Opinion
No. 20-AP-004
02-12-2020
IN RE DISQUALIFICATION OF SAFFOLD. The State of Ohio v. Henderson.
{¶ 1} Rufus Sims, attorney for defendant Rosalind Henderson, has filed an affidavit pursuant to R.C. 2701.03 seeking to disqualify Judge Shirley Strickland Saffold from the above-referenced case and all future cases in which he appears as counsel. For the reasons explained below, Judge Saffold is disqualified from Ms. Henderson's case but Mr. Sims's request for a permanent order of disqualification is denied.
Background
{¶ 2} In 2010, Mr. Sims and his cocounsel filed an affidavit of disqualification against Judge Saffold in the Anthony Sowell capital case, State v. Sowell , Cuyahoga C.P. No. CR-530885. The affiants alleged, among other things, that someone using Judge Saffold's e-mail accounts had posted derogatory comments on the Plain Dealer's website about Mr. Sims and Mr. Sowell. In response, Judge Saffold did not deny that the comments were linked to her personal online account, but she maintained that her adult daughter had posted the comments. Acting Chief Justice Pfeifer disqualified Judge Saffold from the Sowell case to avoid any appearance of impropriety. In re Disqualification of Saffold , 134 Ohio St.3d 1204, 2010-Ohio-6723, 981 N.E.2d 869, ¶ 9.
{¶ 3} In November 2019, Ms. Henderson was indicted, and Mr. Sims was later appointed to represent her. On December 3, the case was randomly assigned to Judge Saffold. The following day, Mr. Sims filed a motion seeking Judge Saffold's recusal, citing their past "heated controversy" that led to the Saffold decision and the fact that Judge Saffold had recused herself from Mr. Sims's subsequent cases. Judge Saffold denied the motion. In January 2020, Mr. Sims filed a motion for reconsideration, in which he asserted that since 2010, he had worked with Judge Saffold's daughter—who is now an attorney—and that he did not believe that the judge's daughter had posted the derogatory online comments about him. After Judge Saffold denied the motion for reconsideration, Mr. Sims filed this affidavit of disqualification.
Affidavit allegations and Judge Saffold's response
{¶ 4} Mr. Sims avers that for two reasons, Judge Saffold's impartiality might be reasonably questioned. First, he quotes the online comments about him that led, at least in part, to the judge's disqualification in Saffold . According to Mr. Sims, those comments included the following:
Rufus Sims did a disservice to his client * * * [.] If only he would shut his Amos and Andy style mouth. What makes him think that is [sic] he insults and acts like a buffoon that [sic] it will cause the Judge to think and see it his way. There are so many lawyers that could have done a much better job. This was not a tough case, folks. She should've hired a lawyer with the experience to truly handle her needs. Amos and Andy shuffling around did not do it.
Mr. Sims describes the comments as "personal, degrading, insulting, [and] humiliating" and says that they clearly cast "a negative light upon [his] professional abilities." He further alleges that the comments were widely disseminated by the media after it became public that they originated from Judge Saffold's personal online account, and he alleges that Judge Saffold has never taken responsibility for the comments originating from her account. Second, Mr. Sims claims that Judge Saffold has a history of recusing herself from his cases and that since her prior recusals, nothing has occurred "to relax, abate or reduce any prior concerns."
{¶ 5} Judge Saffold filed a response to the affidavit and requests that it be denied. According to the judge, the underlying case has nothing to do with State v. Sowell and Mr. Sims has not alleged that she has exhibited any bias in the underlying case. Judge Saffold acknowledges that she recused herself from Mr. Sims's prior cases, but she cites judicial-disqualification precedent noting that "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 Saffold further notes that although she scheduled two pretrial conferences in the underlying case, Mr. Sims has refused to participate and that after she denied his motion for reconsideration, he appeared in her chambers and "threatened" to file an affidavit of disqualification. According to the judge, Mr. Sims's filing the affidavit "seems to be the only work that he has done at all on Defendant Rosalind Henderson's case."
Merits of the affidavit of disqualification
{¶ 6} Judge Saffold is correct that a judge's voluntary recusal from an earlier case involving a particular attorney does not automatically require the judge's disqualification from all other cases involving that attorney. However, it is also well-settled that "a trial judge cannot, without reasonable justification, recuse himself from a number of cases involving an attorney but at substantially the same time decline to recuse himself from an indistinguishable case involving that same attorney." In re Disqualification of Hurley , 142 Ohio St.3d 1278, 2014-Ohio-5874, 33 N.E.3d 59, ¶ 6. For example, the chief justice disqualified a trial judge from serving on a three-judge panel in a capital case when the judge had previously recused himself from all cases involving the assistant prosecutor assigned to the matter. The chief justice reasoned: "Once [the judge] had recused himself from all of [the assistant prosecutor's] cases, he could not then pick and choose, without reasonable justification, which cases involving [the assistant prosecutor] to hear." In re Disqualification of Burge , 138 Ohio St.3d 1271, 2014-Ohio-1458, 7 N.E.3d 1211, ¶ 8. Even in Celebrezze —the decision Judge Saffold relies on in her response—the chief justice denied the affidavit of disqualification only after the trial judge described the circumstances that had caused her to previously recuse herself from an attorney's cases and specifically explained why those circumstances no longer existed. Id. at ¶ 5-7.
{¶ 7} Here, Judge Saffold has failed to explain how the underlying matter is distinguishable from Mr. Sims's other cases from which she recused herself. Specifically, she has failed to explain the circumstances precipitating those prior recusals or alleged that those circumstances no longer exist. Considering the length of time during which Judge Saffold has been recusing herself from Mr. Sims's cases, an explanation is required. In addition, Judge Saffold's statement that Mr. Sims's filing of the affidavit of disqualification "seems to be the only work that he has done at all on [his client's] case" was unnecessary and speculative and might reasonably suggest that the judge harbors negative opinions of Mr. Sims and his professional abilities. As has been previously explained, "[a]ttorneys should be free to challenge, in appropriate legal settings, a court's perceived partiality without the court misconstruing the intent of the challenge." In re Disqualification of Greene , 143 Ohio St.3d 1235, 2015-Ohio-2874, 37 N.E.3d 159, ¶ 8. In the end, Judge Saffold's response to Mr. Sims's affidavit does not inspire confidence that the appearance of partiality that led to Saffold and the judge's prior recusals has dissipated. "The law requires not only an impartial judge but also one who appears to the parties and the public to be impartial." In re Disqualification of Corrigan , 110 Ohio St.3d 1217, 2005-Ohio-7153, 850 N.E.2d 720, ¶ 11.
{¶ 8} Moreover, although it is not entirely Judge Saffold's fault, she has yet to hold an initial pretrial conference, which was originally scheduled for December 10, 2019. The delay has nothing to do with the facts of the case or the parties but is attributable solely to the judge's relationship with defense counsel and her refusal to sufficiently explain why that relationship no longer requires her recusal. When, as in Saffold , "the case becomes about the judge rather than the facts of the case and the law, it is time for the judge to step aside." 134 Ohio St.3d 1204, 2010-Ohio-6723, 981 N.E.2d 869, at ¶ 2. The underlying case needs to move forward without any further unnecessary distractions.
{¶ 9} The affidavit of disqualification is therefore granted with respect to the underlying matter, State v. Henderson , Cuyahoga C.P. No. CR-19-645761. The case is returned to the administrative judge of the Cuyahoga County Court of Common Pleas for random reassignment to another judge of that court.
{¶ 10} Mr. Sims's request for a permanent order of disqualification is denied. A blanket order of disqualification is an extraordinary remedy that may be subject to abuse. See, e.g. , In re Disqualification of Morley , 74 Ohio St.3d 1257, 1259, 657 N.E.2d 1358 (1994) (a blanket order of disqualification may have the unintended result of encouraging a litigant to retain a certain attorney solely for the purpose of having the litigant's case heard by another judge). Given how infrequently Mr. Sims appears before Judge Saffold, he has not demonstrated that a blanket order is necessary at this time. If one of Mr. Sims's future cases is assigned to Judge Saffold and he continues to believe that an appearance of partiality exists, he may file another affidavit of disqualification. Judge Saffold would then have the opportunity to respond to the allegations in the affidavit and explain—if she so believes—why an appearance of partiality no longer exists.