Opinion
No. 19-AP-136
11-20-2019
IN RE DISQUALIFICATION OF NAVARRE. The State of Ohio v. Besteder.
{¶ 1} Defendant Benjamin Besteder Jr., an inmate at the Ross Correctional Institution, has filed an affidavit pursuant to R.C. 2701.03 seeking to disqualify Judge Lindsay D. Navarre from the above-referenced case.
Although Mr. Besteder cited his court-of-appeals case number (L-13-1257) in his affidavit, it is clear that he is attempting to disqualify Judge Navarre, the judge assigned to his trial-court case. Therefore, the appropriate common pleas case number has been substituted for purposes of resolving Mr. Besteder's disqualification request.
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{¶ 2} Mr. Besteder claims that Judge Navarre must be disqualified because she prosecuted him in the case before she became a judge.
{¶ 3} Judge Navarre filed a response to the affidavit and admits that she served as the prosecutor in the case before her 2016 election to judicial office. The judge also acknowledges that when she took the bench, the matter was transferred to her docket. However, the judge further states that the case has been inactive during her entire tenure on the bench and therefore, nothing had prompted her to recuse herself. If the case becomes active, the judge states, she will recuse herself so that it may be reassigned to another judge.
{¶ 4} The chief justice's statutory authority to disqualify judges extends only to those matters in which "a proceeding [is] pending before the court." R.C. 2701.03(A). "[T]he chief justice cannot rule on an affidavit of disqualification when * * * nothing is pending before the * * * court." In re Disqualification of Hayes , 135 Ohio St.3d 1221, 2012-Ohio-6306, 985 N.E.2d 501, ¶ 6. Here, Mr. Besteder failed to identify any matter currently pending before the judge he seeks to disqualify, and the trial-court docket indicates that his case has been inactive since 2014. On this record, there is no statutory or practical basis to order Judge Navarre's disqualification from an inactive case. See, e.g. , In re Disqualification of Selvaggio , 156 Ohio St.3d 1301, 2019-Ohio-1826, 128 N.E.3d 264, ¶ 4 ("The chief justice will not decide an affidavit of disqualification based merely on the possibility of a remand from the court of appeals").
{¶ 5} However, it is important to note that Jud.Cond.R. 2.11(A)(7) requires a judge who formerly served as a government attorney to disqualify himself or herself from any particular matter in which he or she personally and substantially participated as a government attorney. "Accordingly, a judge cannot preside over a case in which the judge previously served as the prosecutor." In re Disqualification of Selvaggio , 153 Ohio St.3d 1201, 2017-Ohio-9436, 100 N.E.3d 413, ¶ 4. If the underlying case becomes active in any way, Judge Navarre must immediately recuse herself, as Jud.Cond.R. 2.11(A)(7) requires. {¶ 6} The affidavit of disqualification is denied.