Cheek v. State

79 N.E.3d 388, 2017 WL 2687408, 2017 Ind. App. LEXIS 269
CourtIndiana Court of Appeals
DecidedJune 22, 2017
DocketCourt of Appeals Case No. 34A04-1610-CR-2326
StatusPublished
Cited by3 cases

This text of 79 N.E.3d 388 (Cheek v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cheek v. State, 79 N.E.3d 388, 2017 WL 2687408, 2017 Ind. App. LEXIS 269 (Ind. Ct. App. 2017).

Opinion

Shepard, Senior Judge

Appellant William Patrick Cheek contends that the trial judge in his-case should have recused in light of the Prosecuting Attorney’s participation on the judge’s re-election committee. Like our colleagues in the parallel appeal of Abney [390]*390v. State, we. conclude that the Code of Judicial Conduct did not require recusal.

. Facts and Procedural History

In October 2015, the State charged Cheek with three felony drug offenses. After Cheek failed to appear for a February 2016 pre-trial conference, the State charged him with the additional "offense of faitee to appear. At his jury trial on that charge,' Cheek filed a motion to recuse. Once the jury was selected, but out of its presence, the trial court held a hearing on Cheek’s motion and thereafter denied the motion. Cheek was found guilty of failing to appear, a Level 6 felony,1 and was sentenced to 730 days’ executed. He now appeals the denial of his motion to recuse, his conviction, and his sentence.

Discussion and Decision

I. Recusal of Trial Judge

Cheek contends that the fact that the Howard County Prosecutor was on Judge William, Menges’ re-election committee demonstrates a personal bias by Judge Menges such that his recusal was required.

This Court has recently described the standard for our review of decisions on motions to recuse. Writing for-a unanimous panel, Judge Brown said: ■. .

A ruling upon a motion to recuse rests within the sound discretion of the trial judge and will be reversed only upon a showing of abuse of that discretion. An abuse of discretion occurs when the trial ■"court’s decision is against the logic and effect of the facts and circumstances before it. When reviewing a trial judge’s decision not to disqualify h[im]self, we presume that the trial judge is unbiased. • ‘In order to overcome that presumption, ■the appellant must demonstrate actual personal bias.’ In addition,, the mere appearance of bias and partiality may require recusal if an objective person, knowledgeable of all the circumstances, would have a rational basis for doubting the judge’s impartiality. Upon review of a judge’s failure to recuse, we will assume that a judge would have complied with the obligation to recuse had there been any reasonable question concerning impartiality, unless we discern circumstances which support a- contrary conclusion.

Bloomington Magazine, Inc. v. Kiang, 961 N.E.2d 61, 63-64 (Ind. Ct. App. 2012) (citations omitted).

Although the Indiana Code of Judicial Conduct fixes a judge’s obligations, these obligations do not create a freestanding right of enforcement for private parties; rather, each judge is to enforce these obligations against himself or herself. Mathews v. State, 64 N.E.3d 1250 (Ind. Ct. App. 2016), trans. denied. Yet, we note the relevant canons as a backdrop to the issue at hand. Canon 2 directs that Indiana judges perform the duties of their judicial office impartially, competently, and diligently. More particularly, Rule 2.11 concerns disqualification and provides in relevant part:

(A) A judge" shall disqualify himself or herself in any proceeding in which the judge’s impartiality* might reasonably be questioned, including but not limited to the following circumstances:
(1), The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge* of facts that are in dispute in the proceeding.

Further, Canon 4 commands that a judge or candidate for judicial" office shall not engage in political or campaign activity that is inconsistent with the independence, [391]*391integrity, or impartiality of the judiciary. Specifically, Rule 4.2(A) provides, in part:

(A) A judicial candidate* in a partisan, nonpartisan, or retention public election* shall:
(1) act at all times in a manner consistent with the independence,* integrity,* and impartiality* of the judiciary....

Indiana has drawn these rules almost entirely from the ABA’s Model Code of Judicial Conduct, só we often find guidance in decisions by courts in other states that have addressed disputes over attorney participation in campaign activities. When evaluating a motion for recusal based upon counsel’s campaign-related activities, the general principle is that the timing, nature, and extent of participation in a judge’s campaign are relevant factors to consider. Rivera v. Bosque, 188 So.3d 889 (Fla. Dist. Ct. App. 2016) (stating that involvement of relatively limited nature in judge’s campaign is not grounds for recusal).

With this standard in mind, we examine cases across the continuum of counsel participation in judge’s campaign activities. At one end of the continuum, representing substantial campaign involvement by counsel, rest cases like Dell v. Dell, 829 So.2d 969 (Fla. Dist. Ct. App. 2002). In Dell, the Florida Court of Appeals held that the trial judge should have granted the motion for disqualification where wife’s attorney was one of only six members of the judge’s re-election committee that was engaged in an ongoing campaign for the judge’s reelection while the ease was pending.

Similarly, in Post v. State, 298 Ga. 241, 779 S.E.2d 624 (2016), the Georgia Supreme Court ordered recusal. The court aclmowledged that “[allegations that, a party or a party’s attorney made unexceptional campaign contributions or provided commonplace forms of non-monetary support during a judge’s election campaign ordinarily are insufficient to require referring a recusal motion for reassignment to another judge.” Id. at 631. Post’s motion, however, demonstrated that the district attorney, whose office was prosecuting Post, was serving as the treasurer of. .the active election campaign of the judge, presiding over Post’s case and that the official address of the election campaign was the district attorney’s office.

At the other end of the continuum, representing pretty modest involvement by counsel, is Zaias v. Kaye, 643 So.2d 687 (Fla. Dist. Ct. App. 1994). In Zaias, the judge denied a motion for disqualification that was based on opposing counsel’s contribution to the judge’s re-election campaign and service as one of over sixty members on the campaign committee. .The appellate court denied Zaias’ appeal, stating that “[t]he fact that an attorney made a campaign contribution to a judge or served on .a judge’s campaign committee does.not, without more, require disqualification.” Id. Rather, sufficient grounds for disqualification include “a specific and substantial political relationship between the parties.” Id.

This Court’s decision in Bloomington Magazine, Inc. v. Kiang, 961 N.E.2d 61, lies along the same continuum, but the facts are closer to those in Dell and Post.

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Bluebook (online)
79 N.E.3d 388, 2017 WL 2687408, 2017 Ind. App. LEXIS 269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cheek-v-state-indctapp-2017.