[Cite as In re Disqualification of Batchelor, 136 Ohio St.3d 1211, 2013-Ohio-2626.]




                      IN RE DISQUALIFICATION OF BATCHELOR.
                             THE STATE OF OHIO v. SMITH.
        [Cite as In re Disqualification of Batchelor, 136 Ohio St.3d 1211,
                                    2013-Ohio-2626.]
Judges—Affidavit of disqualification—R.C. 2701.03—Judge not automatically
        disqualified from criminal case when judge prosecuted defendant in
        earlier unrelated proceedings—Presumption of impartiality applies absent
        showing of actual bias.
                      (No. 13-AP-042—Decided May 17, 2013.)
  ON AFFIDAVIT OF DISQUALIFICATION in Coshocton County Court of Common
            Pleas Case Nos. 12-CR-0104, 13-CR-0024, and 13-CR-0063.
                                ____________________
        O’CONNOR, C.J.
        {¶ 1} Defendant Paul I. Smith has filed an affidavit with the clerk of this
court under R.C. 2701.03 seeking to disqualify Judge Robert J. Batchelor from
presiding over any further proceedings in the three above-referenced criminal
cases, now pending in the Court of Common Pleas of Coshocton County.
        {¶ 2} Before taking the bench, Judge Batchelor was the prosecuting
attorney for Coshocton County. In that capacity, he prosecuted Smith in three
separate cases and obtained prison sentences in each case. Based on these prior
prosecutions, Smith claims that Judge Batchelor will be biased against him in the
three unrelated criminal matters now pending before the judge.
        {¶ 3} Judge Batchelor has responded in writing to Smith’s affidavit. He
acknowledges that he prosecuted Smith for various felony offenses, but he claims
that he holds “no animus or bias” against Smith and that he will be a neutral and
impartial judge during the pending cases.
                             SUPREME COURT OF OHIO




       {¶ 4} For the following reasons, no basis has been established to order
the disqualification of Judge Batchelor.
       {¶ 5} The Code of Judicial Conduct requires a judge who formerly
served as a government lawyer to disqualify himself or herself from any
“particular matter” in which he or she personally and substantially participated as
a government attorney. Jud.Cond.R. 2.11(A)(7)(b). Accordingly, a judge is not
automatically disqualified from a criminal case when he or she prosecuted a
defendant in an earlier, unrelated proceeding. This is true not only in Ohio but
also in a majority of other state and federal courts. See Jenkins v. Bordenkircher,
611 F.2d 162, 167 (6th Cir.1979) (“This court is unwilling to adopt a Per se rule
that a judge may never preside at a trial where he has had previous contact with
the defendant as a prosecutor in totally unrelated criminal charges”); State v.
Neeley, 748 P.2d 1091, 1094 (Utah 1988) (“the majority view is that a judge who
has had previous contact with a defendant on a totally unrelated matter is not per
se disqualified”); Mitchell v. Class, 524 N.W.2d 860, 863 (S.D.1994), quoting
State v. Reddick, 230 Neb. 218, 223, 430 N.W.2d 542 (1988) (“ ‘A judge is not
disqualified merely because he at some earlier time prosecuted the criminal
defendant   appearing     before   him’ ”);    see   generally     Flamm,   Judicial
Disqualification, Section 11.4 (2d Ed.2007); Garwin, Libby, Maher &
Rendleman, Annotated Model Code of Judicial Conduct, 266-267 (2d Ed.2011).
As the Supreme Court of Pennsylvania explained,


       we have never held and are unwilling to adopt a per se rule that a
       judge who had participated in the prosecution of a defendant may
       never preside as judge in future unrelated cases involving that
       defendant. Absent some showing of prejudgment or bias we will
       not assume a trial court would not be able to provide a defendant a
       fair trial based solely on prior prosecutorial participation.




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                               January Term, 2013




Commonwealth v. Darush, 501 Pa. 15, 22, 459 A.2d 727 (1983).
        {¶ 6} As noted, Ohio precedent is consistent with this majority view. In
In re Disqualification of Hedric, 127 Ohio St.3d 1227, 2009-Ohio-7208, 937
N.E.2d 1016, the chief justice denied an affidavit of disqualification against Judge
Hedric, despite the fact that he had previously prosecuted the defendant, because
the judge had not acted as counsel in the particular underlying proceeding before
him. Specifically, Judge Hedric, while acting as an assistant prosecuting attorney
eight years prior, had prosecuted the defendant for operating a motor vehicle
under the influence (“OMVI”) and that defendant later appeared before the judge
on an unrelated OMVI charge. Id. at ¶ 2. The later indictment even included a
specification that the defendant had five or more prior OMVI convictions within
the past 20 years, including the conviction obtained by Judge Hedric in his role as
prosecutor.   Id.   Nonetheless, because Judge Hedric was not involved as a
prosecuting attorney in the underlying action pending before him, disqualification
was not mandated under Jud.Cond.R. 2.11(A)(7)(b), and the affidavit was denied.
Id. at ¶ 6.
        {¶ 7} The same rationale applies here.           While Judge Batchelor
acknowledges that he previously prosecuted Smith, there is no allegation that he
personally or substantially participated in any of the three cases now pending in
his court.      Therefore, Jud.Cond.R. 2.11(A)(7) does not mandate his
disqualification.
        {¶ 8} In addition, Smith has otherwise failed to demonstrate the
existence of any bias or prejudice mandating disqualification under R.C. 2701.03.
See R.C. 2701.03(B)(1) (placing burden on affiant to demonstrate that
disqualification is warranted). “The term ‘bias or prejudice’ ‘implies a hostile
feeling or spirit of ill-will or undue friendship or favoritism toward one of the
litigants or his attorney, with the formation of a fixed anticipatory judgment on



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the part of the judge, as contradistinguished from an open state of mind which
will be governed by the law and the facts.’ ” In re Disqualification of O’Neill,
100 Ohio St.3d 1232, 2002-Ohio-7479, 798 N.E.2d 17, ¶ 14, quoting State ex rel.
Pratt v. Weygandt, 164 Ohio St. 463, 469, 132 N.E.2d 191 (1956). To support his
affidavit, Smith claims that Judge Batchelor previously prosecuted him and did
not offer Smith community control or other treatment options in those
prosecutions.    This vague allegation, however, does not show that Judge
Batchelor has a “hostile feeling or spirit of ill-will” against Smith, nor does it
prove that the judge has reached a “fixed anticipatory judgment” in any of
Smith’s pending cases. Allegations based solely on speculation and innuendo,
such as those here, are insufficient to establish bias or prejudice. See In re
Disqualification of Flanagan, 127 Ohio St.3d 1236, 2009-Ohio-7199, 937 N.E.2d
1023, ¶ 4.
       {¶ 9} At bottom, Smith requests the chief justice to assume that Judge
Batchelor is biased because he previously prosecuted Smith. The statutory right
to seek disqualification, however, is an “extraordinary remedy.”            In re
Disqualification of George, 100 Ohio St.3d 1241, 2003-Ohio-5489, 798 N.E.2d
23, ¶ 5. “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.” Id. Those presumptions have not been overcome here. Absent
some showing of prejudgment, bias, or an appearance of bias, it will not be
assumed that a trial judge is unable to provide a fair trial based solely on prior
prosecutorial participation in an unrelated case.
       {¶ 10} For the reasons stated above, the affidavit of disqualification is
denied. The cases may proceed before Judge Batchelor.
                           ________________________




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