The Domestic Relations and Juvenile Courts of Butler County foster a culture of secrecy, fear and judicial abuse that violates the most fundamental and sacred rights guaranteed by our nation’s Constitution the rights of due process of the laws. Those who are most directly affected by decisions of these courts parties to the actions are routinely excluded from court proceedings and deliberations, told to wait outside the hearing room in a hallway while their lives, personal property, children and homes are divided up by strangers.

The world of juvenile and domestic relations is a secret world where the courts treat public scrutiny with open contempt and hostility. The pretense for this secrecy is to protect families from embarrassing disclosures about their personal and private lives. The real function, however, is to protect the court from public scrutiny and oversight.

Nowhere is this judicial hypocrisy more dramatically illustrated than in the Court Rules of the Domestic Relations Court. These rules require placing personal information about people’s private lives in public records, which are easily available on the Internet, while blocking disclosure of what judge is assigned to the case.

On one hand, DR Rule 1: (B) requires that "All pleadings shall contain the names, addresses, dates of birth and Social Security numbers of both parties and all children of the marriage. Pleadings shall also contain the telephone numbers of all parties." This rule requires that every document filed in a domestic relations case must contain some of the most private information about a person’s life. Under state law, all pleadings and submissions are public documents unless specifically sealed by the court.

On the other hand, a court order filed by Judge Leslie Spillane on March 28, 2002, prohibits the Clerk of Courts from "making any assignment of cases to judges in this Division (Domestic Relations Court)." In an April 3, 2002, letter to the Clerk of Courts, Judge Spillane threatened litigation if the Clerk of Courts Office continued to make assignment of cases to judges in the Domestic Relations Court.

Under Ohio law, the assignment of cases is supposed to be random and not subject to manipulation. The Clerk of Courts routinely assigns cases in the General Division to judges. The effect of Judge Spillane’s order is twofold: First, it opens the assignment process to secret manipulation; and second, the Domestic Relations Court does not forward to the Clerk’s office the name of the judge the court assigns to hear the case. There is no official public document attesting to the assignment.

The net result is that the public can go to the Clerk’s office or web site and get a person’s Social Security number, dates of birth, unlisted telephone number and a host of other personal information, but cannot get the name of the judge assigned to the case. The personal information is not protected, but providing the identity and assignment of the judge is prohibited by a court order and the practices of the Domestic Relations Court.

Hence, under Court Rules and procedures, the Clerk of Courts is required to make an individual’s most private information fully available to the public, but is prohibited from publishing the identity of the judge assigned to the case. How does excluding the name of the judge assigned to the case promote due process or the public interest?

Juvenile Court is even worse. It handles this issue of public and individual access to court documents in a different way it blocks all public access to any document. All of the Juvenile Court records are sealed, and even parties to the cases have to clear formidable hurdles to get access to court records access is time-consuming and costly and as a practical matter is virtually nonexistent.

How can anyone be proud of a justice system that works in the shadows? How can those who have dedicated their lives to upholding the laws of the State of Ohio and the Constitution of United States tolerate a system that is so offensive to the America system of justice?

Where is the outrage? The answer: The outrage is muted by an incestuous network of insiders who are spared the crucible of public scrutiny by a system that operates behind locked doors, disciplined by a real fear of being punished if the members ever break ranks and rail against the injustice they see daily.

This report chronicles and documents numerous practices and procedures that act as barriers to due process. My prayer is that, by shining the light of public disclosure on these and other abuses, changes will be made in court practices changes that will respect the rights of our citizens and uphold the principles of justice envisioned by our founding fathers.

Michael A. Fox

Butler County Commissioner

Judge Barb Gorman, Montgomery County, Ohio

Why would a County Commissioner concern himself with a matter under the jurisdiction of the courts? The answer is simple: As a citizen and as a public official, I care about redressing injustice when I see it. In this age of cynicism it probably sounds corny, but it’s true. As a County Commissioner, I have a voice in setting the budget for all county agencies. The courts, justice system and law enforcement account for more than 60 percent of our general fund expenditures. When they provide lousy public service or deny our citizens their basic rights, they cost the taxpayers dearly in human terms and in wasted money.

I take no pride in providing public funds to government instrumentalities such as the Domestic Relations Court and the Juvenile Court knowing that these resources are used to deny residents the fundamentals of due process. I have a choice: I can sit back and say nothing watching the abuses continue or I can speak up and call attention to the problem in hope of bringing change.

I have no ax to grind, other than my intolerance for injustice. Thankfully, I have had no direct experience with any domestic relations court or juvenile court. I speak without caveat or hint of distress with some court decision about a case in which I was involved. I simply consider how I would feel if I endured what so many or our citizens endure every day in these two courts. I would not like it, not one bit, nor do those who endure it.

This report examines procedures, practices and problems in Butler County’s family courts: the Domestic Relations Division and the Juvenile Division of the Butler County Court of Common Pleas. Although the report reflects years of court actions, the issue received immediacy with the disclosure that Dr. Roger Fisher, a psychologist who had provided expert testimony in both courts for many years, surrendered his license to the State of Ohio.

My inquiries into the situation drew a heated reaction, particularly after a January meeting at which citizens raised complaints about the courts and a letter from the Butler County Board of Commissioners asking the judges to exact penalties for false or misleading testimony. The Butler County Bar Association circulated a letter, curiously treating the County Commission’s request for effective court rules as an assault on the judges.

The subsequent reaction from the two court divisions has been markedly different, and the difference is instructive.

The administrative judge of the Juvenile Court, David Niehaus, reacted by inviting me to meet with him and his colleague, Judge Ronald Craft, to discuss ways the court can improve its procedures and make them more transparent to ordinary citizens. I am hopeful about the prospects for that kind of effort.

Similarly, Judge Sharon Kennedy invited me to meet with her and exchange ideas on how to improve the Domestic Relations Court process. Her court is open and accessible to parties to actions to participate and be present when their case is being discussed.

Unfortunately, the administrative judge of the Domestic Relations Court, Leslie Spillane, governs the actions of the court’s magistrates. Judge Spillane reacted by writing newspaper columns and letters denying the problems and castigating the Board of County Commissioners for the temerity to suggest court reforms.

Then she went to the Butler County Auditor’s Office and demanded the travel expense records for all three commissioners, the county administrator and my assistant. Not only did she request the records of my past travel, but she also requested copies of my future travel, and she wrote another newspaper column, this time presenting serious errors of fact in an excursion into side issues. Whatever the merit of her opinion on the subject, she betrayed her own animus by exaggerating and misstating facts that are on the record.

Although she failed the elementary test of material accuracy, reviewing expenditures of the commissioners is far easier than reviewing actions taken in Domestic Relations Court. All one has to do is request a report from the County Auditor. A review of Domestic Relations Court cases is harder, either because the court did not collect much of the information essential to a review or because Judge Spillane has direct control of the information and is reluctant to let go of it.

Judge Spillane’s behavior is consistent with the complaints I received regarding how she runs the Domestic Relations Court: Anyone who challenges or questions her is likely to suffer a punitive attack. Her penchant for "getting even" is well-known, and her response to the commissioners’ questions says a lot about how she deals with those who come before her who are under her control and dependent upon her good will.

Perhaps she is still angry about an incident a few years ago when I objected and blocked her request to travel to Paris, France, at county expense, there to learn the wisdom of the French in the administration of law.

Several citizens spoke at a January 6, 2003, County Commission meeting, complaining about the Butler County Domestic Relations Court and Juvenile Court. They said that judges and magistrates in these courts had allowed false and misleading testimony, violating their rights to due process of the laws. They complained that the courts excluded them from hearings, ignored court rules and failed to enforce court orders.

On January 27, Domestic Relations Judge Sharon Kennedy appeared at a County Commission meeting and offered a rebuttal. Judge Kennedy provided the commissioners with boxes of case files relating to issues in dispute. She challenged the commissioners to review the records and draw conclusions about whether the allegations had merit. Judge Kennedy did not provide commissioners with some copies of transcripts of testimony; hence a review of the allegations based solely on the material she provided would have been incomplete.

In addition to the January 6 complaints, several citizens who read newspaper accounts of the January 6 and January 27 meetings called the County Commission office to protest their experiences in the Domestic Relations Court and Juvenile Court.

Pursuant to Judge Kennedy’s request, I reviewed many of the documents and records she provided to the County Commission. I also reviewed other documents including transcripts of testimony provided to me by parties to cases before Butler County’s Domestic Relations Court and Juvenile Court. I met with and talked by phone to residents who told me of their experiences with these two courts. I received scores of calls from people who read news accounts about the issue. Many people told me stories similar to those documented here.

At a February Commission meeting, Commissioners Courtney Combs and Charles Furmon said they had reviewed the records provided by Judge Kennedy and found no evidence of perjury or lying. It was not possible to determine whether there were instances of falsification from a review of the records Judge Kennedy had provided, because they were incomplete and did not include needed transcripts. In addition to reviewing the documents she provided and other documents from those cases, I reviewed records from cases not discussed by Judge Kennedy.

I arrived at a much different conclusion. I found instances in which witnesses gave false and misleading testimony while under oath and filed false documents with the courts. This report documents those and other instances of procedural lapses that constitute barriers to due process, and it identifies the scope, nature and consequences of the problems encountered by people in the two courts.

The Domestic Relations Court and the Juvenile Court of Butler County exercise enormous power over the lives of individuals, families and their property. Their power is nearly absolute. The only public agency in Ohio that touches the lives of more children and families is the public school system.

That decisions rendered by these courts are subject to appeal and judicial review is, while theoretically correct, from a practical point of view, a myth — of little value when that review concerns questions of the credibility or truthfulness of a witness. Reviewing courts virtually always defer to domestic relations and juvenile trial courts as to what testimony or evidence is believable or unbelievable and what is fair or appropriate relief.

The standard for review of a domestic relations or juvenile trial court is the amorphous and non-substantive "abuse of discretion," which permits two judges to hear exactly the same evidence and come up with diametrically opposed outcomes.

Most people who go before these courts cannot afford to exercise their right of appeal, because it costs too much money. This stricture is particularly true in juvenile court proceedings. Nor can most who go through either of the two courts afford the financial burdens associated with asserting all of their rights at the trial level.

And while most people cannot afford the cost of asserting their rights, some can. Few things in life are more appealing to an attorney in this specialty than having an angry client with a lot of money. I spoke to people who spent tens of thousands of dollars in legal fees to maintain a relationship with their children or settle a score with an ex-spouse.

The actions of the trial courts become, as a practical matter, the litigants’ only opportunity for justice and fairness the decisions of the trial court are effectively final. Even when someone does successfully appeal a case to the 12th District Court of Appeals, it takes forever to get through the process. And even when an appellant is successful, the Domestic Relations Court or Juvenile Court will sometimes ignore the decision.

Those who administer and work with these courts are fully aware of their power. The courts can dispense justice expeditiously or not at all. The temptation to abuse this power is ever present and, unfortunately for Butler County residents, too seldom resisted. The administration of the Domestic Relations Court and Juvenile Court has become the dominion of the haughty spirit, where tyranny often reigns and egos are easily bruised.

Two administrative judges, Leslie Spillane in Domestic Relations Court and David Niehaus in Juvenile Court, preside over these courts. They exercise virtually absolute power over those who come before them. In the course of this review, I was saddened by how many people who talked to me feared that their attorney or the court might find out that they had made contact.

Many people who wished to remain anonymous told me that their attorneys had told them to stay away from me because it would hurt their cases if the judges or magistrates knew they were talking to me. This in itself is a sad commentary on the way the system works for attorneys to advise their clients not to exercise their constitutional right to redress grievances because some judge or magistrate will punish them for doing so is fundamentally wrong.

The Domestic Relations Court has inculcated a culture of fear in which even lawyers I met with were afraid that the judge or magistrate would learn of their contact with me. And the Juvenile Court has exhibited the same problem, if not in the same degree. This fear is understandable. Every time an attorney stands in front of a judge or magistrate, the lawyer is actually representing all of the lawyer’s clients, not just one.

If a lawyer offends the judge or magistrate, his or her entire practice and the interests of all of that attorney’s other clients can suffer; all of a sudden, the lawyer’s motions may go to the bottom of the pile and may take weeks or months to be heard; the lawyer’s motions may be routinely denied; or the judge may seldom determine that the lawyer’s clients have meritorious arguments on any issue before the court. By contrast, lawyers who have a good relationship with the judge can benefit greatly.

This culture of fear is manifest in other ways, as well. The experience of one person who came to see me wanting my help to get a transcript from a hearing in which he was a party in Juvenile Court is worth noting. We sent an e-mail to Rob Clevenger, the Juvenile Court administrator, requesting assistance. The client was fear-struck when his attorney told him that his request for a transcript of the hearing had angered the magistrate. His attorney told him that his child’s guardian ad litem told him that the magistrate was aware of the request and unhappy about it.

Why would a magistrate even know that such a request was made? Juvenile Court rules requiring a party to an action to get specific permission from Judge Niehaus before he or she can have access to a transcript or record create a barrier to due process and set up an intimidating procedural hurdle.

What interest does the court serve in denying or delaying a party to a case access to the records of a proceeding in which he or she participated? Why even review it? Why not just let them have access to the records upon their request? In this instance, the client’s lawyer was concerned that, by requesting the transcript, the client had damaged the lawyer’s relationship with the court.

There are good people in the system good lawyers, good court employees, good social workers and good advocates for reform. But too often they hesitate to speak up because they fear they will be punished. This fear is cultural. It has grown because it reflects a tone set by Judge Spillane in the Domestic Relations Court and Judge Niehaus in the Juvenile Court. These judges created and nourished the culture; only they can change it.

During my review, I talked with attorneys, court employees and others familiar with the courts and found that the fear of reprisals is widespread. Often they would ask that we meet away from downtown; they did not want others to see them meeting with me.

Many of them agreed privately that my criticisms are on target, but asked me to understand that they could not speak publicly their law practices or jobs depended upon having a good working relationship with the courts or in some cases they protested that it was not their job to correct all the ills of the court system.

Several lawyers and others told me that I needed only to wait for Judge Niehaus and Judge Spillane to retire, and many of the reforms that I am pressing would be made. After meeting with Judge Niehaus, I was encouraged to hope that there might be another option they can change the way the courts work.

In 1816, Thomas Jefferson wrote: "When [a cabal in the county courts] takes place, it becomes the most afflicting of tyrannies, because its powers are so various, and exercised on everything most immediately around us." Jefferson wrote, "The system of justice will either protect citizens from tyranny or be one means by which tyranny is exercised over them. A just society rests upon an equal application of the law to each and every citizen; it protects the rights of individuals regardless of the inconveniences caused thereby."

Each day Butler County residents experience firsthand the tyranny that Jefferson feared.

How would Jefferson feel about a citizen being told that he or she could not be present when his or her case was discussed behind closed doors? I would not like the court sitting in silence when a witness lies. I would not like being told that the only way I could see my children would be to work with a counselor imposed by the court. I would not like waiting months sometimes forever for the court to issue a final order so I could exercise my constitutional right of appeal.

I would not like being unable to confront those accusing me of wrongdoing in a public court so independent observers could form their own opinions about the fairness of the process. I would not like being told that the only way that I could exercise my appeal rights is to pay thousands of dollars for court transcripts prepared by court employees. I would not like being represented by a lazy, incompetent or corrupt attorney.

I would not like taking off work to go to court, finding a baby sitter for my children and paying my attorney to show up, only to learn that the matter was continued for some petty reason often delayed in order to cost me money and aggravation in hopes of wearing me down. I would not like to learn that the judge or magistrate engaged in ex-parte communications with witnesses or attorneys involved in my case. I would not like having the court refuse to enforce its own orders.

We are a nation of laws; due process matters. Constitutional safeguards dating to the founding of our country set forth fundamental principles of justice upon which our legal system rests. Among those principles are the right to a jury trial, the right to face one’s accusers, the right to a public hearing, the right to due process, the right to representation by competent counsel, the right to redress grievances through government and the right to protect property from confiscation without due process.

These principles have endured throughout our history. At times, they have been obscured and ignored. Fortunately, the system, while slow at times, has provided avenues for those whose rights have been trammeled to change the system and make it more responsive to the requirements of justice.

Procedural protections essential for preserving due process rights are virtually non-existent in Butler County Domestic Relations Court and Juvenile Court. That the county’s Bar Association turns its head on these abuses is shameful.

One part of the problem is that the justice system has been so prostituted that protections essential to the integrity of the justice system take a back seat to the comfort and convenience of insiders. Citizens caught up in the perverse domestic relations and juvenile systems are treated like extraneous nuisances whose main purpose is to provide a pretext for the insiders to make a good living.

Another part of the problem is that lawyers are trained to look at the world differently. They are taught to ignore right and wrong, substituting a perverse set of values in which process and procedure trump substance. What normal people consider a lie or false statement is perfectly acceptable in the world of law, where process is king, and whatever one can get away with is acceptable. Do what you must do to win.

Violations of laws and breaches of court rules are a scandal. But perhaps the larger scandal is not the actions that are formally improper or illegal. The practices that the courts allow and encourage within their rules are increasingly bringing our system of justice into disrepute.

America achieved greatness because it was built on a foundation of law. That Great Britain and the United States are the world’s two leading nations in so many ways is no accident, sharing as we do a common heritage of justice under law. But we are undermining our foundation with the perversion of law that has become the rule in American courts. Too many lawyers seek not truth, but advantage.

Judge Edith Jones of the U.S. Court of Appeals for the 5th Circuit addressed the Federalist Society of Harvard Law School on February 28 of this year:

"The American legal system has been corrupted almost beyond recognition," Judge Jones said. "The question of what is morally right is routinely sacrificed to what is politically expedient. The change has come because legal philosophy has descended to nihilism the integrity of law, its religious roots, its transcendent quality are disappearing. I saw the movie ‘Chicago’ with Richard Gere the other day. That’s the way the public thinks about lawyers," she said.

"An increasingly visible and vocal number [of lawyers] apparently believe that the strategic use of anger and incivility will achieve their aims. Others seem uninhibited about making misstatements to the court or their opponents or destroying or falsifying evidence," Judge Jones argued. "When lawyers cannot be trusted to observe the fair processes essential to maintaining the rule of law, how can we expect the public to respect the process?"

Thousands of Butler County residents who have witnessed a typical day in Domestic Relations Court or Juvenile Court would agree with Judge Jones’s commentary. Based on the small sampling of cases that I reviewed for this report and my own observations of court operations for more than two decades, so would I.

The sycophantic statement from the Butler County Bar Association following the initial meeting at which citizens alleged misconduct in these two courts struck me as symptomatic of the larger problem. In response to a letter that all three commissioners signed and sent to the domestic relations and juvenile judges, simply asking that the courts act to curtail false testimony in their courts, the Bar Association issued a letter calling on lawyers to rally to the defense of the two courts.

Mr. Donald Crane, president of the Butler County Bar Association, expressed concern that the commissioners’ letter and certain public statements were an attack on the integrity of the judicial system and would sap public respect for the legal system. What people actually experience when they go to court erodes respect for the courts far more than any statements the commissioners might make or questions they might ask.

The abuses are not unique to Butler County; they are common to juvenile and domestic relations courts all over the country. They are the rule, not the exception.

I am not suggesting that every misstatement of fact is perjury or should be punished as such. I realize that memories often falter, and false information is entered into the record unintentionally. Nor am I "taking sides" on the details of the substantive issues decided by the courts on matters litigated by those who brought me examples used in this report. I reviewed the cases to identify systemic barriers to due process, not to make a judgment about the substantive outcome of the cases.

In the Cathy Doerman case, for example, even though I use several examples from Ms. Doerman’s experience to highlight what I believe to be deficiencies in the system, I believe Judge Kennedy’s decision to hold Ms. Doerman in contempt of court and put her in jail for failing to grant her child the court-ordered visitation with his father was the right decision. I wish more magistrates and judges would jail those who ignore court orders.

I am arguing that judges and magistrates have an affirmative duty to deal proactively with false or misleading testimony when they hear it or see it, regardless of the motive for insinuating it into the process. If nothing else, the judge can (as Judge Yarbrough did in the Doerman case) remind the witness that falsification carries penalties.

They also have a duty to eliminate obstacles to due process. Often it appears that, once a person becomes a judge or magistrate, that person loses whatever common sense he or she may ever have had; things that are self-evident to most people somehow escape attention.

How many times, for example, does a key witness have to fail to show up or a person request a continuance before a judge figures out that the witness is playing the system? When someone fails to produce information necessary for the court to determine the facts, does it occur to the judge that there is something in the information that the person doesn’t want the judge to know? When a party to a case gives testimony that is misleading or false, does the judge wonder whether the attorney representing the client knew of the falsity? Has a Butler County domestic relations or juvenile judge or magistrate ever even asked?

Regardless of the contention by judges and others who have expressed self-righteous and self-serving indignation about my allegations that the system routinely abides false and misleading testimony, the fact that no one can remember anyone ever being successfully prosecuted for giving false or misleading testimony in any proceeding before a Juvenile Court or Domestic Relations Court in Butler County is prima facie evidence that the system takes a casual approach to dealing with false testimony. Is it really believable that no one has ever committed perjury in Butler County domestic relations and juvenile proceedings? Hardly.

The choice with perjury is not limited to prosecuting or not prosecuting. Sometimes prosecution is appropriate, but judges have broad power to hold a witness in contempt if the judge determines that the witness tried to subvert the ends of justice by giving false testimony. Judges have complete authority to set practice standards before their courts through court rules and to take action against those attorneys who fail to comply with those rules. They have broad discretion in setting the rules of engagement in their courts. They can hold those who come before them in contempt for not complying with their rules.

I don’t want to tar and feather everyone in the system. Although the culture of the system is abusive and hostile to protecting rights, there are people inside the system who want change.

Judge Kennedy, for example, is doing her part to open up the Domestic Relations Court. She requires that all proceedings in her court be on the record and that all parties be allowed to attend when their cases are discussed. Judge Kennedy does not close hearings or proceedings. Her practice is the notable exception in Domestic Relations Court and Juvenile Court, where Judge Spillane, Judge Niehaus and the magistrates have routinely held meetings behind close doors, excluding the parties.

There are other encouraging signs. Newly elected Juvenile Judge Ronald Craft is committed to opening up the hearing process in Juvenile Court. And although Judge Niehaus has historically resisted opening up the process and has protected the secrecy of the Juvenile Court throughout his tenure, there are encouraging signs that this practice may change.

I recently met with Judge Craft and Judge Niehaus to discuss many of the issues cited in this report. They told me of changes they are implementing in the Juvenile Court that will, if implemented by their magistrates in their daily routine, address some of the issues raised here. The implementation of the new rules will be a learning process for all involved, and as we move forward I hope that the dialogue that I have begun to have with the judges will continue and that the changes they have proposed to open the process will be implemented.

But even when judges such as Judge Kennedy open their courts to the parties, lawyers can subvert the intent to open up the process. During the course of my review, people who had hearings scheduled in Judge Kennedy’s court told me that their lawyers told them not to go to the hearing; the lawyers knew that, if the people showed up, Judge Kennedy would insist that they attend when the cases were heard.

Most people who find themselves in either of these two courts have no idea what their rights are. Hence the courts must take the lead in making sure that they know of their right to participate. If the law requires criminals to be told of their rights, is it too much to ask that court officials tell children and parents their rights, as well?

Of course, some people have been offended by my public comments, and they have told me so. Judge James Walsh of the Ohio 12th District Court of Appeals, for example, was offended that I had painted all the courts and lawyers with the same brush. He insisted that my criticisms were unfounded and irresponsible. Many lawyers and friends of the courts lamented that my criticism was based in ignorance that I just do not understand the way things work. Others tried to shift the focus of the debate to the narrow question of whether perceived misrepresentations were perjury.

At the end of the day, it matters little what the judges or I think is real. Far more significant is how the public perceives our justice system and other public institutions. Building public trust in public institutions is vital in a democracy. There is nothing more powerful and more persuasive in defining the level of trust and respect that the public has for our institutions than the actual experience members of the public have everyday with public agencies.

We can gain insight into how the public sees the process by talking to those who have been through either of these two courts. That’s what I’ve done. I have talked to those who have direct experience inside the Domestic Relations Court and Juvenile Court in our county, and this report captures some of what they told me and I could document.

The courts ought to talk to those who pass through their system, as well. Most organizations committed to excellence use customer satisfaction surveys and exit interviews to improve their systems. Why not routinely interview parents and family members who have experience in our juvenile or domestic relations courts?

What I found and documented is an insult to the notion of due process, and it reveals two court systems that routinely crush the rights of those who come before them. I hope this commentary will make the case for doing things differently and restoring integrity, fairness and due process to the Butler County Domestic Relations Court and Juvenile Court.

This report identifies the practices and tactics that are used and tolerated by the courts to block the administration of due process, justice and fairness. It offers ideas on how to improve the process and insure that the respect and trust that the courts and Bar Association say they want and need is earned every day as they respect the rights of those who come before them.

We have no reason to fear our nation’s founding principles of justice and heritage of providing our citizens due process under the laws; we need only to embrace them. When we do, our system of justice will enjoy the respect and confidence it needs and deserves to flourish.

To those who will argue that the examples I cite in this report constitute such a small number and are therefore not representative of the system as a whole, I would say that the very nature of the closed systems operated by both courts makes it is difficult to get anyone to speak out until the person’s case is over, and then only that person has not been worn down.

One needs to keep in mind that the domestic relations and juvenile courts generally retain jurisdiction over these cases until the children reach their 18th birthdays. This means that people continue to live in fear that they will face retribution in the event they speak out against court practices.

If the abuses cited here are not as widespread as I believe, then the recommendations I make in this report should not offend the courts. After all, if these things are not occurring, opening the process up to outside scrutiny should not be a problem.

The courts and their officers employ a variety of policies, practices, procedures, strategies and tactics to diminish or deny due process to parties in Domestic Relations Court or Juvenile Court. I have identified 13. They are:

1. Closed proceedings, in which the parties and the public are excluded. Regardless of where one comes down on the question of whether juvenile and domestic proceedings should be public, how can a party to a proceeding get due process if that person is excluded from the process? How can a person actively participate in his or her own advocacy, or evaluate the performance of his or her attorney, if the person is excluded from the proceedings?
2. Barriers to documentation. Various policies, procedures and practices make access to transcripts and records difficult, time consuming and expensive. How can a person get due process if effectively denied access to records, documents and transcripts of proceedings?
3. False witness. Misrepresentations, false statements and untrue testimony sometimes go unchallenged by attorneys and routinely accepted by the court, even when the information is obviously false. How can a person get due process if the information pool is contaminated with false, misleading and inaccurate information?
4. Hollow orders. The courts often fail to enforce their orders. How can a person get due process or justice if the court refuses to enforce its orders? Why not just call them suggestions?
5. Empty discovery. The courts often fail to enforce subpoenas and orders for discovery and production of documents. If a party cannot get sworn testimony on the record, how can that person correct inaccuracies in testimony? This failure is particularly important in Juvenile Court and Domestic Relations Court, because both courts routinely accept hearsay testimony.
6. Delay in final orders. The courts often either delay issuing or fail to issue a timely final appealable order. How can a party get due process if essentially denied a right to appeal because the judge or magistrate refuses to issue an appealable order? When this happens, the citizen is trapped in a legal purgatory without a remedy.
7. Lack of record. The courts fail to record the proceedings. How can a person get due process if the court does not make a record of proceedings? One cannot have an effective or successful appeal without a record of the proceedings. Winning an appeal is difficult enough in a juvenile or domestic case, even when one has a copy of the record.
8. Ex-parte communications. Engaging in ex-parte communications is common practice. How can a person get due process if, in the person’s absence, the judge or magistrate discusses issues in their case with witnesses, lawyers or experts involved in the case?
9. Promiscuous continuances. The courts routinely grant continuances. How can a person get due process if access to a hearing is delayed for months (sometimes as long as 6 months) because the court grants requests for continuances?
10. Weak counsel. Far too often attorneys fail to represent their clients adequately, and the court often provides indigent parties with inadequate counsel. How can a person get due process if the attorney does a shabby job? This issue is particularly acute when much of the proceedings are secret.
11. Hollow procedures. The courts fail to follow their own rules and procedures. How can a person get due process if the court violates its own rules and ignores its own procedures or allows others to violate them with impunity?
12. Hearsay. The courts routinely accept inadmissible hearsay testimony. How can a person get due process if the court accepts inadmissible secondhand and third-hand testimony, and the party affected by it is denied an opportunity to dispute or challenge the source of information?
13. Court shopping. Some attorneys and litigants use the Juvenile Court as a substitute for going to the 12th District Court of Appeals on issues litigated in the Domestic Relations Court and lost. Many cases on the Juvenile docket were first dealt with by the Domestic Relations Court. "Judge shopping" or "court shopping" prolongs conflicts, chews up resources and wastes tax dollars.

Accomplished attorneys know how to use these deficiencies to benefit their clients. The judges and magistrates are supposed to be the referees and make sure that those who appear before the courts have due process in a timely and fair manner to make sure that these attempts to manipulate the system do not get in the way of due process. The judges and magistrates set the tone for the process. They can make the courtroom a place where people receive justice, or they can allow it to become a costly and time-consuming game room for lawyers.

Take hearsay testimony, for example. Ohio law rightly allows hearsay testimony in juvenile and domestic proceedings under certain circumstances. Many youngsters may not be competent witnesses, for example, but a need exists for someone to present the issues on their behalf. Professionals and expert witnesses, however, often have their findings and observations related by third parties, never having to attend the court hearing, ignoring subpoenas intended to compel their testimony with impunity. Thus key testimony can go into the record without the witness offering the opinion being subject to challenge.

The courts have authority and discretion to apply the terms and conditions under which they will accept hearsay testimony. They can draw the line on admissibility narrowly or broadly. In Butler County, there is virtually no line at all. If the hearsay testimony is material to the court finding, then the court should bend over backwards to make sure that all parties have an opportunity to adequately challenge its accuracy. By applying a simple "common sense" test, a judge or magistrate can usually figure out when a potential witness is ducking an appearance and playing games.

Judge Spillane and Judge Niehaus set the tone; they control the administration of the courts, they hire and fire the magistrates and other employees, and they write the rules, procedures, policies and practices of the courts. For the most part, they have opted to make the Butler County Domestic Relations Court and the Butler County Juvenile Court the costly game room for lawyers. The public deserves better.

Being present when a judge or magistrate discusses one’s case with other parties to the case or witnesses is a fundamental right. Every time one is denied access to a proceeding in which one’s interests are discussed, one’s due process rights are diminished and violated.

The right to participate in one’s own court proceeding and to be present when the court is discussing matters affecting one’s interests is the cornerstone of due process. Being there matters. How can one’s interests be adequately represented when one is not allowed in the room where the case is being discussed? Secret trials so offended our Founding Fathers that they included the right to a trial by jury and a public trial in the Bill of Rights.

Their outrage was well-founded. Excluding a party from a hearing, conference or other meeting in which the hearing magistrate or judge is present is wrong. It is an unjustifiable assault on fairness and due process. In Butler County Domestic Relations Court and Juvenile Court, it is standard procedure.

For years the Juvenile Court locked the doors to the hearing rooms while meeting with lawyers, caseworkers, guardians and other insiders. Direct parties to the case and other family members are usually left outside in the hallway. Judge Craft has led the way to end this practice, and Judge Niehaus has indicated he also will end this practice and instruct the magistrates to do the same.

How do people know what was discussed or not discussed when they are excluded from the process? How does a person get a fair opportunity to confront the truthfulness of allegations made against him if prejudicial statements made in these closed hearings go unchallenged? How does the process of excluding parties from the hearings contribute to respect for the court and the justice system?

The only interests served by closed meetings with magistrates and judges are the interests of the insiders the lawyers, judges, magistrates, court employees and caseworkers not children or families. Parties with matters pending before the Domestic Relations Court and Juvenile Court unnecessarily spend tens of thousands of dollars each year fighting about issues things that could have been avoided, if only they had not been excluded from the proceedings.

The cost to taxpayers is enormous, both in time and in money. The court dockets are cluttered with issues that, if only a record had been made of the proceedings and if only the parties had been present at the proceedings, could have been avoided. Much of the work that judges complain about is driven by their own procedural inefficiencies.

Every person wants his or her day in court. If the person is in the hallway when it happens, he or she will keep pushing for a chance to tell his or her story to the judge, or else will believe that his or her lawyer "sold me down the river." Why not let the person be present in the courtroom whenever court proceedings are held?

I am not suggesting that a party be allowed to disrupt court proceedings. I am suggesting that, provided a party to a matter behaves in accordance with the appropriate rules of decorum, the person should almost never be barred from a proceeding. The exception would be that, under certain circumstances it serves the child’s best interest to have testimony given separately, recorded and thereafter presented at the hearing. Opening up the process would save everyone a lot of time, money and aggravation.

With few exceptions, the press and public should also be allowed to witness juvenile and domestic relations proceedings. The risk of having one’s darkest secrets revealed in the course of a proceeding is nothing compared to the risk of mischief being done when the doors are closed. Opening the doors to the public and press does not guarantee that abuses won’t occur, but in a democracy it at least provides a means to expose abuses when they occur.

The Mothers Against Drunk Drivers "Court Watch" program is an example of how the public can make a dramatic difference in how courts work when their proceedings are open to public scrutiny. Prior to MADD’s involvement, Driving While Intoxicated or Driving Under the Influence charges were routinely reduced to Reckless Operation of a Motor Vehicle or some other lesser offense. Punishment was unevenly applied, and getting out of jail was a matter of having the right lawyer or knowing the judge more than anything else.

Once MADD started monitoring courts and telling the public what was going on, everything changed. MADD used the power of public disclosure to fundamentally change the culture of America. Today, almost everyone knows that there are certain and swift consequences, likely jail time unless it’s the first offense, if arrested for drinking and driving.

Letting the public know how the courts deal with families and parents who hurt or abandon their children is important to communities, too. The consequences to our society and to the families affected by the courts can be serious, costly and life-changing.

Opening up our juvenile and domestic courts to public scrutiny will make a positive difference for kids and families. Shouldn’t the public be able to obtain data easily on how magistrates and judges deal with those who fail to pay their child support or who fail to follow visitation and other orders of the court? The County Clerk’s information system is designed to help the public get access to detailed information about cases pending in the criminal system. Neither the Domestic Relations Court nor the Juvenile Court information systems will allow the public to get the detailed information necessary to make even the most basic analysis or comparisons.

• Documentation of How Being Excluded From a Hearing, Not Having a Record of Proceedings and Control of Information Access Can Affect Due Process

Having timely access to proceedings, official records and information is at the heart of justice and due process. The following example illustrates how lack of access creates a barrier to fairness. A system that fragments access to and builds walls preventing access to information is inevitably going to build barriers to due process. The need for open proceedings and access to information seems self-evident to everyone except those who control the juvenile and domestic relations courts.

• Issue: Exclusion from Hearing, Not Having a Record of Proceedings, and Control of Information Access

Dr. David Fallang was excluded from numerous proceedings in Domestic Relations Court. This incident is an example of why excluding a party to a case from attending when the case is discussed is a bad practice. The question before the court was whether the defendant’s (Dr. Fallang’s) attorney agreed to specific terms of a child support order at a pre-trial settlement conference held Sept. 23, 1993.

This seems like a fairly easy question to settle: Just listen to the tape of the hearing. The problem is that Judge Spillane made no recording of the proceeding. Lacking a record of the proceedings, the debate centers on what the parties attending the conference decided and agreed to. Neither Dr. Fallang nor his ex-wife was allowed to attend the proceeding.

The consequence of this instance of a lack of record has been costly to the court, in both time and money. Over the past 10 years the parties and the public have spent thousands of dollars dealing with the appeal that grew out of the dispute arising from this unrecorded proceeding. The matter is still pending in the courts.

Here is the account of the events (emphasis added).

Mr. H.J. Bressler, now serving as a judge in the Butler County Common Pleas Court, General Division, represented the plaintiff. Mr. Bressler represented to the court: "It was my understanding when we left on September 23rd that all the counsel had agreed on what the support amount was going to be."

Judge Spillane stated: "It was my recollection that we had agreed upon child support, not upon spousal support; is that not your recollection?"

The judge’s question was directed to defendant’s counsel, who responded: "Well, that’s not that’s not correct your Honor ... that was why we we’re, in part, why we’re here today because we did not agree upon it nor did I have authorization to agree upon it on behalf of our client."

The judge recessed for 10 minutes and upon her return declared, "It is also my recollection that we did fairly well agree on the support figure. That was not done formally, it was not put upon the record and I am willing to accept the fact that there may have been some misunderstanding about that agreement." The facts here speak for themselves: If, as Judge Spillane suggested, an agreement was reached, the fact that at least one of the parties to the action was disputing it demonstrates that there was no agreement.

The procedural issues involving this discussion are: 1) No record was made of the proceedings; 2) Dr. Fallang was excluded; 3) Court rules and state law require that a child support computation worksheet be completed prior to setting the child support level, which was not done; 4) The discussion that occurred in the pretrial settlement conference was not supposed to take place under the rules a pretrial settlement conference is not a substitute for a hearing.

In effect, the child-support decision was made in a proceeding from which Dr. Fallang was excluded, without the benefit of a hearing or the completion of the child support computation worksheet. A further issue related to the calculation of spousal support is that Ohio law requires that the court consider the "tax consequences" of a spousal support award on each spouse. This was not done.

Had Dr. Fallang been allowed to attend the Pretrial Settlement Conference, and had a record been made of those discussions, the entire dispute over what was agreed to and by who could have been avoided. Furthermore, contrary to what Judge Spillane has repeatedly represented, it is clear by the court’s own admission in putting its opinion on the record that substantive issues were dealt with during the closed proceeding and decided by the court prior to a hearing on the merits.

Document: Fallang #17

Mr. Bressler’s representation of the Settlement Conference Discussion, Sept. 23, 1993. In this document, Mr. Bressler represents that the court dealt with several issues, including the value of the medical practice.

Document: Fallang #18

Copy of Butler County DR Court rules regarding Property Pretrial Conferences, indicating that the court did not follow its own rules in dealing with the medical practice valuation issue.

Document: Fallang #19

Transcript of proceedings in which the Settlement Conference is discussed in court.

Document: Fallang #20

Copy of Butler County DR Court Rules saying that the "amount of the child support order shall be calculated pursuant to O.R.C. 311.215 and calculation sheets shall be attached to each temporary order."

Document: Fallang #21

Copy of Temporary Order for Child Support showing that the worksheet required by the statute is not attached, nor was it completed.

Document: Fallang #22

Recitation of case law indicating that the statute requires the court to consider the tax consequences of an award to each spouse.

With the exception of Judge Kennedy, who generally makes all conversations regarding a pending case a matter of record, the Butler County Domestic Relations Court and Juvenile Court and their magistrates routinely hold hearings, meetings, proceedings, conferences and trials in which parties to the action pending before the court are excluded from participation, in part or in whole.

I obtained statements from six people who estimated that they were excluded, in part or in whole, from at least 59 separate hearings and conferences in which the judge or magistrate participated. Their affidavits are attached to this report. If in the course of their juvenile or domestic court proceedings as few as six people documented 59 separate hearings from which they were excluded, then how many times are the hundreds and thousands of people who deal with these courts annually excluded from hearings?

None of the people I spoke to knew that they had a right to be present when their cases were discussed in front of a magistrate or judge. In fact, most said that their attorneys advised them that they were not allowed to participate or attend the closed-door meetings because the judge or magistrate did not want them present.

Information access is essential to the protection of fundamental rights. It is not only important to create a record of proceedings, it is vital that those affected by court actions have uninhibited access to the record.

Numerous barriers frustrate access to information. Access is expensive, procedurally difficult and oftentimes impossible. Information systems designed by the Domestic Relations Court and the Juvenile Court do not integrate with other system users, such as the Clerk of Courts and Children Services. The system designs do not contemplate integration between the two courts, and neither do they facilitate access from the public.

The practice of having court employees working on their own time to prepare transcripts controls access to those transcripts is costly and is inefficient. This arrangement blocks and frustrates access. Also, the practice of refusing to make tapes of the proceedings available on request so that parties to the case can listen to them at their leisure is an unnecessary barrier to access and contrary to Ohio’s statutory of open access to public records during normal business hours.

Affidavits of persons excluded from hearings.

• Court rules should require that all proceedings, meetings, conferences, hearings and trials relating to a matter before the court wherein a magistrate or judge is present be conducted in an open forum in which parties to the action and members of the public are present.

• Court rules should require that all proceedings, meetings, conferences, hearings and trials relating to a matter before the court in which a magistrate or judge is present be open to the public and press.

• Court rules should require that all children involved in juvenile or domestic relations court proceedings be informed that they have a right to attend a hearing in which their interests are affected, that they have the right to request that an attorney be assigned to represent their interests, and that they have a right to request a private meeting with the judge to directly express their thoughts about issues before the court.

• Court rules should require that any time a magistrate or judge excludes anyone from a proceeding, a record of that decision should state the reasons for such exclusion, and that the court should compile a log of all exclusions, listing the record of each magistrate and judge and cataloguing any exclusions that they have approved, and that the log should be open for public inspection.

• Court rules should require that an official audio record of all proceedings, meetings, conferences, hearings and trials be kept and open for public inspection.

• Court rules should require that all ex-parte conversations between a judge or magistrate and a party, witness, potential witness, court appointed expert or other person involved in or having an interest in a matter before the court must be tape-recorded and included as part of the official record.

• The Domestic Relations Court and Juvenile Court should give written notice to all parties to a matter before their court or a magistrate of their court that they have a right to attend any proceeding, meeting, hearing, conference or trial in which any party or representative of a party involved in the action may discuss a matter or issue relating to their case. The only exception to this principle should be when the judge or magistrate determines that the testimony of a child should be conducted either privately or with limited participation of the parties.

• The Domestic Relations Court and the Juvenile Court should post in a conspicuous place in their court areas an official notice that any party to a case has a right to be present whenever the case is discussed in a hearing, conference, proceeding, meeting or trial in which a magistrate or judge is present. The local rules of the Domestic Relations Court and the Juvenile Court should require that all notices to appear at a proceeding contain a written notice of the individual’s right to be present during the proceeding of which the individual is receiving notices.

• The Rules of the Domestic Court and Juvenile Court should provide for a sanction against any attorney who misleads a client about the client’s right to attend any conference, hearing, proceeding, meeting or trial in which a judge or magistrate is present and matters affecting the client’s case are discussed.

• The software and information systems being designed and implemented by the Domestic Relations Court and Juvenile Court should be modified to integrate with other justice related information systems being used by the Clerk of Courts and other users. The Juvenile Court should modify its design to integrate seamlessly with the Children Services Board and other associated systems.

• The information systems of both courts should be modified to allow for lawyers, guardians and other court officials to have direct online access. The system can be designed to allow for appropriate security restricting levels of access depending upon the category of user.

• The information systems of both courts should be modified to allow for the broadest possible public access.

• Both courts should make tape recordings of proceedings available at nominal cost to any party to the dispute or member of the media upon their request.

• The practice of giving court employees control over access to transcripts should be stopped. The court can easily provide a system of transcript preparation that provides for competition.

• The Juvenile Court should provide free transcripts in any case related to a permanent custody brought before it. Permanently removing a child from a family is the civil court equivalent of capital punishment. No one should be limited in the ability to assert a defense by not having enough money to buy the transcripts needed to file an appeal. Making it expensive for individuals to get access to court records seriously erodes individual rights of due process. The court policy regarding access should be opened up and designed to facilitate access, not discourage it.

A young girl caught in Ohio’s juvenile justice system accurately summed up the lack of quality representation for poor families and others who find themselves caught up in the juvenile justice or domestic relations courts when she said, "I always waive my right to an attorney because it’s easier and quicker than waiting for somebody who won’t care about my case anyhow."

While the president of Butler County local Bar Association was chastising me for questioning the fairness and quality of justice dispensed by Butler County Juvenile Court and Domestic Relations Court, the American Bar Association in cooperation with the Ohio State Bar Association was completing work on an assessment of access to quality representation in Ohio’s juvenile court delinquency proceedings. They reached the same conclusion that I did the quality of justice that judges and magistrates of Ohio’s juvenile justice system dispense stinks. The ABA released its study in March of this year, and among the most significant findings cited by the report are:

• Numerous obstacles thwart Ohio’s poor children in obtaining lawyers in the juvenile justice system.

• Zealous representation from well-trained attorneys in the juvenile justice system seems to be the exception, rather than the rule, for indigent youth in Ohio.

• Numerous systemic barriers hamper effective representation of children.

• Ohio lacks leadership on juvenile justice issues that could effectively ensure that the rights of children are protected.

The assessment, entitled "Justice Cut Short: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings in Ohio," used protocols established by the American Bar Association and underscored the earlier findings of a 1995 national assessment conducted by the ABA.

The U.S. Department of Health and Human Services has also conducted a study of the adequacy of representation in the juvenile justice system. They observed: "Poor quality legal representation results from a variety of factors ranging from the pressure of high caseloads to poor customs and low expectations of representation in the jurisdiction. The old reputation of juvenile and family courts as a lesser ‘kiddie court’ persists in some places, despite the increased sophistication and complexity of both the law and the underlying interdisciplinary perspective required to handle these cases effectively. Child welfare is a unique and highly specialized area of practice, yet many advocates have not received training in handling such cases. In many States, neither ethical requirements nor practice standards for attorneys in child abuse and neglect cases have been developed."

While the ABA study focused specifically on the quality of representation of children in the juvenile justice system, the study’s conclusions are just as relevant to the adequacy of representation of the families of those children. The study accurately describes the state of legal representation for indigent families and children in Butler County.

One of the complaints I hear most frequently from those involved in juvenile and domestic relations court actions is that their attorneys seldom talk to them, come to court inadequately prepared and exclude them from the process. These complaints even come from people who are paying their own way. The situation involving court-appointed counsel is far worse.

Attorneys complain that the fees are too low. Clients complain that their attorneys rarely care about their case and that the lawyers spend little time preparing for hearings.

The judges exclusively control designation of court-appointed lawyers. This arrangement creates the appearance of conflict, real or not. When the judge who hears the case also appoints their attorney, clients wonder how independent and aggressive the lawyer will be in asserting their rights. Further, if practicing attorneys consider the fees inadequate, then how much effort will they make when they feel they are being underpaid?

Report of the American Bar Association: "Justice Cut Short: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings in Ohio" (see attachment).

• Butler County should adopt a Public Defender system for representing indigent families and children who need legal assistance in the juvenile and domestic relations courts. When we engaged the Legal Services of Cincinnati two years ago to provide guardian ad litem representation for children, the quality of the representation dramatically improved. I believe that we would see similar results if we were to move to the same model for indigent defense.

When the Butler County Commissioners recently commented that they were unhappy with the level of cooperation that they had received from officeholders on reducing expenditures, many county officeholders were offended by what they thought were misrepresentations by the commissioners.

County Prosecutor Robin Piper said officeholders didn’t want their reputations unfairly tarnished. The prosecutor said, "The officeholders were somewhat offended by the blatant misrepresentation to the public that we weren’t concerned with the budget and willing to make cuts in our budgets."

In fact, Mr. Piper and the other officeholders had a point. The way the story evolved in the media, it did paint an inaccurate picture of the level of cooperation in county budgeting that existed between nearly all officeholders and the commissioners.

While the commissioners’ comments were directed to officeholders’ apparent failure to respond to one budget-related letter (a letter that was not clear on whether it requested a response and not intended to describe the overall nature of our relationship with the county’s officeholders), a reasonable person reading the press coverage could have concluded that the officeholders were not working with us to balance the county’s budget, when in fact they were.

When the commissioners discovered this misunderstanding, we apologized to the officeholders and set the record straight. As Mr. Piper said, we did not want to unfairly tarnish their reputations.

When people go into Domestic Relations Court or Juvenile Court, they have much more at stake than tarnished reputations. In these courts, they have their money, other property, children, homes and family lives at risk.

Isn’t it reasonable to expect that they would be every bit as concerned about the effect that misrepresentations and false statements have on their lives as county officeholders are about theirs? They are.

Unfortunately, for them the process is not as open as the meeting process of the Butler County Commissioners. The press is excluded, and oftentimes the misrepresentations and falsifications occur behind closed doors, outside the purview of the media. The Domestic Relations Court and Juvenile Court environments are much different and more hostile to seeking the truth.

Judges and magistrates in these courts would have the public believe that they are mere passive observers to the process, with no obligation to enforce the requirements imposed by the oath that each witness and attorney takes. I believe that their obligation to make sure that the record reflects the truth and that misrepresentations and falsehoods are removed from the record is no less than that borne by County Commissioners and other public servants.

Magistrates and judges do not have to sit by helplessly as their courtrooms become cesspools of deceit. Judges, magistrates and others involved in the legal system make better decisions when they have accurate information. Few things anger and frustrate a person involved in a court case more than a sense that the judge or magistrate doesn’t care about getting at the truth.

Our justice system is built on a search for truth. Each time a witness testifies in court, he or she is asked to take an oath "to tell truth, the whole truth and nothing but the truth." Lying under oath is punishable as a felony.

Not only do witnesses take an oath, but lawyers do so as well. Upon admission to the bar, attorneys swear that they "will not knowingly assert any unwarranted claim or defense, take any unjust action, or employ or countenance any undue influence, deception, falsehood or fraud." The disciplinary rules of the Ohio Supreme Court state that a "Lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation." Unfortunately, the responsibility to enforce these rules rests with lawyers who seem to have a far greater tolerance than the general population for "stretching the truth" when giving testimony.

The need to be honest and truthful in court is self-evident. Trial courts seek to establish the "facts" and propose remedies and actions based upon their understanding of the facts. Contaminating the information pool with false and misleading information perverts the ends of justice and defeats due process.

In the framework through which the courts work, each person has a role, and if they all perform their roles in earnest, the result, more often than not, will be to get as close to the truth as possible. If any player in the process is weak, then the whole process suffers. The foundation of the adversary system is that statements and representations of facts will be challenged to determine their truthfulness. When false statements go unchallenged, justice and fairness suffer.

The following examples are presented only for the purpose of documenting instances where the court was given false, misleading or inaccurate information. The purpose is only to illustrate that the court received such information and took no action, nor did the court even note that it was offended by attempts to mislead it. The purpose is not to make a judgment regarding the final outcome or decision in any particular case.

There even may be instances in which even those complaining that they were the adversely affected by false information being given to the court, themselves, have presented false, misleading or inaccurate information to the court. If so, the breach only underscores the point that this review is trying to make that documented instances in which the Butler County Juvenile Court or Domestic Relations Court receives false, misleading or inaccurate testimony or statements lead to no expression of offense by the court nor any action to punish those responsible for attempting to mislead the court.

Simply put, one can give false, misleading or inaccurate testimony or make false, misleading or inaccurate statements in Juvenile Court and Domestic Relations Court in Butler County and suffer no adverse consequence. The following examples make this point.

• Issue: False document filed with court

Domestic Relations Court rules require that individuals filing for divorce file a statement listing their assets and income. The court uses this form, referred to as a 602 Form, as a basis for dividing property and assigning support obligations. In a case brought to my attention, records show that Mrs. Fallang’s ex-husband, William Becker, filed a 602 Form excluding any reference to his pension benefits as required by section "D" of the 602 Form. At the time of the divorce, Mr. Becker was a police officer for the City of Middletown. A divorce was granted based on the 602 Form that was false and incomplete.

It might be understandable that the court initially missed this omission because the divorce was filed as dissolution of marriage. It is difficult to believe that the lawyer filing the dissolution did not know that the asset declaration was not accurate because the 602 Form did not report the value of the pension. Furthermore, the Domestic Relations Court spends somewhere between $250,000 and $300,000 annually on a compliance unit that is supposed to review filed documents and check them for completeness and compatibility with the law.

When the ex-wife later discovered the significance of excluding the pension amount from the asset declaration, Mrs. Fallang (ex-Mrs. Becker) filed a motion to have the divorce judgment set aside, alleging her husband’s deliberate concealment of his pension. The husband said it was an unintentional oversight, and the ex-wife argued that it was a deliberate act. Regardless, its exclusion from the settlement calculation financially worked significantly to the advantage of the ex-husband.

In deciding on a motion filed by Mrs. Fallang (Becker) to correct the error and omission, Judge Spillane wrote: "Here, the pension is clearly the most valuable asset in the marriage and if second petitioner had knowledge of its true value, it appears ludicrous to assume it would have no effect on her decision to enter into the Agreement."

Judge Spillane also wrote: "Husband’s DR602 failed to list the value of his pension as required. ... Husband does not deny that the value of the pension was omitted from the financial disclosure forms ..." [Value omitted] "Subject to equitable distribution would have been one hundred twenty thousand, nineteen dollars and four cents ($120,019.04)."

Evidence was presented to the court that the omission was deliberate. Notes contained in file of husband’s attorney’s, Tim Evans, contained a hand-written note stating, "Don’t show pension on 602’s."

Notwithstanding the fact that the DR602 form was false and misleading, and notwithstanding the fact that Judge Spillane called it "ludicrous to assume that it would have no effect," Judge Spillane denied a motion to reopen the case, saying that Mrs. Fallang did not try hard enough to expose her ex-husband’s false filing in a timely manner. Note: The Police Retirement Fund will disclose the value of a pension only to the person who is legally entitled to the pension, hence the pension system would not have revealed the pension value to the wife even if she had inquired.

Mrs. Becker was not represented by an attorney in the initial dissolution proceeding. Mr. Evans presumably represented Mr. Becker. The court made no effort to discover whether Mr. Evans knowingly withheld the information about Mr. Becker’s retirement account from the court. Mr. Evans testified that he did not know how the note instructing that the pension fund not be listed as an asset on the 602 Form got into his file.

Mr. Evans has vast experience in representing public sector employees, including municipal police officers. It is not believable that he did not know that Mr. Becker’s public service would generate police and fire pension system rights for Mr. Becker. Didn’t Mr. Evans review his own file in preparing the dissolution documents such that he would find the note?

Shouldn’t the note in Mr. Evans’ file directing not to disclose the pension account raise questions with the judge about whether an ethical violation occurred? And what about the ethical requirements of the Ohio Supreme Court that state, "Lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation?"

Lawyers take an oath not to engage in deceit, fraud, or misrepresentation. Most non-lawyers would question whether Mr. Evans’ conduct violated these duties. The court took no action to look into this important question.

Mrs. Fallang has filed an action against Mr. William Becker and Tim Evans to recover damages for fraud. It is pending in the General Division of the Butler County Court of Common Pleas (Case number: CV 2001 06 1443).

Document: Lynn Fallang #1

Ex-husband’s DR 602 filing.

Document: Lynn Fallang #2

Court Exhibits 1 and 2.

Document: Lynn Fallang #3

Decision and Entry January 14, 1998.

Document: Lynn Fallang #4

Memorandum in Opposition to Defendant Evan’s Motion to Dismiss (Case # CV2001 06 1443 Judge Spaeth).

• Issue: False and Misleading Testimony

In testimony before the court, Mrs. Poptic, plaintiff, denied taking money out of several investment accounts and then, when confronted with evidence that proved her testimony false, conceded that she did remove several thousand dollars from the investment accounts.

The questions before the court were whether the wife removed money from the marital accounts and, having taken it, whether she tried to conceal the fact that she had transferred the money in anticipation of the divorce?

Mrs. Poptic testified that she did not take any money from specified accounts in 1995 and until November 1996. She claimed she took money from one account, Scudder (there were three accounts: Fidelity, Scudder and Schwab), but did not take any money from the other accounts.

Confronted with copies of cancelled checks bearing her signature showing that she did in fact take several thousand dollars from the other two accounts in 1995, she admitted that, contrary to her earlier testimony, she took money from the accounts in 1995.

Quote from her testimony:

Question: "Mrs. Poptic, my question to you is this, yesterday you were quite clear with everyone in this courtroom that you wrote no ... that you took no money out of any of these three accounts (Fidelity, Scudder or Schwab) in 1995 except $17,000?" Answer: "That’s right."

When Mrs. Poptic was confronted with copies of checks for large sums bearing her signature, she answered: "... No, my gosh, he has so many documents. How was he able to get this?" (Referring to the documentation that she had not been truthful in her testimony).

Question: "Did you write yourself a check for $71,000 on June 27th, 1995?" Answer: "I guess I did."

Despite repeated denials by Mrs. Poptic that she had taken no money other than $17,000 from the one account, evidence shows the testimony to not be truthful. Mrs. Poptic later stated that she was advised by an attorney to take more than half the money that was in the accounts because she had possession of the children.

Once confronted with evidence that, contrary to her testimony, she had in fact taken a substantial amount of money from the accounts in 1995, she shifted the focus of her testimony to say that she only took half of the accounts, an amount she felt entitled to take.

In the face of bold and unmistakable false statements to the court, the judge said nothing and did nothing. Nor did the court attempt to determine whether Mrs. Poptic’s testimony that she "only took half of the accounts" was accurate. Mrs. Poptic was ordered to produce all her financial records. She refused to produce them.

Mrs. Poptic did not comply with the court order requiring her to produce records of her financial transactions, and the order was not enforced. These documents are important because they are necessary to accurately determine whether the asset split was done in accordance with the desires of the court.

This incident clearly demonstrates the court’s casual attitude about truth. The average person would think that, having witnessed Mrs. Poptic’s false and misleading testimony, the judge not only would be offended by the attempt to lie, but, having witnessed the lie firsthand, would be even more interested in making sure that Mrs. Poptic produced her financial records so that the truth of how much money was taken could be established.

These records would be critical to the court’s ability to determine the facts relating to how the family assets were actually divided. Mrs. Poptic’s failure to comply with the court order meant that the court did not get the benefit of the best evidence to determine the truth of the matter. The court did not seem to be the least bit interested in making sure that the actions actually complied with its desires.

Document: Poptic #1

Transcript of testimony Feb. 26, 2002, Pages 7,9,10,15,16,17,18,20,21,22.

Document: Poptic #2

Transcript of testimony Feb. 26, 2002, Pages 2 through 6.

Document: Poptic #3

Copies of cancelled checks trial exhibit "Z," showing that testimony is false.

Document: Poptic #4

Copy of order signed by Judge Spillane ordering, "Mrs. Poptic shall provide 1995 bank records within 7 days."

• Issue: False and Misleading Testimony

Mrs. Poptic, plaintiff, was trying to stop her husband from having visitation with his children. She denied him visitation and then justified that denial by testifying before Judge Spillane that the guardian ad litem and Juvenile Court Magistrate Eva Kessler told her not to follow the court order requiring visitation. Both the magistrate and the child’s guardian denied having told Mrs. Poptic to deny her husband visitation with his children.

Testifying before Judge Spillane while asking for an order preventing her ex-husband from having visitation with the children, Mrs. Poptic claimed that the reason she denied him court-ordered visitation was that Magistrate Kessler advised her during a court hearing that she should "use your maternal instincts in deciding whether to deny visitation or not."

A court transcript of Mrs. Poptic’s appearance before Magistrate Kessler showed that Magistrate Kessler did not say anything close to what Mrs. Poptic claimed she said.

Mrs. Poptic also testified that the guardian ad litem called her and told her to not let Mr. Poptic have the children for visitation. According to the record, Judge Spillane called the lawyers into her chambers for a private discussion. According to Mr. Poptic, Judge Spillane also called the guardian and determined that no such call had been made. Neither Mr. Poptic nor Mrs. Poptic had the benefit of being present when these discussions occurred behind closed doors. The process was not fair to either party.

Judge Spillane also called in Magistrate Kessler, who, according to Mr. Poptic, said she did not say what Mrs. Poptic testified she said. Thereafter, Judge Spillane announced that she could no longer maintain objectivity in the case, writing in her decision: "This judge has formed opinions regarding the parties that make it impossible to hear any further matters in an impartial [word undecipherable] or objective manner."

Judge Spillane recused herself from participating in further proceedings and assigned the case to a visiting judge.

It is clear that Mrs. Poptic tried to mislead the court. Her testimony before Judge Spillane was false. Judge Spillane apparently was offended. However, Judge Spillane chose to recuse herself, rather than sanction the person whose behavior had compromised her objectivity. Judge Spillane’s action ended up punishing Mr. Poptic, because the assignment to a visiting judge significantly delayed the proceedings and cost Mr. Poptic substantially more money in legal fees.

Furthermore, normal people would expect the judge to at least declare that the offending and misleading testimony was unacceptable. We are left to infer that the judge had concluded that Mrs. Poptic was lying. Unfortunately for Mr. Poptic, Judge Spillane did not state the specific reasons for her actions on the record. If the judge acted because she was offended by Mrs. Poptic’s misleading testimony, the recusal gave Mrs. Poptic the benefit of her own misconduct by removing the judge who believed Mrs. Poptic was an habitual liar from the case.

Finally, the court did nothing to enforce Mr. Poptic’s right to exercise his visitation. Despite Mrs. Poptic’s admitted defiance and non-compliance with the courts order to allow visitation for Mr. Poptic, the court did not find her in contempt, nor did it direct her to comply.

Document: Poptic #5

Hearing transcript, October 8, 2002.

Document: Poptic #6

C.P.O. Transcript July 14, 2002, proceedings before Magistrate Kessler.

Document: Poptic #7

Judge Spillane order declaring that she had lost her ability to remain impartial.

• Issue: False and Misleading Testimony Representation to Court

Dr. David Fallang, defendant, was trying to get a copy of a document that Mr. Duvall, an expert witness hired by Mrs. Fallang, plaintiff, said he used in appraising the value of the defendant’s medical practice. Mr. Bressler, attorney for the plaintiff, did not want Dr. Fallang to have the document. Mr. Bressler (before he was a Common Pleas judge) told the court that he did not hire Mr. Sicking, the expert who wrote the report referenced by Mr. Duvall, as an expert. Mr. Bressler’s representation to the court was contrary to what Mr. Sicking wrote in a letter to the defendant, Dr. Fallang.

Mr. Sicking clearly thought he was retained to "do a valuation of the Middletown Surgical Associates, Inc." (Dr. Fallang’s medical practice), because that was what he wrote in a letter to Dr. Fallang requesting information about his medical practice. Why did the court show no interest in reconciling the apparent contradiction between what Mr. Sicking wrote in his letter to Dr. Fallang and what Mr. Bressler represented to the court?

Mr. Duvall, an expert witness hired by the plaintiff, testified that he relied on a report prepared by Mr. Sicking, another accountant (expert witness), to determine the value of Dr. David Fallang’s medical practice. Mr. Duvall claimed that Mr. Bressler, attorney for Mrs. Fallang, gave him a copy of the report. Mr. Bressler represented to the court, "Judge, I didn’t consult him [referring to Mr. Sicking] as an expert; I consulted him to go in and check the number of days the Doctor was working."

Contrary to the representation to the court that Mr. Sicking (Certified Public Accountant) was merely checking to see how many days Dr. Fallang worked, a letter to Mr. Bressler dated April 22, 1992, outlined the information that Mr. Sicking said he would need "in order to do a valuation of the Middletown Surgical Associates, Inc." (Dr. Fallang’s practice). Subsequent to this letter, Dr. Fallang provided Mr. Sicking with the requested information (16 categories of information).

Mr. Duvall testified, "I relied on that report [the report prepared by Mr. Sicking] for my report." In a motion for discovery, Dr. Fallang requested that he be given a copy of the report that Mr. Duvall said he reviewed and relied on in estimating the value of the medical practice. Mr. Bressler failed to provide a copy of the report that had been requested in motions for discovery.

Why did it matter? It mattered because Mr. Duvall, who testified on behalf of Mr. Bressler’s client, Mrs. Fallang, testified that he relied on the report by Mr. Sicking to reach his conclusions about the value of Dr. Fallang’s medical practice. Obviously, the value of the medical practice would influence the property settlement.

When Mr. Duvall said he relied on a report not in evidence to reach his conclusions, Dr. Fallang demanded a copy of it and filed a motion for discovery, asking the court to order Mr. Bressler to give him a copy of the report. Dr. Fallang believed that Mr. Bressler was unhappy with the conclusion reached by the Mr. Sicking, and that Mr. Bressler therefore retained another expert, Mr. Duvall, hoping to get a higher estimate on the value of Dr. Fallang’s medical practice.

Having a copy of the report upon which Mr. Duvall based his valuation opinion would have allowed Dr. Fallang to better understand the methodology used to determine the value of his practice and to challenge the assumptions and methodologies used. Also, if the Sicking report showed a lower value, Dr. Fallang would have used the report to support his valuation argument.

Evidence Rules 703 and 705 make it clear that Dr. Fallang was entitled to a copy of the report and are relevant to this discussion. Rule 705 says, "The expert may testify in terms of opinion or inference and give his reasons therefore after disclosure of the underlying facts or data. The disclosure may be in response to a hypothetical question or otherwise."

Rule 703 says, "The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by him or admitted in evidence at the hearing." The point is that the report on which Mr. Duvall said he relied to form his opinion should have been admitted into evidence at the trial without need for discovery upon appropriate cross-examination once Mr. Duvall stated he relied on the report of Mr. Sicking. But Judge Spillane did not force Mr. Bressler to produce the document.

Here was a report that a witness prepared containing information or data used by an expert to render an opinion, and underlying and relied-upon data was withheld from the opponent by the attorney for the party putting the expert on the stand; the court refused to enforce the rules of evidence.

The extent and effectiveness of cross-examination of Mr. Duvall by Dr. Fallang’s attorney at the DR trial may or may not have effectively obtained from Mr. Duvall the essence of the information that he took from Mr. Sicking’s report and relied upon. Once Mr. Duvall said that his valuation of the medical practice was based upon a report written by Mr. Sicking, given to him by Mr. Bressler, Dr. Fallang should have had the opportunity to scrutinize and challenge the methodology of the original report that Mr. Duvall claimed was the basis for his opinion.

Dr. Fallang’s interest was prejudiced and denied justice of the cross-examination of Mr. Duvall and was hindered or rendered ineffective if the court’s rulings on the cross-exam prevented Dr. Fallang’s attorney from learning what was in the Sicking report that Mr. Duvall relied upon.

Mr. Bressler blocked Dr. Fallang from getting a copy of the report, arguing that Mr. Sicking, the first expert, was not hired to render an opinion of the value of the practice, but merely to count the number of days that Dr. Fallang was at the practice.

How can Mr. Sicking’s letter and Mr. Bressler’s statement to the judge both be accurate? Mr. Sicking may have misunderstood what he was hired to do, but that should have no bearing on Dr. Fallang getting a copy of his report to Mr. Bressler and reviewing it. Clearly, there is some reason why Mr. Bressler did not want Dr. Fallang to have access to the document, and Judge Spillane assisted him in that objective by not requiring Mr. Bressler to produce the report.

This entire discussion and related testimony were crucial to establishing the value of one of the main assets in the divorce action. One of the issues before the court was whether different experts had rendered different valuations of the practice and which one the court should rely on in setting the practice value.

Failure of Dr. Fallang to obtain the Sicking report prejudiced Dr. Fallang’s opportunity to discredit the opinion of Mr. Duvall. The court showed no interest in enforcing the discovery motion and hence denied the defendant an opportunity to effectively challenge one of the most important arguments proffered by the plaintiff.

Document: Fallang Doc #1

Transcript Pages 738 through 740.

Document: Fallang Doc #2

Mr. Sicking’s letter to attorney H.J. Bressler outlining what information he needed in order "to do a valuation of Middletown Surgical Associates."

• False and Misleading Representation to the Court

Attorney for the plaintiff argued that the defendant did not report certain income in his 1992 income tax filing. A copy of the tax filing showed that the defendant did report the income. Mr. Bressler’s allegation that he did not report it was not accurate and was later deemed not to be accurate by the 12th District Court of Appeals.

Documents filed by Mr. Bressler claimed that Dr. Fallang failed to report $36,000 in rental income in tax year 1992. According to Mr. Bressler, this amount should have been added to Dr. Fallang’s reported income for tax year 1992, but was not disclosed in the filing. Judge Spillane agreed with Mr. Bressler and added $36,000 to Dr. Fallang’s income to determine the income basis for spousal support and child support.

It is not clear from the record that I have reviewed why Mr. Bressler believed that Dr. Fallang had not reported the disputed income. It is clear from the record, however, that both Mr. Bressler and Judge Spillane were in error in believing that Dr. Fallang had not reported the income as Mr. Bressler represented to the court; the income tax records of Dr. Fallang clearly showed the income as having been reported.

Judge Spillane apparently did not review Dr. Fallang’s 1992 tax return, or if Judge Spillane reviewed it she missed it. Contrary to Mr. Bressler’s representations to the court, Dr. Fallang’s 1992 tax report filed with the Internal Revenue Service included the amount that Mr. Bressler claimed Dr. Fallang failed to disclose. The effect of this error was to double-count the disputed $36,000, adding $36,000 to Dr. Fallang’s income on top of the original amount filed of $146,000, which already included the $36,000 in rental income. Counting the income twice along with other adjustments raised Dr. Fallang’s annual income to more than $185,000.

Even if Mr. Bressler believed that Dr. Fallang was hiding other income, the fact remains that the assertion that Dr. Fallang failed to report this $36,000 on his tax filing with the IRS is false. It is also material in that, by using it to calculate the doctor’s income for purpose of assigning spousal and child support, the double counting of $36,000 inflates the doctor’s income.

Dr. Fallang appealed this error to the 12th District Court of Appeals, pointing out to the court that the income was reported as required and was already considered in calculating the doctor’s income. Mr. Bressler once again argued that the income was not reported arguing in a Dec. 19, 1994, brief to the appellate court’s attorney that Dr. Fallang’s
1992 tax return "did not include $36,000 in rental income from a medical office condominium ..."

Amazingly, the 12th District Court of Appeals initially affirmed Judge Spillane’s determination of income, stating that the doctor’s net reported income "did not include Thirty-Six Thousand Dollars ($36,000) in rental income from a medical office condominium ..."

In response to Dr. Fallang’s appeal to the Ohio Supreme Court, on June 23, 1995, Mr. Bressler argued to the court that Dr. Fallang failed to report the $36,000 in rental income, quoting the appellate court’s erroneous decision to the Supreme Court.

On Sept. 20, 1995, Dr. Fallang again filed an action with the 12th District Court of Appeals, asking the court to correct the error in his income calculation. On Dec. 1, 1997, the 12th District Court of Appeals reversed its earlier ruling and wrote: "In sum, we hold that both the trial court and this court erroneously determined that appellant’s (Dr. Fallang) annual income in 1992 exceeded $185,000." The court stated, "Upon further review, however, it is apparent that the $146,651 figure listed on line twenty-three of appellant’s 1992 return did include all of appellant’s rental income. Schedule E of appellant’s 1992 return indicates that appellant did in fact declare $36,000 in rental income."

The matter was remanded to the trial court for "further proceedings consistent with this opinion [of the appellate court]." By this time, both Judge Spillane and Judge Mark Conese, then of the Butler County Domestic Relations Court, had recused themselves from hearing the case. A visiting judge had been appointed to hear the matter, Judge Stephen Yarbrough.

Pursuant to the appellate ruling that the trial court erred when it determined that Dr. Fallang failed to reveal $36,000 in income, Dr. Fallang moved to have the trial court review and adjust the support calculations based upon the actual income filings. This time the plaintiff argued that the original trial court decision "did not rely upon the income tax return but instead relied upon the accountant’s testimony ..."

More than 10 years has passed since the original filings, and the issue remains unresolved, although the 12th District Court of Appeals has ruled that the income calculation was erroneous. A dispute remains over whether Judge Yarbrough issued a final order on the matter of the income calculation. The judge appears to have ignored the appellate ruling that the income calculation was in error and held that the trial court decision on the income was correct (something the 12th District had already determined to have been in error), basically making no change in the income calculation. The issue now in dispute is whether the decision was issued correctly it appears to have been issued under an erroneous case number, misfiled and never sent to Dr. Fallang so that he could again appeal the decision.

Noteworthy is that the court never showed any interest in determining the truth of the matter, and once having erred never questioned why Mrs. Fallang’s attorney continued to argue something that, according to the 12th District Court of Appeals, was false.

Mr. Bressler’s representation that Dr. Fallang failed to report $36,000 on his 1992 income tax filing with the I.R.S. was false. It was false when it was first argued to the trial court, it was false when it was argued it to the Appellate Court, and it was false when it was argued it to the Supreme Court of Ohio.

How is this false representation compatible with the Code of Conduct adopted by the Ohio Supreme Court? Why did the court make no attempt to get an explanation on why or how the plaintiff argued that Dr. Fallang had failed to disclose $36,000 in rental income for tax year 1992? Was it a simple mistake, negligence or deliberate? Did Judge Spillane simply not care? Does she believe that falsification and misrepresentation are acceptable parts of the game?

The Code of Professional Responsibility for attorneys says that a lawyer shall not "engage in conduct involving dishonesty, fraud, deceit, or misrepresentation." Every member of the bar swears to an oath stating that attorneys "will not knowingly assert any unwarranted claim ... or employ or countenance any undue influence, deception, falsehood, or fraud."

Given these obligations, how could something so patently false have been asserted and accepted by the courts for so many years and not raise even one eyebrow? If the answer to this question is that Dr. Fallang also tried to mislead and deceive the court on other matters, as Mr. Bressler appears to argue when he says, "there were a number of additional income items received by the Appellant that did not appear on his personal income tax return," then why were these issues not raised and addressed by the judge?

The issue here is not that one side misled the court and the other side did not. The issue is that the court seemed so passive and disinterested in even trying to protect the process from deceit.

Document: Fallang Doc #3

Dec. 28, 1993, decision erroneously determining Dr. Fallang’s income excluded $36,000 in income.

Document: Fallang Doc #4

Dr. Fallang’s 1992 Federal Income Tax Return, showing the $36,000 was included in his report of his income.

Document: Fallang Doc #5

Mr. Bressler’s representation to the court that "there were a number of additional income items received by the Appellant that did not appear on his personal income tax return." (Document refers to $36,000 in rental income for the medical office condo. as being excluded.)

Document: Fallang Doc #6

Dr. Fallang’s attempt to get the court to look at his 1992 tax filing so that it can see that he disclosed the $36,000 in rental income.

Document: Fallang Doc #7

Mr. Bressler’s brief with the court representing that Dr. Fallang’s 1992 net reported income "did not include $36,000 in rental income from a medical office condominium."

Document: Fallang Doc #8

Mr. Bressler’s filings with the Ohio Supreme Court, in which he again represents that Dr. Fallang’s 1992 income tax filing "did not include $36,000 in rental income from a medical office condominium."

Document: Fallang Doc #9

Dr. Fallang’s motion for relief from judgment "based upon fraud perpetuated upon the court by the Plaintiff and the Plaintiff’s attorney, H.J. Bressler."

Document: Fallang Doc #10

Dec. 1, 1997, appellate court decision holding that "both the trial court and this court erroneously determined that the appellant’s annual income in 1992 exceeded $185,000."

Document: Fallang Doc #11

Judge Yarbrough Feb. 8, 1999, decision ignoring the 12th District Court decision and finding that Dr. Fallang’s income for 1992 exceeded $189,540.

Document: Fallang Doc #12

Copy of oath taken by members of the Bar (Pages 1401 and 1402).

Document: Fallang Doc #13

Code of Professional Misconduct.

• False and Misleading Representation to the Court

Mrs. Fallang, the plaintiff, filed three sets of DR602 forms with the court, each showing different monthly expense levels, ranging from $3,010 to $5,598. Plaintiff claimed that a loan of $21,200 required her to pay more than $2,000 monthly. The record does not reflect that the court ever sought to verify that the monthly payments cited on the DR 602 Form were actually made.

Perhaps part of this discrepancy could be explained by the different time frames in which the plaintiff filed the forms with the court. However, even if so, problems remain with the flow of facts as one sees the description of the monthly expenses evolve from one report to another.

Why did the reported $2,000 monthly loan payment matter? Reporting the loan as a monthly obligation drove up her monthly expenses and, if accepted by the court, would therefore have set a higher basis for calculating the amount owed to Mrs. Fallang for spousal and child support.

The loan was reported for the period commencing January 1995 and again reported for December 1995, 11 months later. At a payment schedule of $2,000 per month, which was the amount stated as the monthly loan payment on the DR 602 Form, the loan should have been paid off. If Mrs. Fallang paid $2,000 per month towards the loan, how could the loan still be reported as owed at the end of the year?

The court made no attempt seek an explanation why the average monthly expense estimates varied so widely. For those who argue that the court bears no onus to make independent determinations of falsification, I suggest that the courts show no hesitation to act aggressively in areas in which they choose to become involved. The court could have determined easily whether the monthly loan repayment reported on the DR 602 form was occurring by requiring that the plaintiff produce copies of cancelled checks proving payment of claimed expenses.

The Domestic Relations Court Compliance Unit is a perfect example of selective proactive involvement by the court. If one accepts the argument that the court cannot independently check the veracity of documents filed with it, then why does the county spend more than $250,000 annually for non-attorneys employed by the court to do just that?

Here is how the Domestic Relations Court describes the functions of the Compliance Unit:

Why not assign the Compliance Unit the task of verifying the accuracy of DR 602 Forms when their accuracy is challenged? This type of compliance verification would be far more meaningful and useful to the public and parties appearing in court than checking to make sure the margins on motions filed with the court are properly spaced.

Document: Fallang Doc #14

January DR602, showing average monthly expenses totaling $5,598.

Document: Fallang Doc #15

December DR602, showing average monthly expenses totaling $3,726.

Document: Fallang Doc $16

Undated DR602, showing average monthly expenses totaling $3,010.

• False and Misleading Representation to the Court

Dr. Roger Fisher falsely claimed he first saw children in November 1989. Client information form submitted by Dr. Fisher indicated that form was printed (from computer) on Nov. 2, 1989, listing Douglas Songer and his wife Regina as patients. Dr. Fisher also claimed that he first visited with the Songer children on April 13, 1989. The Songer Divorce was filed June 1, 1989.

This is the first of several instances in which Dr. Fisher provided inaccurate information to the courts regarding the depth on his involvement with the Songer children. The number, frequency and time frame of the therapy sessions is important in establishing the credibility of Dr. Fisher’s observations. Obviously, if one believes that he has treated the children many times over a long time frame, then one is more likely to accept or give more credence to his observations.

Why does it matter? There is quite a difference in the weight of an opinion given by a doctor if a doctor says that he has been treating a patient for two years, having met with the patient numerous times, versus saying that he had only seen the patient one or two times.

Document: Songer Doc #1

Transcript of Dr. Fisher taken Nov. 5, 1991, in which Dr. Fisher claims he first saw the Songer children in November 1989. Dr. Fisher claims that their mother, who was referred to him by attorney Victoria Daiker, brought them to him. On Page 5, line 1, Dr. Fisher testifies he first saw children on April 13, 1989.

Document: Songer Doc #2

Client Information form printed Nov. 11, 1989, submitted by Dr. Roger Fisher.

Document: Songer Doc #3

Case Index indicating when the divorce was filed, June 1, 1989.

Document: Songer Doc #4

Affidavit provided by Dr. Fisher on Aug. 23, 1993, stating, contrary to his previous testimony, that he had "been providing psychological treatment to the Songer Children since April 17th, 1991." Dr. Fisher further admits that, "at various times I may have made mistakes in my sworn testimony concerning the time frame or number of sessions in which I have been involved in therapy with the Songer children."

• False and Misleading Representation to the Court

Dr. Fisher testified Dec. 19, 1991, that he has worked with the Songer children for about two years. If true, Dr. Fisher first worked with the Songer children in 1989. Dr. Fisher said he had seen the children about once every two or three weeks during the treatment period. Dr. Fisher stated he never tested the children, had no recordings of his sessions with them, and promised in testimony to make a copy of his file on the Songer children and provide it to Mr. Songer’s attorney.

Later, in answer to an interrogatory, Dr. Fisher claims that he first saw the children in April 1991 not 1989. Dr. Fisher says that attorney Victoria Daiker referred Mr. Songer’s ex-wife and children to him for evaluation.

Furthermore, and contrary to what Dr. Fisher had previously told the court, Dr. Fisher testified and provided sworn statements that he had only been seeing the children since April 1991. This time frame is significant, because other documents show that Dr. Fisher’s representation that he had been seeing the children every two or three weeks since he initially saw them cannot be accurate. Also noteworthy, Dr. Fisher stated that he did not evaluate Mr. Songer, nor did he test the children.

The referral of the children and their mother to Dr. Fisher is further significant because Mrs. Daiker, acting as a private attorney, was then representing the mother in her divorce action and at the same time Mrs. Daiker, through her position with the Butler County Prosecutor’s Office, was an attorney for the Domestic Relations Court and Juvenile Court and for the Children Services Board. Did Mrs. Daiker have a conflict and did her referral receive special consideration because of her role as lawyer for the agency to whom the abuse complaint had been referred?

Document: Songer Doc #9

Dr. Fisher testimony on Dec. 19, 1991, Pages 12, 14 and 32.

Document: Songer Doc #10

Dr. Fisher testifies that he never tested the children.

Document: Songer Doc #11

Mr. Songer’s attorney requests copies of Dr. Fisher’s files relating to the Songer children.

Document: Songer Doc #12

Interrogatory response by Dr. Fisher. Claims he first interviewed the Songer children on April 17, 1991.

Document: Songer Doc #13

Affidavit of Dr. Roger Fisher.

• False and Misleading Representation to the Court

On Sept. 26, 1991, the Children Services Board filed an abuse complaint against Mr. Songer. Among other things, the complaint alleged, "Mr. Songer neglected obtaining medical help for his son and this neglect caused the child to be hospitalized." The complaint also alleged that the child displayed a medical condition thought to be stress-related and originating with Mr. Songer. The CSB caseworker, Ms. Cindy Hayes, said she relied entirely upon a report from Dr. Fisher as the basis for filing the complaint against Mr. Songer.

The complaint was initiated in Juvenile Court following a decision by the Domestic Relations Court that awarded joint custody to the parents, giving Mr. Songer custody of the children during the summer. Hence, from the first of June 1991 through the end of August 1991, both children lived with their father.

During their time with their father (that summer), there is no record that they had any visits with Dr. Fisher. Hence, if the children first saw Dr. Fisher on April 17, 1991, the number of visits they could have had with Dr. Fisher is likely to be only two to four, far fewer than the numerous times (every two or three weeks) that Dr. Fisher testified. The children returned to live with their mother at the beginning of the new school year in September 1991.

Dr. Fisher gave inaccurate testimony at the Dec. 19, 1991, hearing in Juvenile Court claiming that he had been seeing the Songer children every two or three weeks for nearly two years. Two years later Dr. Fisher signed an affidavit stating that he had first met the Songer children on April 17, 1991, not December 1989 as his testimony had initially indicated.

The fact that the issues in this case had already been reviewed and decided by the Domestic Relations Court was lost on the Juvenile Court. It appears that, like far too many other people, Mrs. Daiker, unhappy with the results of the hearing in Domestic Relations Court, attempts to insinuate the Juvenile Court into the process by referring the matter to Dr. Fisher for his review and recommendations. He eventually contacted the children’s services agency. Getting the Juvenile Court involved gave her client another bite of the apple.

This procedural "judge shopping" provided a means of ignoring the Domestic Relations Court’s orders and gave Mr. Songer’s ex-wife an opportunity to start the whole custody battle over again. In the course of bringing the matter before the Juvenile Court, there are numerous examples of the court being misled and manipulated by inaccurate testimony.

Document: Songer Doc #14

CSB complaint alleging abuse and neglect against Mr. Songer.

Document: Songer Doc #15

Domestic Relations Court order regarding joint custody of Songer children.

Document: Songer Doc #16

Victoria Daiker letter to Dr. Roger Fisher.

(For documentation of the inaccurate testimony given by Dr. Fisher in the Dec. 19, 1991, hearing refer to Songer Doc’s #9, 10, 11, 12, 13, and 14).

• False and Misleading Representation to the Court

Dr. Fisher wrote a letter to Cindy Hayes expressing his concerns about the Songer children. Dr. Fisher falsely wrote, "Mr. Songer waited too long before obtaining medical help for the boy’s condition. By the time he was treated, [the son] was suffering from a severe bowel impaction and had to be hospitalized."

Having neither reviewed the child’s medical records nor consulted with the attending physician, Dr. Fisher apparently speculated on what the relevant medical records would show, accused Mr. Songer of behaving in an "outrageous way" towards medical staff (not supported by any evidence in the record) and