Opinion
No. 21-AP-056
05-26-2021
IN RE DISQUALIFICATION OF COTTRILL. Fields v. Zanesville Police Department et al.
{¶ 1} Plaintiff Gerald D. Fields has filed an affidavit pursuant to R.C. 2701.03 and Article IV, Section 5(C) of the Ohio Constitution seeking to disqualify Judge Kelly J. Cottrill from the above-referenced replevin action.
{¶ 2} Mr. Fields alleges that in a 2019 criminal case—over which Judge Cottrill presided—the jury found that $7,700 seized from Mr. Fields's home was not subject to forfeiture. But Judge Cottrill, Mr. Fields claims, refused to order the return of the money to him, which led to the underlying replevin action against a local police department. Mr. Fields believes that Judge Cottrill's refusal to order the return of his money in the criminal case demonstrates that the judge is biased against him and should not preside over the replevin action. To further support his bias claim, Mr. Fields asserts that Judge Cottrill presided over a 2009 criminal case against Mr. Fields, the judge recused himself from a 2013 civil case that Mr. Fields brought against the clerk of courts, and the judge committed several other errors in the 2019 criminal case, including allowing the jury to hear prejudicial testimony.
{¶ 3} Judge Cottrill filed a response to the affidavit and requests that it be denied. The judge acknowledges that he presided over a 2009 criminal case against Mr. Fields and notes that the convictions and sentence were affirmed on appeal. The judge also acknowledges that he voluntarily recused himself from Mr. Fields's 2013 civil case, but the judge does not remember his reason for doing so. Regarding Mr. Fields's 2019 criminal case, Judge Cottrill states that the convictions and sentence were affirmed on appeal and that he denied Mr. Fields's requests for return of the $7,700 because the evidence at trial indicated that the money belonged to Mr. Fields's girlfriend. According to Judge Cottrill, he has never shown any bias against Mr. Fields and his decisions have been based on the evidence and applicable law. {¶ 4} "In general, what a judge learns in his official judicial capacity in another proceeding is not the kind of information that leads to disqualification." In re Disqualification of Blanchard , 150 Ohio St.3d 1260, 2017-Ohio-5543, 80 N.E.3d 504, ¶ 4 ; see also In re Disqualification of Basinger , 135 Ohio St.3d 1293, 2013-Ohio-1613, 987 N.E.2d 687, ¶ 5. Therefore, the mere facts that Judge Cottrill presided over the related 2019 criminal case and rejected Mr. Fields's requests for return of the $7,700 based on the evidence presented in that proceeding do not mean that Judge Cottrill is biased against Mr. Fields. "Just as ‘a judge is presumed to follow the law and not to be biased,’ a judge is presumed to be capable of separating what may properly be considered from what may not be considered." Basinger at ¶ 5, quoting In re Disqualification of George , 100 Ohio St.3d 1241, 2003-Ohio-5489, 798 N.E.2d 23, ¶ 5. Here, nothing in the record suggests that Judge Cottrill has been unduly influenced by the 2019 criminal case or that the judge has a personal interest in or will be unable to impartially preside over the replevin action.
{¶ 5} Further, an affidavit of disqualification is not the appropriate vehicle to determine whether Judge Cottrill committed any legal errors in the 2019 criminal case. See In re Disqualification of D'Apolito , 139 Ohio St.3d 1230, 2014-Ohio-2153, 11 N.E.3d 279, ¶ 5. And the facts that Judge Cottrill also presided over Mr. Fields's 2009 criminal case and recused himself from Mr. Fields's 2013 civil case do not, without more, require the judge's disqualification from the replevin matter. See In re Disqualification of D'Apolito , 160 Ohio St.3d 1259, 2020-Ohio-4204, 156 N.E.3d 928, ¶ 4 (a judge's participation in a prior case involving the same party does not automatically establish the existence of bias); In re Disqualification of Celebrezze , 135 Ohio St.3d 1218, 2012-Ohio-6304, 985 N.E.2d 499, ¶ 7 ("a judge's voluntary removal from an earlier case does not, by itself, support disqualification from an unrelated case involving that same party").
{¶ 6} The affidavit of disqualification is denied. The case may proceed before Judge Cottrill.