Opinion
No. 21-AP-032
04-01-2021
IN RE DISQUALIFICATION OF BINETTE. THE STATE OF OHIO v. FARRIS.
[Cite as In re Disqualification of Binette , ___ Ohio St.3d ___, 2021-Ohio-1753.] Judges—Affidavits of disqualification—R.C. 2701.03—Affiant failed to demonstrate bias or prejudice—Disqualification denied. ON AFFIDAVIT OF DISQUALIFICATION in Erie County Court of Common Pleas, General, Domestic Relations, and Probate Division, Case Nos. 2017 CR 0414 and 2020 CR 0337. O'CONNOR, C.J.
{¶ 1} Loretta Riddle, counsel for defendant Bret Farris, has filed an affidavit pursuant to R.C. 2701.03 and Article IV, Section 5(C) of the Ohio Constitution seeking to disqualify Judge Roger E. Binette from the above-referenced criminal cases. The 2017 case is pending for a probation-violation hearing, and the 2020 case is pending for a pretrial hearing.
{¶ 2} During the pendency of the two underlying cases, Mr. Farris was charged with retaliation for allegedly threatening to kill Judge Binette. Mr. Farris made the alleged death threat to a deputy sheriff while Mr. Farris was incarcerated in the county jail; a retaliation case is pending before another judge of the Erie County Court of Common Pleas. Ms. Riddle claims that because of the alleged threat, Judge Binette is biased against Mr. Farris or the judge's impartiality might reasonably be questioned if he continues presiding over Mr. Farris's other cases.
{¶ 3} Judge Binette submitted a response to the affidavit in which he denies bias against Mr. Farris and requests that the affidavit be denied. The judge states that the alleged threat was not made in his presence and that he has no direct knowledge of it. The judge believes that there is no reason to question his impartiality and that requiring a judge's disqualification based on a party's "verbalizing a threat towards the Judge would allow others to use this tactic to 'forum shop.' "
{¶ 4} As a general rule, a litigant's threats against a judge do not lead to the judge's disqualification.
Our adversarial system produces dissatisfaction with the decisions of judges who are elected to fairly and impartially administer justice. This dissatisfaction sometimes manifests itself in threats and other retaliatory actions directed at judges and other persons involved in the judicial process. Whether real or perceived, these threats and actions are not, without more, evidence of bias or prejudice that mandates disqualification of a judge. To hold otherwise would afford a party an ample opportunity to disrupt the orderly administration of justice.In re Disqualification of Lane, 74 Ohio St.3d 1274, 1274-1275, 657 N.E.2d 1369 (1995); see also In re Disqualification of Parker, 135 Ohio St.3d 1216, 2012-Ohio-6307, 985 N.E.2d 497, ¶ 9, quoting Clemens v. United States Dist. Court for the Cent. Dist. of California, 428 F.3d 1175, 1180 (9th Cir.2005) (" '[W]e must be especially careful not to allow threats of violence to succeed in altering the normal course of litigation. To do otherwise would be destructive of the independence of the judiciary * * *' ").
{¶ 5} There are occasions, however, when a judge should not preside over a case involving a party who threatened the judge. For example, "some threats against a judge or a judge's family could be of such a personal or hostile nature that the risk of bias would be intolerably high if the judge presided over any case involving the person who made the threats." In re Disqualification of Leuthold, 155 Ohio St.3d 1240, 2018-Ohio-5426, 120 N.E.3d 845, ¶ 7. The test for determining whether a judge may participate in such a case is an objective one: "[the] 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, 117 Ohio St.3d 1227, 2004-Ohio-7359, 884 N.E.2d 1082, ¶ 8. "The reasonable observer is presumed to be fully informed of all the relevant facts in the record—not isolated facts divorced from their larger context." In re Disqualification of Gall, 135 Ohio St.3d 1283, 2013-Ohio-1319, 986 N.E.2d 1005, ¶ 6. Each case must be determined on its own merit, weighing the nature and circumstances of the alleged threat.
{¶ 6} Upon review of the record as a whole, a well-informed, objective observer would not harbor serious doubts about Judge Binette's impartiality. There is no evidence that Mr. Farris took concrete steps to carry out the alleged threat or that Judge Binette considered it credible or realistic. Nor is there evidence that Judge Binette responded to the alleged threat in a way that might suggest bias or that he was influenced by it. Indeed, the judge states that a month after learning of the alleged threat, he had to resentence Mr. Farris in the 2017 case. According to the judge, he issued the same sentence that he had originally imposed: a period of community control with a reserved prison sentence.
{¶ 7} "Regretfully, threats against judges are not uncommon, but despite these threats, judges continue to administer the law fairly and professionally." Parker, 135 Ohio St.3d 1216, 2012-Ohio-6307, 985 N.E.2d 497, at ¶ 9. The affidavit of disqualification is denied. The cases may proceed before Judge Binette.