Recusal & Disqualification of Judges in Ohio
The first rule of the Ohio Supreme Court’s Rules for the Government of the Bar of Ohio provides that Ohio’s Canons of Judicial Ethics are binding on all judicial officers of the state, and a few Ohio judicial disqualification motions have been decided with reference to these Canons. Generally speaking, however, the disqualification of an Ohio Court of Common Pleas judge is controlled by a statute, Ohio Rev. Code §2701.03, which specifies the procedure for disqualifying an Ohio Common Pleas court judge, and appears to provide the exclusive means by which a litigant may claim that such a judge is biased.
This statute is unusual in that, while a motion to disqualify a Common Pleas judge may be directed to the challenged judge herself in the first instance, a party is not required to do this. On the contrary, Article IV, §5(C) of the Ohio Constitution vests the Chief Justice of the Ohio Supreme Court with the authority, as well as the exclusive jurisdiction, to determine whether a judge of the Court of Common Pleas is biased or otherwise subject to disqualification. In Ohio, therefore, disqualification of a Court of Common Pleas judge is required only after the matter has been passed upon by the Chief Justice of the Ohio Supreme Court (or his designee).
In Ohio, the exclusive procedure for seeking disqualification of a municipal or county court judge is set forth in R.C. 2701.031. Just as motions to disqualify Common Pleas court judges are typically decided by the Chief Justice of the Ohio Supreme Court, a motion to disqualify an Ohio municipal or county court judge is typically decided not by the challenged judge, or by another county or municipal court judge, but by the presiding judge of the in which the challenged municipal or county court judge is located. Ohio’s appellate courts typically play no part in determining whether a any lower court judge should be disqualified.
In Ohio, as in other jurisdictions, a judge is supposed to recuse himself not only when he is actually biased, but when he might appear to be. However, the standpoint for determining whether an Ohio judge appears to be biased is not altogether clear. Whereas, in most jurisdictions, this determination is made from the standpoint of a reasonable objective observer – not the subjective point of view of either the challenged judge or the challenging litigant – the Ohio Supreme Court has sometimes given deference to the challenged judge’s own view as to whether he or she can be impartial.
1. For a 2010 Capital University Law Review article that discusses, among other things, “Judicial Recusal and Disqualification in Ohio” click here
2. For a recent (Aug. 2013) example of motion to recuse a Common Pleas court judge in Ohio click here
3. For a short Ohio Bar Association publication entitled “Why Judges Sometimes Need to Step Aside” click here https://www.ohiobar.org/ForPublic/Resources/LawYouCanUse/Pages/LawYouCanUse-216.aspx. For an even shorter piece, put out by Ohio’s Supreme Court, explaining how “Affidavits of Disqualification” are used in Ohio click here
4. For a comprehensive overview of recusal and disqualification law in Ohio which is updated annually see Flamm, R., Judicial Disqualification: Recusal and Disqualification of Judges, § 28.37 (cited 10 times by the Ohio Supreme Court in 2013). See also, e.g, State v. Smith (In re Disqualification of Batchelor), 136 Ohio St. 3d 1211, 1212, 2013-Ohio-2626, 991 N.E.2d 242 (Ohio 2013) and Ohio Supreme Court Opinion 2014-1, both citing Flamm, Judicial Disqualification (2d Edition). A number of Ohio law school libraries and county law libraries have the current edition of Judicial Disqualification in their collection. To locate those libraries click here
5. For a recent Court News of Ohio piece discussing Opinion 2014-1 click here http://www.courtnewsohio.gov/happening/2014/advisoryOpinion_020614.asp#.Uwrh04WB8YQ