St. Joseph Co. judge suspended for 45 days says it ‘never occurred’ to him that actions were unethical

IL file photo

Editor’s note: This article has been updated with a comment from Cichowicz’s attorney.

A recent filing in the judicial discipline case against St. Joseph County Probate Judge Jason A. Cichowicz is shedding light on the facts surrounding the judge’s 45-day suspension as well as his defense.

Although the judge accepted responsibility for ethical violations laid out in a Statement of Circumstances and Conditional Agreement for Discipline, he also offered a personal statement underscoring the “narrow” circumstances of the Judicial Qualifications Commission’s case against him.

Meanwhile, Levering Russell Cartwright, the man whose relationship with Cichowicz underpins the entire disciplinary action, penned his own letter saying Cichowicz was “bullied” by the discipline process.

The Indiana Supreme Court issued a provisional order Friday suspending Cichowicz without pay for 45 days effective Sept. 5. The judge will be automatically reinstated on Oct. 20.

The provisional order provides no details about the case other than the sanction, saying instead that Supreme Court would be issuing an opinion explaining its disposition of the case.

That opinion had not been posted as of Indiana Lawyer deadline on Wednesday. But the Statement of Circumstances and Conditional Agreement for Discipline, also filed Friday, provides a factual background for the suspension.

According to the statement, the parties agreed that Cichowicz violated Rules 1.2, 1.3, 3.1(c) and 3.8 of the Code of Judicial Conduct related to efforts to fund improvements to the county’s juvenile justice center. Those violations relate to counts 3, 4, 5 and 6 of the seven-count disciplinary complaint filed in February. 

The commission agreed to dismiss counts 1, 2 and 7.

According to the Friday filing, Cichowicz and Cartwright first met in 2013, when Cartwright hired Cichowicz to represent him in a divorce proceeding. Both men indicated in their respective statements that their relationship has become extremely close over the ensuing decade, with Cartwright describing Cichowicz as being like a son to him.

A pivotal moment in the case dates back to Oct. 15, 2014, when Cartwright made Cichowicz, who was then a practicing attorney, his power of attorney. Then on Feb. 20, 2015, Cartwright made Cichowicz the co-trustee of the Cartwright Foundation, which is described as having “substantial assets.”

Cichowicz became sole trustee of the foundation in October 2015.

Cichowicz was elected judge in 2018 and took the bench in 2019. According to his personal statement, he undertook research after his election to determine whether he could continue serving as Cartwright’s POA.

Specifically, “I located Indiana Judicial Qualifications Commission Advisory Opinion #5-89,” Cichowicz wrote. “Op. 5-89 was issued in 1989 under an earlier version of the Code of Judicial Conduct, but its analysis still seemed to me to be sound given the identical language used in old Canon 5D and current Code of Judicial Conduct 3.8(A). … Op. 5-89 concluded: ‘A judge who has maintained a close relationship bearing the characteristics of a family relationship such as those described in this opinion is not necessarily prohibited by Canon 5D from acting as a fiduciary for that individual.’”

Believing that his relationship with Cartwright qualified as a “close familial relationship,” Cichowicz determined he could continue serving as POA, he wrote, although he acknowledged that he should have sought advice directly from the JQC.

Once he took the bench, Cichowicz hired a part-time juvenile referee. He also determined that the Thomas N. Frederick Juvenile Justice Center would benefit from the addition of a new courtroom.

Working with the Friends of the St. Joseph County Juvenile Justice Center, a 501(c)(3) charitable organization, Cichowicz arranged for the Cartwright Foundation to make an anonymous donation of $100,000 to fund the construction of the new courtroom. The only member of the Friends board who knew of the source of the money was attorney Michael Misch of Anderson Agostino & Keller P.C. in South Bend.

To make the donation, Cichowicz issued a check from the foundation to Misch’s firm, which put the money in its attorney trust account. The funds were then given to the Friends of the JJC.

Meanwhile, the St. Joseph County Board of Commissioners approved a resolution for an agreement between the county and the Friends to “use a charitable grant” to fund the renovations. The parties also signed a Donation and Construction Agreement which listed the Friends of the JJC as the donor.

The courtroom project was completed for $80,124, with no taxpayer funds expended. Cichowicz decided to use the balance of the $100,000 donation to renovate the breakrooms in the JJC.

R&K Ceramic Tile LLC, which is owned by Cichowicz’s father, Kenneth, was hired to complete the breakroom renovations. R&K completed the project for $24,800, with the total amount again coming from the foundation.

Finally, in 2020, Cichowicz decided to use foundation money to purchase three vehicles for use by the county’s court-appointed special advocate program, again anonymously. The vehicles were purchased for $51,000 from Victory Auto, which is also owned by Kenneth Cichowicz.

As with the renovations, the vehicle purchases did not involve any taxpayer money.

No formal bidding process was used to select R&K Ceramic Tile or Victory Auto, but Cichowicz noted in his personal statement that he “was and continue(s) to be unaware of any legal requirement that the break room projects and the automobile purchases had to be put out for bid.”

“Not only am I not aware of any legal bidding requirements,” he wrote, “it simply makes no sense that a unit of government would be required to refuse donated goods or services unless the donor could demonstrate that the donor had obtained the goods and services through a competitive bidding process.”

Additionally, Cichowicz said a member of the Friends board suggested buying the CASA automobile from Victory Auto. Likewise, “a board member of the Friends of the JJC had made informal inquiries about cost of construction and believed R&K might be able to do the (breakroom) projects more cheaply having interacted with R&K in connection with his own home improvement project,” he wrote.

The judge acknowledged that he acted as “intermediary” in the dealings with his father’s businesses.

The agreement says Cichowicz violated Rules 1.2 and 3.8 by continuing to serve as Cartwright’s power of attorney after being elected; Rules 1.2 and 3.1(C) by directing that foundation funds be donated anonymously to pay for the courthouse renovation; and Rules 1.2 and 1.3 by directing that funds received by the Friends of the JJC, via an anonymous donation from the foundation, be used for the breakroom project and the vehicle purchases using businesses owned by his father.

The agreement notes that Cichowicz will resign as Cartwright’s POA “as soon as a suitable substitute attorney-in-fact can be put in place.”

The parties agreed to a 45-day suspension without pay, and the Supreme Court accepted that sanction in the provisional order. The agreement notes Chief Justice Loretta Rush did not participate, although she signed the provisional order.

Cichowicz must also pay $3,824 for the costs of the proceeding.

In his personal statement, the judge said he wanted “simply to explain how narrow the Commission’s charging theories are.”

“In Count 3, the Commission’s charge is that no matter how close my relationship is with Levering Russell Cartwright … that relationship can never meet the Judicial Code’s definition of ‘member of a judge’s family’ because my relationship with him began as an attorney-client relationship and did not reach back into my childhood,’” he wrote.

“In Count 4, the Commission’s charge is that the donations I legally made of Cartwright Foundation funds to the Friends of the JJC so it could (also legally) use those funds to enhance the work of the St. Joseph Probate Court and Juvenile Justice Center violated the charged rules because the fact I made those donations anonymously meant there was inadequate transparency in the use of funds for an Indiana court,” he continued. “In Counts 5 and 6, the Commission’s charge is that my role in having two businesses owned by my father provide goods and services to the St. Joseph Probate Court for prices that the parties stipulate were fair market prices violated the charged rules because of my relationship with the provider of those goods and services regardless of the price.

“I agree that I violated the charged rules and am hopeful that my fellow judges will be spared a similar experience to mine by learning from this Court’s opinion what I was unable to determine on my own.”

Regarding his relationship with Cartwright, Cichowicz went on to write, “The only difference I could see between my relationship with Russ and the relationship described in Op. 5-89 was that in Op. 5-89, the judge had been close to his elderly friend since the judge was a small child. It did not occur to me that that difference would be a distinction in the analysis of whether I maintained a close familial relationship with Russ because Rule 3.8(A) and the Code’s definition of ‘member of the judge’s family’ focuses on the quality of a relationship at the time a judge assumes office, not the duration of the relationship.”

As for the foundation’s donations, the judge said it “never occurred to me that making funds of the Cartwright Foundation, of which I was the sole trustee, available to the Friends of the JJC, including anonymously, to fund improvements to the JJC and otherwise support its mission could be interpreted as a violation of the Code of Judicial Conduct.

“… The citizens of St. Joseph County received $160,000 worth of benefits to the JJC at no cost to them, enhancing my court’s ability to promptly hear cases, improving the morale of my staff, and supporting the important work of the CASA program,” he wrote.

Finally, as for working with his father’s businesses, Cichowicz noted that “the use of R&K and Victory Auto’s services were for one-off projects and not to do continuing work for the JJC. The contractual relationship with R&K and Victory Auto was with the Friends of the JJC, not with me or the St. Joseph Probate Court. Those businesses were not created for the purposes of doing the break room projects or purchasing the automobiles.”

For his part, Cartwright — represented by Misch of Anderson Agostino & Keller — penned a letter in Cichowicz’s favor, describing his close relationship to Cichowicz and lauding the judge for his work in the St. Joseph County community.

Cartwright then takes aim at the disciplinary process.

“… I find it deeply troubling the Judicial Commission would ever seek to sanction Judge Cichowicz,” Cartwright wrote. “The matter pushed against Judge Cichowicz should never have been brought. It is important to understand that there was NEVER a complaint filed against him.

“… It is my understanding that the allegations came after a lawyer handling a case against me made an inquiry of documents to the Judicial Commission,” Cartwright continued. “The inquiry was a litigation tactic by a multibillion-dollar corporation to seek an upper hand in my civil litigation matter. The code of judicial conduct specifically forbids this type of action, yet the Commission took the bait.

“… I believe the Judicial Commission’s loose and self-serving interpretation of vague rules was not to protect myself or the public but was likely for political or personal gain of the individuals involved. It is my opinion that they bullied Judge Cichowicz through the rules that were created by the Judicial Commission and its client.”

Detailing what he sees as shortcomings in the judicial discipline process, Cartwright then wrote, “This begs the question, who watches the watchers? If someone on the commission or their lawyers have political or career ambitions that clouds their judgment and even causes them to cross the ethical bounds, who monitors that?

“… I would hope this case would cause those in the judiciary and the legislature to review these processes carefully to ensure that any disciplinary process promotes public confidence in the independence, integrity, and impartiality of the judiciary, and avoids impropriety and the appearance of impropriety,” Cartwright concluded.

Cichowicz’s attorney, Donald Lundberg, told Indiana Lawyer in an email, “Judge Cichowicz is pleased to have this long-pending matter concluded so he can focus his full attention on his court’s vital services to the children and families of St. Joseph County now and after his suspension.”

Lundberg also said Cichowicz would not be making any additional comment beyond what’s included in his personal statement.