the woman agreed to engage in
certain sex acts, and in exchange, the man agreed to buy her gifts.
{¶ 12} Doe brought the messages to the attention of her boss and a
colleague, who informed court administration. After an investigation, court
administration referred the matter to relator. The parties stipulated that Berry
wanted to apologize to Doe and convey to her that he had not intended to make her
4
January Term, 2021
uncomfortable, but he concluded that it would be inappropriate for him to directly
communicate with her. Therefore, he asked the judge for whom she worked to pass
along his apology. At his disciplinary hearing, Berry also testified that he had
deactivated his Facebook account and had no other presence on social media.
{¶ 13} Based on this conduct, the parties stipulated and the board found that
Berry violated Jud.Cond.R. 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 and to avoid impropriety and the appearance of impropriety). We
agree with the board’s finding of misconduct.
Sanction
{¶ 14} When imposing sanctions for judicial misconduct, we consider all
relevant factors, including the ethical duties that the judge violated, the aggravating
and mitigating factors listed in Gov.Bar R. V(13), and the sanctions imposed in
similar cases.
{¶ 15} The board found two aggravating factors: Berry had a selfish motive
and he abused his judicial position when he engaged with Doe, a court employee.
See Gov.Bar R. V(13)(B)(2). The board also noted that because Doe did not testify
at the judge’s disciplinary hearing, there was no evidence indicating what impact,
if any, the judge’s conduct had on her. As for mitigating factors, the board found
that Berry has a clean disciplinary record, made a timely and good-faith effort to
rectify the consequences of his misconduct, and made full and free disclosures to
the board and had a cooperative attitude toward the disciplinary proceedings. See
Gov.Bar R. V(13)(C)(1), (3), and (4).
{¶ 16} Because the board could not find any Ohio precedent involving
similar judicial misconduct, the board reviewed cases in other jurisdictions for
guidance. For example, the board reviewed In re Complaint of Judicial
Misconduct, 751 F.3d 611 (2014), in which a federal district court judge sent, from
his court email address, a racist and partisan email to a small group of friends about
5
SUPREME COURT OF OHIO
former President Barack Obama. After the email reached a reporter and was quoted
in a newspaper, a five-judge special committee investigated the matter and found
that the judge had sent hundreds of inappropriate emails—mostly forwarded
cartoons, articles, video links, or jokes—to recipients that included the judge’s
personal and professional contacts and court staff. Most of the emails were political
in nature; some showed disdain and disrespect for liberal political leaders, minority
groups, and certain faiths; and some contained sexual topics and were disparaging
to women. A federal judicial council publicly reprimanded the judge and ordered
that no new cases be assigned to him for 180 days. The council also ordered that
he complete training on judicial ethics and racial awareness and elimination of bias
and that he issue a public apology—although the remedial actions were later
declared inoperative because the judge resigned from the bench.
{¶ 17} The board also reviewed a disciplinary matter against a Tennessee
judge who sent inappropriate messages—ranging from flirtatious to overtly
sexual—to multiple women on social-media platforms. The recipients of the
judge’s messages included a legal professional associated with a law firm that had
appeared before the judge and a litigant who had formerly had a child-custody
matter before him. Considering that judges are required to act at all times in a
manner that promotes public confidence in the integrity and impartiality of the
judiciary, the Tennessee Board of Judicial Conduct noted that “[i]nappropriate
messages sent by a sitting judge to anyone, much less to those who have ties to the
court system like former litigants and legal professionals, do not inspire such
confidence.” Tennessee Board of Judicial Conduct, Public Reprimand, File No.
B20-8220 (Oct. 5, 2020), available at https://www.tncourts.gov/sites/default
/files/docs/judge_jonathan_young_reprimand_2020_10_05.pdf (accessed Oct. 12,
2021) [https://perma.cc/62Y9-CGYH]. The Tennessee board publicly reprimanded
the judge, imposed a conditionally stayed 30-day suspension, and ordered him to,
among other things, complete judicial-ethics training relating to social media.
6
January Term, 2021
{¶ 18} The panel here concluded that Berry’s conduct warranted a public
reprimand. But the panel also found that Berry had demonstrated a lack of
sensitivity to the issue of sexual harassment and therefore recommended that he
complete three hours of continuing judicial education on sexual-harassment-
prevention training. The board disagreed with the panel’s conclusion and instead
recommended that Berry be suspended for six months, with the suspension stayed
on conditions, including that he complete a minimum of eight hours of continuing
judicial education on sexual harassment. The board increased the recommended
sanction because of the existence of two aggravating factors and our precedent
holding judges to the highest standards of ethical conduct.
{¶ 19} “Judges are in a position to exert power over their employees, the
attorneys who practice before them, and the litigants in cases over which they
preside,” Disciplinary Counsel v. Horton, 158 Ohio St.3d 76, 2019-Ohio-4139, 140
N.E.3d 561, ¶ 72, and—as this matter shows—over other persons associated with
the justice system. “Recognizing this power, we have held that ‘ “[j]udges are held
to higher standards of integrity and ethical conduct than attorneys or other persons
not invested with the public trust.” ’ ” (Brackets added in Horton.) Id., quoting
Disciplinary Counsel v. O’Neill, 103 Ohio St.3d 204, 2004-Ohio-4704, 815 N.E.2d
286, ¶ 57, quoting Shaman, Lubet & Alfini, Judicial Conduct and Ethics 1 (3d
Ed.2000). In short, “[j]udges should comport themselves in a manner that is beyond
reproach.” Id. And “[j]udges should maintain the dignity of judicial office at all
times and avoid both impropriety and the appearance of impropriety in their
professional and personal lives.” (Emphasis added.) Code of Judicial Conduct,
Preamble, Section 2.
{¶ 20} Berry sent numerous inappropriate Facebook messages to a court
employee; many of the messages were politically partisan and some contained
vulgar and sexually explicit content. The judge’s conduct undermined the public’s
confidence in the impartiality and integrity of the judiciary. “The primary purpose
7
SUPREME COURT OF OHIO
of judicial discipline is to protect the public, guarantee the evenhanded
administration of justice, and maintain and enhance public confidence in the
integrity of this institution.” Disciplinary Counsel v. Russo, 124 Ohio St.3d 437,
2010-Ohio-605, 923 N.E.2d 144, ¶ 14. With that purpose in mind, we conclude
that the board’s recommended sanction is appropriate in this case.
Conclusion
{¶ 21} Theodore Newton Berry is hereby suspended from the practice of
law in Ohio for six months, with the entire suspension stayed on the conditions that
he (1) complete a minimum of eight hours of continuing judicial education on the
subject of sexual harassment within 90 days of our disciplinary order and (2) refrain
from committing any further misconduct. If Berry fails to comply with either
condition of the stay, the stay will be lifted and he will serve the entire six-month
suspension. Costs are taxed to Berry.
Judgment accordingly.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
_________________
Joseph M. Caligiuri, Disciplinary Counsel, and Matthew A. Kanai,
Assistant Disciplinary Counsel, for relator.
Montgomery Jonson, L.L.P., and George D. Jonson, for respondent.
_________________
8