Opinion
No. 19-AP-083
07-18-2019
IN RE Disqualification of MUENCH-MCELFRESH. The State of Ohio v. Rarden.
{¶ 1} Defendant Lonnie Rarden has filed an affidavit with the clerk of this court pursuant to R.C. 2701.03 seeking to disqualify Judge Jennifer Muench-McElfresh from presiding over any further proceedings in the above-referenced cases. This is the second affidavit of disqualification that Mr. Rarden has filed against Judge Muench-McElfresh in these matters. His first affidavit was denied in an entry dated January 22, 2018. In re Disqualification of Muench-McElfresh , 155 Ohio St.3d 1205, 2018-Ohio-5463, 120 N.E.3d 1. The cases are pending on Mr. Rarden's most recent motion to correct an illegal sentence.
{¶ 2} Mr. Rarden primarily claims that Judge Muench-McElfresh's disqualification is necessary based on information he discovered on the judge's Facebook page. Mr. Rarden also claims that the judge has a practice of "copying, cutting and pasting" language in her decisions denying his various postconviction motions.
{¶ 3} Judge Muench-McElfresh has thoroughly responded to Mr. Rarden's allegations and believes that she has complied with the law and her professional obligations.
{¶ 4} A judge must ensure that his or her social-media activity complies with the Code of Judicial Conduct. See Board of Commissioners on Grievances and Discipline Opinion No. 2010-7, syllabus (Dec. 3, 2010). Here, Mr. Rarden has failed to establish that Judge Muench-McElfresh's Facebook page requires her disqualification. Mr. Rarden claims that the judge's list of Facebook "friends" includes people connected to the underlying case or his previous misdeeds. For example, Mr. Rarden claims that the judge is Facebook friends with a witness who testified at Mr. Rarden's trial. To support the judge's disqualification, Mr. Rarden attached a newspaper article about a Wisconsin custody case in which a new judge was assigned after the original trial-court judge had accepted a Facebook friend request from one of the parties while the matter was pending before him. In response, Judge Muench-McElfresh states that she did not preside over the defendant's 2007 trial and that she does not know whether the individual that Mr. Rarden identified on her list of Facebook friends is the same person who allegedly testified at his trial.
{¶ 5} Based on this record, there is no reason to question Judge Muench-McElfresh's ability to fairly and impartially decide the pending postconviction motion. The facts here are clearly distinguishable from the Wisconsin matter cited in Mr. Rarden's affidavit. Judge Muench-McElfresh did not preside over Mr. Rarden's 2007 trial, and there is no suggestion that his pending motion is in any way related to the credibility or testimony of the person he claims is a Facebook friend of Judge Muench-McElfresh. "The 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." (Citation omitted.) In re Disqualification of George , 100 Ohio St.3d 1241, 2003-Ohio-5489, 798 N.E.2d 23, ¶ 5. Those presumptions have not been overcome in this case.
{¶ 6} In addition, if Mr. Rarden is dissatisfied with Judge Muench-McElfresh's legal reasoning in her recent decisions, he may file an appeal. Indeed, the judge notes that the defendant has already appealed several of her decisions. But it is well established that a judge's adverse rulings are not evidence of bias or prejudice and therefore not grounds for disqualification. In re Disqualification of D'Apolito , 139 Ohio St.3d 1230, 2014-Ohio-2153, 11 N.E.3d 279, ¶ 5.
{¶ 7} The affidavit of disqualification is denied.