The Ohio Supreme Court today suspended former Lorain County Common Pleas Court Judge James M. Burge from practicing law. The suspension was based on his criminal convictions related to his failure to disclose his interest in an office building on his financial disclosure forms, assigning paid legal work to attorneys who rented office space from him, and for other acts in office, including sarcastically threatening to beat a defendant and to have another defendant shot by a deputy sheriff.

A divided Supreme Court suspended Burge for one year with sixth months stayed. He was given credit for the approximately three months and three weeks he served under an interim suspension issued in April 2015 after his conviction for tampering with records and falsification.

The Court’s per curiam opinion stated the sanction was appropriate for a number of reasons, including that his misconduct occurred while he was judge and, since he has resigned from the bench, “his misconduct is unlikely to recur.”

Justices Judith L. French, R. Patrick DeWine, Michael P. Donnelly, and Melody J. Stewart joined the opinion.

Chief Justice Maureen O’Connor and Justice Patrick F. Fischer stated they would not award Burge credit for the time served under the interim suspension.

Justice Sharon L. Kennedy dissented, stating that a two-year suspension, with one year stayed, was more appropriate.

Judge Conceals Financial Interest in Building Where Attorneys Rent Space
Burge’s criminal convictions stem from his failure to report on annual financial disclosure statements his interest in Whiteacre North, a company whose sole asset was a building located in downtown Lorain.

Burge and his wife became the primary owners of Whiteacre in 1998. When Burge first took office in 2007, the Whiteacre shareholders assigned their interest in the property to a couple who agreed to pay $70,000 to the shareholders and assume the debt on the property owed to a local bank. The assignment agreement fell through and Burge remained personally responsible for the bank loan. He did not list on his financial disclosure form the bank as a creditor, Whiteacre as a business that he and his wife operated, or his ownership interest in the building in downtown Lorain.

A grand jury indicted Burge in September 2014 on 12 counts of criminal conduct, and a jury in April 2015 found him guilty of three misdemeanor falsification charges and three felony tampering charges. A visiting judge dismissed the remaining charges, and a month later reduced the felony charges to misdemeanors. Burge resigned from the bench and paid a $3,000 fine.

The Supreme Court imposed an interim suspension in April 2015 based on the convictions, but reinstated Burge in August 2015 after being notified the felony tampering charges were converted to misdemeanors.

During the time he owned the building, lawyers who rented space there appeared in Burge’s court. He appointed five of those attorneys to represent indigent defendants in cases before him, and awarded court-appointed fees to two lawyers who were Whiteacre tenants. Burge did not recuse himself in the cases or disclose the relationships to prosecutors.

Behavior on Bench Leads to Additional Charges
Based on the criminal conviction and additional complaints about Burge’s behavior on the bench, the Office of Disciplinary Counsel charged him in 2018 with several counts of violating the rules governing the conduct of Ohio judges.

In 2012, Burge presided over the bench trial of Samuel Nieves, who was indicted on rape and gross sexual imposition charges involving a 14-year-old girl. At the close of the prosecutor’s case, Burge acquitted Nieves on the rape charge, over the objection of the prosecutor, but found him guilty of the gross sexual imposition count. He sentenced Nieves to 17 months in prison, but released him less than four months into his prison term. The prosecutor complained at the time of the rape acquittal that Burge was disregarding precedent. During disciplinary proceedings, Burge acknowledged that he was aware, but did not follow, the established precedent.

Burge also admitted that he made disparaging remarks from the bench to defendants. In one case, he told a man he was sending to a community-based correctional facility that he “would have paid 50 bucks to give you a beating before you went.”

In another case involving a man convicted of possessing stolen property, Burge said to the defendant, “Now if I were to believe you were that stupid, James, I would just have Deputy Motelewski shoot you right now, because I know you’re not going to make it through life.”

Judge Pens Disparaging Remark about Lawmaker
In 2011, Burge used his official court stationery to write to three state representatives about a bill introduced in the Ohio General Assembly by former Rep. Lynn Slaby, who previously served as a judge on the Ninth District Court of Appeals. Burge characterized Slaby and his proposed legislation as “nothing more than the hobgoblin of a small-minded, mouth-breathing, Tea Party type whose political style and abilities uniquely qualify him to do nothing.”

Burge and the Disciplinary Counsel stipulated that his actions on the bench and the crimes violated a number of rules.

Court Agreed to Recommended Sanction
The Board of Professional Conduct recommended that Burge be suspended from the practice of law for one year with six months stayed. Burge did not object to the board’s recommended sanction, but requested that he be given credit for the time served in 2015 under the interim suspension.

The Court adopted the one year suspension with six months stayed provided Burge not commit further misconduct. A majority of the court also found that he should receive credit for the time served. The Court’s opinion noted the board found Burge’s circumstances similar to that of former Bedford Municipal Court Judge Harry J. Jacob who was suspended for two years with one year stayed. Jacob was convicted of five misdemeanors related to soliciting prostitution and amending charges in favor of a defendant without the prosecutor’s presence or consent. (See Convicted for Solicitation, Former Municipal Court Judge Suspended from Practice of Law.)

The majority found that Burge deserves a lesser sanction “because unlike Jacob, Burge fully acknowledged the wrongful nature of his conduct and showed genuine remorse for his wrongdoing.” The Court noted the primary purpose of judicial discipline is to protect the public, guarantee evenhanded administration of justice, and maintain and enhance public confidence in the integrity of the judiciary.

“All of Burge’s misconduct occurred during his time as a judge and was related to his judicial duties and responsibilities; since he resigned from the common pleas court following his criminal convictions, his misconduct is unlikely to recur,” the majority opinion stated.

Dissent Would Add More Time
Justice Kennedy, in her dissenting opinion, concluded that while some of Burge’s misconduct was similar to Jacob’s, Burge engaged in more misconduct than Jacob, and she would impose a two-year suspension, with one year stayed, similar to what Jacob received.

 Both Burge and Jacob were convicted of misdemeanors. Justice Kennedy noted the jury convicted Burge of three felonies but “only because the trial court failed to specify the appropriate level of offense in the jury-verdict forms that the felony tampering counts were reduced to misdemeanor convictions.” Also, while Jacob engaged in impropriety on the bench, Burge’s misconduct on the bench was broader in scope. And unlike Jacob, Burge engaged in financial misconduct, the opinion noted, as Burge financially benefitted from the lawyers who rented space in his office building. 

Justice Kennedy wrote that by imposing a one year suspension with six months stayed the majority focused mainly on Burge’s misdemeanor convictions and minimized his judicial misconduct because he resigned.

“This court has not previously minimized judicial misconduct because the respondent was no longer serving as a judge when we issued our judgment,” she wrote.

She further stated that all of Burge’s misconduct has had a profound effect on the integrity of the judiciary.

She reasoned that only by considering all of Burge’s misconduct was the primary purpose of judicial discipline satisfied— to protect the public, guarantee the evenhanded administration of justice, and maintain and enhance public confidence in the integrity of the judicial system.  Consequently, a two-year suspension with one year stayed “show[ed] that judges are held to the highest possible standards of ethical conduct and would restore integrity to the judiciary and the public’s confidence in it,” she wrote.

2018-1759. Disciplinary Counsel v. Burge, Slip Opinion No. 2019-Ohio-3205.

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