Opinion
No. 21-AP-005
02-10-2021
IN RE DISQUALIFICATION OF SUTULA. MARVAR v. PREMIER PHYSICIANS CENTERS, INC., ET AL.
[Cite as In re Disqualification of Sutula , ___ Ohio St.3d ___, 2021-Ohio-1208.] Judges—Affidavits of disqualification—R.C. 2701.03—A judge's voluntary recusal from an earlier case involving a particular attorney or law firm generally does not automatically require the judge's disqualification from all other cases involving that attorney or firm—Affiant failed to demonstrate bias or prejudice—Disqualification denied. ON AFFIDAVIT OF DISQUALIFICATION in Cuyahoga County Court of Common Pleas, General Division, Case No. CV-18-905740. O'CONNOR, C.J.
{¶ 1} David A. Posner, counsel for the defendants, has filed an affidavit pursuant to R.C. 2701.03 and Article IV, Section 5(C) of the Ohio Constitution seeking to disqualify Judge John D. Sutula from the above-referenced civil case.
{¶ 2} Mr. Posner seeks Judge Sutula's disqualification based on his voluntary recusal from an unrelated case involving Mr. Posner's law firm. Judge Sutula filed a response in which he requests that the affidavit be denied. For the reasons explained below, no basis has been established to order the disqualification of Judge Sutula.
Background
{¶ 3} Mr. Posner is an attorney with the law firm Zashin & Rich Co., L.P.A. Prior to 1994, Judge Sutula was a partner in the firm's predecessor, Zashin, Rich & Sutula, Co., L.P.A. Judge Sutula left the firm in 1994 and took the bench in 2001. Judge Sutula states that after the underlying case was filed in October 2018, he disclosed his prior position at Zashin & Rich and no one objected to his presiding over the matter.
{¶ 4} In August 2020, Judge Sutula recused himself from an unrelated legal-malpractice case involving Zashin & Rich. In his recusal entry, the judge noted that he had revealed to the parties that he had "retirement funds on deposit in the retirement account of Zashin [and] Rich" and that he would have "continuing contact with the appropriate personnel employed by Zashin and Rich" due to his scheduled retirement in about four years. The judge further stated that although he believed he could be fair and impartial, he was recusing himself "out of an abundance of caution."
{¶ 5} Mr. Posner thereafter requested that Judge Sutula also voluntarily recuse himself from the underlying matter. The plaintiff's counsel, however, argued that there was no need for the judge's recusal, that recusal at this stage of the litigation would prejudice the plaintiff, and that Mr. Posner was attempting to forum shop. Judge Sutula advised defense counsel to file an affidavit of disqualification.
{¶ 6} In his affidavit, Mr. Posner states that by recusing himself in the unrelated legal-malpractice case, Judge Sutula implicitly acknowledged that his impartiality might reasonably be questioned based on his financial relationship and anticipated transactional ties to Zashin & Rich. Mr. Posner also notes that in the other case, Zashin & Rich is neither a party nor serving as counsel. Judge Sutula's reasons for recusal, Mr. Posner argues, apply with greater force in the underlying matter, in which Zashin & Rich represents all the defendants and therefore has a more prominent role in the litigation.
{¶ 7} In response, Judge Sutula states that the facts in the legal-malpractice case differ from those here and that his recusal from that matter does not imply that he would be unable to fairly preside over the underlying case. The judge denies any bias in favor of or against Zashin & Rich, and he believes that his retirement account—in which Zashin & Rich has no financial interest and over which it has no control—cannot itself serve as a basis for his disqualification.
Merits of the affidavit of disqualification
{¶ 8} "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. "The reasonable observer is presumed to be fully informed of all the relevant facts in the record—not isolated facts divorced from their larger context." In re Disqualification of Gall, 135 Ohio St.3d 1283, 2013-Ohio-1319, 986 N.E.2d 1005, ¶ 6. In deciding a disqualification request, "[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.
{¶ 9} Mr. Posner has not set forth a compelling reason for disqualifying Judge Sutula to avoid an appearance of bias. First, an objective observer would not question Judge Sutula's impartiality based merely on his relationship with Zashin & Rich. "[I]t is well established that absent circumstances in which disqualification is mandated by the Code of Judicial Conduct, a prior professional relationship—such as a law partnership or legal colleagues—between a judge and an attorney 'will not be grounds for disqualification where that relationship ended some years ago.' " In re Disqualification of Park, 142 Ohio St.3d 65, 2014-Ohio-5872, 28 N.E.3d 56, ¶ 7, quoting In re Disqualification of Ward, 100 Ohio St.3d 1211, 798 N.E.2d 1 (2002) (disqualification request denied when judge's professional relationship with an attorney appearing before him ended seven years prior). Judge Sutula left Zashin & Rich over 25 years ago.
{¶ 10} With respect to the retirement account, Judge Sutula states that it is an ERISA retirement plan managed by a third party, that Zashin & Rich has no control over or financial interest in the account, that the funds in the account are interest-bearing only and 100 percent vested with Judge Sutula, and that since 1994, there have been no contributions to or withdrawals from the account. Based on Judge Sutula's description of the account, an objective observer would have no reason to question his impartiality merely because Zashin & Rich is counsel in a case before the judge. This not a situation in which Judge Sutula is receiving payments from his former law firm. Nor is there any indication that the success of Judge Sutula's retirement account is connected to the success of Zashin & Rich. And Mr. Posner has failed to allege—let alone establish—that the existence of the retirement account means that Judge Sutula has an economic interest in Zashin & Rich warranting the judge's removal.
{¶ 11} Second, the fact that Judge Sutula recused himself from the legal-malpractice case does not require his removal from the underlying matter. In general, a judge's voluntary recusal from an earlier case involving a particular attorney or law firm does not automatically require the judge's disqualification from all other cases involving that attorney or firm. See In re Disqualification of Saffold, 159 Ohio St.3d 1210, 2020-Ohio-1530, 148 N.E.3d 602, ¶ 6. "However, it is also well-settled that 'a trial judge cannot, without reasonable justification, recuse himself from a number of cases involving an attorney but at substantially the same time decline to recuse himself from an indistinguishable case involving that same attorney.' " Id., quoting In re Disqualification of Hurley, 142 Ohio St.3d 1278, 2014-Ohio-5874, 33 N.E.3d 59, ¶ 6; see also In re Disqualification of Burge, 138 Ohio St.3d 1271, 2014-Ohio-1458, 7 N.E.3d 1211, ¶ 8 ("Once [the judge] had recused himself from all of [an assistant prosecutor's] cases, he could not then pick and choose, without reasonable justification, which cases involving [the assistant prosecutor] to hear").
{¶ 12} Judge Sutula has explained why he believes that the facts in the legal-malpractice case differ from those here—namely, representatives of Zashin & Rich may be witnesses in the other action and after the judge disclosed his connections with Zashin & Rich, the party adverse to the law firm requested the judge's recusal. Under those circumstances, the judge concluded that his recusal was appropriate. But Judge Sutula states that in the underlying case, Zashin & Rich has known about his connections with their law firm for two years and had no objections until his recusal from the unrelated matter. The judge further points to the fact that the underlying plaintiff—the party who would typically be concerned about the prejudicial impact of a judge with alleged financial ties to opposing counsel—has requested that Judge Sutula remain on the case. Based on this record, Judge Sutula has sufficiently explained how the underlying matter is distinguishable from the circumstances in the other case. See Saffold at ¶ 6-9 (disqualifying a judge for failing to sufficiently explain her decision to preside over a case involving an attorney whose cases she had previously recused from).
{¶ 13} The affidavit of disqualification is denied. The case may proceed before Judge Sutula.
See Employee Retirement Income Security Act of 1974, 29 U.S.C. 1001 et seq.