Ohio Board Advisory Opinion Op. 24-07

OCR transcription; preserved printed pages are authoritative

e Ohio Board of Professional Conduct

OPINION 2024-07
Issued December 13, 2024
Withdraws Adv. Op. 1987-023

Disqualification When Judicial Campaign Opponent Appears Before Judge

SYLLABUS: A judge is not required to recuse from a matter in which the judge’s
campaign opponent represents a party before the judge unless the judge’s impartiality

may be reasonably questioned.

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct
in response to a prospective or hypothetical question regarding the application of
ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional
Conduct is solely responsible for the content of this advisory opinion, and the advice
contained in this opinion does not reflect and should not be construed as reflecting the
opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion
should be directed to the staff of the Ohio Board of Professional Conduct.

€> Ohio Board ot Professional Conduct

THOMAS J. MOYER OHIO JUDICIAL CENTER
65 SOUTH FRONT STREET, 5™ FLOOR, COLUMBUS, OH 43215-3431
614.387.9370
www.bpc.ohio.gov

HON. D. CHRIS COOK RICHARD A. DOVE
CHAIR DIRECTOR
PATRICK M. MCLAUGHLIN D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
VACANT
COUNSEL

OPINION 2024-07
Issued December 13, 2024
Withdraws Adv. Op. 1987-023

Disqualification When Judicial Campaign Opponent Appears Before Judge

SYLLABUS: A judge is not required to recuse from a matter in which the judge’s
campaign opponent represents a party before the judge unless the judge’s impartiality

may be reasonably questioned.
APPLICABLE RULES: Jud.Cond.R. 1.2, 2.11
QUESTIONS PRESENTED:

Whether a judge must recuse himself or herself from a matter when a lawyer who

represents a party before the judge is the judge’s current campaign opponent.
ANALYSIS:
Disqualification in General

Judges are required to act in a manner that promotes the independence, integrity,
and impartiality of the judiciary. Jud. Cond. R. 1.2. Consequently, Jud. Cond. R. 2.11(A)
requires a judge to disqualify himself or herself when the judge’s impartiality may be
reasonably questioned, including but not limited to several enumerated circumstances in
the rule. “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, 2004-Ohio-7359, (8. A “reasonable

Op. 2024-07 2

observer” is “fully informed of all the relevant facts in the record—not isolated facts
divorced from their larger context." In re Disqualification of Gall, 2013-Ohio-1319, 6. The
issue raised by the question presented does not fall under the circumstances specified in
Jud.Cond.R. 2.11(C) and must instead be evaluated under Jud.Cond.R. 2.11(A) and

relevant case law.

The statutory right to seek disqualification of a judge is an extraordinary remedy.
In re Disqualification of Hunter (1988), 36 Ohio St.3d 607. Judges are “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, 2003-Ohio-5489, 76. In
disqualification cases, “[t]he 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 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, 2002-Ohio-7479, 114, quoting State ex rel. Pratt
v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956), paragraph four of the syllabus.
Unless evidence of personal bias or prejudice exists on the part of the judge, the
presumption of impartiality is not overcome, and the judge is not required to recuse

himself or herself from the matter.
Affidavit of Disqualification Case Law Relative to Judicial Elections

Ohio judges are selected by the electorate, and incumbent judges often must
campaign to retain their judicial office. Judicial campaigns can give rise to questions
about the incumbent judge’s impartiality when his or her campaign opponent represents
a party before the judge. Affidavit of disqualification cases “involving political and
campaign issues are decided on a case-by-case basis." Jones v. Geauga Cty. Republican Party
Cent. Comm. (In re Disqualification of Burt), 2015-Ohio-5670, {[6.

It is well settled that a lawyer’s status as a current or former campaign opponent
of ajudge is not, by itself, sufficient grounds for the judge's disqualification. Former Chief
Justices have "decline[d] to establish a far-reaching rule that mandates the recusal or
disqualification of a judge merely because a party to or a lawyer in the underlying case
campaigned for or against the judge." In re Disqualification of Celebrezze (1991), 74 Ohio St.

3d 1231. However, a judge may be disqualified if there are facts on the record arising out

Op. 2024-07 3

of an election campaign that would cause the judge’s impartiality to be reasonably
questioned. In re Disqualification of Hurley, 2014-Ohio-5874. For example, in In re
Disqualification of Maschari, 1999-Ohio-8, the lawyer campaign opponent filed two
campaign grievances against the incumbent judge and a former Chief Justice found that
this combination of factors created an appearance of impropriety that mandated the

judge’s disqualification.

Judicial campaigns can vary widely, ranging from candidates who conduct
themselves ethically and remain cordial during and after the election to the filing of
campaign conduct grievances by one or both candidates alleging campaign misconduct.
Judges are encouraged to assess each situation involving a campaign opponent by
considering factors such as the nature of the campaign and any residual personal feelings
the judge may hold toward his or her opponent. If, after assessing the relevant factors,
the judge determines that he or she can be fair and impartial while presiding over a matter
involving a current or former campaign opponent and that his or her impartiality could
not be reasonably questioned, then the judge’s recusal is not mandated under

Jud.Cond.R. 2.11 or relevant case law.