In re Disqualification of Basinger
{18} While Judge Carnes‘s response states that Ertle‘s affidavit includes “misstatements of facts and law,” Judge Carnes has not specifically denied making any of these alleged comments. If the comments were made, they were unnecessary and ill-advised. The Code of Judicial Conduct directs that judges should be “patient, dignified, and courteous” to litigants, lawyers, and others in an official capacity and should refrain from using words or conduct that might manifest bias or prejudice.
{19} However, Ertle did not submit a transcript or other evidence to substantiate any of these alleged “on the record” statements. Because he failed to submit a transcript, there is no way to determine whether the comments were made, the specific word choice and context in which they were allegedly made, or whether the comments reflect judicial bias or prejudice against Ertle or Brawley. “The statutory right to seek disqualification of a judge is an extraordinary remedy * * *.” In re Disqualification of Hunter, 36 Ohio St.3d 607, 608, 522 N.E.2d 461 (1988). Because Ertle has not submitted any evidentiary support, he has not established that he is entitled to such a remedy. His averments alone are insufficient to convey a conviction that Judge Carnes has developed a “hostile feeling or spirit of ill will” or reached a “fixed anticipatory judgment” that will prevent him from presiding over the remaining issues in the case with an “open state of mind * * * governed by the law and the facts.” State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 469, 132 N.E.2d 191 (1956).
{110} For the reasons stated above, the affidavit of disqualification is denied. The case may proceed before Judge Carnes.
{11} Paul R. Bonfiglio, counsel for defendant Dylan Brinkman, has filed an affidavit with the clerk of this court under
{12} Bonfiglio claims that Judge Basinger‘s participation in the underlying civil action creates an appearance of bias because the judge had presided over a separate criminal matter based on the same set of facts. According to the affidavit, Brinkman and the prosecutor in that criminal case negotiated a plea agreement in which Brinkman agreed to enter a plea to a third-degree felony and the prosecutor agreed to dismiss a more serious charge and to recommend a sentence of three years of community control with 180 days’ incarceration. Judge Basinger accepted Brinkman‘s plea of no contest, but he sentenced Brinkman to a three-year term of imprisonment. Bonfiglio claims that Judge Basinger‘s refusal to accept the prosecutor‘s recommended sentence—and the fact that Judge Basinger was privy to information, “including victim impact statements, probation and presentence reports,” that he would not have reviewed in the usual civil case—have created an appearance of bias or partiality requiring the judge‘s disqualification.
{13} Judge Basinger has responded in writing to the concerns raised in the affidavit, stating that his prior participation in the criminal case, the sentence he imposed, and his access to certain information do not “create any bias or prejudice with the Court necessitating that [he] step aside” in the civil case. In addition, Judge Basinger has provided a copy of the plaintiffs’ civil complaint in the underlying case, which includes a jury demand.
{14} For the following reasons, no basis has been established to order the disqualification of Judge Basinger.
{15} First, it is well established that “a judge‘s participation in the trial of a prior cause, during which the judge acquired knowledge of the facts of the underlying case, does not require disqualification.” In re Disqualification of Krichbaum, 81 Ohio St.3d 1205, 1206, 688 N.E.2d 511 (1997). What a judge
{16} Second, the fact that Judge Basinger rejected the prosecutor‘s recommended sentence in the criminal case does not establish bias requiring disqualification in the civil matter. Trial courts may reject plea agreements, and “they are not bound by a jointly recommended sentence.” State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 28. Accordingly, Judge Basinger‘s ultimate sentencing decision was a matter within his discretion and does not establish bias or prejudice. See In re Disqualification of Economus, 74 Ohio St.3d 1230, 1231, 657 N.E.2d 1340 (1991) (judge‘s refusal to accept plea agreement is not grounds for disqualification). Further, Bonfiglio has not alleged—let alone established—that Judge Basinger‘s sentencing decision was based on anything other than the law and facts before him; and regardless of that concern, the validity of that sentence cannot be litigated in an affidavit-of-disqualification proceeding. See In re Disqualification of Russo, 110 Ohio St.3d 1208, 2005-Ohio-7146, 850 N.E.2d 713, ¶ 6.
{17} Finally, the totality of the circumstances here does not create an appearance of impropriety requiring disqualification. “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. See In re Disqualification of Carr, 105 Ohio St.3d 1233, 2004-Ohio-7357, 826 N.E.2d 294, ¶ 17 (concluding that a “reasonable person who knows all the facts would not find any appearance of impropriety“); Flamm,
{18} To be sure, a judge who presides in two proceedings with the same party and the same facts has a duty to consider the requirements of
{19} For the reasons stated above, the affidavit of disqualification is denied. The case may proceed before Judge Basinger.