Opinion
No. 19-AP-147
01-16-2020
IN RE DISQUALIFICATION OF KERENYI. The State of Ohio v. Richards.
{¶ 1} Defendant Kendall Richards has filed an affidavit pursuant to R.C. 2701.03 seeking to disqualify Judge Mark Kerenyi from the above-referenced case. According to Judge Kerenyi, after Mr. Richards entered a guilty plea—but prior to sentencing—the underlying case was transferred to Judge Kerenyi's docket because the original judge had retired and that judge's successor had a conflict.
Allegations in the affidavit
{¶ 2} Mr. Richards claims that Judge Kerenyi is biased against him and that the judge's removal is necessary to avoid any appearance of partiality. According to Mr. Richards, the judge and the alleged victim have significant connections, including that (1) the judge and the victim are Facebook "friends," (2) the victim is a former county commissioner who has personal and political connections to Judge Kerenyi and influence over the common pleas court, (3) the victim contributed to Judge Kerenyi's campaign for judicial office, and (4) the victim's son is a director of a county agency and in that capacity worked closely with Judge Kerenyi for over a decade. Mr. Richards also alleges that Judge Kerenyi and Mr. Richards's attorney have engaged in "numerous ex parte communications" and that the judge has subjected Mr. Richards to "coercive tactics, arbitrary change of pleas, and due process deprivations."
{¶ 3} Judge Kerenyi filed a response to the affidavit in which he denies any bias against Mr. Richards and denies having any special relationship with the victim. The judge states that he has "unfriended" the victim on Facebook and that regardless, the judge has over 1,400 Facebook "friends," so that status does not convey any significant connection with the court. The judge acknowledges that almost 40 years ago, the victim served as a county commissioner—although Judge Kerenyi states that he was previously unaware of that fact. The judge further acknowledges that he and the victim are members of the same political party and have occasionally attended the same party-sponsored events. But the judge denies that the victim contributed to the judge's campaign for judicial office and denies that the victim has any influence over the court. The judge also acknowledges that the victim's son is the director of the county children-services agency and that the judge, while he served as a magistrate in the juvenile and probate court, occasionally presided over matters involving that agency. The judge states, however, that he is not unduly influenced by the position of the victim's son. Finally, Judge Kerenyi expressly denies that he engaged in any ex parte communications with Mr. Richards's attorney and states that an assistant prosecutor has been present for all hearings and meetings in the underlying case. The judge also denies that he subjected Mr. Richards to any coercive tactics regarding any attempt to change his plea. Disqualification standard
{¶ 4} In disqualification requests, "[t]he term ‘bias or prejudice’ ‘implies a hostile feeling or spirit of ill-will or undue friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will be governed by the law and the facts.’ " In re Disqualification of O'Neill , 100 Ohio St.3d 1232, 2002-Ohio-7479, 798 N.E.2d 17, ¶ 14, quoting State ex rel. Pratt v. Weygandt , 164 Ohio St. 463, 469, 132 N.E.2d 191 (1956). "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. Finally, in considering 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.
Merits of the affidavit of disqualification
{¶ 5} For the reasons explained below, Mr. Richards has not established that Judge Kerenyi is biased or that an appearance of partiality exists. {¶ 6} First, "the more intimate the relationship between a judge and a person who is involved in a pending proceeding, the more acute is the concern that the judge may be tempted to depart from the expected judicial detachment or to reasonably appear to have done so." In re Disqualification of Shuff , 117 Ohio St.3d 1230, 2004-Ohio-7355, 884 N.E.2d 1084, ¶ 6. Based on this record, Mr. Richards has not offered convincing evidence of a significant professional, political, or personal relationship between Judge Kerenyi and the victim that would suggest that the judge could be tempted to depart from his expected judicial neutrality.
{¶ 7} Standing alone, a judge's Facebook "friendship" with a lawyer, litigant, or other person appearing before the judge does not automatically require the judge's disqualification. See Board of Commissioners on Grievances and Discipline Op. No. 10-007, syllabus (Dec. 3, 2010) ("A judge may be a ‘friend’ on a social networking site with a lawyer who appears as counsel in a case before the judge. * * * There is no bright-line rule: not all social relationships, online or otherwise, require a judge's disqualification"). It is long settled that "the mere existence of a friendship between a judge and an attorney or between a judge and a party will not disqualify the judge from cases involving that attorney or party." In re Disqualification of Bressler , 81 Ohio St.3d 1215, 688 N.E.2d 517 (1997). Because not every relationship characterized as a friendship provides a basis for disqualification, "there is no reason that Facebook ‘friendships’—which regularly involve strangers—should be singled out and subjected to a per se rule of disqualification." Law Offices of Herssein & Herssein, P.A., v. United Servs. Auto. Assn. , 271 So.3d 889, 899 (Fla.2018). Therefore, the same principles that apply to a judge's in-person social relationships apply to the judge's online "friendships," and determining whether a judge should preside over a case involving a Facebook "friend" requires assessing the nature and scope of that particular relationship, combined with all other relevant factors.
That being said, judges must apply extra caution when using social media because their online activity may be easily misconstrued or create an appearance of partiality requiring disqualification. See, e.g. , In re Paternity of B.J.M. , 386 Wis.2d 267, 2019 WI App. 10, 925 N.W.2d 580 (2019) (reversing a custody decision and remanding the case to a new judge because during the pendency of the matter, the original trial judge had accepted an undisclosed Facebook "friend" request from one of the parties and the connection placed the judge in a position to view the party's Facebook activity relating to an issue in the custody case). As the New Mexico Supreme Court correctly advised, "[a] judge's online ‘friendships,’ just like a judge's real-life friendships, must be treated with a great deal of care." State v. Thomas , 2016-NMSC-024, 376 P.3d 184, ¶ 51 (2016) ; see also Gray, Social Media and Judicial Ethics, Part 1 , 39 Judicial Conduct Reporter 1 (Spring 2017) (surveying various state advisory opinions and cases on this issue).
{¶ 8} Here, Judge Kerenyi states that he has over 1,400 Facebook "friends" and that he has "unfriended" the victim "as well as any of his family members on Facebook." If Judge Kerenyi knew that he and the victim were Facebook "friends" when the underlying case was transferred to the judge's docket, the judge probably should have also disclosed that online connection at that time. Regardless, the mere fact that the victim was formerly one of the judge's many Facebook "friends" does not create the appearance that the victim is in a special position to influence the court or cast doubt on Judge Kerenyi's ability to act impartially in the underlying case. And Judge Kerenyi's unfriending the victim should alleviate any concerns that the judge may be in a position to view the victim's Facebook posts or activity on the judge's newsfeed.
The American Bar Association's Standing Committee on Ethics and Professional Responsibility has advised:
When a judge knows that a party, a witness, or a lawyer appearing before the judge has an [electronic social media] connection with the judge, the judge must be mindful that such connection may give rise to the level of social relationship or the perception of a relationship that requires disclosure or recusal.
American Bar Association Standing Committee on Ethics and Professional Responsibility, Formal Opinion No. 13-462, at 3 (Feb. 21, 2013).
{¶ 9} Likewise, none of the other allegations in Mr. Richards's affidavit establish that the judge has a close relationship with the victim. That the judge and the victim are active members of the same political party, without more, does not suggest the appearance of partiality. See In re Disqualification of Gallagher , 155 Ohio St.3d 1251, 2018-Ohio-5428, 120 N.E.3d 853 (a litigant's involvement in local party politics was insufficient to warrant disqualification of judges from the same political party). That the victim served as a county commissioner almost 40 years ago does not show that the victim continues to have influence over the common pleas court. Compare In re Disqualification of Corrigan , 110 Ohio St.3d 1217, 2005-Ohio-7153, 850 N.E.2d 720 (county trial judges disqualified from a case involving a county commissioner who wielded considerable influence over the court's funding and who played a leadership role in local politics). And Mr. Richards failed to substantiate his allegation that the victim contributed to the judge's campaign—although such information is publicly available—and failed to sufficiently explain how Judge Kerenyi's former professional relationship with the victim's son creates an appearance of partiality. In a disqualification request, the burden "falls on the affiant to submit specific allegations and facts to demonstrate that disqualification is warranted." In re Disqualification of DiGiacomo , 157 Ohio St.3d 1225, 2019-Ohio-4432, 134 N.E.3d 1231, ¶ 4. Mr. Richards has failed to meet that burden here.
{¶ 10} Second, "[a]n alleged ex parte communication constitutes grounds for disqualification when there is ‘proof that the communication * * * addressed substantive matters in the pending case.’ " (Ellipsis sic.) In re Disqualification of Forsthoefel , 135 Ohio St.3d 1316, 2013-Ohio-2292, 989 N.E.2d 62, ¶ 7, quoting In re Disqualification of Calabrese , 100 Ohio St.3d 1224, 2002-Ohio-7475, 798 N.E.2d 10, ¶ 2. "The allegations must be substantiated and consist of something more than hearsay or speculation." Id. Mr. Richards has not substantiated his allegation that Judge Kerenyi engaged in any improper ex parte communications with Mr. Richards's attorney. Indeed, the evidence that Mr. Richards submitted with his affidavit—a letter from his attorney—indicates that the assistant prosecutor was present for all meetings regarding Mr. Richards's sentence.
{¶ 11} Third, Mr. Richards's vague allegation that Judge Kerenyi engaged in "coercive tactics" relating to an "arbitrary change of plea" does not require Judge Kerenyi's removal, especially considering that Mr. Richards entered his plea before a different judge. "[V]ague, unsubstantiated allegations of the affidavit are insufficient on their face for a finding of bias or prejudice." In re Disqualification of Walker , 36 Ohio St.3d 606, 522 N.E.2d 460 (1988).
{¶ 12} Given the lack of evidence indicating that Judge Kerenyi has a close personal, political, or professional relationship with the victim, a reasonable and objective observer would have no basis to question Judge Kerenyi's ability to preside over the remainder of this case.
{¶ 13} The affidavit of disqualification is denied. The case may proceed before Judge Kerenyi.