In re Disqualification of Burge, 142 Ohio St. 3d 57

Background

Lorain County Prosecutor Dennis P. Will filed an affidavit under R.C. 2701.03 seeking to disqualify Judge James M. Burge from all matters where the prosecutor’s office appears (276 criminal, 4 civil). This was Will’s sixth disqualification effort concerning Burge.
Will alleged a wide range of misconduct and bias: threatening/intimidating behavior toward assistant prosecutors, sexually inappropriate and disparaging remarks, offensive public comments, and retaliatory conduct. Many alleged incidents dated back several years.
Judge Burge denied bias; both parties submitted multiple written filings and numerous third-party affidavits. A video of one alleged intimidating incident was produced.
The chief justice framed the proceeding narrowly: the question is whether Burge is biased in a way that materially impairs fair adjudication in cases involving the prosecutor’s office, not whether Burge violated the Code of Judicial Conduct (which is for separate grievance processes).
The chief justice found many allegations either untimely (waived), outside the scope of a disqualification proceeding, or insufficient to show bias manifesting in official duties; the affidavit of disqualification was denied.

Issues

Issue	Will's Argument	Burge's Argument	Held
Timeliness / Waiver	Will asserted various past incidents show ongoing bias and justified current filing	Burge argued many claims date from years earlier and were not raised promptly	Court: Affidavit must be filed promptly; several older incidents were waived for untimeliness
Scope: misconduct vs disqualification	Will relied on numerous alleged Code of Judicial Conduct violations to show disqualifying bias	Burge: many allegations are irrelevant to bias; misconduct complaints belong to disciplinary process	Court: Disqualification review is limited to whether bias affects judge’s official duties; many allegations outside scope
Alleged threats / intimidation (Riedthaler incidents)	Will claimed physical safety fears after two recent incidents, supported by prosecutor affidavits	Burge denied threats; video evidence inconsistent with some claims; defense affidavits contradicted fear element	Court: Incidents may be intemperate but do not establish bias against prosecutor’s office or threats sufficient to disqualify from all cases
Sexual / disparaging comments and letters	Will asserted sexualized and demeaning comments toward female APAs and hostile letters showing animus toward the prosecutor	Burge admitted some inappropriate remarks but disputed others; letters show bad relationship but not biased performance	Court: Remarks unprofessional and cause for concern but conflicting evidence and lack of proof that conduct materially affected official duties; disqualification denied

Key Cases Cited

In re Disqualification of Kate, 88 Ohio St.3d 1208 (1999) (chief justice’s role in disqualification is limited to whether judge’s bias requires removal from a case)
In re Disqualification of Sutula, 105 Ohio St.3d 1237 (2004) (review focuses on judge’s willingness and ability to serve fairly and impartially)
In re Disqualification of Capper, 134 Ohio St.3d 1271 (2012) (affidavit-of-disqualification is not the mechanism for adjudicating Code of Judicial Conduct violations)
In re Disqualification of O’Grady, 77 Ohio St.3d 1240 (1996) (affidavit must be filed promptly; delay may constitute waiver)
In re Disqualification of Carr, 138 Ohio St.3d 1237 (2013) (affiant bears burden to show timeliness of affidavit)
In re Disqualification of George, 100 Ohio St.3d 1241 (2003) (disqualification is extraordinary relief and standard is high for removing judge from entire docket)
In re Disqualification of Olivito, 74 Ohio St.3d 1261 (1994) (even egregious public comments do not warrant blanket removal absent proof they affected the judge’s official duties)
In re Disqualification of Walker, 36 Ohio St.3d 606 (1988) (vague or unsubstantiated allegations insufficient for a finding of bias or prejudice)