Wisconsin Judicial Commission v. Michael J. Piontek

2019 WI 51
SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP1033-J
COMPLETE TITLE: In the Matter of Judicial Disciplinary
Proceedings
Against the Honorable Michael J. Piontek:
Wisconsin Judicial Commission,
Complainant,
v.
the Honorable Michael J. Piontek,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST PIONTEK
OPINION FILED: May 21, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2019 WI 51
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP1033-J
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Judicial Disciplinary
Proceedings Against the Honorable
Michael J. Piontek:
Wisconsin Judicial Commission,
FILED
Complainant, MAY 21, 2019
v. Sheila T. Reiff
Clerk of Supreme Court
The Honorable Michael J. Piontek,
Respondent.
Judicial disciplinary proceeding. Judge suspended from
office.
¶1 PER CURIAM. We review, pursuant to Wis. Stat.
§ 757.91 (2015-2016),1 a Judicial Conduct Panel's findings of
1All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated. Wisconsin Stat.
§ 757.91 provides:
The supreme court shall review the findings of
fact, conclusions of law and recommendations under s.
757.89 and determine appropriate discipline in cases
of misconduct and appropriate action in cases of
permanent disability. The rules of the supreme court
(continued)
No. 2018AP1033-J
fact, conclusions of law, and recommendation for discipline for
Racine County Circuit Court Judge Michael J. Piontek. We
conclude that a five-day suspension is the appropriate
discipline for Judge Piontek's judicial misconduct.
¶2 At the time of the events in question, Judge Piontek
had been a circuit court judge for Racine County for about two
years. Before assuming the bench, Judge Piontek was a
practicing lawyer for about 38 years, including time as a county
prosecutor. Until this disciplinary matter, he had never been
the subject of a complaint or grievance as an attorney or judge.
¶3 The Judicial Commission filed a complaint against
Judge Piontek on June 5, 2018, alleging that he had engaged in
judicial misconduct by his actions, described below, in
presiding over two different criminal matters.
¶4 Judge Piontek filed a response to the complaint in
which he generally admitted the allegations but alleged various
mitigating circumstances.
¶5 Consistent with an order issued by the Judicial
Conduct Panel, the parties filed briefs on the issue of the
appropriate discipline to be imposed. After receiving these
briefs, the panel made findings of fact and conclusions of law
and recommended that this court suspend Judge Piontek between
five and 15 days. This recommendation exceeded the disciplinary
sanction that Judge Piontek suggested in his brief to the panel:
applicable to civil cases in the supreme court govern
the review proceedings under this section.
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a public reprimand. The panel's recommendation more closely
followed the sanction proposed by the Judicial Commission, which
suggested discipline ranging from a reprimand to a short
suspension.
¶6 The facts involved in this matter are as follows.
The S.S. Criminal Case
¶7 Between August 2014 and February 2015, Judge Piontek
presided over a criminal case involving defendant S.S. Judge
Piontek set the matter for a March 4, 2015 trial. Sometime
before December 3, 2014, Judge Piontek received at his chambers
an informal visit from the prosecutor assigned to the S.S. case;
the prosecutor was seeking an adjournment of the trial.
¶8 On December 3, 2014, Judge Piontek telephoned the
prosecutor, without including defense counsel in the call or
giving defense counsel notice that he planned to make the call.
During the three-minute-and-seven-second phone call, Judge
Piontek told the prosecutor that he wanted S.S.'s trial to go
forward on the scheduled trial date; that any plea negotiation
should involve S.S. being convicted of a felony; and that people
like S.S. who involve themselves "in scams like this" need to be
stopped.
¶9 Judge Piontek never disclosed his December 3, 2014
conversation with the prosecutor to S.S. or S.S.'s attorney.
¶10 On or about January 29, 2015, the prosecutor sent a
letter to defense counsel in which he summarized his account of
the judge's December 3, 2014 phone call. Shortly thereafter,
the prosecutor submitted a copy of the letter to Judge Piontek.
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No. 2018AP1033-J
¶11 Only after receiving the prosecutor's letter did Judge
Piontek recuse himself from handling the S.S. case.
¶12 During the pendency of the Judicial Commission's
investigation into the S.S. matter, Judge Piontek at least twice
denied the assertions made in the prosecutor's January 29, 2015
letter. In a September 18, 2015 response letter to the Judicial
Commission, Judge Piontek denied that he initiated the December
3, 2014 phone call to the prosecutor, and denied making the
statements attributed to him by the prosecutor. In a September
14, 2017 Response to Notice of Formal Proceedings, Judge Piontek
denied that his ex parte conversation with the prosecutor
involved discussions of plea negotiations. Only later, when he
filed his response to the Judicial Commission's complaint, did
Judge Piontek admit that he initiated the December 3, 2014 phone
call. He further admitted making "off-handed comments about the
manner in which he believed the case should be resolved."
¶13 The Judicial Commission's complaint alleged, and the
Judicial Conduct Panel concluded, that Judge Piontek's contact
with the prosecutor on December 3, 2014, constituted a willful
violation of Supreme Court Rule (SCR) 60.04(1)(g),2 which
2 SCR 60.04(1)(g) provides:
A judge may not initiate, permit, engage in or
consider ex parte communications concerning a pending
or impending action or proceeding except that:
1. A judge may initiate, permit, engage in or
consider ex parte communications for scheduling,
administrative purposes or emergencies that do not
(continued)
4
No. 2018AP1033-J
prohibits ex parte communications concerning pending matters
unless an exception exists under the law.
¶14 The Judicial Commission's complaint also alleged, and
the Judicial Conduct Panel concluded, that Judge Piontek's
contact violated his obligations:
• pursuant to SCR 60.02,3 to participate in establishing,
maintaining, and enforcing high standards of conduct
and to personally observe those standards;
• pursuant to SCR 60.03(1),4 to comply with the law and
act at all times in a manner that promotes public
deal with substantive matters or issues on the merits
if all of the following conditions are met:
a. The judge reasonably believes that no party
will gain a procedural or tactical advantage as a
result of the ex parte communication.
b. When the ex parte communication may affect the
substance of the action or proceeding, the judge
promptly notifies all of the other parties of the
substance of the ex parte communication and allows
each party an opportunity to respond.
3 SCR 60.02 provides:
An independent and honorable judiciary is
indispensable to justice in our society. A judge
should participate in establishing, maintaining and
enforcing high standards of conduct and shall
personally observe those standards so that the
integrity and independence of the judiciary will be
preserved. This chapter applies to every aspect of
judicial behavior except purely legal decisions. Legal
decisions made in the course of judicial duty on the
record are subject solely to judicial review.
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No. 2018AP1033-J
confidence in the integrity and impartiality of the
judiciary;
• pursuant to SCR 60.04(1)(e),5 to perform judicial
duties without bias or prejudice; and
• pursuant to SCR 60.04(4),6 to recuse himself from
handling S.S.'s case earlier than he did because a
reasonable, well-informed person, knowledgeable about
judicial ethics, would reasonably question his ability
to be impartial.
4 SCR 60.03(1) provides: "A judge shall respect and comply
with the law and shall act at all times in a manner that
promotes public confidence in the integrity and impartiality of
the judiciary."
5 SCR 60.04(1)(e) provides:
A judge shall perform judicial duties without
bias or prejudice. A judge may not, in the performance
of judicial duties, by words or conduct, manifest bias
or prejudice, including bias or prejudice based upon
race, gender, religion, national origin, disability,
age, sexual orientation or socioeconomic status, and
may not knowingly permit staff, court officials and
others subject to the judge's direction and control to
do so.
6 SCR 60.04(4) provides:
Except as provided in sub. (6) for waiver, a
judge shall recuse himself or herself in a proceeding
when the facts and circumstances the judge knows or
reasonably should know establish one of the following
or when reasonable, well-informed persons
knowledgeable about judicial ethics standards and the
justice system and aware of the facts and
circumstances the judge knows or reasonably should
know would reasonably question the judge's ability to
be impartial.
6
No. 2018AP1033-J
The P.E. Criminal Case
¶15 Between August 2014 and August 2015, Judge Piontek
presided over a criminal case involving defendant P.E. P.E., a
former nurse, pled guilty in June 2014 before another judicial
official to two counts of delivery of non-narcotic controlled
substances. A presentence investigation (PSI) was ordered, and
the matter was scheduled for sentencing before Judge Piontek on
October 6, 2014.
¶16 On October 3, 2014, Judge Piontek conducted an
independent internet investigation concerning P.E.'s nursing
licenses and related matters in several states. Judge Piontek
did so because he believed that P.E. was untruthful in her
comments to the PSI writer. Judge Piontek's independent
internet investigation led him to discover what he believed to
be incriminating information from the states of Texas and
Illinois. Judge Piontek incorrectly deduced from his research
that P.E. had never been licensed as a nurse in Illinois.
¶17 Prior to sentencing, Judge Piontek did not provide the
parties or their attorneys with either notice of his intent to
conduct his investigation or the nature of his investigation and
its results.
¶18 At P.E.'s sentencing hearing, Judge Piontek waited
until after the parties' arguments were completed and after P.E.
exercised her right of allocution to discuss the results of his
independent investigation. P.E. and her attorney did not have
an opportunity to view the documents that Judge Piontek had
apparently printed from his internet research. Judge Piontek
7
No. 2018AP1033-J
stated that, according to his independent research, P.E. never
had an Illinois nursing license. When P.E. attempted to provide
information about her Illinois nursing license, Judge Piontek
told her that her "lies are getting [her] in trouble," suggested
that she "close [her] mouth," stated that her "license in the
State of Illinois does not exist," and said that he did not want
any further comment from her.7 When sentencing P.E., Judge
Piontek relied on the incorrect information he had obtained from
the internet regarding P.E.'s Illinois nursing license.
¶19 P.E. filed a postconviction motion requesting
resentencing because Judge Piontek, at sentencing, relied on
inaccurate information resulting from his internet research. At
a hearing on that motion, Judge Piontek implicitly acknowledged
conducting an independent investigation, asserting that he
simply sought out the truth and relied on public records. Judge
Piontek denied P.E.'s resentencing request, essentially taking
the position that he did not rely on the inaccurate information.
He claimed that "whether she had an Illinois license or didn't
have an Illinois license, that wasn't a big deal to me."
¶20 P.E. appealed. The court of appeals reversed her
judgment of conviction and the order denying resentencing, and
remanded the matter for resentencing before a different judge.
The court of appeals concluded that the record was inconsistent
7We take these quotes from the decision on P.E.'s appeal,
described below, which quoted extensively from the sentencing
hearing.
8
No. 2018AP1033-J
with Judge Piontek's assertion that he did not rely on the
misinformation obtained from his independent investigation.
Therefore, the court of appeals concluded, Judge Piontek denied
P.E. her right to be sentenced upon accurate information.
¶21 In his brief to the Judicial Conduct Panel, Judge
Piontek implicitly conceded that his independent factual
investigation was not an isolated instance of this conduct. He
stated that "[l]ong before his formal appearance before the
Judicial Commission, Judge Piontek ceased conducting any
independent factual research in cases before him." The Judicial
Conduct Panel construed the plain meaning of this statement to
be that Judge Piontek had conducted independent factual
investigations in other "cases," but that he had stopped this
practice.
¶22 The Judicial Commission's complaint alleged, and the
Judicial Conduct Panel concluded, that Judge Piontek's
investigation of P.E.'s background prior to sentencing
constituted a willful violation of SCR 60.04(1)(g), the comment
to which states, "[a] judge must not independently investigate
facts in a case and must consider only the evidence presented."
¶23 The Judicial Commission's complaint also alleged, and
the Judicial Conduct Panel concluded, that Judge Piontek's
conduct violated his obligations:
• pursuant to SCR 60.02, to participate in establishing,
maintaining, and enforcing high standards of conduct
and to personally observe those standards; and
9
No. 2018AP1033-J
• pursuant to SCR 60.03(1), to comply with the law and
act at all times in a manner that promotes public
confidence in the integrity and impartiality of the
judiciary.
¶24 The Judicial Conduct Panel concluded that each of
these violations was willful and thus constituted judicial
misconduct under Wis. Stat. § 757.81(4)(a).8
¶25 We adopt the panel's undisputed findings and
conclusions of law. We therefore turn to the question of the
appropriate discipline for the misconduct.
¶26 In imposing discipline——which may be reprimand,
censure, suspension, or removal——we must bear in mind that the
goal of judicial discipline is not to punish the erring judge,
but to protect the public from unacceptable judicial behavior,
considering both the seriousness of the judge's misconduct and
the likelihood that it would recur. See In re Judicial
Disciplinary Proceedings Against Crawford, 2001 WI 96, ¶38, 245
Wis. 2d 373, 629 N.W.2d 1. The sanction that we impose must
also "convey to the public the gravity with which this court
views judicial misconduct." Id., ¶39. We impose discipline on
a de novo basis, benefitting from but not bound by the panel's
recommendation. See id., ¶38.
8Wisconsin Stat. § 757.81(4)(a) states that misconduct
includes "[w]illful violation of a rule of the code of judicial
ethics."
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No. 2018AP1033-J
¶27 In recommending a suspension between five and 15 days,
the Judicial Conduct Panel found both mitigating and aggravating
factors. On the mitigating side, the panel noted that Judge
Piontek has a long history of community involvement; has no
history of prior ethics complaints; and did not act to satisfy
personal desires or receive any personal benefit. In addition,
the panel gave "some" weight, but not significant weight, to the
fact that Judge Piontek had served only about two years on the
bench when he engaged in the conduct at issue. The panel
declined to assign additional weight to this factor on the basis
that Judge Piontek's 38 years of practice experience, including
as a county prosecutor, should have made him aware of the
prohibitions on ex parte communications, judicial involvement in
plea bargaining, and independent factual research specific to
parties.
¶28 Also on the mitigating side, the Judicial Conduct
Panel noted that Judge Piontek now appears to understand that he
may not engage in the type of conduct underlying his violations
and, thus, has indicated an effort to modify his conduct. The
panel also gave "some" weight, but not significant weight, to
the fact that Judge Piontek's misconduct was somewhat isolated,
though the panel noted that Judge Piontek implicitly conceded
that he had engaged in independent factual investigation in
other cases. The panel further noted that Judge Piontek did not
attempt to conceal his misconduct, and, as to the P.E. case, did
not seem aware that his behavior was improper.
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No. 2018AP1033-J
¶29 The Judicial Conduct Panel went on to discuss a
variety of factors on the aggravating side of the scale. The
panel noted that Judge Piontek's misconduct occurred while he
was representing the judicial system within the courtroom. The
nature of his misconduct was serious; it showed bias and had the
potential to unfairly affect the outcomes of the cases at issue,
and therefore was of the sort that damages public confidence in
judicial integrity, judicial impartiality, and fairness in the
decision-making process. The panel also determined that, as to
the S.S. case, Judge Piontek was not credible in asserting he
was unaware of the impropriety of his ex parte communication
with the prosecutor in which he commented on the defendant's
culpability and the need for any plea agreement to include a
felony conviction.
¶30 Also weighing on the aggravating side of the scale,
according to the Judicial Conduct Panel, was Judge Piontek's
delay in admitting some of his conduct and his attempts to
minimize the impropriety of his conduct. For example,
concerning the S.S. case, Judge Piontek at first falsely denied
to the Judicial Commission that he had made the phone call to
the prosecutor or the statements in question. While he
eventually admitted his actions, he chalked his initial denial
up to a faulty memory and downplayed his statements to the
prosecutor as "off-handed." In so doing, the panel wrote, Judge
Piontek appeared to have only admitted his wrongdoing when he
was caught, in the apparent hope that it would mitigate any
punishment.
12
No. 2018AP1033-J
¶31 Judge Piontek's failure to acknowledge the seriousness
of his misconduct was also apparent in his handling of the P.E.
case, according to the Judicial Conduct Panel. The panel noted
that the court of appeals' decision in the P.E. case quoted
extensively from a postconviction hearing in which Judge Piontek
did not acknowledge the impropriety of his independent
investigation, but instead explained that he conducted his
investigation because he was dissatisfied with the information
in the PSI——an assertion that Judge Piontek largely repeated in
his brief to the panel. Also at the postconviction hearing,
Judge Piontek dismissed any notion that he did not give P.E.
sufficient time to respond to his internet research as an
example of blame-shifting by P.E. Judge Piontek also claimed at
the postconviction hearing that he did not rely on the erroneous
results of his independent research at sentencing——a claim that
the court of appeals rejected as inconsistent with the record.
¶32 The Judicial Conduct Panel declined to accept Judge
Piontek's other attempts to downplay the seriousness of his
misconduct. For example, Judge Piontek attributed all of his
misconduct to a newcomer's misunderstanding of the judge's role
in felony court versus more collaborative settings; e.g., the
veterans treatment court. The panel was unpersuaded, noting
that Judge Piontek, from his long experience as a lawyer, was
surely familiar with a judge's normal role. The panel was
similarly unpersuaded by Judge Piontek's claim that his heavy
criminal caseload helped explain his behavior. The panel found
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No. 2018AP1033-J
this explanation implausible given that Judge Piontek's behavior
involved devoting extra time to the cases in question.
¶33 The Judicial Conduct Panel cited three cases as
particularly analogous to this matter: In re Judicial
Disciplinary Proceedings Against Carver, 192 Wis. 2d 136, 531
N.W.2d 62 (1995); In re Judicial Disciplinary Proceedings
Against Calvert, 2018 WI 68, 382 Wis. 2d 354, 914 N.W.2d 765;
and In re Judicial Disciplinary Proceedings Against Aulik, 146
Wis. 2d 57, 77, 429 N.W.2d 759 (1988). In Carver, we imposed a
15-day suspension after a judge failed to promptly disqualify
himself from a criminal case pending against a friend. The case
arose from a gambling investigation. The judge failed to
truthfully disclose his communications with the defendant, and
made on-the-record comments that minimized the seriousness of
the offense charged, questioned the legitimacy of the
investigation and prosecution of the defendant's case and others
like it, and suggested that minimum sentences should be imposed
for such crimes. See Carver, 192 Wis. 2d at 137-46. We
concluded that the judge's aggravated failure to act
impartially, objectively, and truthfully warranted a 15-day
suspension. Id. at 154-55.
¶34 In Calvert, we imposed a 15-day suspension as a result
of a circuit court commissioner's independent investigation of
the facts of a case before him, which included engaging in ex
parte communication, and his false statements to the parties
that any further calls to police about their dispute would
result in disorderly conduct tickets that would be sustained
14
No. 2018AP1033-J
throughout the judicial system. We held that the commissioner's
conduct was "undeniably serious" because "a judge's objectivity
and impartiality are critical to the proper functioning of the
judicial system." Calvert, 382 Wis. 2d 354, ¶26.
¶35 In Aulik, we imposed a 90-day suspension as a result
of a circuit court judge's ex parte communications with counsel
on the merits of a contested matter, and failure to fully
disclose the communications to counsel for the other party after
the communications were discovered. Aulik, 146 Wis. 2d at 58-
59, 73-79.
¶36 Analogizing these cases to the facts at hand, the
Judicial Conduct Panel reasoned that Judge Piontek's misconduct
deserved more than the sanction he requested: a reprimand. The
Judicial Conduct Panel also concluded that Judge Piontek's
statements during the course of these proceedings showed that he
did not appreciate the serious nature of his violations and
their impact on the integrity of the judicial system. The
Judicial Conduct Panel therefore recommended that the court
impose a suspension ranging from five to 15 days.
¶37 We agree with the Judicial Conduct Panel that a
suspension, rather than a reprimand, is in order. The
misconduct in this case is concerning. Regardless of his
newness to the bench or the weight of his caseload, Judge
Piontek's ex parte communication with the prosecutor on the
merits of a criminal case was obviously unethical; even the
newest and busiest judge must know as much. In addition, Judge
Piontek's independent investigation concerning P.E.'s nursing
15
No. 2018AP1033-J
licenses plainly violated his duty of neutrality; it is clearly
improper for a judge to both conduct an independent
investigation and to fail to give a party a chance to respond to
the judge's misinformed allegations based on that investigation.
We also share the Judicial Conduct Panel's concern that Judge
Piontek's initial denials and later defenses of his conduct
suggest that, for much of these proceedings, he failed to fully
appreciate the seriousness of his misconduct and its impact on
the judicial system. Simply put, this was not a close case
under the undisputed facts, and a reprimand, as Judge Piontek
requests, would be an insufficient response.
¶38 Finding that suspension is warranted, the question
becomes what length of suspension is appropriate. As stated
above, the Judicial Conduct Panel recommended a suspension
ranging from five to 15 days. We conclude that a suspension at
the bottom end of this range is warranted. Acknowledging that
the imposition of discipline is not an exact science, we find
that Judge Piontek's conduct was not as egregious as that which
resulted in 15-day suspensions in Carver and Calvert, and
thereby warrants a lesser sanction. In Carver, we noted, among
other things, that the respondent-judge used his judicial office
in order to make an on-the-record criticism of a gambling
investigation. Carver, 192 Wis. 2d at 139, 154. In Calvert, we
noted, among other things, that the respondent-judge gave the
impression to the litigants before him that the judge had
essentially rigged the judicial and criminal justice systems
against them. Calvert, 382 Wis. 2d 354, ¶¶19, 21, 26. Judge
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No. 2018AP1033-J
Piontek's actions, while misguided and serious, do not rise to
the same level of impropriety. As we previously noted, the goal
of judicial discipline is not to punish the erring judge, but to
protect the public from unacceptable judicial behavior. Id.,
¶22. We believe this goal will be adequately served by
suspending Judge Piontek for five days.
¶39 IT IS ORDERED that Michael J. Piontek is suspended
from the office of circuit judge without compensation, and
prohibited from exercising any of the powers or the duties of a
circuit judge in Wisconsin, for a period of five days,
commencing June 24, 2019.
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No. 2018AP1033-J
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