In re Disqualification of Burge

28 N.E.3d 48, 142 Ohio St. 3d 57
Ohio Supreme Court·Decided July 8, 2014·No. No. 14-AP-040·Published·Cited by 3 cases

Opinion

O’Connor, C.J.

{¶ 1} Dennis P. Will, the Lorain County prosecuting attorney, has filed an affidavit with the clerk of this court under R.C. 2701.03 seeking to disqualify Judge James M. Burge from all matters in which Will or one of his assistant prosecutors appears as counsel of record. This would currently include 276 pending criminal cases and four civil matters. This is the sixth affidavit of disqualification that Will has filed or approved for filing against Judge Burge. One of Will’s previous disqualification requests was granted; one was granted in part and denied in part; one was denied; and in the two other disqualification matters, Judge Burge voluntarily recused himself before the request was decided. See case Nos. 08-AP-057, 09-AP-106, 13-AP-027, 13-AP-065, and 14-AP-010. In his current 68-page affidavit, Will sets forth an assortment of allegations to support his position that Judge Burge is biased and prejudiced against the prosecutor’s office and has violated various rules of the Code of Judicial Conduct.

{¶ 2} Judge Burge has responded in writing to the allegations, denying any bias against Will and his assistant prosecutors. In addition to Will’s initial affidavit and the judge’s response, Will and Judge Burge have also submitted [58]*58supplemental filings, and several members of the Lorain County bar, including assistant prosecutors and local defense attorneys, have submitted affidavits as well.

{¶ 3} For the reasons explained below, Will has not established that he is entitled to the extraordinary relief requested in his affidavit.

Scope of affidavit-of-disqualification proceedings

{¶ 4} Much of Will’s affidavit is devoted to proving that Judge Burge has violated the Code of Judicial Conduct. However, the issue before the chief justice in disqualification proceedings is a narrow one: “[t]he constitutional and statutory responsibility of the Chief Justice in ruling on an affidavit of disqualification is limited to determining whether a judge in a pending case has a bias, prejudice, or other disqualifying interest that mandates the judge’s disqualification from that case.” In re Disqualification of Kate, 88 Ohio St.3d 1208, 1209-1210, 723 N.E.2d 1098 (1999). See also In re Disqualification of Sutula, 105 Ohio St.3d 1237, 2004-0hio-7351, 826 N.E.2d 297, ¶ 5 (the chief justice’s “review of an affidavit of disqualification focuses not simply on the level of civility shown by judges and lawyers to each other, however, but rather more broadly on the judge’s willingness and ability to serve fairly and impartially on a particular case”). Thus, affidavit-of-disqualification proceedings are “not the appropriate mechanism for determining whether a judge has followed the Code of Judicial Conduct.” In re Disqualification of Capper, 134 Ohio St.3d 1271, 2012-Ohio-6287, 984 N.E.2d 1082, ¶ 19. Judicial-misconduct complaints are heard by the Board of Commissioners on Grievances and Discipline and ultimately decided by the full court.

{¶ 5} Moreover, many of Will’s alleged judicial-rule violations are irrelevant to the issue whether Judge Burge is biased against the prosecutor’s office. For example, Will claims that Judge Burge has used profanity during court proceedings; he has communicated with defendants using racially derogatory terms, such as “cracker” and “homeboy”; he has given preferential treatment to certain defense attorneys over other defense counsel; during the 2008 presidential election, he made sexually degrading comments about Hillary Clinton and racially harassed her supporters; he once threatened to “choke” a defendant; he has made inappropriate comments about other Lorain County judges; he has misused his position as administrative judge by attempting to block vacation- and sick-time payouts to former employees of the court; he has retaliated against other public officials, including judges, for their refusal to hire his wife; and he has been known to improperly “shake down” attorneys for campaign contributions.

{¶ 6} Because these allegations of judicial misconduct do not support a conclusion that Judge Burge is biased against the prosecutor’s office, they are [59]*59outside the scope of this proceeding. Accordingly, only Will’s specific bias allegations involving either himself or an assistant prosecutor will be addressed in this entry.

Waiver

{¶ 7} An affidavit of disqualification must be filed “as soon as possible after the incident giving rise to the claim of bias and prejudice occurred,” and failure to do so may result in waiver of the objection, especially when “the facts underlying the objection have been known to the party for some time.” In re Disqualification of O’Grady, 77 Ohio St.3d 1240, 1241, 674 N.E.2d 353 (1996). And in affidavit-of-disqualification proceedings, “the affiant has the burden to demonstrate that the affidavit is timely filed.” In re Disqualification of Carr, 138 Ohio St.3d 1237, 2013-Ohio-5927, 5 N.E.3d 1278, ¶ 4.

{¶ 8} Here, Will claims that Judge Burge has made various prejudicial comments to and about his assistant prosecutors. But many of the judge’s alleged comments were made years ago, and Will offers no reason for presenting them now. For example, Will claims that in 2008, Judge Burge attempted to intimidate assistant prosecutor Richard Gronsky and called another former assistant prosecutor a liar. And Will claims that in 2010, Judge Burge made derogatory and inappropriate comments to assistant prosecutor Christopher Pierre about another assistant prosecutor and Pierre’s supervisors. Will also asserts that during one criminal trial, assistant prosecutor Nick Hanek made an objection, to which Judge Burge responded by becoming visibly upset, slamming his fists on the bench, and scowling at Hanek. Yet Will offers no time frame for the judge’s alleged prejudicial conduct towards Hanek. If Will believed that the judge’s comments and conduct from years ago reflected bias against his office, he should have timely sought disqualification. Accordingly, Will waived the right to object to these alleged comments occurring years ago that Will failed to identify when he learned of the conduct.

Merits of the affidavit of disqualification

Applicable precedent and the standard for disqualification

{¶ 9} “The statutory right to seek disqualification of a judge is an extraordinary remedy.” In re Disqualification of George, 100 Ohio St.3d 1241, 2003-Ohio-5489, 798 N.E.2d 23, ¶ 5. The relief requested by Will, however, differs from most disqualification requests. Will’s affidavit does not involve one underlying case; instead, he requests the disqualification of a duly elected judge from his entire criminal docket and those civil cases in which the prosecutor is required by law to represent a party. As precedent confirms, Will has a heavy burden to show he is entitled to such extraordinary relief.

[60]*60{¶ 10} Prosecutors have sought similar relief in at least two previous disqualification matters. In In re Disqualification of Olivito, 74 Ohio St.3d 1261, 657 N.E.2d 1361 (1994), the Jefferson County prosecuting attorney alleged that Judge Dominick E.

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In re Disqualification of Burge, 28 N.E.3d 48, 142 Ohio St. 3d 57 (Ohio 2014).

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