2020 Ohio 1569
Ohio2020Background:
- Barbara Porzio, longtime Lake County magistrate and attorney since 1979, held a hearing on competing civil stalking petitions between Walter Gerino and Paul Fish on Aug. 16, 2017.
- After Fish was excused, Porzio engaged in a 23‑minute ex parte conversation with Gerino and his witnesses in which she criticized Fish, made derogatory and religious/ethnic comments, used profanity, discussed legal standards, and early on stated that neither party had proved his case.
- Porzio later issued a magistrate’s decision granting Gerino a five‑year civil protection order and denying Fish’s counterpetition; she admitted someone could reasonably conclude the ex parte contact influenced her decision and that she reviewed the audio before issuing the decision.
- Disciplinary counsel charged violations of the Code of Judicial Conduct (Jud.Cond.R. 1.2, 2.9(A), and 2.11(A)); Porzio stipulated to the misconduct and the parties initially jointly recommended a public reprimand.
- The Board of Professional Conduct found violations of the three rules and, emphasizing the announced intended decision and other misconduct, recommended a six‑month suspension stayed on conditions (including CLE on judicial ethics and bias).
- The Ohio Supreme Court adopted the board’s findings and sanction: a six‑month suspension stayed in full on conditions (complete four hours CLE in judicial ethics, two hours on bias, and no further misconduct); costs taxed to Porzio.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Porzio’s post‑hearing private conversation with one party violated the prohibition on ex parte communications (Jud.Cond.R. 2.9(A)) | The conversation was substantive (legal views, evidence, intended ruling) and occurred outside presence of opposing party → ex parte communication prohibited. | Characterize comments as informal or harmless small talk that did not control the outcome. | Court found a violation of Jud.Cond.R. 2.9(A). |
| Whether Porzio’s comments and demeanor created an appearance of impropriety (Jud.Cond.R. 1.2) | Derogatory, profane, and religious/ethnic remarks undermined public confidence and showed bias against Fish. | Conduct was an aberration in a long, otherwise clean career; mitigating evidence of integrity and service. | Court found a violation of Jud.Cond.R. 1.2. |
| Whether Porzio should have disqualified herself after the ex parte contact (Jud.Cond.R. 2.11(A)) | She expressed views on credibility and intended ruling, then issued the decision without recusal → impartiality reasonably could be questioned. | Claimed no dishonest motive and argued she could still render a proper decision. | Court found a violation of Jud.Cond.R. 2.11(A) and noted she should have recused herself. |
| Appropriate sanction for the misconduct | Disciplinary counsel and the board urged more than a reprimand given the announced decision, ex parte contact, and derogatory remarks; board recommended conditionally stayed six‑month suspension. | Porzio (and parties’ initial stipulation) urged a public reprimand, citing long unblemished service, lack of selfish motive, remorse, and character evidence. | Court imposed a six‑month suspension, stayed in full on conditions (four CLE hours including two on bias; no further misconduct). |
Key Cases Cited
- Disciplinary Counsel v. Holben, 122 N.E.3d 1274 (Ohio 2018) (Code of Judicial Conduct applies to magistrates; public reprimand for failure to disqualify)
- Disciplinary Counsel v. Stuard, 901 N.E.2d 788 (Ohio 2009) (ex parte communications with prosecutor resulting in public reprimand)
- Disciplinary Counsel v. Elum, 979 N.E.2d 289 (Ohio 2012) (cond. stayed six‑month suspension for judicial misconduct including vulgar language and failure to recuse)