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In re Judicial Disciplinary Proceedings Against Kachinsky

Supreme Court of Wisconsin

July 9, 2019

In the Matter of Judicial Disciplinary Proceedings Against the Honorable Leonard D. Kachinsky:
The Honorable Leonard D. Kachinsky, Respondent. Wisconsin Judicial Commission, Complainant,

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

          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.

          PER CURIAM.

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

         ¶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.

         ¶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 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 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 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 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 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 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 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 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 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 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" ...

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