Opinion

In re Disqualification of Farmer

  • 139 Ohio St. 3d 1202
  • 10 N.E.3d 718
  • 2014 Ohio 2046
Court
Ohio Supreme Court
Filed
Mar 18, 2014
Status
Published
Author
O'Connor
On the bench
O'Connor
Cited by
3 cases
Authority
More cited than 55.9%

The opinion

[Cite as In re Disqualification of Farmer, 139 Ohio St.3d 1202, 2014-Ohio-2046.]

IN RE DISQUALIFICATION OF FARMER.

STATE v. BROWN.

[Cite as In re Disqualification of Farmer, 139 Ohio St.3d 1202,

2014-Ohio-2046.]

Judges—Affidavit of disqualification—R.C. 2701.03—Spousal relationship

between a judge and a police officer—Disqualification not required when

spouse not involved in the case before the judge—Disqualification denied.

(No. 14-AP-011—Decided March 18, 2014.)

ON AFFIDAVIT OF DISQUALIFICATION in Stark County Court of Common Pleas

Case No. 2013CR1718.

____________________

O’CONNOR, C.J.

{¶ 1} Kenneth W. Frame, counsel for defendant, has filed an affidavit

with the clerk of this court under R.C. 2701.03 seeking to disqualify Judge Kristin

G. Farmer from presiding over any further proceedings in case No. 2013CR1718

in the Court of Common Pleas of Stark County.

{¶ 2} Frame requests Judge Farmer’s disqualification because the judge

is married to a sergeant in the Alliance Police Department who “is in a

supervisory position over the officers who made the arrest in this case and are

listed as witnesses for the trial.”

{¶ 3} Judge Farmer has responded in writing to Frame’s affidavit. The

judge acknowledges that her spouse is a sergeant in the Alliance Police

Department and explains that she has a practice of recusing herself from cases in

which he has been involved. However, Judge Farmer denies that her husband

supervised the arresting officers in the underlying case. Judge Farmer explains

that her husband is a shift commander for the afternoon shift, and in that role, he

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has supervisory authority over patrol officers only on the shift he is working. The

incident involving defendant occurred during the midnight shift on her husband’s

regularly scheduled day off. Thus, Judge Farmer avers that “he was not in a

supervisory position over the officers who made the arrest in the case.” In

addition, the judge explains that unless her husband or one of the arresting

officers here works overtime on a different shift, her husband is not in a

supervisory position over the officers involved in this case. To support her

position, the judge submitted an affidavit from her husband, his payroll report for

the time in question, and the police reports indicating the names of the Alliance

police officers involved in defendant’s arrest. Judge Farmer further affirms that

she can be fair and impartial to defendant.

{¶ 4} For the reasons explained below, no basis has been established to

order the disqualification of Judge Farmer.

{¶ 5} Jud.Cond.R. 2.11(A)(2)(d) provides that a judge must disqualify

himself or herself in any proceeding in which the judge knows that the judge’s

spouse is “[l]ikely to be a material witness in the proceeding.” Judge Farmer

avers that her husband was not an investigating officer in the underlying case and

is not listed as a witness. Accordingly, Judge Farmer is not automatically

disqualified from hearing the matter under Jud.Cond.R. 2.11(A)(2)(d).

{¶ 6} The Code of Judicial Conduct, however, also requires

disqualification if the “judge’s impartiality might reasonably be questioned.” See

Jud.Cond.R. 2.11(A). Frame alleges that the judge’s husband is in a supervisory

position over the officers who arrested defendant and are listed as witnesses. But

Frame has offered only his affidavit to support this claim. In contrast, Judge

Farmer has submitted documentation establishing that her husband did not

supervise the officers at the time of defendant’s arrest and that unless someone

works overtime, the judge’s husband does not have supervisory authority over

those officers. In affidavit-of-disqualification proceedings, the burden falls on the

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January Term, 2014

affiant to submit sufficient evidence and argument demonstrating that

disqualification is warranted. See R.C. 2701.03(B)(1). “Generally, an affiant is

required to submit evidence beyond the affidavit of disqualification supporting the

allegations contained therein.” In re Disqualification of Baronzzi, 135 Ohio St.3d

1212, 2012-Ohio-6341, 985 N.E.2d 494, ¶ 6. On the record here, Frame’s

unsubstantiated allegation is insufficient to establish that the judge’s husband is in

a supervisory position over the arresting officers scheduled to testify in this case.

See, e.g., In re Disqualification of Walker, 36 Ohio St.3d 606, 522 N.E.2d 460

(1988) (“vague, unsubstantiated allegations of the affidavit are insufficient on

their face for a finding of bias or prejudice”).

{¶ 7} The question remains, however, whether the mere fact that the

judge’s spouse is a sergeant in the Alliance Police Department creates an

appearance of impropriety disqualifying her from this case. “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. Given that the judge’s husband was not

involved in the investigation or arrest of defendant, given that Frame has not set

forth any additional information about the substance of the arresting officers’

potential testimony or their connection to Judge Farmer, and given Judge

Farmer’s assurances that she can be fair and impartial to defendant, the spousal

relationship here is not enough to create a reasonable question about the judge’s

impartiality.

{¶ 8} This conclusion is consistent with Board of Commissioners on

Grievances and Discipline Opinion No. 89-19 (June 16, 1989)—decided under the

former Ohio Code of Judicial Conduct—which concluded that “nothing in the

[former code] precludes a judge from sitting in cases involving a police

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department which employs the judge’s spouse.” Instead, the opinion advised that

a judge should make a “case-by-case determination” of whether the judge’s

spousal relationship creates an appearance of impropriety. The reasoning here is

also in line with well-established Ohio precedent holding that a spousal

relationship between a judge and a prosecutor who is not involved in the case

before the judge does not automatically warrant disqualification of the judge. See,

e.g., In re Disqualification of Carr, 105 Ohio St.3d 1233, 2004-Ohio-7357, 826

N.E.2d 294, ¶ 17 (“Where a judge is married to a prosecutor whose office is

representing the state in a case before him or her, disqualification * * * is not

required, as long as the judge’s spouse has neither entered an appearance in the

case nor participated in the preparation or presentation of the case”); In re

Disqualification of Bates, 134 Ohio St.3d 1249, 2012-Ohio-6342, 984 N.E.2d 17,

¶ 9 (denying affidavit of disqualification when the affiant had not offered any

evidence that the judge’s spouse, who was also the county prosecutor, had

participated in the preparation or presentation of the underlying case).

{¶ 9} For the reasons stated above, the affidavit of disqualification is

denied. The case may proceed before Judge Farmer.

_________________________

4

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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