In re Disqualification of Burge
138 Ohio St. 3d 1271
Ohio2014Background
- Prosecutors Dennis Will and Anthony Cillo filed an affidavit under R.C. 2701.03 to disqualify Judge James M. Burge from a three-judge panel in a capital case (State v. Jackson).
- Earlier, Judge Burge entered a blanket recusal: he recused himself from all cases assigned to Cillo (including three pending matters and a death-penalty case) without giving a reason.
- Despite that blanket entry, when randomly selected to sit on the three-judge panel for Jackson (with Judge Miraldi presiding), Burge agreed to serve.
- Will and Cillo alleged Burge’s participation created an appearance of impropriety and possible bias; they sought disqualification of Burge from the panel.
- Burge responded that his blanket recusal was motivated by concerns about government inefficiency, the time spent litigating recusals, and delays in Cillo’s cases; he also argued his role on a three-judge panel was only as a trier of fact and thus distinguishable.
- The Ohio Supreme Court reviewed whether Burge’s selective participation, after a blanket recusal, created an appearance problem requiring disqualification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a judge who has issued a blanket recusal from all cases assigned to a particular prosecutor may nonetheless serve on some such cases without explanation | Burge’s attempt to serve on the panel despite his blanket recusal creates an appearance of impropriety and requires disqualification | The blanket recusal was for administrative reasons (time, delays); serving on a three-judge panel is distinguishable because his role would be limited | Judge Burge’s unexplained selective participation after a blanket recusal creates the appearance of impropriety; disqualified |
| Whether a judge’s role on a three-judge capital panel is sufficiently diminished to justify exception to a blanket recusal | N/A (part of plaintiffs’ overall appearance claim) | The judge claimed his panel role was limited to fact-finding and thus different from being the presiding judge | The court held a judge’s role on such a panel is significant (including unanimous verdict requirement) and not a valid distinction |
| Whether appearance of bias (as opposed to proven actual bias) suffices for disqualification under R.C. 2701.03 | Appearance of bias harms public confidence and warrants disqualification | N/A | Appearance of bias alone is sufficient; disqualification appropriate to preserve public confidence |
| Whether the judge may later withdraw the blanket recusal if circumstances change | N/A | Judge may rescind recusal later if grounds no longer exist | Court noted withdrawal is possible in the future but did not permit selective participation now |
Key Cases Cited
- In re Disqualification of Corrigan, 110 Ohio St.3d 1217 (2005) (recusal doctrine requires not only actual impartiality but appearance of impartiality)
- In re Disqualification of Murphy, 110 Ohio St.3d 1206 (2005) (appearance of bias can damage public confidence as much as actual bias)
- Selkridge v. United of Omaha Life Ins. Co., 360 F.3d 155 (3d Cir. 2004) (a judge cannot recuse from many similar cases and simultaneously choose to hear others without explanation)
- In re Disqualification of Saffold, 134 Ohio St.3d 1204 (2010) (disqualification appropriate where public confidence in judicial integrity is at stake)
- In re Disqualification of Celebrezze, 135 Ohio St.3d 1218 (2012) (a judge may later withdraw a recusal if circumstances change)