In re Disqualification of Cirigliano
| Decision Date | 29 April 2004 |
| Docket Number | No. 04-AP-029.,04-AP-029. |
| Parties | In re DISQUALIFICATION OF CIRIGLIANO. State v. Ross. |
| Court | Ohio Supreme Court |
{¶ 1} Cuyahoga County Assistant Prosecuting Attorneys John R. Mitchell and Matthew E. Meyer have filed an affidavit with the Clerk of this court under R.C. 2701.03 seeking the disqualification of Judge Joseph Cirigliano from acting on any further proceedings in State of Ohio v. Denny F. Ross, case No. CR-1999-05-1098-A in the Court of Common Pleas of Summit County.
{¶ 2} Judge Cirigliano has responded to the affidavit by filing a motion asking that the affidavit be dismissed. According to Judge Cirigliano, the circumstances surrounding the appointment of a special prosecutor for the Ross case three years ago now deprive the assistant prosecuting attorneys of any legal authority to appear on behalf of the government in this case. The affidavit should therefore be dismissed, the judge claims.
{¶ 3} For the reasons explained below, I now deny the judge's motion to dismiss.
{¶ 4} The sequence and timing of various events are relevant to the issues that Judge Cirigliano raises in his motion to dismiss, so a brief discussion of key events follows.
{¶ 5} In the case before Judge Cirigliano, Denny Ross faces various felony charges in connection with the rape and murder of an Akron woman. Ross was tried on the charges before a jury in Summit County in late 2000. Judge Jane Bond presided. While the jury was deliberating its verdicts, Judge Bond declared a mistrial amid rumors of juror misconduct.
{¶ 6} Following that first trial, Ross's defense counsel filed an affidavit of disqualification seeking the removal of Judge Bond from the case. On January 17, 2001, I concluded that Judge Bond should indeed step aside from the case because of the strong possibility that she might be called as a witness to testify about the actions that she took once she learned about the possible juror misconduct during the trial. In re Disqualification of Bond (2001), 94 Ohio St.3d 1221, 763 N.E.2d 593.
{¶ 7} On January 26, 2001, Judge John R. Adams — who at the time was serving as the administrative judge on the Summit County Court of Common Pleas — asked Stark County Common Pleas Judge Richard D. Reinbold Jr. to take over the case. That same day, Judge Adams wrote to this court, suggesting that Judge Reinbold be appointed to the case and explaining that a visiting judge was needed to hear the case "based on the recusal of all of the Summit County Common Pleas judges due to their colleague, Judge Jane Bond, being a potential witness in this case."
{¶ 8} On February 2, 2001, I appointed Judge Reinbold to hear the Ross case in Summit County, relying on my authority under Section 5(A)(3), Article IV of the Ohio Constitution, which gives me the power to assign judges to serve temporarily on courts other than their own when needed.
{¶ 9} On February 21, 2001, the then newly elected Summit County Prosecuting Attorney, Sherri Bevan Walsh, filed a motion in the Ross case asking that the trial court appoint a special prosecutor for the retrial because she and her entire office had a conflict of interest in the case.
{¶ 10} On March 5, 2001, Judge Reinbold wrote a letter to me requesting that he be permitted to resign his appointment in the Ross case. My office received the letter on March 7, 2001. In the letter, Judge Reinbold explained that the case appeared to be more procedurally complex and would likely be more time-consuming than he had first anticipated, and he was concerned that he would not be able to devote an appropriate amount of time to it, given his own heavy caseload in Stark County. Judge Reinbold indicated in the letter that he had conveyed the same sentiments to Administrative Judge Adams on February 28, 2001 and that Judge Adams had agreed then to request a new visiting judge to hear the case. Finally, the letter indicated that Judge Adams was also searching for a special prosecutor to represent the government in the case.
{¶ 11} On March 16, 2001, the judges of the Summit County Common Pleas Court, General Division, granted Prosecuting Attorney Walsh's request that a special prosecutor be appointed to represent the government in the Ross case, and the judges appointed Cuyahoga County Prosecuting Attorney William Mason to the post.
{¶ 12} On March 23, 2001, I formally withdrew the assignment of the Ross case from Judge Reinbold, and I appointed Judge Cirigliano to handle the case. Judge Cirigliano has presided over all trial court proceedings in the case during the past three years.
{¶ 13} On March 15, 2004, Assistant Prosecuting Attorneys Mitchell and Meyer from Special Prosecuting Attorney Mason's office filed the affidavit of disqualification here, alleging that Judge Cirigliano should now be removed from the case because he has exhibited bias against the government and cannot preside fairly and impartially any longer.
{¶ 14} On April 1, Judge Cirigliano filed a motion to dismiss, raising the three arguments that I now resolve as follows.
{¶ 15} Judge Cirigliano argues first that the appointment of a special prosecutor to the Ross case by the general-division common pleas judges in Summit County was improper because the judges who made the appointment had no authority to do so. The key question that Judge Cirigliano presents is this: Did Judge Adams and his Summit County colleagues have the authority to appoint a special prosecutor for the Ross case, given that they had recused themselves and given that Judge Reinbold was still at that point the assigned judge on the case (though he had by then asked to be permitted to withdraw)?
{¶ 16} Court rules and past court decisions provide limited guidance on the issue. To be sure, Sup.R. 4(B) states that an administrative judge has "full responsibility and control over the administration, docket, and calendar of the court." And certainly, "[c]ourts of common pleas possess inherent power to appoint special prosecutors in criminal matters." State ex rel. Master v. Cleveland (1996), 75 Ohio St.3d 23, 27, 661 N.E.2d 180. See, also, State v. Bunyan (1988), 51 Ohio App.3d 190, 192, 555 N.E.2d 980 ().
{¶ 17} Beyond those well-settled principles, the validity of the appointment of Prosecuting Attorney Mason as special prosecutor in the Ross case turns primarily on the sequence of events that occurred in early 2001. Having examined the existing record of those events, I conclude that the Summit County judges' appointment of Prosecuting Attorney Mason as a special prosecutor for the Ross case on March 16, 2001 was and is valid.
{¶ 18} Judge Reinbold was undeniably the assigned judge on the Ross case at the time of the Mason appointment, and the letter that Judge Reinbold sent to me on March 5, 2001, provides very helpful insights into the judge's views about the appointment issue. (In fairness to Judge Cirigliano, he may not be aware of that letter's contents, and he has probably never seen it.)
{¶ 19} That letter from Judge Reinbold reflects his assent to the search that Judge Adams was then conducting to find a special prosecutor for the case. As Judge Reinbold said in the letter, he had recently concluded after meeting with attorneys for both sides that it was "quite clear that a new prosecutor was mandatory." Judge Reinbold added, "We so advised Judge Adams, and he has attempted since then to enlist a special prosecutor from a number of different counties."
{¶ 20} From that language, it appears that Judge Reinbold — even while still assigned to the case — felt that Judge Adams as administrative judge ought to be the person to search for a special prosecutor. The newly elected Summit County Prosecuting Attorney had asked that a special prosecutor be appointed, defense counsel had not objected to the prosecutor's request, and Judge Reinbold evidently believed that Judge Adams, as administrative judge, should handle the job of locating a special prosecutor while Judge Reinbold continued to sort out the disputed legal issues that divided the parties. Perhaps Judge Reinbold wanted to avoid any appearance of impropriety by leaving to another judge or group of judges the duty of selecting new counsel for the government while the case was pending before him. In any event, Judge Reinbold appears to have concluded that a special prosecutor was needed, and he then left to Judge Adams the task of selecting that prosecutor.
{¶ 21} Though Administrative Judge Adams and his Summit County colleagues had voluntarily stepped aside from the case, and though Judge Reinbold had not formally been removed from the case on March 16, 2001, there is every reason to assume that Judge Reinbold welcomed the Summit County judges' order appointing a special prosecutor on that day. Neither he, nor defense counsel, nor Prosecuting Attorney Walsh raised any questions about the validity of the March 16, 2001 appointment of Prosecuting Attorney Mason as special prosecutor, and none of them appear to have raised any concerns about the appointment since then.
{¶ 22} As for Judge Cirigliano, he too appears to have accepted the validity of the appointment for more than three years after it occurred. The order granting the motion and appointing William Mason as special prosecutor was part of the case file when Judge Cirigliano took over the case. If he had any concerns about the ruling or its validity, he could have raised them then, vacated the order, and issued his own ruling on Prosecuting Attorney Walsh's motion. He did not do so.
{¶ 23} Ohio's...
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