Seneca County Judge Suspended for Jailing Spectator over Drug Test Refusal
By Dan Trevas | November 9, 2021
The sole judge of the Tiffin-Fostoria Municipal Court was suspended for one year without pay today by the Ohio Supreme Court for holding a court spectator in contempt for refusing to take a drug test.
In a unanimous per curiam opinion, the Supreme Court ruled that Judge Mark Repp violated four rules governing the professional conduct of Ohio judges and lawyers, including failure to perform all his judicial duties fairly and impartially. When the spectator, who was the girlfriend of a defendant before the court, refused to take a drug test, Judge Repp held her in contempt of court and sentenced her to 10 days in jail.
The Court's opinion stated that Judge Repp's "undignified, improper, and discourteous manner" was directed both to the boyfriend and girlfriend, and the woman "suffered great personal indignities and emotional distress as the result of the security and medical screenings she had to endure during her incarceration, on top of the anxiety regarding the care and well-being of her two young children."
Judge Suspects Spectator Abused Drugs
Judge Repp was elected to the Tiffin Municipal Court in 2002. In 2013, Tiffin and Fostoria combined into one municipal court, and Judge Repp has been the sole judge of that court since its inception. The court also operates a drug-court program called Participating in Victory of Transition (PIVOT).
In March 2020, a man identified in court records as "T.D." was arrested for violating the terms of his probation for failing to appear at PIVOT. T.D. was to appear in Judge Repp's court via video from the Seneca County Jail, where he was held.
T.D.'s girlfriend, identified as "A.O.," went to Judge Repp's courtroom to observe T.D.'s arraignment and hearing. She arrived before his case began. T.D. and A.O. have two young children together, and A.O. left the children in her car with T.D.'s mother while she attended the court proceedings.
A.O. sat in the back row of the courtroom. While other cases were proceeding, Judge Repp addressed A.O. on several occasions, suggesting she might be using drugs. Court video showed A.O. sitting quietly and bringing no attention to herself. A.O. did not have a case before Judge Repp, was not on probation, and had never been charged with or convicted of a drug-related case. However, Judge Repp had read the police report regarding T.D.'s case and noticed A.O. was in the car with T.D. when he was arrested.
Woman Jailed for Refusing Drug Test
Judge Repp paused hearing other cases and announced to the court that he thought A.O. was under the influence. He stated, "I want her drug tested."
The bailiff directed A.O. out of the courtroom and to the probation department. A.O. then texted T.D.'s mother to let her know she was afraid to leave the courthouse and that she thought the judge would have her arrested if she did. She also texted her sister to retrieve her daughters from the car because T.D.'s mother had to leave to go to work.
When told by a probation officer she would have to take the drug test, A.O. requested a lawyer. The officer told her she was not eligible for a court-appointed lawyer because she had not been charged with a crime. When she refused to take the test, she was ordered back to Judge Repp's courtroom.
During A.O.'s absence, Judge Repp called T.D.'s case and told T.D. he was looking for him to appear at PIVOT. He scolded T.D. for being defiant and not following through on his treatment. He asked T.D. if he had overdosed while on probation and if he and A.O. had overdosed together. He told T.D. that A.O. "was probably going to jail." Judge Repp sentenced T.D. to 11 months in jail.
When A.O. returned to the courtroom, she told the judge she refused to take the test because she did not think she had done anything to be in trouble. Judge Repp stated, "Well, you come into my courtroom, I think you're high, you're in trouble." A.O. responded, "OK, I'm not, though."
When she again refused to be drug tested, Judge Repp found her in contempt of court and told her that she was sentenced to 10 days in jail and that they could "talk about this again" if she took a drug test. The court entry stated she was sentenced for contempt to 10 days in jail or until she submitted to a drug test. However, the entry did not specify the conduct that led to his finding her in contempt.
Woman Subjected to Invasive Screenings
The Court's opinion stated A.O. "experienced several indignities" while in custody. She was required to take a pregnancy test, and then a female officer conducted a full-body scan that allegedly detected anomalies that the officer believed could have been contraband in A.O.'s body. A male officer then viewed the nude scans of A.O. She was handcuffed and transferred to Tiffin Mercy Hospital for a second pregnancy test and body scan.
The hospital's scan found no contraband, and she was returned to jail. At the jail, she saw T.D. in passing and said she was scared and worried about her children.
A.O. told a correctional officer she would take the drug test. The officer replied that she could not and that she already "had her chance." She became upset after speaking to the officer, believing she would have to spend the full 10 days in jail. She hired attorney Dean Henry that evening.
Authorities Dismiss Case
The next morning Henry filed a notice of appeal and requested A.O.'s sentence be stayed during the appeal. He also requested that the Seneca County Common Pleas Court order her immediate release from jail. Judge Repp set a hearing on the request to stay the sentence that day.
Before the hearing, Judge Repp met with Henry, Seneca County Prosecuting Attorney Derek DeVine, and Seneca County Common Pleas Court Judge Michael Kelbley. DeVine stated he was unaware of any legal authority that would permit the judge to hold a courtroom spectator in contempt for refusing a drug test. Judge Repp offered no legal authority to support his conduct, but stated he had a right to control his courtroom.
DeVine then requested that Judge Repp's contempt order against A.O. be vacated because it was not supported by law and violated the U.S. and Ohio constitutions. Judge Repp agreed to vacate the contempt order if A.O. agreed to a drug test. However, because the decision had been appealed, he lacked jurisdiction over the case. A.O. was released from jail that day.
Subsequently, the Third District Court found Judge Repp's decision "was devoid of any specific observations or findings" to support his belief that A.O. was under the influence of drugs while observing court proceedings. The Third District ruled his order "was an invalid exercise of his contempt power." When the case was remanded, Judge Repp dismissed the charges.
Supreme Court Considers Sanction
Based on Judge Repp's conduct toward A.O. and T.D, the Office of Disciplinary Counsel filed a complaint with the Board of Professional Conduct, charging the judge with four ethical violations.
At his disciplinary hearing, Judge Repp stated his misconduct was motivated by a desire to help A.O. The board found that the audio and video recording of the in-court statements to A.O. and T.D. "exhibited arrogance and a desire to prove that his suspicions about A.O.'s impairment were accurate and consistent with unsubstantiated rumors that he had heard about her and T.D.'s past drug use." At the hearing, Judge Repp demonstrated he was frustrated with T.D. and channeled that frustration at A.O.
The Supreme Court's opinion noted that it has ruled an abuse of judicial power that deprives a person of his or her liberty is a significant violation of the public trust.
The board also noted that while Judge Repp acknowledged the wrongful nature of his misconduct, his "expressions of remorse and acceptance of responsibility were tempered by other statements" that suggested he had not completely done so. At one point, he stated he had "tried" to take responsibility for his actions.
While the board's hearing panel recommended Judge Repp receive a one-year suspension with six months stayed, the full board suggested the Court suspend him for one year from the practice of law and immediately suspend him from the bench for one year without pay.
"We agree with the board's assessment and concluded a one-year suspension with no stay will best protect the public and send a strong message to the judiciary that this type of judicial misconduct will not be tolerated," the Court stated.
Judge Repp also was required to pay the cost of the disciplinary proceedings.
2021-0757. Disciplinary Counsel v. Repp, Slip Opinion No. 2021-Ohio-3923.