In re Disqualification of Burge

[Cite as In re Disqualification of Burge, 136 Ohio St. 3d 1205, 2013-Ohio-2726.]
IN RE DISQUALIFICATION OF BURGE.
THE STATE OF OHIO v. JALOWIEC.
THE STATE OF OHIO v. WEBER.
THE STATE OF OHIO v. FINE.
[Cite as In re Disqualification of Burge, 136 Ohio St. 3d 1205,
2013-Ohio-2726.]
Judges—Affidavit of disqualification—R.C. 2701.03—Affidavit granted in part—
Judge’s comments to press and failure to respond to certain allegations in
affidavit necessitate removal to avoid appearance of impropriety—Blanket
order of disqualification denied.
(No. 13-AP-027—Decided May 13, 2013.)
ON AFFIDAVIT OF DISQUALIFICATION in Lorain County Court of Common Pleas
Case Nos. 95CR046840, 11CR082129, and 12CR086127.
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O’CONNOR, C.J.
{¶ 1} Anthony Cillo, counsel for the state in the above-captioned cases,
has filed two affidavits under R.C. 2701.03 seeking to disqualify Judge James M.
Burge from presiding over these cases and all future cases in which Cillo appears
as counsel of record.
{¶ 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.
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{¶ 3} Judge Burge has responded in writing to the allegations in Cillo’s
affidavits. He denies any bias against Cillo, disagrees that an appearance of
impropriety exists, and states that he has not formed or expressed any opinion in
the Jalowiec case.
{¶ 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 Ohio Op. 315, 132 N.E.2d 191, then the judge should not
remain on the case.
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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 * * *”).
{¶ 6} But Judge Burge did not rest with simply submitting his formal
response to Cillo’s affidavit of disqualification. Judge Burge also commented to
the media about Cillo’s allegation, which then triggered the filing of Cillo’s
supplemental affidavit with more allegations of bias and prejudice against the
judge. Specifically, despite the requirements of Jud.Cond.R. 2.10, Judge Burge is
quoted in two newspapers as stating, “I don’t believe an assistant [county
prosecutor] told him [Cillo] that and if he did, it would be false,” and “[w]hen a
person ascribes dishonest motives to another, it’s usually because the accuser has
dishonest motives himself and believes that everyone behaves the same way he
does.” The unfortunate result has been a public dispute between the
administrative judge of the Lorain County Common Pleas Court and the chief of
the prosecutor’s criminal division played out in the press.
{¶ 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
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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.
{¶ 8} In addition to the media statements, other factors are present that
support disqualification. For example, Judge Burge did not respond to some of
the allegations in Cillo’s supplemental affidavit, including the claim that Judge
Burge “discarded the traditional route of reassignment in Jalowiec’s case in order
to preside over the case himself.” “[A] judge’s failure to respond to allegations of
bias and prejudice may result in the judge’s disqualification to avoid the
appearance of impropriety.” In re Disqualification of Corrigan, 94 Ohio St. 3d
1234, 1235, 763 N.E.2d 602 (2001). Further, Judge Burge has been assigned to
this case for a relatively short amount of time, which lessens the disruptive impact
of disqualification. Compare In re Disqualification of Nicely, 135 Ohio St. 3d
1237, 2012-Ohio-6290, 986 N.E.2d 1, ¶ 8 (disqualification of judge who presided
over eight-year litigation with a 15-day trial warranted only under extraordinary
circumstances clearly showing a fixed anticipatory judgment). Given the unique
combination of facts here, prudent grounds exist to remove Judge Burge.
{¶ 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
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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.”
{¶ 12} In addition, Cillo contends that Judge Burge recently impugned his
integrity in a public comment to the parole board about an alleged disciplinary
investigation.1 Cillo points to a newspaper article attributing the following
comment to Judge Burge regarding a statement that the judge claimed Cillo had
made to him: “I have been told by the Supreme Court Disciplinary Counsel that
Mr. Cillo denies having said that to me.” Cillo argues that through this comment,
1. Under Gov.Bar R. V(11)(E)(1), all proceedings and documents relating to investigation of
disciplinary grievances are “private.” The record here contains newspaper articles stating that
Judge Burge is the subject of a disciplinary inquiry, and Judge Burge’s response to Cillo’s
supplemental affidavit seems to indicate that he has received a letter of inquiry from disciplinary
authorities. The Chief Justice has no knowledge of whether any such disciplinary inquiry existed
or is ongoing, and this entry should not be interpreted as confirming the existence of any such
inquiry.
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Judge Burge “published his belief” that Cillo is “an untruthful person.”
(Emphasis sic.) Cillo similarly interprets the comment as suggesting that Cillo
“lied” to disciplinary counsel and will be “a witness against [the judge] in
disciplinary proceedings.”
{¶ 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”).
{¶ 14} In addition, the cases cited in Cillo’s affidavit do not support a
blanket order of disqualification. For example, Cillo relies on In re
Disqualification of Hoover, 113 Ohio St. 3d 1233, 2006-Ohio-7234, 863 N.E.2d
634, but that judge was ultimately removed because his response to an affidavit of
disqualification was “laced with invectives against [the affiant]” and “bristle[d]
with caustic phrases about [the affiant],” suggesting that the judge was not able to
view the affidavit objectively and calling into question his ability to preside fairly
over the affiant’s cases. Id. at ¶ 4. Judge Burge’s formal responses to Cillo’s
affidavits do not show any similar resentment towards Cillo. In fact, the judge
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describes Cillo as “a capable trial attorney that is always prepared, organized,
technically sound, credible and dedicated to his cause.”
{¶ 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
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other serious criminal matters. At this point, Cillo’s speculative allegations are
insufficient to issue such an extraordinary remedy.
{¶ 17} “A judge is presumed to follow the law and not to be biased, and
the appearance of bias or prejudice must be compelling to overcome these
presumptions.” In re Disqualification of George, 100 Ohio St. 3d 1241, 2003-
Ohio-5489, 798 N.E.2d 23, ¶ 5. Cillo has failed to submit compelling evidence to
overcome those presumptions, and therefore he has failed to establish an
appearance of impropriety warranting a blanket order of disqualification.
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.
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