[Cite as In re Disqualification of Russo, 127 Ohio St.3d 1232, 2009-Ohio-7201.]




                         IN RE DISQUALIFICATION OF RUSSO.
                             STATE OF OHIO v. ANTHONY.
                       [Cite as In re Disqualification of Russo,
                       127 Ohio St.3d 1232, 2009-Ohio-7201.]
Judges — Affidavit of disqualification — Disqualification denied.
                   (No. 09-AP-081 — Decided September 8, 2009.)
   ON AFFIDAVIT OF DISQUALIFICATION in Cuyahoga County Court of Common
                             Pleas Case No. CR-08-517379.
                                  __________________
        MOYER, C.J.
        {¶ 1} Matthew K. Razavi, assistant prosecutor to Special Prosecutor
Dean Holman, has filed an affidavit with the clerk of this court under R.C.
2701.03 seeking the disqualification of Judge Joseph D. Russo from acting on any
further proceedings in case No. CR-08-517379, a criminal action in the Court of
Common Pleas of Cuyahoga County.
        {¶ 2} The defendant is on trial for assaulting a peace officer, aggravated
menacing, and resisting arrest. The defendant is also a longtime employee of the
Cuyahoga County Common Pleas Court and is currently employed as the bailiff
to Judge John D. Sutula. Affiant alleges that Judge Russo’s disqualification is
warranted because he has worked alongside the defendant in the Cuyahoga
County Justice Center. Four of the county’s judges have recused themselves from
the case, and affiant argues that Judge Russo and the remaining judges should
now be disqualified to avoid any appearance of impropriety.
        {¶ 3} Judge Russo has responded in writing to the concerns raised by the
affidavit. The judge states that he has no personal knowledge of the defendant
except for his name, what he looks like, and where he works. He avers that he has
                            SUPREME COURT OF OHIO




never worked with defendant inside or outside of the courthouse and has had
little, if any, contact with him since becoming a judge over eight years ago. Judge
Russo maintains that he has given this matter serious consideration and that
defendant’s employment will have no bearing on the outcome of this case.
       {¶ 4} For the following reasons, I find no basis for ordering the
disqualification of Judge Russo. First, an affidavit of disqualification must be
filed as soon as possible after an affiant becomes aware of circumstances that
support disqualification, and the failure to do so may result in waiver of the
objection. In re Disqualification of Pepple (1989), 47 Ohio St.3d 606, 607, 546
N.E.2d 1298. The Medina County prosecuting attorney was appointed special
prosecutor to defendant’s case in November 2008. At that point, the special
prosecutor knew, or should have known, that defendant was employed by the
common pleas court. Judge Russo was assigned to defendant’s case in April
2009, after four other common pleas judges had recused themselves. The special
prosecutor, however, waited until August 19, 2009, before filing the affidavit of
disqualification. The fact that the special prosecutor waited four months before
filing the affidavit indicates that he believed that Judge Russo’s participation did
not create an appearance of impropriety. See In re Disqualification of Glickman,
100 Ohio St.3d 1217, 2002-Ohio-7471, 798 N.E.2d 5.
       {¶ 5} Second, “[g]enerally, the more intimate the relationship between a
judge and a person who is involved in a pending proceeding, the more acute is the
concern that the judge may be tempted to depart from the expected judicial
detachment or to reasonably appear to have done so.” In re Disqualification of
Shuff, 117 Ohio St.3d 1230, 2004-Ohio-7355, 884 N.E.2d 1084, ¶ 6. And while
disqualification is appropriate where a judge might reasonably be thought to enjoy
a close relationship with or hold particularly strong emotional ties to a person
involved in an action before the judge, In re Disqualification of Nadel (1989), 47
Ohio St.3d 604, 546 N.E.2d 926, the affidavit in this case does not provide any




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evidence that Judge Russo shares any significant personal, professional, or
political connections to the defendant, and certainly the judge has expressly
denied the existence of any such relationship.
       {¶ 6} Affiant relies on four cases in support of his disqualification claim:
In re Disqualification of Corrigan, 110 Ohio St.3d 1217, 2005-Ohio-7153, 850
N.E.2d 720, In re Disqualification of Nugent (1987), 47 Ohio St.3d 601, 546
N.E.2d 927, In re Disqualification of Morrissey (1996), 77 Ohio St.3d 1252, 674
N.E.2d 360, and In re Disqualification of O’Neill (1997), 81 Ohio St.3d 1213, 688
N.E.2d 516. Although these cases are relevant to consideration of the pending
affidavit, there are circumstances that distinguish them from this matter. Unlike
this case, each of the above cases involved some type of significant relationship or
close contact between the judge and the person involved in the pending
proceeding. Corrigan (plaintiff was a county commissioner who had significant
personal and political connections to many local judges and wielded considerable
influence over the funding of the court); Nugent (victim’s uncle was a judge on
same court as presiding judge and victim’s parents also likely knew or had contact
with the judges on that court); Morrissey (judge was asked to assess the abilities
of a senior, nonjudicial court employee who worked closely with the entire bench
on a daily basis); and O’Neill (a fellow judge on the same court was to be called
as a witness).
       {¶ 7} In other cases, I have declined to establish a rule that mandates a
judge’s disqualification based on the existence of a mere friendship, In re
Disqualification of Bressler (1997), 81 Ohio St.3d 1215, 688 N.E.2d 517, on a
remote social or familial relationship, In re Disqualification of Shuff, 117 Ohio
St.3d 1230, 2004-Ohio-7355, 884 N.E.2d 1084, or solely on the fact that a party
to the case is the court’s funding authority, In re Disqualification of Watson
(1997), 81 Ohio St.3d 1207, 688 N.E.2d 512.




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       {¶ 8} Likewise, I decline to establish a rule in this case that mandates a
judge’s disqualification based solely on the fact that the defendant is a nonjudicial
employee of the same court as the judge. Affiant has failed to demonstrate an
interest in the case that would necessitate the judge’s disqualification to avoid an
appearance of impropriety. See In re Disqualification of Villanueva (1995), 74
Ohio St.3d 1277, 657 N.E.2d 1372 (denying affidavit in a case involving
members of a county board of elections).
       {¶ 9} As I have stated, “[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. Those presumptions have not been
overcome in this case.
       {¶ 10} For the reasons stated above, the affidavit of disqualification is
denied. The case may proceed before Judge Russo.
                            ______________________




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