02-08-03: Court: Magistrate acted illegally

02-08-03: Court: Magistrate acted illegally

J. Michael Bernstein calls recent appellate court ruling ONo big deal.'

By SHELLEY GRIESHOP
The Daily Standard

    The Third District Court of Appeals recently ruled that former Mercer County Magistrate J. Michael Bernstein illegally jailed a Celina man in December 2002 for failing to attend a parenting class.
    But the recently-retired magistrate told The Daily Standard on Friday that, "It's all in the interpretation of the law," and said the issue has nothing to do with his abrupt departure.
    The answer by the appellate court was dated Dec. 12. 2002, one month before Bernstein, 60, submitted a letter to the local court announcing his intention to retire as of Feb. 1.
    The district court case was filed on behalf of Wilbur Morris, 126 W. Livingston St., by his attorney, Eric Allen of Wapakoneta.
    According to Allen's petition for writ of habeas corpus (a procedure for determining the judicial legality of an individual's custody or incarceration), an abuse and neglect petition was filed against Morris in March 2002 in Mercer County Juvenile Court. The juvenile court handles cases like Morris' involving parents who never married.
    The neglect petition was dismissed Sept. 11, 2002, however, another motion was filed dealing with the custody of the couple's children, and Bernstein ordered both parents to attend a program called "Helping Children Cope with Divorce."
    At an Oct. 31, 2002, hearing, Bernstein told Allen that Morris would face jail time if he did not complete the parenting class. Although Morris stated then that he did not believe he needed to go to the class because he was not divorced, he had already signed up for the parenting program prior to the hearing that day. The once-a-month class was filled for November, so Morris was set to attend the Dec. 19, 2002, class and was given a receipt for the class fee.
    At the next hearing in the case on Dec. 9, 2002, Bernstein - without allowing testimony and without consulting Judge Mark Klosterman - found Morris in contempt for not attending the class and ordered him to serve 10 days in jail. Morris was also denied the right to file an appeal or any other motions in the case because he owed court costs. He was immediately taken to jail by sheriff's deputies.
    Allen argued in the writ to the district court that Bernstein incarcerated Morris unjustly and the action itself impeded the administration of justice.
    "The Magistrate in his order has shown no reason why this (failing to attend the class) causes an immediate threat to the administration of justice ... In fact, in defense counsel's opinion, it is the summary punishment which has impeded the administration of justice."
    The district court answered Allen's complaint Dec. 12, the day after it was filed, and agreed that Bernstein had acted illegally in sending Morris to jail. The higher court ordered Morris to be set free and he was released the same day.
    "In this circumstance, the magistrate has no authority to Oorder' petitioner to be incarcerated," the appellate court judges wrote. "A magistrate's involvement in an issue serves only as an aid to the judicial process, not as a subsitute."
    The district court judges in their answer stated that a magistrate has the power to find a person in contempt only if the action occurs in his/her direct presence, such as during a proceeding. In Morris' case, the action of not attending a parenting class did not fall under that category and did not jeopardize the order of the proceedings.
    In fact, the district court judges found that Morris' actions did not make a "clear recommendation for adjudication of contempt, indirect or otherwise," the document stated.
    The district court also questioned the action of the juvenile court deputy clerk who prohibited Morris from further filings because he failed to pay court costs, some which had not yet been billed to him. That action prohibited Morris or Allen from seeking an avenue of appeal to Juvenile Court Judge Mark Klosterman, "leaving the writ as his (Morris') only avenue," Allen claimed.
    The appeal case was filed in the district court against Mercer County Sheriff Jeff Grey because it was his deputies who incarcerated Morris on orders from Bernstein.
    As a result of the district court ruling, Grey ordered all unserved bench warrants, issued and signed only by Bernstein, returned to the courts that issued them. Grey said he feared some of the warrants may also have been issued illegally. Fifteen of those unserved bench warrants were obtained by The Daily Standard, some dating back two years. They are currently being reviewed by the courts that issued them.
    Bernstein told The Daily Standard on Friday that he felt Morris' failure to attend the class was, in his opinion, direct contempt calling it an issue of interpretation of the law.
    Bernstein called the appellate court decision "not that big of a deal," and agreed that Allen had no choice but to file the case with the district court because he was prohibited from filing an appeal with local Judge Klosterman.
    Bernstein also said that the district court ruling has nothing to do with his retirement. During an earlier interview last week, Bernstein indicated it was not his idea to retire.
    In a letter to the court dated Jan. 15, Bernstein stated that, "As requested ... I am herein stating my intention to retire ... ," without making it clear who made the request.
    Bernstein's letter also reads, "It had been my dream and that of my family, to continue to serve Mercer County until I had reached retirement age and we could actually afford to retire."
    The Daily Standard spoke to Judges Klosterman, Jeff Ingraham and incoming Judge Mary Pat Zitter, and all three said they did not ask Bernstein to retire from his position. Zitter did, however, inform Bernstein in December that her court would not require his services as magistrate.
    Prior to leaving Jan. 31, Bernstein had worked in both juvenile/probate and common pleas court for nearly 16 years, spending most of his time in the latter courtroom.
    Zitter, who will technically take over as juvenile/probate judge on Sunday, said her desire to no longer have a magistrate working in her court had nothing to do with the recent district court ruling. She told The Daily Standard she discussed the issue with Bernstein, before the appellate ruling.
    Ingraham issued the following written statement concerning Bernstein's sudden retirement: "In response to the inquiries regarding the retirement of (Bernstein), upon respectfully accepting the decision of Judge-elect Mary Pat Zitter not to employ a Magistrate in the Probate/Juvenile Division, the court chose this time to allow Mr. Bernstein to use his gifts and talents in ways other than continuing to serve the (court)."
    Ingraham said he is currently taking applications to fill the magistrate's position.
    Mercer County Prosecutor Andy Hinders, the attorney of record for the county, including the sheriff's office, refused to comment on the Morris case.

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