[Cite as In re Disqualification of Gall, 135 Ohio St.3d 1283, 2013-Ohio-1319.]




                          IN RE DISQUALIFICATION OF GALL.
                            THE STATE OF OHIO v. MOORE.
[Cite as In re Disqualification of Gall, 135 Ohio St.3d 1283, 2013-Ohio-1319.]
Judges—Affidavit of disqualification—R.C. 2701.03—Judge’s former status as
        assistant prosecuting attorney does not per se require disqualification—
        No objective reason to question impartiality—Affidavit denied.
                    (No. 13-AP-004—Decided February 26, 2013.)
   ON AFFIDAVIT OF DISQUALIFICATION in Cuyahoga County Court of Common
                           Pleas Case No. CR-00-392440-A.
                                  __________________
        O’CONNOR, C.J.
        {¶ 1} Jonathan N. Garver, counsel for defendant John Moore Jr. in the
underlying case, has filed an affidavit with the clerk of this court under R.C.
2701.03 seeking to disqualify Judge Steven E. Gall from presiding over any
further proceedings in case No. CR-00-392440-A, now pending for a resentencing
hearing in the Court of Common Pleas of Cuyahoga County.
        {¶ 2} Garver alleges that Judge Gall should be disqualified to avoid an
appearance of impropriety. As background, Judge Timothy J. McGinty presided
over Moore’s case from 2000 until the judge’s resignation in 2011. Effective
October 1, 2012, McGinty was appointed Cuyahoga County Prosecuting
Attorney, and he thereafter sought appointment of outside counsel to prosecute
Moore’s case, pursuant to Prof.Cond.R. 1.12.                 At the time of McGinty’s
appointment, Judge Gall was employed as an assistant county prosecutor in
Cuyahoga County. Judge Gall subsequently won election to McGinty’s former
judicial seat at the November 6, 2012 general election and inherited McGinty’s
docket, including Moore’s case.          In Garver’s affidavit of disqualification, he
                             SUPREME COURT OF OHIO




claims that as a consequence of having served as an assistant county prosecutor
under McGinty, Judge Gall was one of the prosecutors disqualified from
prosecuting Moore’s case.       Garver asks: “What could create more of an
appearance of impropriety than to allow a person who was disqualified from
acting as a prosecutor to preside over the entire case?”
       {¶ 3} Judge Gall has responded in writing to the allegations raised in
Garver’s affidavit and states that there is nothing about his relationship to any of
the parties that will affect his ability to rule fairly and impartially. Judge Gall
further explains that during his employment with the prosecutor’s office, he “had
no knowledge of the Moore case and did not perform any work on the case.”
       {¶ 4} For the following reasons, no basis has been established to order
the disqualification of Judge Gall.
       {¶ 5} First, it is well established that a “judge generally need not
disqualify himself from presiding over a criminal matter that, although pending at
the time he served as a prosecuting attorney, was one in which he had no direct
involvement.” In re Disqualification of Rastatter, 117 Ohio St.3d 1231, 2005-
Ohio-7147, 884 N.E.2d 1085, ¶ 3, citing Flamm, Judicial Disqualification,
Section 11.5.2, 328 (1996); see also In re Disqualification of Cross, 74 Ohio St.3d
1228, 657 N.E.2d 1338 (1991) (“The prior professional activities of a judge are
not grounds for disqualification where the record fails to demonstrate the
existence of a relationship or interest that clearly and adversely impacts on a
party’s ability to obtain a fair and impartial trial”). Instead, the issue is whether
“the judge, while in government employment, himself served as counsel in the
case.” Rastatter at ¶ 4. Judge Gall affirmatively states that he did not perform
any work on Moore’s case while he was employed as an assistant county
prosecutor. Accordingly, Judge Gall will not be disqualified merely because
Moore’s case was pending while Judge Gall served as an assistant county
prosecutor.




                                         2
                                January Term, 2013




       {¶ 6} Second, the fact that McGinty requested outside counsel to
prosecute the state’s case against Moore—while Judge Gall was employed as an
assistant county prosecutor—does not create an appearance of impropriety
warranting Judge Gall’s disqualification.       “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 reasonable observer is presumed to be fully
informed of all the relevant facts in the record—not isolated facts divorced from
their larger context. See In re Disqualification of Carr, 105 Ohio St.3d 1233,
2004-Ohio-7357, 826 N.E.2d 294, ¶ 17 (concluding that a “reasonable person
who knows all the facts would not find any appearance of impropriety”); Flamm,
Judicial Disqualification, Section 5.8, 133-134 (2d Ed.2007) (“disqualification
must ordinarily be viewed from the standpoint of not merely a reasonable
observer, but a thoughtful and well-informed one; and in light of the full record,
not simply in light of an isolated incident” [footnotes omitted]).
       {¶ 7} Here, the full record indicates that during his entire employment
with the prosecutor’s office, Judge Gall had no knowledge of Moore’s case and
did not perform any work on the matter.         Further, Judge Gall served as an
assistant county prosecutor under McGinty for about two months—although for
half of that time period, Judge Gall was on a leave of absence due to his campaign
for judicial office, and he was on vacation for another week. Judge Gall claims
that during that two-month period, he had “little, if any, direct contact with Mr.
McGinty.”     Thus, to the extent that Judge Gall was “disqualified” from
prosecuting Moore’s case—as Garver alleges—it was only because he happened
to be employed as an assistant county prosecutor under McGinty, and McGinty’s
conflict was imputed to all his assistant prosecutors. That conflict, however, was



                                          3
                             SUPREME COURT OF OHIO




not personal to Judge Gall. Finally, Judge Gall has affirmed that he has no bias or
prejudice against Moore and will rule fairly and impartially.
       {¶ 8} On this record, the well-informed, objective observer would not
question Judge Gall’s impartiality, and Garver has not established the existence of
any relationship or interest that clearly and adversely affects Moore’s ability to
obtain a fair and impartial hearing. See In re Disqualification of Greer, 81 Ohio
St.3d 1208, 1209, 688 N.E.2d 513 (1997) (judge who had formerly served as an
assistant county prosecutor was not disqualified where “the record does not
demonstrate the existence of a relationship or interest that clearly and adversely
impacts on the ability of affiant’s clients to obtain a fair trial or that raises a
reasonable question as to [the judge’s] impartiality”).
       {¶ 9} In conclusion, “[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 here.
       {¶ 10} For the reasons stated above, the affidavit of disqualification is
denied. The case may proceed before Judge Gall.
                            ______________________




                                          4
