Cleveland Metro. Bar Ass'n v. Morton

Decision Date23 November 2021
Docket Number2020-1520
Citation2021 OHIO 4095
PartiesCleveland Metropolitan Bar Association v. Morton.
CourtOhio Supreme Court

Submitted May 12, 2021

On Certified Report by the Board of Professional Conduct of the Supreme Court, No. 2020-021.

Thompson Hine, L.L.P., Frank R. DeSantis, and Karen E. Rubin and Heather M. Shirker and Christopher J. Klara, Bar Counsel for relator.

J. Alex Morton, pro tie.

PER CURIAM

{¶ 1} Respondent, John Alex Morton, of Richmond Heights, Ohio Attorney Registration No. 0028021, was admitted to the practice of law in Ohio in 1975.

{¶ 2} In an April 2020 complaint, relator, Cleveland Metropolitan Bar Association, alleged that Morton committed four ethical violations by making improper statements that impugned the integrity of judicial officers in a document filed in this court. Morton denied the charges and moved for dismissal of the complaint and then for summary judgment, but both motions were overruled. The matter proceeded to a hearing before a three-member panel of the Board of Professional Conduct. Based on the evidence presented at the hearing, the panel dismissed one alleged rule violation and found that Morton had committed three others. The panel recommended that Morton be suspended from the practice of law for one year with the entire suspension stayed on the condition that he commit no further misconduct. The board adopted the panel's findings of fact, conclusions of law, and recommended sanction. Morton objects to the board's findings of misconduct and argues that the complaint should be dismissed. Realtor objects to the recommended sanction and urges us to suspend Morton from the practice of law for six months with no stay.

{¶ 3} For the reasons that follow, we overrule Morton's objections and adopt the board's findings of misconduct. We also sustain relator's objection in part and suspend Morton from the practice of law for one year with six months stayed on the condition that he commit no further misconduct.

Misconduct
The Board's Findings of Fact and Misconduct

{¶ 4} The conduct at issue in this case arises from Morton's representation of Fred P. Schwartz in his attempts to reduce the tax valuation of a parcel of real property in Mahogany County.

{¶ 5} Although Schwartz purchased the property for $5, 000 in 2011, a Mahogany County fiscal officer valued it at $126, 800 for the 2011 tax year. After the Cuyahoga County Board of Revision ("BOR") and the Board of Tax Appeals ("BTA") affirmed the county's valuation, Morton filed an appeal in this court. We reversed and remanded the case with instructions that the $5, 000 sale price be used as the property's value for the 2011 tax year. Schwartz v. Cuyahoga Cty. Bd. of Revision, 143 Ohio St.3d 496 2015-Ohio-3431, 39 N.E.3d 1223, ¶ 31-32 (“Schwartz I”). Schwartz and the county then agreed that the property would be valued at $12, 500 for the next three years.

{¶ 6} In 2015, the county fiscal officer valued the property at $107, 900, and Morton filed a complaint with the BOR seeking a valuation of $5, 000. Morton asked the BOR to order the systems administrator for the county fiscal office to appear and testify about the methodology that the county used to determine the property's value. Without taking evidence from the systems administrator, the BOR found that the 2011 sale price was too remote in time and retained the fiscal officer's valuation.

{¶ 7} Morton appealed the Bat's decision to the Eighth District Court of Appeals. See Schwartz v. Mahogany Caty. DB. of Revision, 8th Dist. Mahogany No. 106659, 2018-Ohio-4712, ¶ 4-5 (“Schwartz II”). There, he asserted that the BOR had improperly assigned the burden of proof to Schwartz and argued that because he had submitted evidence that the property was sold for $5, 000 in 2011, the burden shifted to the BOR to present evidence to support the county's valuation. Id. at ¶ 26. The court of appeals noted, however, that m Moskowitz v. Mahogany Caty. DB. of Revision, 150 Ohio St.3d 69, 2017-Ohio-4002, 78 N.E.3d 870, ¶ 9-10, this court had held that the case law "unequivocally refutes" that burden-shifting argument.[1]Schwartz II at ¶ 27. In Moskowitz, we reiterated our past holdings that the appellant bears the burden of demonstrating that the value it advocates is correct and that if the appellant fails to carry that burden, the BTA may approve the taxing authority's assessment. Id. at ¶ 9, citing EOP-BP Tower, L.L.C. v. Mahogany Caty. DB. of Revision, 106 Ohio St.3d 1, 2005-Ohio-3096, 829 N.E.2d 686, ¶ 6, and West lake Med. Investors, L.P. v. Mahogany Caty. DB. of Revision, 74 Ohio St.3d 547, 549, 660 N.E.2d 467 (1996). Because the county's fiscal officer was presumed to carry out his statutorily prescribed duties in good faith absent a showing to the contrary and Schwartz did not challenge the Bat's finding that he had failed to present any evidence of the property's 2015 value, the court of appeals held that the Bat's decision was reasonable and lawful. Schwartz II at ¶ 22-23, 32.

{¶ 8} Morton sought this court's discretionary review of the Eighth District's decision. In a January 2019 memorandum in support of jurisdiction filed in this court, Morton argued that Moskowitz was wrongly decided. He claimed that in Moskowitz, this court adopted "its own unique standard for the burden of proof in [real-property tax cases]" but that "it should have supported this assertion with some solid case-law." And "[b]because the Moskowitz Court could not do so, instead it intentionally misstated the holding of each of the cases it cited, none of which actually discussed the two parts of the burden of proof in valuation cases, ire., the burden of production of evidence and the burden of persuasion." Morton also criticized the court of appeals for accusing him of "being disingenuous in his critical view of the Bat's citation of [Fair lawn As socs., Ltd. v. Summit Caty. DB. of Revision, 9th Dist. Summit No. 22238, 2005-Ohio-1951]," and he stated that "[a]part from the Bat's and court of appeals' fabrication of the Fair lawn decision"-purportedly to shield an assessing authority from any review of its appraisal methods-"it defies common sense to conclude that the government assessing authorities are not required to defend their initial determinations of value."[2] He then opined, "Only politicians committed to maximizing the revenue of their political cronies could reach such a conclusion, and cite the Fair lawn decision as the authority for same."

{¶ 9} The overarching theme of Morton's memorandum in support of jurisdiction was that in Moskowitz, this court distorted its past holdings to achieve its own political agenda. According to Morton, the Moskowitz decision "was based upon politics, not law," and "[t]he political goal of the Moskowitz Court was to maximize government revenue, at the expense of the taxpayer, and his or her Constitutional right to limited taxation." After suggesting that Justice French had "persistently and incorrectly maintained that this Court should defer to the government" in property-valuation matters, Morton claimed that "Justices French and Kennedy * * * showed a willingness to favor the government, at the expense of the taxpayer and the Constitution, no matter how unreasonable the government's view of the true value of subject property." "Also on the political agenda," Morton claimed, "was the promotion of the leadership of Justice French on this Court."

{¶ 10} In support of those claims, Morton stated, "The most obvious evidence of the political nature of the Moskowitz decision was the decision to delay the decision until Justices Heifer and Ladyfinger retired from the Court, and were replaced by Justices Fischer and De Wine." Moreover, he proclaimed, "[responsibility for the delay must be assigned to Chief Justice O'Connor, since it would not have been tolerated without her approval." On March 20, 2019, this court declined to accept jurisdiction over Schwartz's appeal. Schwartz v. Mahogany Caty. DB. of Revision, 155 Ohio St.3d 1406, 2019-Ohio-944, 119 N.E.3d 434.

{¶ 11} Based on these statements, the board found that in a pleading before this court, Morton had "voiced undignified and discourteous statements about judges and justices who did nothing more than rule contrary to his client's position." Based on Morton's testimony that he made no investigation into these matters and relied on the inferences he had drawn from the facts and the law, the board found that he had "made no real inquiry into the judges' and justices' integrity prior to making these statements." Citing Disciplinary Counsel v. Gardner, 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425-which adopted an objective standard to determine whether a lawyer's statements about a judicial officer were made with knowledge or reckless disregard of their falsity-the board found that Morton had no reasonable factual basis for his allegations.

{¶ 12} Ultimately, the board concluded that instead of engaging in legitimate commentary regarding the merits of the courts' decisions, Morton had attacked the judicial process and thereby violated Prof.Cond.R. 3.5(a)(6) (prohibiting a lawyer from engaging in undignified or discourteous conduct that is degrading to a tribunal), 8.2(a) (prohibiting a lawyer from making a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judicial officer), and 8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice).

Morton's Objections

{¶ 13} Morton raises four objections to the board's findings of misconduct.

{¶ 14} First, Morton objects to the board's denial of his motions to dismiss the complaint against him, alleging...

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