Opinion
No. 20-AP-066
09-14-2020
IN RE DISQUALIFICATION OF HARRIS. The State of Ohio v. Wells.
{¶ 1} Richard R. Danolfo, counsel for the defendant, has filed an affidavit pursuant to R.C. 2701.03 seeking to disqualify Judge Thomas E. Harris from the above-referenced cases, now pending for trial.
{¶ 2} Mr. Danolfo asserts that Judge Harris participated in drug-court team meetings before he formally took over supervision of the drug court and that based on information he learned in those team meetings, he denied the defendant's request to enter the county's drug-court program. Mr. Danolfo also avers that Judge Harris demonstrated bias against the defendant at a recent hearing or that an objective observer would question the judge's impartiality because of his conduct at that hearing. {¶ 3} Judge Harris filed a response to the affidavit in which he explains his reasons for denying the defendant's request to enter the drug-court program. The judge also notes that while preparing to become a drug-court judge, he attended drug-court team meetings, even before he was formally appointed to supervise the program. Judge Harris affirms that he will have no problem providing the defendant with a fair and impartial jury trial in the underlying cases.
{¶ 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. Mr. Danolfo has not established that Judge Harris has hostility toward the defendant or that he has formed a fixed anticipatory judgment on any issue in the underlying matters. Nor has Mr. Danolfo set forth a compelling argument for disqualifying Judge Harris to avoid an appearance of partiality.
{¶ 5} As previously explained, "[t]he Code of Judicial Conduct contemplates that a judge who administers a specialized docket assumes a more interactive role with parties, treatment providers, probation officers, social workers, and others." In re Disqualification of Yost , 155 Ohio St.3d 1266, 2018-Ohio-5257, 121 N.E.3d 382, ¶ 4, citing Jud.Cond.R. 2.9, Comment 4A (recognizing that a judge may initiate, receive, permit, or consider ex parte communications when administering a specialized docket). Therefore, the fact that a judge may have been exposed to certain information about a participant in or applicant to a specialized-docket program—information that the judge may not have learned in the more traditional judicial forum—does not automatically require the judge's disqualification from matters involving the participant or applicant. "In these situations, the ability of a judge to preside fairly and impartially in a particular matter ‘must be analyzed on a case-by-case basis.’ " Id. , quoting In re Disqualification of Blanchard , 150 Ohio St.3d 1260, 2017-Ohio-5543, 80 N.E.3d 504, ¶ 5.
{¶ 6} According to Judge Harris, the three judges of the Ashtabula County Court of Common Pleas agreed that he should attend drug-court team meetings for several weeks in advance of his official appointment on July 24, 2020. Mr. Danolfo has failed to sufficiently explain why Judge Harris's attendance at those team meetings is a determinative factor in the disqualification request. Under these unique circumstances, the fact that Judge Harris, in his role as the drug-court judge or while preparing to become the drug-court judge, may have been exposed to ex parte information about the defendant would not cause an objective observer to question the judge's ability to fairly and impartially preside over the upcoming trial. Nor has Mr. Danolfo established that the information that the judge heard about the defendant was so prejudicial that the likelihood of bias or an appearance of bias would be unacceptably high. See Blanchard at ¶ 5 ("a judge could be exposed to such highly prejudicial information in a [litigant's] drug-court hearings that the likelihood of bias or an appearance of bias in [a different proceeding] would be unacceptably high"). And a review of the transcript of the recent hearing does not establish that Judge Harris has hostility toward the defendant or has formed a fixed anticipatory judgment on any issue for trial.
{¶ 7} "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 here.
{¶ 8} The affidavit of disqualification is denied. The cases may proceed before Judge Harris.