[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as Disciplinary Counsel v. Berry , Slip Opinion No. 2021-Ohio-3864.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 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.

S LIP O PINION N O
. 2021-O HIO -3864

D ISCIPLINARY C OUNSEL v. B ERRY . [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as Disciplinary Counsel v. Berry , Slip Opinion No. 2021-Ohio-3864.] Attorneys—Misconduct—Code of Judicial Conduct—Violation of Jud.Cond.R. 1.2, requiring a judge to act at all times in a manner that promotes public confidence in the independence, inte grity, and impartiality of the judiciary and to avoid impropriety and the appearance of impropriety— Conditionally stayed six-month suspension. (No. 2021-0747—Submitted August 3, 2021—Decided November 3, 202 1.)

O N C ERTIFIED R EPORT by the Board of Professiona l Conduct of the Supreme Court, No. 2021-005.

_______________________ Per Curiam.S UPREME C OURT OF O HIO

2 {¶ 1} Respondent, Judge Theodore Newt on Berry, of Cincinnati, Ohio, Attorney Registration No. 0042025, w as admitted to the practice of law in Ohio in 1989. Berry has been a judge of the Hamilton County Municipal Court since 2006. {¶ 2} In March 2021, relator, disciplinary counsel, charged Berry wit h violating the Code of Judicial Conduct for sending inappropriat e Facebook messages and videos t o a court employee. Berry stipulated to t he charged misconduct, and the parties join tly recommended that he be publ icly reprimanded
for his behavior. After a heari ng, a three-member panel of the board found that Berry had engaged in the stipulat ed misconduct, agreed that he should be publicly reprimanded, and recommended that h e also complete sexual-haras smentprevention training. The board i ssued a report adopting the pa nel’s finding of misconduct but recommending that w e impose a conditionally stay ed six-month suspension. Neither party has obj ected to the board’s report a nd recommendation. {¶ 3} Based on our review of the recor d, we adopt the board’s finding of
misconduct and reco mmended sanction.

Misconduct {¶ 4} In August 2019, Jane Doe 1 began working as a court reporter for the Hamilton County Municipal Court. S ometime thereafter, Berry se nt her a friend request on Facebook. At the time D oe accepted the request, she and Berry did not know each other, as she was not a court reporter assigned to hi s courtroom. In October 2019, Doe “liked” some pictures that Berry had posted o n Facebook relating to the courthouse, and he sent her a private message a sking about her
connection to the courthouse. The y exchanged messages, and Ber ry invited her to stop by his chambers to meet in person. {¶ 5} About a week later, Berry sent Doe a Facebook message wishing h er a good weekend and stating, “You’re ‘Lurking’ and didn’t come d own to my

1. Presumably to protect her individual privacy rights and inte rests, the parties and the board did not identify Doe in the public filings.January Term, 2021

3 Chambers to visit.” Doe responded that she would stop by soon. After Doe and Berry exchanged several more me ssages—on various topics, includ ing their respective divorces—he asked fo r her cell-phone number and sugg ested that they talk over the weekend. The partie s stipulated that if Doe had been called to testify at Berry’s disciplinary hearing, she would have stated that she gave the judge her phone number because she felt like she could not refuse, consid ering his status as a judge. {¶ 6} Berry called Doe on a Saturday. According to Doe, Berry sounde d intoxicated and used profanity, although Berry denied that he w as drunk and had no specific recollection of using profanity. Also during the c all, Berry asked Doe
out to lunch but she declined. {¶ 7} A few days later, Berry sent D oe a Facebook message asking her to stop by his office and stating that he had “an ‘Offer you can’t Refuse’!!” Doe did not stop by and later advised h im in a message that she had got ten busy with work. At his disciplinary hearing, Berry testified that he had intend ed to offer Doe tickets
to an event for her and her children. {¶ 8} A couple days after asking Doe to stop by his office, Berry sen t her a Facebook message stating that he was on a “Staycation” and aski ng her out for lunch or drinks. Specifica lly, his message stated:

I’d like to invite you to accompany me for lunch or for drinks after work. I Hope I’m not being too forward or pushy in inviting to do something. So, simply le[t] me know if you’d like to meet for lunch or drinks this coming week or otherwise. I’m a “Big boy” so I know how to accept and respect the wor d, “NO”. So please be Honest in your response. Again, I hope you’re not offended because this is not my intent whatsoever. So, ki ndly RSVP either way. TY!!S UPREME C OURT OF O HIO

4 {¶ 9} Doe did not respond to the message, and their Facebook communications thereafter became increasingly one-sided. After sending the message quoted above, B erry sent Doe 72 me ssages; she replied t o only 15. {¶ 10} A majority of the 72 messages we re images, memes, or links to videos that Berry had forwarded from the Internet. Many of tho se messages were overtly partisan and vulgar. For example, Berry sent Doe a vid eo showing smoke and then flames emanating from the body of former President Don ald J. Trump while he attended a prayer sessi on. Berry also sent Doe a prof ane cartoon image of Santa Claus appearing to defeca te down a chimney of United Stat es Senator Mitch
McConnell’s house. With the cart oon image, the judge sent a me ssage stating, “A Special Delivery to ‘Moscow Mitch’ for Christmas, and for his upcoming, predetermined ‘Shit Show’ in the Complicit, pre-determined, pre-Ju dged, Senate Impeachment ‘Trial’!!” In add ition, Berry forwarded Doe a vide o from a comedian playing a character known as the “Liberal Redneck,” who used pr ofanity while insulting supporters of forme r President Trump. {¶ 11} Some of Berry’s messages contai ned links to videos containing offensive and sexually suggestiv e content—though Berry did not personally create the content. For example, he sent Doe a link to a video entitl ed “How to Build a Resume for a Hoe,” in which a well-known actress used crude lan guage while joking about assisting female pro stitutes with building a resum e. Berry also sent
Doe a link to a viral video entitle d “How To End A First Date,” in which a woman
and a man used sexua lly explicit language w hile purporting to b e honest with each
other at the end of their first d ate. For example, the woman a greed to engage in certain sex acts, and in excha nge, the man agreed to buy her gi fts. {¶ 12} Doe brought the messages to the attention of her boss and a colleague, who informed court ad ministration. After an investi gation, court administration referred the matter to relator. The parties sti pulated that Berry wanted to apologize to Doe and c onvey to her that he had not in tended to make herJanuary Term, 2021

5 uncomfortable, but he concluded that it would be inappropriate for him to directly communicate with her. Therefore, he asked the judge for whom s he worked to pass along his apology. At his discip linary hearing, Berry also tes tified that he had
deactivated his Facebook acc ount and had no other presence on s ocial media. {¶ 13} Based on this conduct, the partie s stipulated and the board fou nd that Berry violated Jud.Cond.R. 1.2 (re quiring 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 and the appearance of im propriety). We agree with the board’s finding of misconduct.

Sanction {¶ 14} When imposing sanctions for judi cial misconduct, we consider al l relevant factors, including the ethical duties that the judge v iolated, the aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanc tions imposed in
similar cases. {¶ 15} The board found two aggravating fa ctors: Berry had a selfish mo tive and he abused his judicial position when he engaged with Doe, a court employee.

See Gov.Bar R. V(13)(B)(2). The board also noted that because Doe did not testify at the judge’s disciplinary hear ing, there was no evidence indi cating what impact, if any, the judge’s conduct had on her. As for mitigating fact ors, the board found that Berry has a clean disciplinary record, made a timely and g ood-faith effort to rectify the consequences of hi s misconduct, and made full and f ree disclosures to the board and had a cooperative attitude toward the disciplinar y proceedings. See Gov.Bar R. V(13)(C)(1), (3), and (4). {¶ 16} Because the board could not find any Ohio precedent involving similar judicial misconduct, the board reviewed cases in other jurisdictions for guidance. For example, the board reviewed In re Complaint of Judicial

Misconduct , 751 F.3d 611 (2014), in which a f ederal district court judge sent, from his court email address, a racist and partisan email to a small group of friends aboutS UPREME C OURT OF O HIO

6 former President Barack Obama. After the email reached a repor ter and was quoted in a newspaper, a five-judge sp ecial committee investigated the matter and found that the judge had sent hundreds of inappropriate emails—mostly forwarded cartoons, articles, video links, or jokes—to recipients that in cluded the judge’s personal and professi onal contacts and court staff. Most of th e emails were political in nature; some showed disdain a nd disrespect for liberal polit ical leaders, minority groups, and certain faiths; and so me contained sexual topics an d were disparaging to women. A federal judicial council publicly reprimanded the judge and ordered that no new cases be assigned to him for 180 days. The council also ordered that he complete training on judicial ethics and racial awareness an d elimination of bias and that he issue a public apology—although the remedial action s were later declared inoperative because the judge resigned from the bench. {¶ 17} The board also reviewed a disciplinary matter against a Tenness ee judge who sent inappropriate me ssages—ranging from flirtatious to overtly sexual—to multiple women on social-media platforms. The recipi ents of the judge’s messages included a leg al professional associated with a law firm that had appeared before the judge and a litigant who had formerly had a child-custody matter before him. Considering that judges are required to act at all times in a manner that promotes public confidence in the integrity and imp artiality of the judiciary, the Tennessee Board of Judicial Conduct noted that “ [i]nappropriate messages sent by a sitting judge to anyone, much less to those who have ties to the court system like former litigants and legal professionals, do not inspire such
confidence.” Tennessee Board of Judicial Conduct, Public Repri mand, File No. B20-8220 (Oct. 5, 2020), availa ble at https://www.tncourts.gov/ sites/default /files/docs/judge_jonath an_young_reprimand_2020_10_05.pdf (acce ssed Oct. 12, 2021) [https://perma.cc/62Y9-CGYH]. The Tennessee board public ly reprimanded the judge, imposed a conditiona lly stayed 30-day suspension, an d ordered him to, among other things, complete judi cial-ethics training relating to social media.January Term, 2021

7 {¶ 18} The panel here concluded that Berry’s conduct warranted a publi c reprimand. But the panel also found that Berry had demonstrate d a lack of sensitivity to the issue of sexual harassment and therefore rec ommended that he complete three hours of continui ng judicial education on sexual -harassmentprevention training. The board disagreed with the panel’s conc lusion and instead recommended that Berry be suspende d for six months, with the su spension stayed on conditions, including that he c omplete a minimum of eight ho urs of continuing judicial education on sexual harassment. The board increased t he recommended sanction because of the existence of two aggravating factors an d our precedent holding judges to the highest st andards of ethical conduct. {¶ 19} “Judges are in a position to exert power over their employees, the attorneys who practice before them, and the litigants in cases over which they preside,” Disciplinary Counsel v. Horton , 158 Ohio St.3d 76, 2019-Ohio-4139, 140 N.E.3d 561, ¶ 72, and—as this matte r shows—over other persons a ssociated with the justice system. “Recognizing this power, we have held that ‘ “[j]udges are held to higher standards of integrity and ethical conduct than attor neys or other persons not invested with the public tru st.” ’ ” (Brackets added in Horton .) Id. , quoting Disciplinary Counsel v. O’Neill , 103 Ohio St.3d 204, 2004-Ohio-4704, 815 N.E.2d 286, ¶ 57, quoting Shaman, Lubet & Alfini , Judicial Conduct and Ethics 1 (3d Ed.2000). In short, “[j]udges should comport themselves in a m anner that is beyond reproach.” Id. And “[j]udges should maintain the dignity of judicial office at all times and avoid both impropriety and the appearance of impropri ety in their professional and personal lives.” (Emphasis added.) Code of Judicial Conduct, Preamble, Section 2. {¶ 20} Berry sent numerous inappropriate Facebook messages to a court employee; many of the messages were politically partisan and so me contained vulgar and sexually explicit c ontent. The judge’s conduct unde rmined the public’s confidence in the impartiality and integrity of the judiciary. “The primary purposeS UPREME C OURT OF O HIO

8 of judicial discipline is to pr otect the public, guarantee the evenhanded administration of justice, and maintain and enhance public conf idence in the integrity of this institution.” Disciplinary Counsel v. Russo , 124 Ohio St.3d 437, 2010-Ohio-605, 923 N.E.2d 144, ¶ 14. With that purpose in mind , we conclude
that the board’s recommended sanc tion is appropriate in this ca se. Conclusion {¶ 21} Theodore Newton Berry is hereby suspended from the practice of law in Ohio for six months, with the entire suspension stayed o n the conditions that he (1) complete a minimum of ei ght hours of continuing judicial education on the subject of sexual harassment within 90 days of our disciplinary order and (2) refrain from committing any further misconduct. If Berry fails to comp ly with either condition of the stay, the stay will be lifted and he will serv e the entire six-month suspension. Costs are taxed to Berry. Judgment accordingly.

O’C ONNOR , C.J., and K ENNEDY , F ISCHER , D E W INE , D ONNELLY , S TEWART , and B RUNNER , JJ., concur.

_________________ Joseph M. Caligiuri, Disciplinar y Counsel, and Matthew A. Kanai , Assistant Disciplinary Counsel, for relator. Montgomery Jonson, L.L.P., and George D. Jonson, for respondent

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