In re Disqualification of Reinbold.
Portage County Board of Commissioners. The State ex rel. Ames
Affidavit of Disqualification in Portage County Court of
Common Pleas Case No. 2016CV00582.
1} Brian Ames has filed an affidavit with the clerk
of this court under R.C. 2701.03 seeking to disqualify Judge
Richard D. Reinbold Jr., a retired judge sitting by
assignment, from presiding over any further proceedings in
the above-referenced case in the Portage County Court of
Common Pleas. In that action, Mr. Ames alleges that the
Portage County Board of Commissioners violated the Open
Meetings Act, R.C. 121.22. The board is represented by Denise
L. Smith, the chief assistant prosecuting attorney from the
Portage County Prosecuting Attorney's Office.
2} Since instituting the underlying case, Mr. Ames
has filed complaints against Judge Reinbold-in both the
Eleventh District Court of Appeals, see 11th Dist.
Portage No. 2017-PA-00010, and the Supreme Court of Ohio,
see case No. 2017-1295-seeking a writ of procedendo
ordering the judge to rule on outstanding motions in the
common pleas case. In his affidavit of disqualification, Mr.
Ames seeks Judge Reinbold's removal from the common pleas
case because he is allegedly biased in favor of Ms. Smith,
who Mr. Ames claims represents the judge in both of the
3} Judge Reinbold has responded in writing to the
affidavit and denies any bias in the underlying case. The
judge acknowledges that Ms. Smith previously represented him
as part of the prosecuting attorney's statutory duty to
defend judges in actions relating to their official
positions. The judge further notes, however, that he has
since relieved Ms. Smith of her statutory duty to represent
him in case No. 2017-1295, the only procedendo action against
him that remains pending, and that he now represents himself
in that action.
4} A trial judge's impartiality may reasonably
be questioned if he or she presides over a case in which a
litigant is represented by the judge's own lawyer.
Therefore, the chief justice and the Board of Professional
Conduct have long advised that a judge should recuse himself
or herself-or be disqualified-from actions in which an
attorney in the case is representing the judge in another
proceeding. In re Disqualification of Badger, 47
Ohio St.3d 604, 546 N.E.2d 929 (1989); In re
Disqualification of Whitmore, 84 Ohio St.3d 1231, 704
N.E.2d 1235 (1998); Board of Professional Conduct Advisory
Opinion 1989-34 (Nov. 2, 1989). There are, however,
recognized exceptions to this rule. For example, recusal or
disqualification of the judge may not be required if it would
work a hardship on the litigants and create duplication of
judicial labor. In re Disqualification of Morgan, 74
Ohio St.3d 1223, 1224, 657 N.E.2d 1335 (1990). In less
populated areas, a "rule of necessity" may allow an
otherwise disqualified judge to temporarily hear a case if no
other judge is available. Board of Professional Conduct
Advisory Opinion 1989-34, at 2; Jud.Cond.R. 2.11, Comment 3.
In addition, recusal or disqualification is necessary only
when the attorney-client relationship between the judge and
counsel for a litigant currently exists.
Morgan at 1224; In re Disqualification of
DeWeese, 74 Ohio St.3d 1256, 657 N.E.2d 1357 (1994);
Board of Professional Conduct Advisory Opinion 1989-34, at 1.
And even if the conflict exists, the parties may agree to
waive disqualification pursuant to Jud.Cond.R. 2.11(C).
5} The rule has also been applied to prosecuting
attorneys and the attorney general, who are statutorily
required to represent judges when they are sued in their
official capacity. If a judge is represented by the
prosecuting attorney or the attorney general, the judge
should not hear cases in which the same individual attorney
representing the judge is also representing a litigant in a
case before the judge. The appearance of another lawyer from
the prosecutor's office or attorney general's office,
however, would not necessitate the judge's recusal.
See Whitmore at 1231-1232; Board of Professional
Conduct Advisory Opinion 1989-34, at 2. And disqualification
may not be necessary if the judge is merely a nominal party
in the case represented by the prosecuting attorney or
attorney general or if the judge is not personally or
substantively involved in that litigation. See
Flamm, Judicial Disqualification, Section 8.5, at
212 (2d Ed.2007).
6} Here, Mr. Ames avers that Ms. Smith represents
Judge Reinbold in the two procedendo actions. The court of
appeals, however, dismissed Mr. Ames's first procedendo
action on October 2, 2017, which was weeks before he filed
his affidavit of disqualification. See Eleventh
District Court of Appeals case No. 2017-PA-00010. And Ms.
Smith withdrew from representing Judge Reinbold in the
procedendo action in this court on October 2, 2017.
See case No. 2017-1295. Thus, there is no evidence
of any ongoing attorney-client relationship between Judge
Reinbold and Ms. Smith-either now or at the time Mr. Ames
filed his affidavit. And because there is no other evidence
in the record suggesting that Judge Reinbold cannot fairly
and impartially preside in the underlying common pleas
action, Mr. Ames has not established that the judge's
disqualification is necessary. See Morgan at 1224
(denying affidavit of disqualification because there was
"no ongoing attorney-client relationship between the
judge and counsel" who represented the judge in a prior
action); DeWeese at 1257 (denying affidavit when the
cases in which the prosecutor's office represented the
judge had concluded).
7} The affidavit of disqualification is therefore
denied. The case ...