Courts

Judge Suspended After Wild Power Trip Demanding Court Observer Take A Drug Test

You can't do this. You can't do any of this.

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Let’s be clear about one thing from the jump — attending a public court hearing is, in no way, cause for the government to demand a drug test from you. That much should be clear to everyone with a J.D., but given the specifics of this story, it seems some folks could use a refresher.

Ohio Judge Mark Edward Repp of the Tiffin-Fostoria Municipal Court is in hot water for a March 2020 incident in which he demanded a courtroom observer submit to a drug test — and jailed her for contempt when she refused. An observer, identified as A.O., was sitting quietly in the courtroom because her boyfriend was accused of violating probation by failing to appear at a drug program, when things got all constitutionally suspect. As reported by the ABA Journal:

At one point, Repp said he thought that A.O. was under the influence, and he wanted her to be drug tested. She had never been charged with a drug-related offense, she didn’t have any cases pending before Repp at the time, and she was not on probation.

A bailiff directed A.O. to follow him to the probation department, so she could be drug tested. A.O. followed the bailiff, requested a lawyer, and refused the drug test. She was told that she wasn’t eligible for a court-appointed lawyer.

In the interim, the boyfriend, identified as T.D., pleaded no contest, and Repp accepted the plea. Repp asked T.D. whether he or A.O. had recently overdosed, even though the judge didn’t have any verifiable information that it had happened. Repp sentenced T.D. in two criminal cases and gave him an additional 150 days, telling him, “I know you overdosed.”

And Repp didn’t let up. After he was informed A.O. had refused a drug test, he said, “Well, you come into my courtroom, I think you’re high, you’re in trouble.” When she refused again, you know, AS IS HER RIGHT, Repp order A.O. jailed for 10 days, or until she submitted to a drug test.

While jailed, A.O. was subjected to various indignities:

In jail, A.O. was required to take a pregnancy test and undergo to two full-body scans.

After seeing what were thought were anomalies, officers transported A.O. to the hospital, where she received another pregnancy test and either a CT scan or an MRI scan. No contraband was found, and she was transported back to jail. A.O. retained a lawyer, who sought A.O.’s release the next day and filed an appeal.

Repp discussed the matter with A.O.’s attorney, the prosecuting attorney, and a common pleas judge in his chambers. Even the *prosecuting* attorney argued for dropping the contempt charge as he knew of no legal authority allowing a judge to jail a spectator for refusing a drug test — because THERE IS NONE.

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A.O. was released from jail and an appeals court confirmed what even a 1L should know — Repp had no authority to order the drug test and his contempt finding was without cause. Repp dismissed the case on remand.

Now the Ohio Supreme Court is weighing in on the matter — suspending Repp from the practice of law and from judicial office without pay for a year. They found that pretty much none of the things that Repp did were justified:

The Ohio Board of Professional Conduct found that Repp’s 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,” the Ohio Supreme Court said.

The board also found that A.O. “did absolutely nothing to justify Repp’s attention in the courtroom—let alone his order that she be drug tested,” the Ohio Supreme Court said.

In addition, the judge showed “undignified, improper and discourteous demeanor” to both A.O. and T.D., the state supreme court found.

I’m sure qualified immunity will spoil the settlement A.O. deserves, but the treatment she dealt with was wildly out of line.

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Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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