Cuyahoga County Bd. of Mental Retardation v. Association of Cuyahoga County Teachers of Trainable Retarded

• Citation: 47 Ohio App.2d 28,351 N.E.2d 777,1 O.O.3d 168
• Parties: , 1 O.O.3d 168, 80 Lab.Cas. P 54,028 CUYAHOGA COUNTY BD. OF MENTAL RETARDATION, Appellee, v. ASSOCIATION OF CUYAHOGA COUNTY TEACHERS OF the TRAINABLE RETARDED et al., Appellants.
• Decision Date: 11 December 1975
• Court: United States Court of Appeals (Ohio)

Page 28

47 Ohio App.2d 28

351 N.E.2d 777, 1 O.O.3d 168, 80 Lab.Cas. P 54,028

CUYAHOGA COUNTY BD. OF MENTAL RETARDATION, Appellee, v. ASSOCIATION OF CUYAHOGA COUNTY TEACHERS OF the TRAINABLE RETARDED et al., Appellants.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Dec. 11, 1975.

Syllabus by the Court

1. When the undisputed facts are such that a trial judge is under a clear and mandatory duty to disqualify himself from hearing a case, his attempt to act in violation of that duty is null and void.

2. When an affidavit of disqualification has been properly filed with the clerk of courts, a trial judge is without authority to proceed with the case or to enter judgment therein, until the Chief Justice of the Ohio Supreme Court has passed upon the issue of disqualification.

3. A court is without legal or equitable authority to use its contempt power to compel negotiations between public employers and public employees for purposes of effecting a collective bargaining agreement.

4. Civil Rule 53(A) authorizing a court to appoint a referee 'to hear an issue or issues in any case in which the parties are not entitled to a trial by jury' does not posit authority in the court to appoint mediators to perform non-adjudicatory duties in labor disputes.

John T. Corrigan, Pros. Atty., for appellee.

Green, Schiavoni, Murphy & Haines and John T. DeFazio, Youngstown, for appellants.

J. Ross Haffey, Jr., Cleveland, amicus curiae.

JACKSON, Judge.

On September 10, 1974, the Cuyahoga County Board of Mental Retardation filed a complaint for injunctive relief, along with a motion for a temporary restraining order and an application for a preliminary injunction. By that action it sought to enjoin the defendants appellants from striking in violation of the Ferguson Act, R.C. 4117.01, et seq. The stamped complaint, original court file and the appearance and execution docket all indicate that this case was originally assigned to Judge Adrian B. Fink. For some reason unascertainable from the record the motion for temporary restraining order and all subsequent proceedings were conducted before Judge Daniel O. Corrigan.

The motion for temporary restraining order was granted on September 10, 1974, after an ex parte hearing. On September 11, 1974, a hearing was held upon the application for a preliminary injunction and an order was issued restraining the appellants from continuing the strike; ordering them to return to work; and compelling them to 'enter into further and meaningful negotiations forthwith.'

On September 13, 1974, the appellants filed a document styled 'Affidavit of Disqualification of Judge for Bias, Prejudice and Impropriety.' By that affidavit the appellants sought a determination that Judge Daniel Corrigan was disqualified from hearing the case by reason of bias and prejudice. In support of their contention appellants alleged that Judge Corrigan was a former member of the Cuyahoga County Board of Education; that he had publicly asserted his sympathy for public employers in dealing with representatives of public employees; and that he had made certain statements and inquiries in the hearing for a preliminary injunction which the appellants considered to indicate bias and prejudice against them.

By an entry dated September 14, 1974, and filed on September 17, 1974, the trial court appointed attorney J. Ross Haffey, Jr., to be the 'sole mediator' in the dispute between the parties. Mr. Haffey was to conduct the mediation within the guidelines the court orally presented in a hearing held on September 14, 1974. Further, the entry stated that anyone willfully violating the instructions of the mediator would be found in contempt of court.

On September 24, 1974, a letter from Chief Justice C. William O'Neill of the Ohio Supreme Court, dated September 19, 1974, was filed in the Clerk's Office. By that letter the Chief Justice indicated that the affidavit of disqualification was seasonably filed and that no further action on the merits of the case 'will be taken' until a ruling had been made upon the affidavit. Nevertheless, by judgment entries dated September 27, 1974, the trial judge dismissed the action with the agreement of the parties and awarded attorney J. Ross Haffey, Jr., the mediator, and attorney Floyd Oliver, his assistant, whose appointment does not appear in the record, fees totaling $5,850.

Subsequently, on or about October 3, 1974, the appellants filed with the Ohio Supreme Court a second document styled 'Affidavit of Disqualification of Judge for Bias, Prejudice, and Impropriety.' ¹

This second affidavit, instead of alleging facts which would indicate bias or prejudice, presented allegations of fact in support of a claim of improper interest. The central thrust of that affidavit was the sworn statement of the affiants alleging that an officer of the Board of Mental Retardation, Joseph Corrigan, was a brother of the trial judge and that Judge Daniel Corrigan was therefore disqualified to hear the case.

In October 9, 1974, the appellants filed their notice of appeal from the September 27th entry of the trial court. Subsequently, in an order dated September 30, 1974, but filed on October 9th, after the notice of appeal, the trial court purported to vacated the September 27, 1974 entries, acting upon its own motion.

On October 10, 1974, the trial judge, while acknowledging that he had actual knowledge of the pending appeal proceeded to hold a hearing to discuss the issue of the mediators' fees. At the end of that hearing the trial judge recessed the case until November 1, 1974, and stated that he would proceed on the merits of the case. On October 28, 1974, the parties filed a stipulated dismissal entry pursuant to Civil Rule 41. The trial judge, on his own motion, vacated that stipulation of dismissal in an entry dated November 14, 1974. Subsequently, in an entry filed in the Court of Common Pleas on December 16, 1974, Chief Justice O'Neill ruled that the affidavit of disqualification was 'well taken' and ordered the case transferred to another judge.

From the final order entered on September 27, 1974, the appellants have assigned four errors, each of which will be given separate consideration. In order to avoid confusion it must be noted that this court is concerned only with the acts of the trial court prior to the filing of the notice of appeal. This is so, because in situations such as this-where costs have been assessed; a dismissal entered which constitutes a final order; and a timely appeal has been taken-the trial court loses jurisdiction. E.g., Vavrina v. Grecaznik (1974), 40 Ohio App.2d 129, 318 N.E.2d 408. Hence, all acts of the trial court subsequent to the filing of the notice of appeal are void for want of jurisdiction.

I.

Appellant's first assignment of error alleges that:

'That trial court judge erred by participating in the present proceeding because his bias and prejudice disqualified him from judging the case with impartiality.'

We find that this assignment of error is well taken, based upon three separate and independent grounds.

A.

The oath of office of a judge, required under Section 7, Article XV of the Ohio Constitution and specified in R.C. 3.23 provides that a judge will 'discharge and perform all the duties incumbent on him as such judge * * *.' One of those duties is to conform his conduct to that set forth in the Code of Judicial Conduct. Section 3(C) of the Code provides, in relevant part:

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

'(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:

'(i) is a party to the proceeding, or an officer, director, or trustee of a party * * *.'

The sworn affidavit of two of the appellants states that the brother of the trial judge is and was, at all times relevant to these proceedings, an officer of the plaintiff appellee. These statements were not only uncontradicted but apparently provided, in whole or in part, the grounds for the ruling from the Chief Justice of the Ohio Supreme Court directing that the case should be reassigned to another judge. With the undisputed facts in this posture, ² we conclude that the trial judge was under an obligation to disqualify himself. In reaching this conclusion we are careful to note that this is not a case where the facts are in dispute; where it is alleged that the trial judge did not know of the relationship or the position of his relative; or where there is controversy over whether the job of the judge's relative is one in which he can properly be classified as an officer.

Having determined that under the particular facts in this case the trial judge should have disqualified himself, we must next resolve the issue as to what is the effect of his failure to do so. In considering this matter we find ourselves in much the same situation as the Ohio Supreme Court 120 years ago when it stated:

'No authority is cited by counsel bearing directly upon this point, and few can be found; and for the reason, that in but few cases do interested judges ever pretend to sit in such cases.' Gregory v. Ry. Co. (1855), 4 Ohio St. 675.

Nevertheless, having carefully considered these matters, we conclude that the trial judge was prohibited from hearing this case; that he was under a compulsory duty to disqualify himself; and that his breach of that duty rendered his subsequent actions null and void.

In reaching this conclusion we begin with the fact that Rule IV of the Supreme Court Rules for the Government of the Bar of Ohio provides that the Canons of Judicial Ethics are 'binding' upon all judicial officers of the state. See also, Bar Assoc. v. Franko (1958), 168 Ohio St. 17, 151 N.E.2d 17, cert. denied, 358 U.S. 932, 79 S.Ct. 312, 3 L.Ed.2d 305 (1959). Further, the preface to the Code...