In re Disqualification of Fuerst
984 N.E.2d 1079
Ohio2012Background
- Mason, Cuyahoga County Prosecuting Attorney, filed an affidavit under R.C. 2701.03 seeking to disqualify Judge Nancy Fuerst from SD-12-076919.
- Mason alleged Judge Fuerst had a fixed anticipatory judgment and demonstrated bias by assigning the matter to herself contrary to Sup.R. 36(B).
- Fuerst replied denying bias and prejudice and contending the accusations misstate her actions.
- Judge Donnelly had earlier requested a special prosecutor to investigate Adrienne Smith for perjury in State v. Shouman; Mason initially indicated no need for a special prosecutor.
- Fuerst appointed former Judge Robert Glickman as special prosecutor on April 26 to investigate perjury and potential charges, without a hearing.
- Mason sought writ relief; Fuerst later rescinded the appointment and scheduled a hearing; Mason then filed the present affidavit seeking disqualification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fuerst's appointment of a special prosecutor without notice shows prejudgment. | Mason argues prejudgment by Fuerst. | Fuerst argues adverse rulings are not bias and appointment was within discretion. | No prejudgment; insufficient bias shown. |
| Whether Fuerst violated Sup.R. 36(B) by self-assignment of the matter. | Mason claims improper random assignment/ bias. | Fuerst's role in assignment is not a disqualifying bias issue and is not appropriate for affidavit. | Not a basis for disqualification. |
| Whether Mason's June 7 rebuttal letter and lack of oath affect the validity of the affidavit process. | Mason argues the letter evidences bias and visiting-judge concerns. | R.C. 2701.03 requires sworn affidavits; letters without oath are nullities. | Rebuttal letter deemed nullity; no effect on proceedings. |
Key Cases Cited
- In re Disqualification of Floyd, 101 Ohio St.3d 1217 (2003-Ohio-7351) (adverse rulings are not evidence of bias)
- In re Disqualification of Solovan, 100 Ohio St.3d 1214 (2003-Ohio-5484) (affidavit not vehicle to contest procedural law)
- In re Disqualification of Russo, 110 Ohio St.3d 1208 (2005-Ohio-7146) (affidavit must address bias or disqualification; merits not reviewable here)
- In re Disqualification of Griffin, 101 Ohio St.3d 1219 (2003-Ohio-7356) (affidavit not proper vehicle to challenge compliance with rules)
- In re Disqualification of George, 100 Ohio St.3d 1241 (2003-Ohio-5489) (presumption of impartiality stands unless compelling appearance of bias)