State v. Hunter

43 N.E.3d 438, 144 Ohio St. 3d 1244
CourtOhio Supreme Court
DecidedApril 17, 2015
DocketNo. 15-AP-025
StatusPublished
Cited by1 cases

This text of 43 N.E.3d 438 (State v. Hunter) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hunter, 43 N.E.3d 438, 144 Ohio St. 3d 1244 (Ohio 2015).

Opinion

O’Connor, C.J.

{¶ 1} Clyde Bennett II, counsel for defendant Judge Tracie Hunter, has filed an affidavit with the clerk of this court under R.C. 2701.03 seeking to disqualify Judge Patrick Dinkelacker and all other judges of the Hamilton County Common Pleas Court from presiding over any further proceedings in the above-captioned cases.

{¶ 2} Defendant Judge Hunter holds a judicial seat in the juvenile division of the Hamilton County Common Pleas Court, although she is currently suspended from office without pay pursuant to Gov.Jud.R. III(6)(B). See In re Hunter, 141 Ohio St.3d 1212, 2014-Ohio-4667, 21 N.E.3d 1070. In 2014, Judge Hunter was indicted on nine felony charges. A jury convicted her of one of those charges, and a mistrial was declared on the other eight charges after the jury could not reach a verdict. The state has elected to retry Judge Hunter on the remaining counts as well as on an additional felony charge, and the matter is now pending for retrial. The judge who presided over the first trial has retired, and in November 2014, Judge Patrick Dinkelacker, who had previously served on the First District Court of Appeals, was elected to the seat, thereby assuming the underlying case.

{¶ 3} In his affidavit of disqualification, Bennett sets forth three reasons why he believes that an appearance of impropriety exists if Judge Dinkelacker or any other county common pleas court judge presides over the retrial. Judge Dinkelacker has responded in writing to the affidavit, stating that there is no appearance of impropriety if he presides over the case.

[1245]*1245{¶ 4} “The proper test for determining whether a judge’s participation in a case presents an appearance of impropriety is * * * an objective one. A judge should step aside or be removed if a reasonable and objective observer would harbor serious doubts about the judge’s impartiality.” In re Disqualification of Lewis, 117 Ohio St.3d 1227, 2004-Ohio-7359, 884 N.E.2d 1082, ¶ 8. Nonetheless, “[t]he statutory right to seek disqualification of a judge is an extraordinary remedy. * * * A judge is presumed to follow the law and not to be biased, and the appearance of bias or prejudice must be compelling to overcome these presumptions.” In re Disqualification of George, 100 Ohio St.3d 1241, 2003-Ohio-5489, 798 N.E.2d 23, ¶ 5. For the reasons explained below, Bennett has not set forth sufficiently compelling evidence demonstrating that a reasonable and objective observer would harbor serious doubts about Judge Dinkelacker’s impartiality, and therefore no basis has been established to order the disqualification of Judge Dinkelaeker.

Judge Dinkelacker’s participation in First District Court of Appeals cases involving Judge Hunter

{¶ 5} Bennett first argues that during the previous trial, one of the state’s theories of prosecution was that Judge Hunter refused to follow the law, and to prove that point, prosecutors referred to and introduced into evidence various First District cases involving Judge Hunter, such as appellate court opinions reversing her legal decisions and an opinion holding her in contempt. Bennett states that because Judge Dinkelaeker was a member of the First District when many of these cases were decided, and because he participated in some of the cases, an appearance of impropriety exists if he presides over the retrial. In response, Judge Dinkelaeker acknowledges that as a court of appeals judge, he reviewed a number of Judge Hunter’s legal decisions, some of which were not favorable to her, including the contempt finding. . Judge Dinkelaeker states, however, that his decisions were not a product of bias or prejudice against Judge Hunter and that none of those prior cases were related to the underlying criminal case.

{¶ 6} R.C. 2701.03(B)(1) requires an affiant to set forth the “specific allegations on which the claim of interest, bias, prejudice, or disqualification is based.” Here, Bennett does not specifically explain why references to, and the introduction of, various First District opinions at the retrial would cause a reasonable person to have serious doubts about Judge Dinkelacker’s impartiality. Bennett may be implying that Judge Dinkelaeker has personal knowledge of potential evidence and therefore could be unfairly influenced by these prior cases. Indeed, Jud.Cond.R. 2.11(A)(1) requires disqualification of any judge who possesses personal knowledge of facts in dispute. But Bennett has not made this specific argument. And even if he had, First District opinions reversing Judge Hunter in [1246]*1246unrelated cases cannot be considered disputed evidentiary facts regarding the underlying criminal charges. Moreover, knowledge gained by a judge in a prior judicial proceeding — i.e., in the judge’s official judicial capacity — is generally not a sufficient ground to remove a judge in a subsequent case. See In re Disqualification of Basinger, 135 Ohio St.3d 1293, 2013-Ohio-1613, 987 N.E.2d 687, ¶ 5 (“because ‘ “evidence presented in the trial of a prior cause * * * does not stem from an extrajudicial source,” it creates no personal bias requiring recusal’ ” [brackets sic]), quoting State v. D’Ambrosio, 67 Ohio St.3d 185, 188, 616 N.E.2d 909 (1993), quoting State v. Smith, 242 N.W.2d 320, 324 (Iowa 1976).

{¶ 7} The circumstances here are similar to a ease in which a judge presided over a prior proceeding involving the same defendant or formerly prosecuted the defendant on unrelated grounds. The judge may have some familiarity with the defendant and that former conviction may be relevant to the pending case. However, those facts do not necessarily support an inference that the judge will harbor personal bias against the defendant such that the reasonable person would question whether the judge could be fair in the current proceeding. See, e.g., Basinger; In re Disqualification of Hedric, 127 Ohio St.3d 1227, 2009-Ohio-7208, 937 N.E.2d 1016. “Just as ‘[a] judge is presumed to follow the law and not to be biased,’ In re Disqualification of George, 100 Ohio St.3d 1241, 2003-Ohio-5489, 798 N.E.2d 23, ¶ 5, a judge is presumed to be capable of separating what may properly be considered from what may not be considered.” Basinger at ¶ 5. Bennett has not specifically explained how the state’s potential introduction of First District opinions creates an appearance of bias, and nothing in this record suggests that Judge Dinkelacker obtained personal knowledge regarding the underlying facts from those prior cases or that he has been unduly influenced by them. Without more, the state’s reference to unrelated First District cases does not give rise to a claim of judicial bias.

The judges’ alleged close ties to witnesses

{¶ 8} Bennett next claims that Judge Dinkelacker and all the common pleas court judges have “close ties and professional relationships” with many of the potential witnesses at retrial, which may include other judges, a county commissioner, the county prosecuting attorney, several assistant prosecutors, the chief public defender, and juvenile court magistrates. For his part, Judge Dinkelacker states that it is not unusual for people he knows to testify as witnesses and that as a judge in a jury trial, he will not be judging witness credibility.

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Related

State v. Hunter
48 N.E.3d 565 (Ohio Supreme Court, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
43 N.E.3d 438, 144 Ohio St. 3d 1244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hunter-ohio-2015.