In re Disqualification of Burge
O‘CONNOR, C.J.
{¶ 1} Anthony Cillo, counsel for the state in the above-captioned cases, has filed two affidavits under
{¶ 2} Cillo claims that his “complex and often contentious history” with Judge Burge, combined with the judge‘s recent public comments regarding Cillo‘s involvement in an alleged disciplinary investigation of the judge, have created an appearance of impropriety requiring the judge‘s disqualification. Cillo also alleges that Judge Burge has expressed a fixed anticipatory judgment in the State v. Jalowiec proceedings.
{¶ 4} For the reasons explained below, Judge Burge is disqualified from presiding over the Jalowiec proceeding, but Cillo‘s request for a blanket order of disqualification in all other current and future cases is denied.
State v. Jalowiec
{¶ 5} The Jalowiec case is pending on the defendant‘s motion for a new trial. Cillo alleges that Judge Burge expressed an opinion on that motion and therefore should be removed. In support of the allegation, Cillo submits the affidavit of Nick J. Hanek, an assistant prosecuting attorney assigned to Judge Burge‘s courtroom. Hanek avers that after Cillo moved for Judge Burge to voluntarily recuse himself from the Jalowiec case, the judge commented to Hanek: “He [Anthony Cillo] thinks that I would make a ruling based on him when there‘s a man who certainly deserves a new trial.” Judge Burge denies making the statement, declaring that he “never expressed to any assistant prosecutor, including the assistant prosecutor assigned to [his] court, or to anyone else, that Jalowiec is entitled to be granted a new trial.”
If a judge‘s words or actions convey the impression that the judge has * * * reached a “fixed anticipatory judgment” that will prevent the judge from presiding over the case with “an open state of mind * * * governed by the law and the facts,” State ex rel. Pratt v. Weygandt (1956), 164 Ohio St. 463, 469, 58 O.O. 315, 132 N.E.2d 191, then the judge should not remain on the case. In re Disqualification of Synenberg, 127 Ohio St.3d 1220, 2009-Ohio-7206, 937 N.E.2d 1011, ¶ 24. Here, the record contains conflicting affidavits regarding whether Judge Burge made this statement to Hanek. Typically, such conflicting evidence is insufficient to overcome the presumption of a judge‘s impartiality. See, e.g., id. at ¶ 25 (“in the wake of the conflicting stories presented here, I cannot conclude that the judge should be removed * * *“).
{¶ 7} “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 language used by Judge Burge in his media statements could cause the reasonable and objective observer to conclude that the judge has become Cillo‘s adversary, thereby creating a possibly intolerable atmosphere between the judge and the prosecutor in the courtroom. See Flamm, Judicial Disqualification, Section 15.7, 435 (2d Ed.2007). This public dispute cannot be allowed to overshadow the pending Jalowiec case, which has already endured a stay of the scheduled hearing for this affidavit-of-disqualification proceeding. “When the case becomes about the judge rather than the facts of the case and the law, it is time for the judge to step aside,” In re Disqualification of Saffold, 134 Ohio St.3d 1204, 2010-Ohio-6723, 981 N.E.2d 869, ¶ 2, or, as in this case, it is time for the judge to be removed when he refuses to step aside.
{¶ 9} Reassignment of the case to a new judge, however, should not be interpreted as implying that Judge Burge actually expressed an opinion in the proceeding, holds a personal bias against Cillo, or engaged in any unethical conduct. Judge Burge steadfastly denies making the alleged comment to Hanek, and it is quite possible that there was a misunderstanding of what was said and meant. Nevertheless, even in cases in which no evidence of actual bias or prejudice is apparent, disqualification is often necessary to avoid the appearance of impropriety and to ensure the parties’ and the public‘s “absolute confidence in the fairness of [the] proceedings.” In re Disqualification of Sheward, 77 Ohio St.3d 1258, 1260, 674 N.E.2d 365 (1996); see also Saffold at ¶ 6 (disqualification appropriate when the “public‘s confidence in the integrity of the judicial system is at stake“).
{¶ 10} Accordingly, Judge Burge is disqualified from the Jalowiec case to avoid even the appearance of impropriety.
Cillo‘s requested blanket order of disqualification
{¶ 11} In support of his request for a blanket order of disqualification, Cillo claims that prior to Judge Burge taking the bench, he and the judge opposed each other in high-profile, tension-filled cases, some of which resulted in Cillo moving for sanctions against then-attorney Burge. Cillo alleges that after Judge Burge was elected to judicial office, the relationship “became even more fraught with tension.” For example, Cillo asserts that in 2007, the judge entered an order finding him in contempt, a decision later criticized by an appellate court judge, and in 2011, Judge Burge made questionable evidentiary rulings in a three-judge death-penalty proceeding. Cillo‘s supplemental affidavit lists more recent judicial conduct that Cillo labels “less than professional.”
{¶ 13} Cillo‘s arguments are unconvincing. Judges are presumed to be capable of putting aside old disagreements with former opposing counsel and attorneys appearing before them, and nothing in Cillo‘s affidavits would lead a reasonable person to conclude that Judge Burge has developed such a strong personal bias against Cillo—based on their history—that the judge would be unable to preside fairly over cases involving him. And as for Judge Burge‘s recent comment to the parole board, it is a stretch to interpret the comment as suggesting that Cillo “lied” to investigators. Similarly, the comment does not demonstrate that Cillo will be a witness against the judge in a disciplinary proceeding—mostly because there is no evidence that a formal disciplinary complaint has been filed. At this point, Cillo‘s claims are based on speculation and are therefore insufficient to establish bias or an appearance of bias. In re Disqualification of Flanagan, 127 Ohio St.3d 1236, 2009-Ohio-7199, 937 N.E.2d 1023, ¶ 4 (“Allegations that are based solely on hearsay, innuendo, and speculation * * * are insufficient to establish bias or prejudice“).
{¶ 15} Similarly, In re Disqualification of O‘Neill, 100 Ohio St.3d 1226, 2002-Ohio-7476, 798 N.E.2d 12, does not support the conclusion that an appearance of impropriety exists here. In O‘Neill, the affiant was a witness to alleged judicial misconduct “contained in the pending disciplinary complaint” against the judge, and there was a strong indication that the affiant would be the “subject of vigorous cross-examination by [the judge‘s] counsel regarding [affiant‘s] perception of the events alleged in the disciplinary complaint.” Id. at ¶ 5. In addition, Judge O‘Neill characterized the disciplinary charges against her as “politically motivated,” and she had been publicly critical of the individuals involved in the disciplinary matters. Id. Except for Judge Burge‘s publicly critical comments of Cillo, the record here is devoid of any of these same facts. Most important, there is no evidence of a pending disciplinary complaint against Judge Burge, and therefore it remains speculative whether Cillo would ever be involved in a disciplinary matter against the judge or subjected to his cross-examination.
{¶ 16} At bottom, there is no doubt that Cillo—rightly or wrongly—sincerely believes that an appearance of impropriety exists, and “[i]t is of vital importance that the litigant should believe that he will have a fair trial.” State ex rel. Turner v. Marshall, 123 Ohio St. 586, 587, 176 N.E. 454 (1931). That principle, however, must be balanced against the rule that “[t]he 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). The significance of that remedy is heightened here because Cillo acts as counsel of record in all capital cases in Lorain County and “handles the cases where the most serious crimes have been perpetrated.” Accordingly, Cillo‘s requested remedy will effectively remove Judge Burge from presiding over all capital cases and other serious criminal matters. At this point, Cillo‘s speculative allegations are insufficient to issue such an extraordinary remedy.
Conclusion
{¶ 18} Two of Cillo‘s cases remain pending before Judge Burge: State v. Weber and State v. Fine. Unlike the Jalowiec case, Cillo did not set forth any specific allegations of bias or prejudice relating to these cases. Judge Burge states that the parties in Weber are attempting to resolve the case without trial, and the docket in Fine indicates that a trial is scheduled for August 2013. It is expected that by that time, Judge Burge and Cillo will have worked to improve their professional relationship to reassure the citizens of Lorain County of the fairness of their justice system. The public deserves that from its public officials.
{¶ 19} For the reasons explained above, Cillo‘s affidavit of disqualification is granted with respect to the State v. Jalowiec case, and it is ordered that Judge Burge participate no further in those proceedings. The assignment of another judge will be addressed in a separate entry.
{¶ 20} Cillo‘s affidavit with respect to the Weber and Fine cases is denied, and those cases may proceed before Judge Burge. Cillo‘s request for a blanket order of disqualification is denied.