[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Salerno, Slip Opinion No. 2019-Ohio-435.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                         SLIP OPINION NO. 2019-OHIO-435
                       DISCIPLINARY COUNSEL v. SALERNO.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as Disciplinary Counsel v. Salerno, Slip Opinion No.
                                    2019-Ohio-435.]
Judges—Misconduct—Violations of the Code of Judicial Conduct for failure to act
        in a manner that promotes public confidence in the judiciary, failure to
        uphold and apply the law and to perform all duties of the judicial office
        fairly and impartially, and engaging in ex parte communications—
        Conditionally stayed one-year suspension.
   (No. 2018-1088—Submitted January 9, 2019—Decided February 12, 2019.)
   ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
                                 Court, No. 2017-061.
                             _______________________
        Per Curiam.
        {¶ 1} Respondent, Amelia Angela Salerno, of Columbus, Ohio, Attorney
Registration No. 0032253, was admitted to the practice of law in Ohio in 1982. She
                              SUPREME COURT OF OHIO




was elected to the Franklin County Municipal Court in 2005 and continues to serve
as a judge on that court.
       {¶ 2} We publicly reprimanded Salerno in March 2015 for criticizing jurors
in her courtroom after they returned a not-guilty verdict in a criminal trial. Ohio
State Bar Assn. v. Salerno, 142 Ohio St.3d 95, 2015-Ohio-791, 28 N.E.3d 84.
       {¶ 3} In a complaint certified to the Board of Professional Conduct on
December 4, 2017, relator, disciplinary counsel, alleged that Salerno’s conduct in
two criminal cases she presided over violated the Code of Judicial Conduct. The
parties stipulated to the admission of facts, aggravating and mitigating factors, and
11 exhibits. Salerno agreed that she failed to act in a manner that promotes public
confidence in the independence, integrity, and impartiality of the judiciary and
avoids the appearance of impropriety; failed to uphold and apply the law and
perform the duties of her judicial office in a fair and impartial manner; and engaged
in ex parte communications.
       {¶ 4} Based on the parties’ stipulations and the evidence presented at a
hearing, a panel of the board found that Salerno engaged in the charged misconduct
and recommended that she be suspended from the practice of law for one year, all
stayed on the conditions that she pay the costs of this proceeding and commit no
further misconduct. The board adopted the panel’s findings of fact, conclusions of
law, and recommended sanction, with the added requirement that Salerno complete
a minimum of six hours of continuing legal education (“CLE”) in judicial ethics.
       {¶ 5} We accept the board’s findings of fact and misconduct and agree that
a one-year suspension, fully stayed on the conditions recommended by the board,
is the appropriate sanction in this case.
                                     Misconduct
                               Count One: Mendoza
       {¶ 6} On November 9, 2016, Tabatha Scalf and Juan Mendoza were
arrested and charged with possession of drugs, a first-degree felony.




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       {¶ 7} The next day, Scalf, who was represented by private counsel,
appeared for her arraignment before Salerno in the Franklin County Municipal
Court. The prosecutor requested a “high bond.” Scalf’s counsel explained that
Scalf had been a lifelong resident of Franklin County, owned an electronics
business, lived with her mother, and had no previous criminal record. Salerno then
set Scalf’s bail at $75,000 cash, surety bond, or appearance.
       {¶ 8} Later that day, Mendoza appeared for his arraignment before Salerno
with a public defender and a Spanish-speaking interpreter. The prosecutor again
requested a “high bond” and also informed Salerno that although Mendoza had no
known prior record, he did not have a Social Security number, which inhibited the
state’s ability to fully assess Mendoza’s criminal history. The prosecutor also
expressed concern that Mendoza might be a flight risk. Salerno acknowledged that
Mendoza and Scalf were codefendants and appeared to reside in the same home.
However, noting “the amount of heroin involved” and that Mendoza had “no
identifiers,” was “not documented in our country,” and did not claim to own a
business as Scalf had, Salerno set his bail at $350,000 cash or surety bond only.
       {¶ 9} Following his arraignment, Mendoza sought to retain attorney Eric
Brehm. Brehm then contacted Salerno’s bailiff, Rob Phillips, by text message, and
the following exchange ensued:


               [Brehm:] Hey rob are you in 4d today? Brenda Williams
       the bond lady is messaging me about a bond that got set on a case
       this morning where the cofedendant got $75k the other got $350k
               [Brehm:] Brenda said that was prolly a mistake so I was
       wondering how it could get corrected
               [Brehm:] Defending is juan Mendoza
               [Brehm:] Co defendant is tabitha scalf at $75k




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               [Brehm:] Looking for the same bond on Juan Mendoza. Let
       me know please what the judge says about it and if it can get
       corrected today if you are around
               [Phillips:] We left about 1215 today. I’ll ask her. She’s
       duty. She’s the one to make a change if needed
               [Brehm:] Cool thank you
               [Phillips:] I sent her all the info. See if it jogs her memory
               [Brehm:] Thanks again man
               [Phillips:] You got a case number ?
               [Phillips:] And what’s name again
               [Phillips:] She’s gonna look at it
               [Brehm:] Yep one sec
               [Brehm:] Juan Mendoza
               [Brehm:] 16 cra 25613
               [Brehm:] Tabitha Scalf is co def


       {¶ 10} Phillips forwarded the text communications to Salerno.
       {¶ 11} Based on Brehm’s ex parte communications, Salerno reconsidered
Mendoza’s bail and then telephoned the clerk’s office and lowered the amount from
$350,000 to $85,000. Mendoza posted bond and was released from custody later
that day.   But Salerno never informed the prosecutor of Brehm’s ex parte
communications or the fact that she had reduced Mendoza’s bond; instead, the
prosecutor learned of Mendoza’s release through the media.
       {¶ 12} At her disciplinary hearing, Salerno testified that she did not initially
think that the text messages were improper because they came to her through her
bailiff. She explained that she had questioned her initial decision to set Mendoza’s
bond so high and that subsequently, she determined that it would be appropriate to
reduce his bail amount. Salerno also acknowledged that she had come to the




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                                 January Term, 2019




understanding that the text messages were improper ex parte communications and
assured the panel that she would not engage in such conduct again.
       {¶ 13} The parties stipulated and the board found that Salerno’s conduct
violated Jud.Cond.R. 1.2 (requiring a judge to act at all times in a manner that
promotes public confidence in the independence, integrity, and impartiality of the
judiciary and to avoid impropriety or the appearance of impropriety) and 2.9(A)
(generally prohibiting a judge from initiating, receiving, permitting, or considering
ex parte communications).
                                  Count Two: Toe
       {¶ 14} On January 15, 2017, Mai Toe was stopped and ticketed for making
an improper turn in violation of Columbus Traffic Code 2131.10(c). The case was
filed in the Franklin County Municipal Court and assigned to Salerno.
       {¶ 15} Toe proceeded pro se at her February 27, 2017 bench trial. The
prosecutor assigned to the case learned that Toe had an outstanding warrant for her
arrest based on her failure to appear in a separate traffic case arising from a citation
for driving at an unreasonably slow speed in violation of Columbus Traffic Code
2133.04(a). The prosecutor offered to dismiss the slow-speed case if Toe agreed to
plead guilty in the improper-turn case, but Toe rejected the offer and the improper-
turn matter proceeded to trial. After hearing testimony from the police officer who
issued the citation and from Toe, Salerno found Toe guilty of making an improper
turn. At that time, the following exchange occurred:


               [Salerno:] Based upon the testimony, I am going to find Ms.
       Toe guilty. I’m not going to charge her any fine and court costs. I
       am also going to ask that this prosecutor dismiss the slow speed case
       so we don’t have to have her back and go through another trial on
       this. Since you originally offered her that for a guilty plea, are you
       willing to do that?




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               [Prosecutor:] Your Honor, that offer was on the table before
       proceeding with trial.
               [Salerno:] I understand that, Counselor, but rather than us
       having to go through another trial.
               [Prosecutor:] The case that is currently in order-in status,
       Your Honor[?]
               [Salerno:] Yeah, get rid of that case; just get rid of it so we’re
       done. Ms. Toe does not need to come back and we don’t have to
       redo another trial.
               [Prosecutor:] Your Honor, if she wants to enter a plea to that
       case, she is more than welcome to do that.
               [Salerno:] Okay. Fine. I will do it this way. Please delete
       the prior stuff. I’ll find you not guilty, ma’am. Thank you. Trying
       to clean up the docket, guys, not add to it. Okay. Thank you.
               [Toe:] So does this case—do I need anything or—
               [Salerno:] Nope.
               [Toe:] Okay. Thank you very much. I appreciate it.
               [Salerno:] Don’t do it again.
               [Toe:] Okay. Thank you.


       {¶ 16} Following the trial, the prosecutor consulted her supervisor, who
instructed her to return to Salerno’s courtroom to ensure that the warrant for Toe’s
arrest on the slow-speed case had been withdrawn and that the case would be set
for trial. When the prosecutor returned to the courtroom, Salerno called her to the
bench and, off the record, asked her to dismiss the slow-speed case. After the
prosecutor declined that request, Salerno went back on the record and announced:




                                           6
                                 January Term, 2019




       Miss Toe had a court trial on an improper turn. There was direct
       contradiction between her and the other witness. The officer said
       she turned left, and she stated she turned right. It was a he-said-she-
       said case and it was not beyond a reasonable doubt. I will find Miss
       Toe not guilty on that case.
               In addition, Miss Toe has a case that is order-in in my
       courtroom. That will be reassigned. Order-in set aside. Reassign
       for a new date.
               In judicial discretion and reviewing this, I decided before
       this was docketed and finalized that I would make the decision to
       find her not guilty because of the fact of the contradictory testimony
       and it wasn’t proven beyond a reasonable doubt.
               So, Miss Toe, you will be getting a new date for your second
       case.


       {¶ 17} The prosecutor later dismissed the slow-speed case because the
police officer who issued the ticket failed to appear for trial.
       {¶ 18} At her disciplinary hearing, Salerno testified that after her efforts to
assist the parties in reaching a plea deal proved unsuccessful, she tried the
improper-turn case. She explained that she attempted to achieve what she believed
was a “fair” result by finding Toe guilty of that offense, in the hope that the
prosecutor would then agree to dismiss the slow-speed case. She candidly admitted
that she became frustrated when the prosecutor—whom she described as “brand-
new,” “overzealous,” “abrupt,” and “rude”—rejected her proposed resolution and
that that frustration probably led her to change her guilty finding in Toe’s improper-
turn case. Noting that there was no dispute that Salerno’s frustration and loss of
her temper changed the outcome of that case, the board agreed that her conduct




                                           7
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violated Jud.Cond.R. 1.2 and 2.2 (requiring a judge to uphold and apply the law
and to perform all duties of the judicial office fairly and impartially).
        {¶ 19} We agree with the board’s findings of fact and misconduct as to
Counts 1 and 2.
                                       Sanction
        {¶ 20} When imposing sanctions for judicial misconduct, we consider all
relevant factors, including the ethical duties that the judge violated, the aggravating
and mitigating factors listed in Gov.Bar R. V(13), and the sanctions imposed in
similar cases. See Disciplinary Counsel v. Elum, 148 Ohio St.3d 606, 2016-Ohio-
8256, 71 N.E.3d 1085, ¶ 9.
        {¶ 21} “The primary purpose of judicial discipline is to protect the public,
guarantee the evenhanded administration of justice, and maintain and enhance
public confidence in the integrity of this institution.” Disciplinary Counsel v.
Russo, 124 Ohio St.3d 437, 2010-Ohio-605, 923 N.E.2d 144, ¶ 14, citing Kloepfer
v. Comm. on Judicial Performance, 49 Cal.3d 826, 864-865, 264 Cal.Rptr. 100,
782 P.2d 239 (1989).           Here, Salerno’s receipt of and action on ex parte
communications without the prosecutor’s knowledge in Mendoza’s case and her
intemperate reversal of her guilty finding in Toe’s trial serve not only to erode
public confidence in her ability to faithfully discharge the duties of her judicial
office but also to undermine the public perception of the fairness and impartiality
of the courts in this state.
        {¶ 22} The parties have stipulated and the board found that just two
aggravating factors are present—Salerno has a prior disciplinary record and she
committed multiple offenses in this case. See Gov.Bar R. V(13)(B)(1) and (4).
Relevant mitigating factors include Salerno’s full and free disclosure to the board
and cooperative attitude toward the disciplinary proceedings as well as positive
character evidence, including the testimony of Judge Michael J. Holbrook of the
Franklin County Court of Common Pleas and more than 30 character letters from




                                           8
                                January Term, 2019




friends, attorneys, former clients, current and former colleagues, and others familiar
with her community involvement with LifeCare Alliance, the American Cancer
Society, the Columbus Cancer Clinic, and the James Cancer Hospital. See Gov.Bar
R. V(13)(C)(4) and (5).
       {¶ 23} After considering the parties’ joint submission of relevant case law,
the hearing panel found that the facts of this case are most similar to those of Elum,
148 Ohio St.3d 606, 2016-Ohio-8256, 71 N.E.3d 1085. In that case, Elum was
charged with judicial and professional misconduct for advocating on behalf of a
tenant in an out-of-court landlord-tenant dispute during his tenure as a Massillon
Municipal Court judge. He called the landlord on the tenant’s behalf and identified
himself as “Eddie Elum from the Massillon Court.” Id. at ¶ 5. He urged the
landlord to accept the tenant’s late rent payment, and upon learning that the landlord
had already issued a three-day notice for the tenant to vacate, Elum requested two
additional days for the tenant to remove his belongings from the premises. When
the landlord stated that she may have already changed the locks on the property,
Elum told her that she could not do that without a writ of restitution and asked her
to have her lawyer contact him. Elum attempted to call the landlord on two
additional occasions, but she did not return his calls.
       {¶ 24} After the landlord filed a grievance against him, Elum admitted that
his actions were a mistake, that he was not an appropriate person to mediate the
landlord-tenant dispute, and that he understood how the landlord could have
perceived his phone calls as advocating on behalf of the tenant and against her. Id.
at ¶ 7.    Ultimately, he stipulated that his conduct was prejudicial to the
administration of justice, appeared to be coercive, and failed to promote public
confidence in the independence, integrity, and impartiality of the judiciary.
       {¶ 25} Like Salerno, Elum had a prior disciplinary offense for engaging in
similar misconduct “regarding the scope of his judicial role,” id. at ¶ 15, less than
five years earlier. See Disciplinary Counsel v. Elum, 133 Ohio St.3d 500, 2012-




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Ohio-4700, 979 N.E.2d 289, ¶ 21 (imposing a conditionally stayed six-month
suspension against Judge Elum for “behav[ing] in an undignified, unprofessional,
and discourteous manner towards litigants in his courtroom” and impairing the
independence of the judiciary by “needlessly inject[ing] himself into an
administrative investigation”). But in mitigation, we found that Elum acted without
a dishonest or selfish motive, cooperated with relator’s investigation and in the
disciplinary proceedings, and submitted a significant amount of character and
reputation evidence. Elum, 148 Ohio St.3d 606, 2016-Ohio-8256, 71 N.E.3d 1085,
at ¶ 10.
           {¶ 26} While recognizing that Salerno’s misconduct was not identical to
Elum’s, the board concluded that it was neither more nor less egregious than Elum’s
offenses—though it expressed some concern that Salerno engaged in intemperate
judicial conduct in both of her disciplinary matters.         Ultimately, the board
concluded that the appropriate sanction for Salerno’s misconduct is a one-year
suspension, stayed in its entirety on the conditions that she (1) complete a minimum
of six hours of CLE focused on judicial ethics that includes training specifically
related to proper judicial demeanor, civility, and professionalism, in addition to the
CLE requirements of Gov.Bar R. X and Gov.Jud.R. IV, (2) engage in no further
misconduct, and (3) pay the costs of this proceeding. We agree.
           {¶ 27} Accordingly, Amelia Angela Salerno is suspended from the practice
of law in Ohio for one year, with the entire suspension stayed on the conditions that
Salerno (1) complete, during the period of the stayed suspension, a minimum of six
hours of CLE focused on judicial ethics that includes training specifically related
to proper judicial demeanor, civility, and professionalism, in addition to the CLE
requirements of Gov.Bar R. X and Gov.Jud.R. IV, (2) engage in no further
misconduct, and (3) pay the costs of this proceeding. If Salerno fails to comply
with any of these conditions, the stay will be lifted and she shall serve the entire
one-year suspension. Costs are taxed to Salerno.




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                                January Term, 2019




                                                       Judgment accordingly.
       O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DONNELLY, and
STEWART, JJ., concur.
       DEWINE, J., not participating.
                               _________________
       Scott J. Drexel, Disciplinary Counsel, and Joseph M. Caligiuri, Chief
Assistant Disciplinary Counsel, for relator.
       Montgomery, Rennie, and Jonson, L.P.A., and George D. Jonson, for
respondent.
                               _________________




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