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Judge disciplined for ex parte communications, independent factual research, bias

In re Judicial Disciplinary Proceedings Against Piontek, 2019 WI 51, 5/21/19; case activity

The supreme court suspends Judge Michael Piontek from office for five days for “obviously unethical” and “clearly improper” misconduct in two criminal cases.

In the first case the judge engaged in ex parte communication with the prosecutor about adjourning a scheduled trial and advised the prosecutor he thought any plea deal should involve the defendant being convicted of a felony. (¶¶7-14). In the second case the judge did independent internet research about the defendant before sentencing and, without disclosing his research to the parties until his sentencing remarks, used that information in imposing sentence. He cut off the defendant’s attempts at sentencing to dispute the information; then, during postconviction proceedings, when the inaccuracy of some of the information was made plain, he basically claimed he didn’t rely on the information. (¶¶15-24). (The court of appeals held otherwise and ordered resentencing.)

After initially denying the ex parte communication in the first case, the judge admitted but minimized his conduct and chalked it up to being new to the bench and having a heavy case load. (¶¶12, 30, 32). As to the second case, in addition to an initial lack of acknowledgement that his conduct was improper (¶31), his response “implicitly conceded that his independent factual investigation [in this case] was not an isolated instance of this conduct.” (¶21). Since he “generally admitted” the misconduct (¶4), the question is what the sanction should be.

The judge argued for a public reprimand; the Commission asked for suspension from office for five to 15 days. Weighing the mitigating factors (¶¶27-28) and aggravating factors (¶¶29-32) and comparing this case to the discipline meted out to other judges, the court opts for a five-day suspension:

¶37      We agree with the Judicial Conduct Panel that a suspension, rather than a reprimand, is in order. The misconduct in this case is concerning. Regardless of his
newness to the bench or the weight of his caseload, Judge Piontek’s ex parte communication with the prosecutor on the merits of a criminal case was obviously unethical; even the newest and busiest judge must know as much. In addition, Judge Piontek’s independent investigation concerning P.E.’s nursing licenses plainly violated his duty of neutrality; it is clearly improper for a judge to both conduct an independent investigation and to fail to give a party a chance to respond to the judge’s misinformed allegations based on that investigation. We also share the Judicial Conduct Panel’s concern that Judge Piontek’s initial denials and later defenses of his conduct suggest that, for much of these proceedings, he failed to fully appreciate the seriousness of his misconduct and its impact on the judicial system. Simply put, this was not a close case under the undisputed facts, and a reprimand, as Judge Piontek requests, would be an insufficient response.

¶38     Finding that suspension is warranted, the question becomes what length of suspension is appropriate. As stated above, the Judicial Conduct Panel recommended a suspension ranging from five to 15 days. We conclude that a suspension at the bottom end of this range is warranted. Acknowledging that the imposition of discipline is not an exact science, we find that Judge Piontek’s conduct was not as egregious as that which resulted in 15-day suspensions in Carver and Calvert, and thereby warrants a lesser sanction. In Carver, we noted, among other things, that the respondent-judge used his judicial office in order to make an on-the-record criticism of a gambling investigation. [In re Judicial Disciplinary Proceedings againstCarver, 192 Wis. 2d [136,] 139, 154[, 531 N.W.2d 62 (1995)]. In Calvert, we noted, among other things, that the respondent-judge gave the impression to the litigants before him that the judge had essentially rigged the judicial and criminal justice systems against them. [In re Judicial Disciplinary Proceedings againstCalvert, [2018 WI 68,] 382 Wis. 2d 354, ¶¶19, 21, 26[, 914 N.W.2d 765]. Judge Piontek’s actions, while misguided and serious, do not rise to the same level of impropriety. As we previously noted, the goal of judicial discipline is not to punish the erring judge, but to protect the public from unacceptable judicial behavior. Id., ¶22. We believe this goal will be adequately served by suspending Judge Piontek for five days.

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