Beer v. Griffith

377 N.E.2d 775, 54 Ohio St. 2d 440, 8 Ohio Op. 3d 438, 1978 Ohio LEXIS 596

• Court: Ohio Supreme Court
• Decided: June 28, 1978
• Docket: No. 77-745
• Status: Published

Opinions

Per Curiam.

Authority to pass upon the disqualification of a judge of the Court of Common Pleas is vested in the Chief Justice under Section 5(C) of Article IY of the Ohio Constitution, which reads as follows:

“The chief justice of the supreme court or any judge of that court designated by him shall pass upon the disqualification of any judge of the courts of appeals or courts of common pleas or division thereof. Rules may be adopted to provide for the hearing of disqualification matters involving judges of courts established by law.”²

Since only the Chief Justice or his designee may hear disqualification matters,³ the Court of Appeals was without authority to pass upon disqualification Or tó void the judgment of the trial court upon that basis. Although a judge would be without power to hear and determine a caúse after disqualification, his judgment, however erroneous, before disqualification is not void. We remand the cáuse to the Court of Appeals to pass upon-the other errors Which were assigned.

Judgment accordingly.

O’Neill, C. J., Herbert, W. Brown,.-P.. Brown and Sweeney, JJ., concur. Celebrezze and Locher, JJ., dissent.

2 See State, ex rel. Pratt, v. Weygandt (1956), 164 Ohio St. 463, and State, ex rel. Chute, v. Marshall (1922), 105 Ohio St. 320. In addition, it must be noted that no such rules have heretofore, been provided.

3 The statutory framework within which the Chief Justice must determine the disqualification of a common pleas judge is provided in R. C. 2701.03, which reads:

“When a judge of the court of common pleas is interested in a cause or matter pending before the court, is related to, or has a bias or prejudice either for or against, a party to such matter or cause or to bis counsel, or is otherwise disqualified to sit in such cáuse or matter, on'the! filing of an affidavit by any, party to such cause or matter, or by the counsel of any party, setting forth the fact of such interest, bias, prejudice, or disqualification, the clerk of the court of common pleas shall enter the fact of such filing on the trial docket in such cause * * *. The chief justice shall designate and assign some other judge to take the place of the judge against whom such affidavit is filed. The judge so assigned shall try such matter or cause. Such affidavit shall be filed not less than three days prior to the time'set for the hearing in such matter -or cause.”

The effect of the deleted portion of the statute (which reads: “and forthwith notify the pending judge of the court of appeals for the district in which such court of common pleas is located. If such presiding judge finds that such judge of the court of cOmmon pleas is disqualified he shall forthwith notify the chief justicie of the supreme ;eourt.’’) has clearly been superseded by Section' 5(0)- of 'Article IV of "the'Ohio Constitution as amended in 1973.