                                                              2019 WI 82

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2018AP628-J
COMPLETE TITLE:         In the Matter of Judicial Disciplinary
                        Proceedings Against the Honorable Leonard D.
                        Kachinsky

                        Wisconsin Judicial Commission,
                                  Complainant,
                             v.
                        the Honorable Leonard D. Kachinsky,
                                  Respondent.

                           DISCIPLINARY PROCEEDINGS AGAINST KACHINSKY

OPINION FILED:          July 9, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:


       For the complainant, there were briefs filed by Jeremiah
Van Hecke and The Wisconsin Judicial Commission, Madison.


        For the respondent, there was a brief filed by Leonard D.
Kachinksy, Neenah.
                                                                       2019 WI 82
                                                               NOTICE
                                                 This opinion is subject to further
                                                 editing and modification.   The final
                                                 version will appear in the bound
                                                 volume of the official reports.
No.       2018AP628-J


STATE OF WISCONSIN                          :             IN SUPREME COURT

In the Matter of Judicial Disciplinary
Proceedings Against the Honorable Leonard D.
Kachinsky:

Wisconsin Judicial Commission,                                      FILED
              Complainant,                                      JUL 9, 2019
      v.                                                          Sheila T. Reiff
                                                               Clerk of Supreme Court
The Honorable Leonard D. Kachinsky,

              Respondent.




      JUDICIAL     disciplinary   proceeding.        Judge      suspended       from
eligibility for reserve judge status with condition.



      ¶1     PER   CURIAM.   We   review,       pursuant      to     Wis.     Stat.
§ 757.91 (2017-18),1 a judicial conduct panel's findings of fact,



      1   Wisconsin Statute § 757.91 (2017-18) 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.     2018AP628-J



conclusions of law, and recommendation for discipline for the
Honorable Leonard D. Kachinsky, a former municipal judge for the
Village of Fox Crossing Municipal Court.                             We conclude that Judge
Kachinsky's judicial misconduct warrants a three-year suspension
of   eligibility         for     the    position            of    reserve    municipal           judge,
commencing        July     3,     2018,       with          the     condition        that        before
requesting       an   appointment            by   the       chief    judge     to        serve    as   a
reserve     municipal          judge,        Judge          Kachinsky       must     successfully
petition this court to establish his fitness to serve in that
capacity.
      ¶2     Beginning           in    1997,       Judge          Kachinsky        served        as    a
municipal judge for 21 years, first for the Town of Menasha

Municipal        Court     and    then       for       the       Village     of     Fox     Crossing
Municipal Court.           On July 3, 2018, this court, in the exercise
of   its   superintending              and    administrative              authority        over       the
courts     of     this     state,        issued         an        order     prohibiting          Judge
Kachinsky from exercising the powers of a municipal judge until
further    order      of    this       court.          Judge       Kachinsky       did     not    seek

reelection in the 2019 spring election.                              Consequently, his term
as the Village of Fox Crossing Municipal Judge expired on April
30, 2019.         Judge Kachinsky's years of service would ordinarily
render     him    eligible        to    serve          as    a    reserve     municipal           judge
pursuant to Wis. Stat. § 800.065.



      applicable to civil cases in the supreme court govern
      the review proceedings under this section.


                                                   2
                                                                             No.     2018AP628-J



       ¶3        The Wisconsin Judicial Commission originally received
an ethics complaint concerning Judge Kachinsky in June 2017.
When       the    Commission         notified           Judge   Kachinsky     that     it    was
investigating           allegations       of    possible         misconduct    a   few      weeks
later,      it        advised    him    that        he      should     "scrupulously        avoid
retaliatory conduct or witness intimidation."
       ¶4        On    April    4,    2018,     the         Judicial    Commission    filed     a
formal complaint against Judge Kachinsky in this court.                                       The
Judicial Commission's complaint alleged multiple violations of
the Code of Judicial Conduct (Chapter 60 of the Supreme Court
Rules (SCR)).             Judge Kachinsky's answer admitted many of the
factual      allegations         in    the      complaint,        but    denied    others      or

offered explanations for his conduct.                            The Judicial Commission
filed an amended complaint in September 2018, in response to
which Judge Kachinsky filed an amended answer.
       ¶5        After the initial complaint had been filed, this court
referred the matter to the chief judge of the court of appeals,
who appointed three members of the court of appeals to serve as

the Judicial Conduct Panel.2                    See Wis. Stat. § 757.87(3).                   The
Panel conducted an evidentiary hearing on February 7-8, 2019.
The    Judicial Commission called                       a   number of     employees of the
Village          of    Fox     Crossing        as       witnesses.         Judge     Kachinsky
represented himself and testified at the hearing.


       2
       Judges Joan F. Kessler, Mark D. Gundrum, and William W.
Brash, III were appointed to serve as the Judicial Conduct
Panel, with Judge Kessler acting as the presiding judge.


                                                    3
                                                                            No.    2018AP628-J



       ¶6      Following the hearing, the Panel issued its Findings
of Fact, Conclusions of Law, and Recommendation.                                  This court
ordered     the      parties     to    file    simultaneous         opening       briefs   and
response briefs regarding the Panel's findings and conclusions.
The parties did so.
       ¶7      The allegations of judicial misconduct in this matter
fall     under       three     headings.           Most     of   the    allegations         of
misconduct relate to Judge Kachinsky's interactions with M.B.,
the full-time manager for the Village of Fox Crossing Municipal
Court.        The second category of allegations are related to an
email that Judge Kachinsky sent to a member of the village board
regarding        his     interactions          with       members      of    the     village

administration and the village's filing of a complaint with the
Judicial Commission.             The third category of allegations relates
to an email that Judge Kachinsky sent to the village's police
chief    regarding       a   case      that    was    pending    before       him.      Judge
Kachinsky sent copies of that email to the village's attorney
and a police records clerk, but did not send a copy to the

defendant or defense counsel or otherwise notify the defendant
that he had sent the email.
Interactions with M.B.
       ¶8      The     Village    of    Fox     Crossing      Municipal       Court     holds
court         sessions         lasting         approximately           90-120        minutes
approximately three times per month on Thursday evenings.                               There
are    only    two     individuals       who    worked      at   the    municipal       court
during the relevant time period.                     Judge Kachinsky held the part-
time elected position as municipal court judge.                              M.B. was the
                                               4
                                                                             No.   2018AP628-J



full-time court manager, whose position was supervised by Judge
Kachinsky.          The municipal        court judge         and the court manager
shared a small office in the Village of Fox Crossing municipal
building.
       ¶9     Prior to the events at issue in this proceeding, when
a different person was the court manager, Judge Kachinsky was
physically in the municipal court offices                           on   a    very     limited
basis, usually only arriving shortly before court sessions were
to begin and leaving shortly after the court sessions had ended.
       ¶10    Following the retirement of the prior court manager,
Judge Kachinsky hired M.B. as the court manager in the spring of
2016.        At the beginning of M.B.'s employment, she and Judge

Kachinsky      would       have    occasional      conversations               about     their
personal lives and developed a friendship.                      They also engaged in
occasional joint activities outside of work, such as going on a
few   runs in        September and October          2016 that            Judge     Kachinsky
labelled "Judge K Challenge Runs."
       ¶11    Even    before      M.B.   was    hired    as    the       municipal      court

manager,      she    and   Judge    Kachinsky      had       been    "friends"         on   the
Facebook social media website.                  Each had hundreds of "friends"
on that website, including a number of mutual "friends."
       ¶12    Judge Kachinsky experienced serious medical problems
from May 2016 to February 2017, which caused him at times to be
hospitalized.         During this time period, Judge Kachinsky and M.B.
communicated about both work issues and other personal matters
in    what    the    Judicial     Conduct Panel describes                as "a mutually
friendly      and    supportive      fashion."          In    January         2017,     M.B.'s
                                            5
                                                                              No.    2018AP628-J



mother,      B.S.,       sent    Judge     Kachinsky      a    get     well     card.         Judge
Kachinsky subsequently became Facebook "friends" with B.S.
       ¶13    The        interactions       between       Judge      Kachinsky       and      M.B.
became    strained         beginning       in    March    2017     due     to    a   couple     of
incidents         that    M.B.     found       concerning.           First,     in   a     public
comment      to     a    post    on    M.B.'s     Facebook       page,      Judge    Kachinsky
stated       that       M.B.     was     "on     her     second        honeymoon"        at     "an
undisclosed location."                 M.B. informed Judge Kachinsky that his
comment had been incorrect, and he apologized.                                  When M.B. was
back at work a few days later, Judge Kachinsky and a friend
arrived at the municipal court office while M.B. was out of the
office.       Judge Kachinsky then hid behind a counter.                             When M.B.

returned to the office, he popped up and shouted "roar," which
startled       M.B.             During     this       visit,      Judge       Kachinsky        was
sufficiently            loud    and    boisterous       that     his      conduct    disturbed
nearby village employees.                  In addition, a "selfie" picture was
taken during the visit.                  Following the visit, Judge Kachinsky
sent M.B. an email, in which he stated that he hoped his visit

had made her day and that the visit was something he was "more
than happy to do for my best friends."                            M.B. was disturbed by
Judge Kachinsky's conduct.
       ¶14    Approximately two weeks later, Judge Kachinsky asked
M.B.     to       be      in     additional           pictures       of     them     and        the
office/courtroom.              M.B. declined the request.
       ¶15    Having become concerned with Judge Kachinsky's conduct
toward her, M.B. sent an email to Judge Kachinsky on April 18,
2017, in which she stated that it would help her focus on her
                                                  6
                                                                           No.   2018AP628-J



job     if    they       kept    their     relationship         work-related.        Judge
Kachinsky, however, did not want to limit their relationship to
matters concerning M.B.'s job.                      In an April 20, 2017 email, he
agreed       to    minimize      discussion      of    non-business       matters   during
business hours.            He indicated that he wanted to continue having
discussions         about       matters    in    their   everyday        personal   lives.
That same day Judge Kachinsky sent two additional emails to M.B.
The first stated, among other things, that he really liked to
stop by the office at least once a week.                        The second email, sent
later    in       the    afternoon,       indicated      that    Judge     Kachinsky     had
stopped by the municipal court office that day and stated that
"[i]t was nice to talk with you in person today."                           The very next

day Judge Kachinsky sent yet another email.                           In that email Judge
Kachinsky expressed that he had been upset because he sensed a
problem in their relationship, but that when he had stopped by
the office the day before, it had been "like old times."                                  He
continued that "[i]t is complicated because I am both the boss
and a close friend."

       ¶16        On Saturday, April 22, 2017, Judge Kachinsky sent M.B.
an email stating that he would not bring in treats to the office
except on birthdays because M.B. had expressed concern about
having recently gained some weight while on a trip.
       ¶17        Three days later Judge Kachinsky told M.B. that he
knew    her mother had            visited       her   house     the    preceding weekend
because he had seen her mother's location on a "Nearby Friends"
application         on    Facebook.        Judge      Kachinsky        testified    at   the
evidentiary hearing that he had not intentionally sought this
                                                7
                                                                              No.     2018AP628-J



information, which had automatically appeared on his cell phone,
and that he had told M.B. about it so that she could make her
mother aware that her cell phone was broadcasting information
about    her    location        to    others    on    the      Facebook       website.         The
disclosure of this information, however, was upsetting to M.B.
The Judicial Conduct Panel noted that M.B. became visibly upset
when describing this event during the evidentiary hearing.
       ¶18     That same day Judge Kachinsky sent M.B. another email
stating      that   he    was        "always    open      to     resuming       the     Judge     K
Challenge [Runs] if it fits in your schedule once a month or
so."     He continued that "[t]he exercise is good but the personal
rapport aspect of it is actually more important."

       ¶19     Judge     Kachinsky's       emails         and       his    disclosure        about
knowing the location of M.B.'s mother upset M.B. sufficiently
that they led her to lodge a complaint against Judge Kachinsky
with the village's Human Resources Manager, Lisa Malone.                                     After
the    complaint,      the      Village       Manager,      Jeffrey         Sturgell,       had   a
telephone conversation with Judge Kachinsky in which he advised

Judge Kachinsky that M.B. was overwhelmed by Judge Kachinsky's
non-work communications.               Sturgell believed that Judge Kachinsky
agreed to change his behavior because he did not want to lose
M.B. as an employee.
       ¶20     On May 4,        2017,     the day after               Sturgell       spoke   with
Judge    Kachinsky,        Malone       met    with       Judge       Kachinsky       and     M.B.
Malone       explained     to    Judge     Kachinsky            the       concerns    with     his
behavior.        During      the      meeting       the     participants         developed        a
number    of    guidelines,          including       that      no     personal       information
                                                8
                                                                   No.     2018AP628-J



about colleagues would be shared on social media, that all phone
and email communications would be related to business matters,
and that Judge Kachinsky would limit his visits to the office to
one time per week.
       ¶21   The     Judicial       Conduct      Panel     found   that        at     the
conclusion of this meeting it should have been clear to Judge
Kachinsky that he was expected to limit his communications with
M.B. to work-related matters.               Judge Kachinsky, however, ignored
the guidelines that had been developed.                    Indeed, his subsequent
conduct indicated that he was upset as a result of the meeting
and was determined to express his displeasure to M.B. and to
reject any limitation on communications to work-related matters.

       ¶22   On the following Monday, just three days after the
meeting,     Judge   Kachinsky      sent M.B.        an email that       began      with
personal information about what Judge Kachinsky had done over
the weekend.
       ¶23   On three occasions during that week, Judge Kachinsky
came to the municipal court offices.                     He sat close to M.B.'s

desk, facing her.        He did nothing except tap his pen and make
"cat   noises."       On one     visit,      Judge    Kachinsky continued           this
extremely     odd    behavior    for    45      minutes.      During     one   of     the
visits, Judge Kachinsky also told M.B. a story about a dog being
raped and then repeated the story a second time.
       ¶24   On    Thursday    of    that    week,    Judge   Kachinsky        sent   an
email to M.B. discussing their personal relationship that made
it clear he would not abide by any work-related limitations.                          He
claimed      that      "some        short       general      conversation           about
                                            9
                                                               No.   2018AP628-J



interpersonal difficulties is really work related as we have to
get along well as personal and professional friends to do our
best."     He also referenced an evaluation of M.B. that he would
be completing in the next week.
     ¶25    On   Thursday,    May   24,     2017,    Judge    Kachinsky     sent
another email to M.B., in which he inquired about having a party
to celebrate his overcoming a medical problem that the two of
them had discussed at the end of 2016.               M.B. replied that they
did not need to have a meeting about such a party, but Judge
Kachinsky continued to ask for her input about such a party,
including through an email sent to her home email account.                   In
that same email, Judge Kachinsky again brought up their personal

relationship,     acknowledging     that      it     was     strained,     which
concerned him.     He asked if there was something either of them
could    do that would "bring       back the happy relationship             that
existed from May 2016-March 2017."
     ¶26    M.B. sent a response email that having Judge Kachinsky
come into the office to discuss plans for this party "puts me on

the spot," which she did not want.            This prompted a reply from
Judge Kachinsky.       In the reply, Judge Kachinsky acknowledged
that he had made her uncomfortable and lamented the loss of
their    discussions   of    personal     matters:     "I    miss    the   short
discussions we had on how our households functioned and other
things that friends talk about.            I hope I have not blown that
forever."     Early the next day, which was the Friday prior to
Memorial Day, Judge Kachinsky sent another email stating that he
had decided not to have the party, but suggesting that they and
                                     10
                                                                       No.    2018AP628-J



their families could have a "get-together" at some point over
the summer.
       ¶27   That       same   day,   Village     Manager      Sturgell      learned   of
Judge Kachinsky's ongoing attempts to initiate personal, non-
work    conversations          with   M.B.        Sturgell      and    the    village's
attorney     had    a    telephone      conversation     with     Judge      Kachinsky,
explained     potential          violations       of     the     village's       policy
prohibiting harassment in the workplace, advised him of the need
to maintain professional decorum at work, and told him to cease
communicating with M.B. about personal matters.
       ¶28   Judge Kachinsky sent M.B. an email over the ensuing
weekend, in which he stated that he wanted to "hit the reset

button."     He claimed that it had not been clear to him that M.B.
wished to avoid after-hours activities with him.                       He stated that
he now understood, but he chastised M.B. for not telling him
directly.     He then expressed that he still believed discussion
of personal matters was necessary:

       My main concern is that a "work only" discussion
       policy should not preclude normal "water cooler"
       discussion of things like the Packers, Badgers, child
       graduations, children having children, recent vacation
       adventures, etc. I need to know what you consider to
       be "over the line." . . . Walking on eggshells during
       what should be relaxed casual conversations is not
       good for productivity or mental health. Your ideas on
       this are welcome.
Judge Kachinsky also complained about the fact that M.B. had
"defriended" him on Facebook, encouraged her to reverse that
decision, and stated that he wanted to "start over" with "new
rules."      He     claimed      that    being    able   to     view    her    personal

                                             11
                                                                    No.     2018AP628-J



Facebook page allowed him to know what was going on in her life
that might impact her job performance and avoided the need for
him to ask her "the usual question about how vacation or the
weekend went."
     ¶29     When     Village    Manager        Sturgell      learned       of    Judge
Kachinsky's    email     over    the    Memorial      Day    weekend,      he    sent   a
letter to Judge Kachinsky pointing out that he had violated the
village's    direction    not     to    discuss      the    personal    relationship
with M.B. and reminding him that he was not to engage in any
communications with her that went beyond work matters.
     ¶30     Approximately two weeks later Judge Kachinsky sent an
email   to    M.B.    entitled     "Rule      Violation."          Judge    Kachinsky

acknowledged that the email "violate[d] every principle we have
talked about regarding office conduct the last few weeks," but
that he was sending it despite that fact.                    The email continued,
"Feel free to report me to HR.               I feel spunky this morning."
     ¶31     Judge Kachinsky's focus on his relationship with M.B.
continued.      On June 22, 2017, he sent another email to her

suggesting     that    they     "have    a    beer    or    wine   summit . . . to
discuss the relationship issue."                  He suggested this "summit"
would be an occasion to "end the strict restrictions on no non-
work related discussions and replace it with use of respect and
common sense."
     ¶32     Two days later Judge Kachinsky sent yet another email
to M.B.      This time, however, he sent it to her personal email
account because it involved some personal items and he wanted to
"keep it off a government computer."                       He sent another email
                                         12
                                                                         No.    2018AP628-J



later that same day, which was entitled "[M.B.] and Judge K
Relationship Rules effective 6-26-2017."                      Included in that email
were a set of "rules" that Judge Kachinsky was imposing for
specific categories of "activities."                      For example, under the
activity      "In-chambers        conversations,"             the   rule       stated     as
followed:       "To be work-related.              However, can briefly discuss
outside activities (weekend and vacation plans, etc.) when does
not interfere with work activities.                  [']Treats' to be brought in
only   on     birthdays."         Under    "Out    of     office       and    after    hours
activities," the rule stated, "Christmas only for exchange of
gifts etc.       Initiation of any other activities by [M.B.] only
(Judge K Challenge Runs, wine at Holidays, etc.)."                              The chart

also had rules for activities labeled "Professional friendship"
and "Personal friendship."                For the latter, the rule stated,
"Yes but not 'besties' and subject to limits above."
       ¶33    On June 26, 2017, Judge Kachinsky sent an email to
Human Resources Manager Malone, in which he claimed that the
seven incidents about which M.B. had complained were "minor" and

that    her    unwillingness        to     accept       his     view     of    how     their
relationship should work would be detrimental to the municipal
court office.          His email stated that he preferred not to work
with "such a person any longer than possible."                               He suggested
that Malone should advise M.B. to "give a little bit on the
work-only thing."         If M.B. did not do so, he stated that "[t]he
alternative      for    me   is    to     exercise      my    authority        under    Sec.
755.10(1) to terminate employment."                  The email stated that Judge
Kachinsky      had   communicated         with    other       individuals       about    the
                                            13
                                                                        No.     2018AP628-J



municipal       court      manager       position,        discussed         a    possible
termination date for M.B., and stated that Judge Kachinsky had a
plan   for     obtaining    resumes      and     quickly    hiring      a     replacement
manager.       On June 29, 2017, Judge Kachinsky sent another email
to Malone stating that while he had not made a final decision on
whether to fire M.B., she had until 5:00 p.m. that day to decide
if she accepted his list of "rules" regarding their professional
and personal relationship.                The Judicial Conduct Panel found
that   by    these      emails,     Judge      Kachinsky    demonstrated         that     he
believed he could terminate M.B.'s employment for declining to
have a low-level personal relationship with him.
       ¶34     Later on June 29, 2017, the village's attorney sent a

letter    to    Judge    Kachinsky       via     email,    in   which    the     attorney
informed     Judge      Kachinsky    that his conduct           toward M.B.         was    a
continued      pattern     of   violating        the   village's     policy       against
harassment and that his threats to terminate M.B. constituted
retaliatory conduct, which if carried out would be a violation
of law.      The letter once again directed Judge Kachinsky to cease

personal communications with M.B. and to cease making threats to
terminate her employment.            The Judicial Conduct Panel found that
"[i]t is hard to imagine how the message could have been more
clear; Judge Kachinsky was putting the village at risk of a
potential lawsuit for his own personal reasons."
       ¶35     Rather    than     take   the     village    attorney's          letter    to
heart, Judge Kachinsky elevated his conduct.                         After receiving
the letter, he posted to his Facebook page that "[t]he sh— is
not over.        I might have an employee termination today.                             Not
                                            14
                                                                            No.    2018AP628-J



mine."       The Judicial Conduct Panel found that while the post did
not explicitly name M.B., the only conclusion a reader could
draw was that M.B. was about to be fired because she was the
only employee he supervised either at the municipal court or in
his private law practice.
       ¶36    At    12:50         a.m.   on    Saturday,       July    8,     2017,      Judge
Kachinsky sent an email to Human Resources Manager Malone, with
a blind copy to M.B.               The email stated that Judge Kachinsky was
"unfriending" Malone on Facebook.                    The email stated, "At least I
told you directly.                Some cowards don't."            The Judicial Conduct
Panel found that the "coward" reference was directed toward M.B.
Judge    Kachinsky           admitted     in     his       answer     to    the     Judicial

Commission's complaint that this email had been spiteful in tone
and that his conduct in sending the email had not exhibited
patience, dignity, or courtesy.
       ¶37    A particularly disturbing event occurred on July 17,
2017.        While alone with M.B. in the municipal court office,
Judge Kachinsky lunged over M.B.'s desk, knocking some items off

of it.       While he did so, Judge Kachinsky whispered to M.B., "Are
you    afraid      of   me    now?"       This      conduct    frightened         M.B.      The
Judicial Conduct Panel found that this action by Judge Kachinsky
"was    an    attempt        to   intimidate        M.B.   into     acquiescing       in    his
fixation on a personal relationship with her."
       ¶38    On July 20, 2017, while the municipal court was in
session, Judge Kachinsky told M.B. to "cool your jets" in a
voice loud enough for Malone to hear it in the back of the
courtroom.          The      Judicial    Conduct       Panel   found,       however,       that
                                               15
                                                                          No.       2018AP628-J



there was not clear and convincing evidence that the comment had
been made in an aggressive or disrespectful manner.
     ¶39    At the conclusion of the court session that evening,
Judge   Kachinsky       ran     into     something        on    his     way    out       of    the
courtroom, causing his arm to bleed.                      Rather than find a paper
towel to stop the bleeding, Judge Kachinsky used his pay stub
envelope.       He then left the blood-stained envelope on his desk
in   the   municipal        court       office,        where    it     would    be       readily
observed    by    M.B.         The      Judicial        Conduct      Panel     found       Judge
Kachinsky's explanation that this was simply a way to remind
himself    to    buy    some       bandages       to    place     in    his    desk       to    be
unconvincing.         It determined that this was an attempt either to

intimidate      M.B.   or     to    elicit    sympathy         from    her.         In    either
event, it was an intentional non-verbal communication that had
nothing to do with work.
     ¶40    Later that same evening Judge Kachinsky sent M.B. an
email   once     again bringing          up their relationship.                     The email
contained the following statements:

     In short, if you want to restore a happy workplace,
     the first step is to stand up on your own and not use
     the Administration as a crutch. . . .    I can overlook
     what I consider poor judgment in handling a situation.
     I cannot tolerate a weakling unwilling to have free
     and    open    discussions    with   the    boss    (or
     insubordination). (Emphasis added.)
     ¶41    As    a    result      of    Judge     Kachinsky's          ongoing      actions,
Village Manager Sturgell held another meeting with him on July
26, 2017, regarding the need to keep the relationship between
Judge   Kachinsky       and    M.B.     work-related.             After      that    meeting,


                                             16
                                                                       No.    2018AP628-J



Judge Kachinsky went to the municipal court office, dropped a
white flag he had fashioned from some office supplies on M.B.'s
desk, and said, "Here you go, I surrender, you win."
      ¶42        Judge   Kachinsky,     however,     was   far       from    ending   his
campaign.          In an August 21, 2017 email to a local attorney,
Judge Kachinsky falsely stated that M.B. was "looking for new
employment," that there was a personality conflict between the
two of them, and that she was not facing "imminent termination."
      ¶43        On September 5, 2017, Judge Kachinsky left on his desk
a   mock    letter announcing         his resignation,          on    which    he wrote
"refused to sign."               The letter was left in a place were M.B.
would      see    it.      The   Judicial   Conduct    Panel     found       that   Judge

Kachinsky did this as a subtle communication to M.B. about their
ongoing conflict.
      ¶44        On October 27, 2017, Judge Kachinsky wrote a letter to
M.B. reprimanding her for forwarding to Village Manager Sturgell
two   emails       Judge    Kachinsky    had     written   to    her.        The    letter
stated that she was required to discuss any concerns about the

emails with him first and that her forwarding of the emails to
Sturgell had constituted going "outside the chain of command
without a good reason."
      ¶45        On November 2, 2017, in the presence of both M.B. and
Human Resources Manager Malone, Judge Kachinsky mentioned both
Harvey Weinstein and Bill O'Reilly.                  He then stated loudly, "I
don't do that crap and you should get that through your thick
head."       The Judicial Conduct Panel found that the comment was
directed to both of them.
                                            17
                                                                     No.   2018AP628-J



       ¶46   The next day after this outburst, Judge Kachinsky sent
a letter to M.B. stating that his October 27, 2017 letter of
reprimand had been intended to be a "teaching tool to catch your
attention."       The email contained the following statements:

       By this time next week some things are going to happen
       that will cause a lot of fire and fury at the
       Municipal Building. No, I am not resigning. Just be
       psychologically prepared. Have a good weekend.
The Judicial Conduct Panel found that this was not related to
the work of the municipal court.                       It found that the email,

including the reference to "fire and fury," was so disturbing to
M.B.   and   to    village     officials        that    the    village   police     were
notified.         When   the   village     police       chief    interviewed       Judge
Kachinsky about the email, he giggled more than once in response
to the police chief's questions.
       ¶47   On Saturday, November 25, 2017, Judge Kachinsky sent
yet another email to M.B., with this one bearing the subject
line   "Thanksgiving       Greeting."           The    email    referenced     a    pre-
Thanksgiving email in which Judge Kachinsky had wished M.B. and
her family a happy holiday.              Although the prior email had not

requested a reply, Judge Kachinsky scolded M.B. for ignoring
him.    The email also included the following statements:

       Will not spend the next 1.5 years or 5.5 years working
       with someone who actively despises me.    I have told
       you this many times.    We are approaching the end of
       the line on this.
In addition, the email discussed the ongoing Judicial Commission
investigation.           The    email      concluded          with   the   following
statements:         "There      was   an        allegation      missing    from     the

                                           18
                                                                           No.     2018AP628-J



additional letter from the [Judicial Commission].                                 Please see
attached."         The attachment to the email was a picture of a
kitchen sink.        At the evidentiary hearing in this proceeding,
Judge Kachinsky admitted that the email had been sarcastic in
tone.
       ¶48   The    next     day     Judge       Kachinsky      dropped     off    a   second
reprimand     letter        to   M.B.        The    letter      reprimanded        M.B.   for
allegedly      making       false    statements         that       Judge   Kachinsky      was
stalking or tracking her in her complaint to the human resource
manager and village manager six months earlier.                                  Ultimately,
after   reviewing       a    grievance        M.B.      filed      about   the     reprimand
letter, Judge Kachinsky directed that the letter be removed from

M.B.'s personnel file.
       ¶49   On Saturday, December 23, 2017, Judge Kachinsky wrote
a third letter of reprimand to M.B.                     The alleged basis for this
reprimand was M.B.'s refusal to acknowledge or return Christmas
greetings by Judge Kachinsky and her failure to respond in a
positive way to his efforts to improve workplace rapport.                               Judge

Kachinsky     also    emailed        the     letter     to     M.B.'s      personal     email
account.      He subsequently prepared a post to his Facebook page,
in   which    he    used     a     sad    face     emoji     and    made    the    following
comment:      "Len Kachinsky was feeling sad.                      Few things are sadder
than    a    co-worker       who    refuses        to   return       a   Merry     Christmas
greeting out of spite."                  The Judicial Conduct Panel found that
it was clear to readers of this post that it was directed to
M.B. since she was his only co-worker/employee.


                                              19
                                                                             No.     2018AP628-J



       ¶50    A meeting was held on December 28, 2017, that involved
Village      of   Fox     Crossing     Police        Captain     Peter       DeBoer,     Judge
Kachinsky,        and   M.B.          During        the    meeting,     Judge        Kachinsky
disclosed detailed information about where M.B., her parents,
her    brother,     and    her   sister        lived,      as   well    as     who    was   the
sister's employer and where that employer was located.                                Although
the    disclosure       of     this     personal          information        was     obviously
upsetting     to    M.B.,      Judge    Kachinsky          continued     to    discuss      the
detailed information.            The Judicial Conduct Panel found that a
reasonable        person     would      have        understood     Judge           Kachinsky's
disclosures to be threatening and offensive and that M.B., in
fact, perceived them to be an effort to upset and intimidate

her.
       ¶51    In an email sent approximately one week later, Judge
Kachinsky disclosed additional personal details about the value
of M.B.'s home and the nature of the financing she had obtained
to purchase the home.                 The Judicial Conduct Panel found that
there was nothing work-related about such information.

       ¶52    On January 14, 2018, Judge Kachinsky sent a letter to
M.B. that he labeled as a "Letter of Counseling: Failure to Obey
Lawful Order."          In the letter, Judge Kachinsky recounted that he
had asked M.B. to forward to him information she might receive
about a farewell luncheon or party for two departing village
police officers.           The letter said that this had been a "lawful
order" and that her failure to forward the requested information
to him had been "disrespectful."


                                               20
                                                                   No.     2018AP628-J



      ¶53     Judge Kachinsky's continuing conduct toward M.B. about
what he viewed as a failure to maintain a personal relationship
led her to file a petition seeking a harassment injunction.                         A
Winnebago County court commissioner considered the petition and
granted a temporary injunction on February 15, 2018.                       The court
commissioner's oral ruling stated that "All communication moving
forward should be work-related and essential to the functioning
of the Village of Fox Crossing Municipal Court."
      ¶54     Judge Kachinsky's emails to M.B. continued despite the
temporary      injunction.        On    the    same   day   that    the    temporary
injunction was issued, which was a Thursday on which a court
session was to be held in the evening, Judge Kachinsky sent an

email to M.B. indicating that he wanted her to observe him in a
closed setting prior to the court session to see if he showed
any   signs    of   impairment.         Such   observation    was    not    part    of
M.B.'s      job.      Because     she    was    not    trained     to     make    such
assessments, she refused Judge Kachinsky's directive/request.
      ¶55     Two weeks later Judge Kachinsky sent an email to M.B.

with a link to a newspaper article about a dispute between a
circuit court judge and a clerk in another county.                       Referencing
that dispute, the email included the comment that "[i]t could be
worse."       The Judicial Conduct Panel found that this email was
not necessary or pertinent to the functioning of the municipal
court.
      ¶56     In    June   2018    a     Winnebago     County      circuit       court
conducted a de novo review of the temporary injunction.                             It
affirmed the harassment injunction and extended it until May 1,
                                          21
                                                                     No.    2018AP628-J



2019.     During the hearing, the circuit court judge advised Judge
Kachinsky that the court was issuing an injunction "prohibiting
any conduct or contact between you and [M.B.] other than that
absolutely necessitated through the course of your employment."
The written injunction order directed Judge Kachinsky to cease
harassment of M.B., to have no contact with her outside of work,
and to have no contact with M.B.'s family members.                         The written
injunction further specified that "[a]ll communications between
Respondent and Petitioner shall be limited to what is necessary
to     perform   the    functions    of        the   Village    of    Fox     Crossing
Municipal Court.          It further explained that "[c]ommunications

related to the personal relationship or personal rapport between

Respondent and Petitioner are not included in the operation of
the court and are prohibited under this section."                            (Emphasis
added.)
       ¶57    This     permanent    injunction         did     not    cause      Judge
Kachinsky to cease his communications with M.B.                      Over a weekend
less than two weeks after the permanent injunction was entered,
Judge Kachinsky left a color poster on his desk where M.B. would
see it.       The poster had a picture of the village manager's face,
with    the    following    accompanying         caption:       "I    am     from   the
government and I am here to help you.                    WWRD #notmetoo."           The
Judicial Conduct Panel found that this was reasonably perceived
to be a communication directed toward M.B. and that it was not a
communication related to the operation of the municipal court.
       ¶58    At some point over that same weekend, Judge Kachinsky
posted on his desk facing M.B.'s desk a copy of a page from the
                                          22
                                                            No.   2018AP628-J



village's personnel policy manual, entitled "Sexual Harassment."
On the page Judge Kachinsky had highlighted the word "sexual"
seven times in yellow marker.       Judge Kachinsky testified at the
evidentiary hearing that he had posted the policy to educate
M.B. and to demonstrate to her that his conduct did not meet the
criteria   of    sexual   harassment.    The    Judicial    Conduct    Panel
found, however, that M.B. had not accused Judge Kachinsky of
sexual harassment.        It further found that the posting of the
policy had no demonstrated connection to the operation of the
municipal court.
     ¶59   When M.B. arrived at work the following Monday, July
2, 2018, she observed both the poster and the copy of the sexual

harassment      policy.    M.B.   believed     that   the   two   documents
violated the terms of the harassment injunction.             Consequently,
either she or another village employee contacted the police, who
arrested Judge Kachinsky.3
     ¶60   On July 11, 2018, the state filed a criminal complaint
against Judge Kachinsky.       The complaint charged Judge Kachinsky

with one count of felony stalking and two misdemeanor counts of
violating a harassment injunction.       Shortly before the trial in
the criminal case, the district attorney's office dropped the
two misdemeanor counts.       The case proceeded to trial solely on



     3 As was noted above, on July 3, 2018, this court issued an
order in its superintending and administrative authority that
prohibited Judge Kachinsky from exercising the powers of a
municipal judge.


                                    23
                                                                 No.     2018AP628-J



the felony charge.        A jury found Judge Kachinsky not guilty of
that felony charge.
     ¶61    Based    on   these     facts,    the    Judicial    Conduct      Panel
concluded    that    Judge    Kachinsky      had   violated    SCRs     60.024   and
60.03(1)5   in   a   number    of    ways.6        Supreme    Court    Rule   60.02
requires that a judge, in every aspect of judicial behavior,
shall    "participate     in establishing,         maintaining    and    enforcing


     4   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.
     5 SCR 60.03(1) provides: "A judge shall respect and comply
with the law and act at all times in a manner that promotes
public confidence in the integrity and impartiality of the
judiciary."
     6 The Judicial Commission further alleged that Judge
Kachinsky's conduct toward M.B. also violated SCR 60.04(1)(d),
which requires judges, in the performance of their "adjudicative
responsibilities" to be patient, dignified, and courteous to
litigants, jurors, witnesses, lawyers, and others with whom the
judge deals in an official capacity. The Judicial Conduct Panel
did not reach a decision as to whether Judge Kachinsky's conduct
had also violated SCR 60.04(1)(d) because it would have required
briefing   on    the   scope    of   a    judge's  "adjudicative
responsibilities" and it did not have time to receive such
briefing and to render a decision on that issue of law.
Consequently, we also do not do not decide whether Judge
Kachinsky's conduct violated SCR 60.04(1)(d).        It is not
necessary that we decide that issue in this case.


                                       24
                                                                        No.   2018AP628-J



high standards of conduct and shall personally observe those
standards . . . ."            Supreme Court Rule 60.03(1) requires that a
judge shall "act at all times in a manner that promotes public
confidence in the integrity and impartiality of the judiciary."
The comment to that rule recognizes that "[p]ublic confidence in
the judiciary is eroded by irresponsible or improper conduct of
judges"       and    that    "[a]   judge    must   avoid    impropriety         and    the
appearance of impropriety."
     ¶62       Specifically, the        Judicial     Conduct Panel ruled               that
Judge Kachinsky had violated these two rules of judicial conduct
by engaging in the following conduct, which the panel concluded
had been irresponsible and improper conduct that was unbecoming

of a judge:
          •    After being told         on May 4,        2017,     by   the   village's
               human        resource    manager      that        he     should     limit
               communications with M.B. to work matters and should
               limit visits to the municipal court office to one time
               per    week,    unless    otherwise       needed,      Judge   Kachinsky

               sent    several      emails   to   M.B.    that    included       personal
               matters; he visited the municipal court office three
               times in one week, during which he made "cat noises"
               while facing M.B.'s desk and told her a story about a
               dog being raped; he insisted that he needed to have a
               personal friendship with M.B.; and he invited her to
               participate in a non-work activity.
          •    Following a May 26, 2017 phone call with the village
               manager and the village attorney during which he was
                                             25
                                                                      No.      2018AP628-J



    again told to maintain a professional decorum at work
    and     to    avoid          contacting         M.B.      regarding          personal
    matters, Judge Kachinsky sent M.B. an email asking to
    "hit the reset" button on their relationship and to
    reverse her decision to "unfriend" him on Facebook.
•   Following         a    May    30,       2017    letter         from    the      village
    manager again informing Judge Kachinsky not to engage
    M.B. in communications regarding non-work matters, he
    sent her emails with personal greetings, invited her
    to meet outside the office, and attempted to negotiate
    work rules that required a personal friendship as a
    condition         of    her       employment.             He    also       considered

    terminating her employment for her refusal to agree to
    have a personal friendship at work and he publicly
    posted       on       Facebook         that    her       employment        might     be
    terminated.
•   Following receipt of a June 29, 2017 letter from the
    village's attorney, Judge Kachinsky copied M.B. on an

    email    in       which      he    referred         to   her     as    a    "coward,"
    lunged over her desk and asked if she was now afraid
    of him, left a bloody envelope on his desk for M.B. to
    see, and directly called her a "weakling."
•   After    receiving           a    July        21,    2017       letter      from    the
    Judicial          Commission           that     cautioned         him      to      avoid
    retaliatory           conduct       or    witness         intimidation,            Judge
    Kachinsky         engaged         in     several         acts    of     retaliatory
    conduct, including reprimanding M.B. on three separate
                                       26
                                                                       No.    2018AP628-J



    occasions, sent M.B. a separate "counseling letter,"
    sent       her       the     "kitchen         sink"       email,    continued       to
    threaten to terminate M.B.'s employment, sent an email
    to    a    local          attorney        misrepresenting          that    M.B.    was
    seeking other               employment,           submitted a       Facebook      post
    that       denigrated              M.B.      for     refusing      to     return     a
    Christmas greeting, and distressed M.B. by disclosing
    that he knew detailed information about her and her
    family members.
•   In    the          fall    of    2017       Judge    Kachinsky      continued       to
    reject             any       work-related             limitations          on      his
    communications with M.B., including dropping a white

    flag on her desk, sending the "fire and fury" email to
    M.B., which was so disturbing to M.B. that the police
    had       to       become       involved,      and    scolding      her     for    not
    responding to his Thanksgiving greetings.
•   After          a    temporary         harassment          injunction      had     been
    entered            against      him    and    the     court   commissioner         had

    told him to limit communication with M.B. to work-
    related matters essential to the functioning of the
    municipal court, Judge Kachinsky sent M.B. the email
    asking         her    to     observe        him     for    signs   of     impairment
    although            that     was      not    her    job,    and    sent     her    the
    February 27, 2018 email that her situation could be
    worse,         like       the    dispute       between      the    circuit      court
    judge and the clerk of court in another county.


                                          27
                                                                     No.   2018AP628-J



        •     Finally,      after     having       the    permanent        harassment
              injunction entered against him, which advised him that
              communication        about    his    personal    relationship         with
              M.B. was not work-related and was prohibited, Judge
              Kachinsky     placed    the    village     manager's     picture       and
              caption on his desk and posted the village's sexual
              harassment policy, with the word "sexual" highlighted
              throughout.
     ¶63      The Judicial Conduct Panel further concluded that the
judicial code violations described above had been willful.                           It
therefore      ruled      that    those     violations    constituted        judicial
misconduct pursuant to Wis. Stat. § 757.81(4)(a).

     ¶64      On    the    other     hand,       the   Judicial      Conduct     Panel
concluded that Judge Kachinsky's comment to M.B. to "cool your
jets"   did    not     constitute     a     violation    of    SCR   60.02     or    SCR
60.03(1) because there was not clear and convincing evidence
that the remark had been disrespectful courtroom conduct.                             It
also found that some of his other conduct did not rise to the

level of a judicial code violation.
Communications with Village Board Member
     ¶65      The    second      category    of    allegedly    improper       conduct
related to a July 14, 2017 email Judge Kachinsky sent to a
member of the village board.                By the date of the email, Judge
Kachinsky had been informed that an ethics complaint had been
lodged against him with the Judicial Commission.                      In the email
to Village Board member Dale McNamee, Judge Kachinsky asked what
role, if any, the village board had played in lodging the ethics
                                            28
                                                           No.   2018AP628-J



complaint and what the board knew about his interactions with
M.B. and the village management.         In the email, Judge Kachinsky
stated that "if the Village is the party pursuing the complaint
to the Judicial Commission, I think the Board should consider
defunding it in closed session."         In the signature block in the
email, Judge Kachinsky identified himself as a judge.
     ¶66    The   Judicial   Conduct    Panel   found   that   although   he
identified himself as a judge in his email, Judge Kachinsky had
not used his title to influence any action by the village board.
Consequently, the Judicial Conduct Panel concluded that Judge
Kachinsky had not violated SCR 60.03(2), which prohibits a judge
from using the prestige of a judicial office to advance the

judge's private interests.7
Ex Parte Communication with Police Chief

     ¶67    On July 24, 2017, Judge Kachinsky sent an email to the
village's chief of police that referenced a pending municipal
court case involving a charge of operating a motor vehicle while
intoxicated (OWI).     Judge Kachinsky sent copies of the email to
the village's attorney, to M.B., and to a police records clerk,


     7   SCR 60.03(2) provides:

          A judge may not allow family, social, political
     or other relationships to influence the judge's
     judicial conduct or judgment. A judge may not lend the
     prestige of judicial office to advance the private
     interests of the judge or of others or convey or
     permit others to convey the impression that they are
     in a special position to influence the judge. A judge
     may not testify voluntarily as a character witness.


                                   29
                                                                           No.    2018AP628-J



but did not send a copy to the defendant or to any attorney
representing       the    defendant.          In       the   email     Judge       Kachinsky
suggested that the police chief or village attorney might want
to    speak      with    the     prosecutor       or    police    in       a     neighboring
jurisdiction about the status of two OWI citations issued to the
defendant in that jurisdiction.                    The email explained that the
number     of    prior    OWI     convictions       impacts      the       nature     of   the
current OWI charge and the associated penalties, and it further
indicated        that    the    neighboring        municipality        may       have      lost
jurisdiction over their citations.
      ¶68       The Judicial Conduct Panel found that this email had
been for the purpose of determining whether the citations in the

other municipality had been converted to criminal OWI offenses
by operation of law and that the email had not been an ex parte
communication about the proceeding pending in the Village of Fox
Crossing Municipal Court.                The Judicial Conduct Panel stated
that the email had not given any party a procedural or tactical
advantage.        It therefore concluded that the Judicial Commission

had   failed      to    prove     that   Judge      Kachinsky        had       violated    SCR
60.04(1)(g), which             prohibits judges         from   initiating, engaging
in,   or    considering         ex   parte   communications           about       a   pending
action.8        The Judicial Conduct Panel determined that the email


      8   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:

                                                                                 (continued)
                                             30
                                                                    No.   2018AP628-J



had not related to the substance of the citation pending in
Judge Kachinsky's court and that it had been sent for scheduling
and administrative purposes.
Recommendation Regarding Discipline

       ¶69      Having determined    that Judge         Kachinsky had      violated
SCRs 60.02 and 60.03(1) in multiple ways in his interactions
with M.B., the Judicial Conduct Panel turned to a discussion of
the nature of Judge Kachinsky's misconduct and the appropriate
level      of   discipline.     It   noted      that,    as   explained     in   the
preamble to the Code of Judicial Conduct, both SCR 60.02 and SCR
60.03(1) are phrased in general terms that set forth principles
that      their    specific   provisions    are   intended      to    foster,    and

therefore constitute touchstones against which judicial conduct
is   to    be     measured.    Preamble    to   SCR     ch.   60.     Further    the
Judicial Conduct Panel stated that such code provisions require
a judge to conduct himself or herself at all times in a manner



            1. A judge may initiate, permit, engage in or
       consider ex parte communications for scheduling,
       administrative purposes or emergencies that do not
       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.


                                       31
                                                                 No.    2018AP628-J



that maintains the trust and confidence of the public in the
judicial system.        See In the Matter of the Complaint Against

Seraphim, 97 Wis. 2d 485, 510, 294 N.W.2d 485 (1980) ("When a
judge, either in his official capacity or as a private citizen,
is guilty of such conduct as to cause others to question his
character and morals, the people not only lose respect for him
as a man, but lose respect for the court over which he presides
as well.").     Consequently, the Judicial Conduct Panel considered
the degree to which the judge's personal conduct was indicative
of the judge's lack of respect for the legal system.                   Comment to
SCR 60.03(1).
      ¶70    The Judicial Conduct Panel stated that in this case,

it took "little discussion to conclude that Judge Kachinsky's
conduct toward [M.B.] was such that it would cause persons to
question his character and even more so, lose respect for his
willingness and ability to comply with and enforce restrictions
that make this a society of laws and justice rather than one of
selfish indulgence for a person's own desires."                    The Judicial
Conduct     Panel   stated   that    despite   numerous   interventions         and
directives by not only village representatives, the police, a
circuit court commissioner, and a circuit court judge, Judge
Kachinsky persisted in engaging in conduct contrary to those
directives and "was driven solely by his own myopic view of what
his   work    relationship    with    [M.B.]   should     be."         It   further

explained that Judge Kachinsky was charged with knowledge of the
ethical code applicable to judges and that his violations of the


                                       32
                                                                          No.     2018AP628-J



code had been willful because they had been freely done in the
absence of any duress or coercion.
       ¶71    With respect to the appropriate level of discipline,
the Judicial Conduct Panel properly stated that the discipline
imposed on a judge should be responsive to the gravity of the
judge's misconduct and sufficient to protect the public from
unacceptable           judicial    behavior,       given   the     seriousness      of    the
misconduct and the likelihood of its recurrence.                           See, e.g., In

re    Judicial         Disciplinary      Proceedings       Against    Gorenstein,         147
Wis. 2d 861,           873,     434     N.W.2d 603       (1989);     In     re     Judicial
Disciplinary Proceedings Against Aulik, 146 Wis. 2d 57, 77, 429
N.W.2d 759 (1988).

       ¶72    The       Judicial      Conduct    Panel     found    Judge       Kachinsky's
misconduct to be aggravated.                  It noted that Judge Kachinsky had
engaged      in    a    pattern    of    multiple       violations    of    the    Code    of
Judicial Conduct that had occurred over an extended period of
time.       Further, Judge Kachinsky had repeatedly refused to modify
his   conduct,         although       numerous     individuals      and    even    judicial
officials had told him that he needed to do so.                             The Judicial
Conduct Panel further found that Judge Kachinsky had used his
position      as       M.B.'s     supervisor       to   satisfy     his    own     personal
desires for more than a work relationship with M.B.                                Finally,
although the misconduct had occurred outside of the courtroom,
it    had    occurred      within       the   municipal     court    office,       and    the
effect of his misconduct, including his disregard for directives
given to him, had seeped into the administration of the village


                                              33
                                                                         No.     2018AP628-J



and had created a public dispute, which had damaged the public's
respect for the judiciary.
      ¶73    The    Judicial     Conduct         Panel     determined          that    Judge
Kachinsky's misconduct was similar in nature and degree to that
found in In the Matter of the Complaint Against Van Susteren,

118 Wis. 2d 806, 815, 348 N.W.2d 579 (1984).                      In that case Judge
Van Susteren had engaged in personal conduct (refusing to comply
with a court order to probate his brother's estate) that had
showed a "disdain, if not outright contempt, for the very system
which he, as a judge, has sworn to administer."                         Id.     This court
ultimately suspended Judge            Van        Susteren   for     a   period        of   two
years   as    discipline       for   his     misconduct.            Similarly,         Judge

Kachinsky had disregarded directives and showed a disdain for
systems put into place to avoid harassment in the workplace.
      ¶74    The    Judicial    Conduct          Panel    further       compared       Judge
Kachinsky's persistence in engaging in his misconduct to the
Gorenstein case.       In that matter, Judge Gorenstein was found to
have repeatedly made insulting and offensive comments from the
bench to litigants, witnesses, and attorneys, as well as to have
made false statements about a state mental health facility and
its staff.      147 Wis. 2d at 862-63.               The judicial conduct panel
in   that    case   determined       that    Judge       Gorenstein      had     committed
judicial misconduct on an "aggravated and persistent basis" by
"permitting his personal concept of justice to override the law,
administering his office without due regard to the integrity of
the legal system, [and] being intemperate and impatient."                                  Id.
at 863.      Although Judge Gorenstein had retired from his judicial
                                            34
                                                                              No.     2018AP628-J



office       before      the    commencement          of     the    judicial     disciplinary
proceeding, this court suspended him from serving as a judge for
a period of two years.                 Id. at 863, 875.

       ¶75     The Judicial Conduct Panel found that Judge Kachinsky,
like       Judge    Gorenstein,          had     repeatedly         allowed     his       personal
perceptions         (about       the    nature        of    his    relationship       with        the
municipal court manager) to interfere with his responsibilities
as     a    judge,       although       not     to     the    same     degree       that     Judge
Gorenstein had.
       ¶76     Ultimately,             although        it     recognized         that        Judge
Kachinsky's term as the Village of Fox Crossing Municipal Judge
was about to expire on April 30, 2019, the Judicial Conduct

Panel stated that his removal from active judicial service did
not insulate him from discipline.                            See In the Matter of the
Complaint          Against       Sterlinske,           123        Wis. 2d 245,        258,        365
N.W.2d 876         (1985).         Given       that        Judge    Kachinsky's       years        of
service      as     a    municipal       judge       would    make    him   eligible         to    be
appointed          as    a     reserve     municipal          judge    under        Wis.     Stat.
§ 800.065,         the       Judicial    Conduct       Panel       recommended        that    this
court      suspend him from             eligibility          for service       as     a    reserve
municipal judge for a period of at least one year and not more
than       three    years.        It     also    recommended,         in    light      of    Judge
Kachinsky's persistent and aggravated conduct toward M.B., that
he be ineligible to serve as a reserve municipal judge in the
Village of Fox Crossing Municipal Court for as long as M.B. was
employed as the manager for that court.


                                                 35
                                                                             No.     2018AP628-J



Judge    Kachinsky's         Response         to     the     Judicial       Conduct       Panel's

Report
      ¶77     In light of the fact that Judge Kachinsky had already
been prohibited from exercising the powers of a municipal judge,
we modified the review process generally applicable to judicial
conduct       proceedings          to     require           the     parties        to      submit
simultaneous opening and response briefs.
      ¶78     As the Judicial Commission objected only to the level
of   discipline        recommended        by    the        Judicial   Conduct       Panel,        we
focus on the arguments made in Judge Kachinsky's briefs.
      ¶79     Judge       Kachinsky's          primary        argument       is     that         the
Judicial      Conduct        Panel      based      its      report     on    the     erroneous

assumption that the village's Manager, Human Resources Manager,
and attorney had authority to regulate his interaction with the
municipal court manager.                He asserts that those individuals had
no authority to interfere with his supervision of his clerk.                                     He
points      to     Wis.    Stat.        § 755.10(1),          which     provides          that     a
municipal        judge is     to     appoint       the      clerk    and    other     personnel
authorized        by   the    municipal         counsel       or    board     and     that       the
hiring,          termination,           hours         of      employment,           and      work
responsibilities of the court personnel are to be subject to the
municipal        judge's     authority.              Judge     Kachinsky      asserts        that
although the statute does not explicitly state that a municipal
judge    is      the   supervisor        of     the      municipal      court      clerk,        the

statutory designation of the municipal judge as having authority
over hiring, termination, and work responsibilities gives the
municipal judge the usual responsibilities of a supervisor to
                                                36
                                                                           No.   2018AP628-J



oversee, motivate, evaluate, and correct the performance of the
municipal court clerk.               As further support for this proposition,
Judge    Kachinsky           cites     the    Legislative          Reference      Bureau's
analysis of 2009 Senate Bill 383 (ultimately enacted as 2009
Wisconsin       Act    402),        which     referenced       a     municipal     judge's
"supervisory       authority"         in    the    context    of     stating     that   such
authority was a prohibited subject of collective bargaining.
       ¶80     In light of his supervisory authority as the municipal
judge, Judge Kachinsky argues that no other authority (except
for a higher court) could interject itself into his supervision
of court personnel.            He frames this essentially as a separation
of powers problem, stating that having created the municipal

court    as    a   co-equal      branch       of    government,         the   village    was
obligated to recognize the independence of the municipal court
as a co-equal branch of government.                       Thus, he asserts that the
village had no authority to monitor his in-person conversations
with M.B. to "protect" her from the possibility of physical or
emotional abuse, which he says, in any event, never occurred or

was likely to occur.             Because the village lacked any authority
to    interfere       with    his     supervision        of   M.B.,      Judge   Kachinsky
contends that he had no obligation to follow the directives of
the    village's      representatives             and    cannot    be    disciplined     for
having       failed to do so.
       ¶81     Judge Kachinsky makes clear in his opening brief that
he    viewed    his    conduct       toward       M.B.   as   mere      supervision     of   a
resistant employee in an effort to "restore a level of personal
rapport," which he continues to believe was a legitimate and
                                              37
                                                                                  No.       2018AP628-J



laudable objective that is necessary for a workplace to perform
effectively.            While he acknowledges that not everyone may agree
with how he tried to accomplish that goal, he argues that he was
free    to    accept or reject             any    "directives"           issued         by    village
representatives.               Indeed, he contends that he was also free to
accept or reject M.B.'s request to avoid any communications that
might be construed as personal by her.
       ¶82        We   need     not   decide     the       separation        of    powers        issue
raised       by    Judge      Kachinsky.         Whether          or   not   he     was       legally
obligated to abide by the directives given by representatives of
the village, he was obligated by the relevant provisions of the
Code of Judicial Conduct to maintain high standards of personal

conduct and to act in a manner that promotes the integrity of
the judiciary.               We fail to see how staring at a court employee
for 45 minutes while tapping a pencil and making cat noises
constitutes            the    maintenance        of    high       standards         of       personal
conduct or promotes the integrity of the judiciary.                                     Indeed, it
does    just       the       opposite.     Serving          the    people     as        a    judicial

officer does not allow a judge to impose his/her every opinion
about personal interactions on subordinate court personnel or to
force those subordinates to be the judge's personal friends.
Judges are entitled to ensure that their subordinate employees
perform       their       work    responsibilities            in       appropriate           manners.
Judge    Kachinsky's            pattern   of     obsessive         conduct        about       whether
M.B. liked him as a friend clearly passed well over the line and
brought       the        municipal       court        he    administered            into       public
disrepute.             His repeated conduct led not only to the public
                                                 38
                                                                           No.     2018AP628-J



entry    of    both    temporary       and    permanent        harassment        injunctions
against       him,    but    ultimately      resulted        in   his     arrest    and     the
lodging of criminal charges against him.                       While he was acquitted
of the single felony charge that the district attorney chose to
take to trial, the lack of a criminal conviction on that single
charge     does      not    mean    that     he    is    innocent       of    any    ethical
violations.          The notoriety that resulted from his insistence
that M.B. had to be not only his court clerk, but also his
friend, certainly caused the residents of the Village of Fox
Crossing who appeared in his court to question whether he had
the temperament and stability to preside over their cases in a
proper manner.           Ultimately, we need not review every action in

the lengthy summary of Judge Kachinsky's interactions with M.B.
We agree with the Judicial Conduct Panel that Judge Kachinsky's
interactions with M.B., as found by the Judicial Conduct Panel,
apart from his comment to her to "cool your jets," constituted
violations of SCRs 60.02 and 60.03(1).
     ¶83       Judge Kachinsky also objects to the Judicial Conduct

Panel's       findings      that    certain       of   his   actions       were     meant    to
intimidate M.B. or to retaliate against her for reporting his
conduct.       He argues that the Judicial Conduct Panel's findings
in this regard were erroneous because his actions did not meet
the definition of "retaliation" under federal employment law.
We do not read the Judicial Conduct Panel's findings, however,
as   constituting           legal   conclusions         that      Judge      Kachinsky      had
violated federal employment statutes or case law.                                We read the
Judicial       Conduct       Panel's     comments        about      Judge        Kachinsky's
                                              39
                                                                   No.    2018AP628-J



retaliatory actions in the vernacular sense.                    Whether or not a
judge's retaliatory conduct would be actionable under federal
employment law, a judge should not engage in retaliation against
subordinates        who    simply     wish     to    limit      their     workplace
interactions to work-related topics.                Reprimanding a subordinate
employee     for    not    returning    a    Christmas       greeting     does    not
demonstrate the maintenance and promotion of high standards of
conduct    or    create public       confidence     in    the   integrity    of   the
judge issuing such a petty reprimand.9                    M.B. was required to
process case files and deal with the public as a manager of the
municipal       court,    not   to   satisfy    Judge      Kachinsky's      personal
opinion that employees must also be personal friends.

     ¶84    Judge Kachinsky's brief also asserts that some of the
Judicial     Conduct       Panel's     findings      of    fact    were      clearly
erroneous.       The brief then goes through the numbered findings as
if it were an answer to a complaint.                     Most of the paragraphs
state either that Judge Kachinsky agrees with the particular
finding or that there was sufficient support for the finding in

the record.        Judge Kachinsky does offer comments that attempt to


     9 In his opening brief, Judge Kachinsky acknowledges that
his public Facebook post criticizing M.B. for not returning his
Christmas greeting "could be regarded as public venting that was
conduct below the high standards of a judge," but he asserts
that it was not retaliatory or intimidating. [Kachinsky opening
br. at 24]    The rule at issue in this case, however, did not
require that the conduct be retaliatory or intimidating to be a
violation.     Judge Kachinsky's focus on the elements of
retaliatory conduct under federal employment law is therefore
misplaced in this proceeding.


                                        40
                                                                                 No.      2018AP628-J



explain     his    actions,          but    that       does   not    render         the     Judicial
Conduct Panel's findings of fact clearly erroneous.                                         We have
reviewed Judge Kachinsky's comments and find that he has failed
to prove that the findings of fact are clearly erroneous.
      ¶85    Next Judge Kachinsky contends that his email to M.B.
about the dispute in a circuit court in another county and his
posting of a copy of the village's sexual harassment policy did
not   violate      the        harassment         injunction        against      him,       which    he
contends     was        not     as    clear       as    the    Judicial          Conduct         Panel
believed.         Again,        we    need       not   decide      whether          or    not    those
actions     legally           constituted          violations         of       the        harassment
injunction,        as     we     are       not     reviewing        an        appeal      from     the

harassment        injunction          proceeding.             In    this        matter      we     are
reviewing         whether           Judge        Kachinsky's         actions             constituted
violations of the Code of Judicial Conduct.                               Even if, arguendo,
those actions would not be determined to be violations of the
specific terms of the harassment injunction, we have no problem
in concluding that they constituted violations of the relevant

supreme court rules.
      ¶86    Finally,          we    turn    to    the    matter         of    the       appropriate
level of discipline.                 Judge Kachinsky argues that the Judicial
Conduct     Panel's reliance               on other precedents                 is    flawed.        He
asserts that his misconduct did not involve flouting clear-cut
legal obligations, making direct threats, or belittling M.B.                                        He
contends that there were incidents in which the tension he felt
due to the conflict with village representatives boiled over
into inappropriate comments, emails, or Facebook posts, which he
                                                  41
                                                                            No.   2018AP628-J



categorizes     as     demeanor      violations.               He     suggests     that    an
appropriate     level     of     discipline             for    the     relatively      minor
demeanor   violations         that    he     admitted         would    be    a    nine-month
suspension, following which he would be eligible for appointment
as a reserve municipal judge in the discretion of the chief
judge of the judicial administrative district.
     ¶87   On    the     other       hand,        the    Judicial       Commission        also
factually distinguishes the cases cited by the Judicial Conduct
Panel,   but    from the       opposite perspective.                  It    contends      that
there really has not been a comparable judicial disciplinary
case in this state.        It argues that Judge Kachinsky's violations
were so numerous and so serious that he should be permanently

barred from eligibility for reserve municipal judge status.
     ¶88   As    is     the     case       in      most       attorney      and    judicial
disciplinary proceedings, there is no case with identical facts
and rule violations.          We view this matter, however, as involving
serious misconduct.           While his misconduct did not involve the
performance of       his judicial duties                 in the       courtroom,     it    did

occur in the context of the operation of the court over which he
had been elected to preside.                    Although he claims that he was
merely attempting to foster an environment that would be best
for the operation of the municipal court, it is clear from his
actions that he was intent on forcing M.B., his subordinate, to
comply with his personal desire that M.B. should also be his
personal friend—someone who would discuss life experiences with
him, engage in activities that he favored, and conform to what
he viewed as proper friend etiquette, such as exchanging holiday
                                             42
                                                                              No.       2018AP628-J



greetings.         Even      if   his   intentions           had     been    to    benefit      the
municipal court, the effect of his behavior was the opposite.
His actions, which cannot be dismissed as merely odd or quirky,
caused real harm both to the particular staff member (by causing
her    fear,      discomfort,       and    considerable              stress)       and     to   the
effective operation and public standing of the municipal court.
His actions also negatively affected the village as a whole,
which had to mediate between him and M.B., a village employee.
       ¶89    In the end, we agree with the Judicial Conduct Panel
that, in light of the fact that Judge Kachinsky is no longer an
active municipal court judge, an appropriate form of discipline
for his misconduct would be to suspend his eligibility to serve

as a reserve municipal judge.                   While we recognize that there are
factual differences with both Van Susteren and Gorenstein, we

conclude that Judge Kachinsky's misconduct has some similarities
to    the    misconduct in        those    cases          and     warrants     a       substantial
period of suspension.               We therefore suspend Judge Kachinsky's
eligibility for appointment as a reserve municipal judge for a
period       of   three      years.        In        light      of    our     July       3,     2018
superintending order prohibiting Judge Kachinsky from exercising
the     powers     of    a    municipal         judge,       we      make    the       suspension
retroactive to the date of that order.                               In addition, because
Judge       Kachinsky's      misconduct         demonstrates           that       he    currently
lacks the judicial temperament and the insight into his actions
that are required for a judge to preside over and manage a
court,       we   also       require      him        to    petition         this       court    and
successfully demonstrate to us that he is fit to serve as a
                                                43
                                                                     No.    2018AP628-J



reserve municipal judge before he may request an appointment to
serve as a reserve municipal judge from the chief judge of the
applicable judicial district.10
      ¶90   IT IS ORDERED that Leonard D. Kachinsky is suspended
from eligibility for appointment as a reserve municipal court
judge for a period of three years, commencing July 3, 2018.11
      ¶91   IT IS FURTHER ORDERED that before Leonard D. Kachinsky
may request appointment as a reserve municipal court judge by
the   chief   judge    of     the    applicable          judicial    administrative
district    under    Wis.    Stat.    § 800.065,         he   must    first    file   a
petition    with    this    court    and    demonstrate       through      appropriate
evidence    his    fitness    to    serve       as   a   reserve    municipal    court

judge.




      10
       Judge Kachinsky may not file such a petition in this
court until the three-year period of suspension has expired. We
also note that even if this court would find at that time that
Judge Kachinsky had demonstrated his fitness to serve once more
as a reserve municipal judge and would therefore grant his
petition,   the  chief   judge   of   the   applicable  judicial
administrative district would still have discretion under Wis.
Stat. § 800.065 regarding whether to appoint him as a reserve
municipal judge.
      11
       In light of the resolution of this judicial disciplinary
proceeding, we terminate the prohibition that we placed on Judge
Kachinsky's exercise of the powers of a municipal judge in our
July 3, 2018 order issued under our superintending and
administrative authority over the courts of this state.


                                           44
    No.   2018AP628-J




1
