[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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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.
                          _________________________




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