Beer v. Griffith

• Decision Date: 28 June 1978
• Docket Number: No. 77-745,77-745
• Citation: 377 N.E.2d 775,8 O.O.3d 438,54 Ohio St.2d 440
• Parties: , 8 O.O.3d 438 BEER et al., Appellants, v. GRIFFITH et al., Appellees.
• Court: Ohio Supreme Court

Page 440

54 Ohio St.2d 440

377 N.E.2d 775, 8 O.O.3d 438

BEER et al., Appellants, v. GRIFFITH et al., Appellees.

No. 77-745.

Supreme Court of Ohio.

June 28, 1978.

Plaintiff-appellants were represented in the instant cause by the law firm of Knell & Freehafer, comprised of George H. Knell and A. Douglas Freehafer. The latter died on December 20, 1975. Appellants' complaint sought cancellation of an oil and gas lease and monetary damages and was signed by A. Douglas Freehafer as "Attorney for Plaintiffs," although it was prepared and filed by George Knell. Except for the presence of A. Douglas Freehafer at pre-trial negotiations and conferences, Knell conducted all trial preparation, pre-trial representation and the actual trial.

On November 28, 1975, ¹ the cause was tried in the Court of Common Pleas of Richland County before the Honorable Charles H. Freehafer, who was the father of A. Douglas Freehafer and the uncle of George H. Knell. All parties and their counsel knew of the relationship of Judge Freehafer to A. Douglas Freehafer prior to the initiation of this action, for the law firm of Knell & Freehafer had previously represented appellees, William Griffith and the Mansfield Drilling Company. It is not clear, however, whether appellees' counsel was aware of the relationship between Judge Freehafer and George H. Knell during the trial.

The trial court's judgment for the appellants was appealed to the Court of Appeals for Richland County.

The issue of the propriety of Judge Freehafer hearing the instant cause was not raised by appellees' counsel at trial or on appeal. The issue was first raised by a judge of the Court of Appeals during oral argument in that court.

The Court of Appeals subsequently held that Judge Freehafer was disqualified from hearing the cause and declared the trial court's judgment void.

The cause is now before this court upon the allowance of a motion to certify the record.

Knell & Freehafer and George H. Knell, Mansfield, for appellants.

Laughbaum & Eckstein and Rolland E. Laughbaum, Galion, for appellees.

PER CURIAM.

Authority to pass upon the disqualification of a judge of the Court of Common Pleas is vested in the Chief Justice under Section 5(C) of Article IV of the Ohio Constitution, which reads as follows:

"The chief justice of the supreme court or any judge of that court designated by him shall pass upon the disqualification of any judge of the courts of appeals or courts of common pleas or division thereof. Rules may be adopted to provide for the hearing of disqualification matters involving judges of courts established by law." ²

Since only the Chief Justice or his designee may hear disqualification matters, ³ the Court of Appeals was without authority to pass upon disqualification or to void the judgment of the trial court upon that basis. Although a judge would be without power to hear and determine a cause after disqualification, his judgment, however erroneous, before disqualification is not void. We remand the cause to the Court of Appeals to pass upon the other errors which were assigned.

Judgment accordingly.

C. WILLIAM O'NEILL, C. J., and HERBERT, WILLIAM B. BROWN, PAUL W. BROWN and SWEENEY, JJ., concur.

CELEBREZZE and LOCHER, JJ., dissent.

LOCHER, Justice, dissenting.

I respectfully dissent from the opinion of the majority of the court.

R.C. 2701.03 provides a mechanism for determining the disqualification of a judge; however, in the instant cause, the reason for seeking disqualification of the trial judge did not appear until argument was had in the Court of Appeals. At this juncture, under questioning by members of that court, counsel for appellees first learned that the trial judge was the uncle of counsel for appellants.

Clearly, the Code of Judicial Conduct promulgated and adopted by this court is germane to a correct resolution of this appeal. To rely on R.C. 2701.03, therefore, begs the question.

Canon 3 of the Code of Judicial Conduct reads, in pertinent part, as follows:

"C. Disqualification

"(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

" * * *udg

"(d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

" * * *or

"(ii) is acting as a lawyer in the proceeding * * *."

The procedure for circumventing Canon 3C(1)(d)(ii) is through a remittal signed by all parties and counsel after the nepotistic relationship has been ascertained. ⁴

The burden of disclosure of relationship is upon the judge. Counsel should not be required to trace the family trees of the parties and their attorneys vis-a-vis the genealogical chart of the jurist.

In my judgment the standards of the Code of Judicial Conduct mandate the court to advise counsel where a relationship, such as here, exists. The Preface to the code reads as follows:

"This Code, consisting of statements of norms denominated canons, the accompanying text setting forth specific rules, and the commentary, states the standards that judges should observe. The canons and text establish mandatory standards unless otherwise indicated."

It is both indelicate and unreasonable for attorneys to raise...