[Cite as In re Disqualification of Spencer, 2015-Ohio-3949.]




                        IN RE DISQUALIFICATION OF SPENCER.
                                   STATE v. CAMPBELL.
          [Cite as In re Disqualification of Spencer, ___ Ohio St.3d ___,
                                    2015-Ohio-3949.]
Judges—Affidavits        of   disqualification—R.C.        2701.03—Affiant   failed   to
        demonstrate bias or prejudice—Disqualification denied.
                       (No. 15-AP-047—Decided June 3, 2015.)
 ON AFFIDAVIT OF DISQUALIFICATION in Adams County Court of Common Pleas
                                   Case No. 20120252.
                                      ____________
        O’CONNOR, C.J.
        {¶ 1} Herman A. Carson, counsel for defendant Roscoe Campbell, has
filed an affidavit with the clerk of this court under R.C. 2701.03 seeking to
disqualify Judge Brett M. Spencer from the above-captioned case, now pending
for resentencing.
        {¶ 2} Carson claims that in 2005, Judge Spencer recused himself from a
case involving defendant Campbell due to a “professional conflict.” Carson states
that his client, defendant Campbell, believes that if a conflict existed in 2005, then
the same conflict should mandate Judge Spencer’s disqualification from the
underlying matter.       Accordingly, Carson avers that he filed the affidavit of
disqualification at the direction of his incarcerated client.
        {¶ 3} Judge Spencer has responded in writing to the affidavit, denying any
bias or prejudice in this case. Judge Spencer explains that years prior to taking
the bench in February 2005, he represented Campbell in a traffic matter. In
August 2005, the judge recused himself from a case involving Campbell to avoid
any appearance of sympathy for a former client. However, by 2012, when the
                            SUPREME COURT OF OHIO




underlying case commenced, Judge Spencer determined that given the amount of
time that had passed since he had represented Campbell, his recusal was no longer
necessary in cases involving Campbell. The judge is confident that when he was
assigned this case in 2012, he addressed this potential conflict with Campbell and
his then defense counsel.
       {¶ 4} For the reasons explained below, no basis has been established to
order the disqualification of Judge Spencer.
       {¶ 5} First, Campbell has waived his right to disqualify Judge Spencer on
the ground that the judge recused himself from Campbell’s 2005 case.            An
affidavit of disqualification must be filed “as soon as possible after the incident
giving rise to the claim of bias and prejudice occurred,” and failure to do so may
result in waiver of the objection, especially when “the facts underlying the
objection have been known to the party for some time.” In re Disqualification of
O’Grady, 77 Ohio St.3d 1240, 1241, 674 N.E.2d 353 (1996). The affiant has the
burden to demonstrate that the affidavit is timely filed. In re Disqualification of
Capper, 134 Ohio St.3d 1271, 2012-Ohio-6287, 984 N.E.2d 1082, ¶ 11. Here,
Campbell could have filed an affidavit of disqualification in 2012 when the
underlying case was first assigned to Judge Spencer. However, neither Carson
nor Campbell has explained why they are only now requesting disqualification—
years after commencement of the 2012 case and when the only pending matter is
resentencing. As nothing in the record justifies the delay in filing the affidavit,
Campbell has waived the right to disqualify Judge Spencer on this ground.
       {¶ 6} Second, even if Campbell had not waived this objection, the
affidavit does not set forth sufficient grounds for disqualification. “A judge’s
prior representation of a party in matters wholly unrelated to a matter pending
before the judge does not compel the judge’s disqualification, unless there is a
specific showing of actual bias on the part of the judge.” In re Disqualification of
Serrott, 134 Ohio St.3d 1245, 2012-Ohio-6340, 984 N.E.2d 14, ¶ 6. Carson has




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made no attempt to show that Judge Spencer harbors bias against Campbell
stemming from the judge’s representation of Campbell in an unrelated traffic
matter over a decade ago. Additionally, “a judge’s voluntary removal from an
earlier case does not, by itself, support disqualification from an unrelated case
involving that same party or attorney.” In re Disqualification of Celebrezze, 135
Ohio St.3d 1218, 2012-Ohio-6304, 985 N.E.2d 499, ¶ 7. Judge Spencer has
sufficiently explained the circumstances that caused him to recuse himself from
Campbell’s 2005 case, and he reasonably concluded that recusal is no longer
necessary.
       {¶ 7} Accordingly, the affidavit of disqualification is denied. The case
may proceed before Judge Spencer.
                              _________________




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