Must an Ohio judge recuse when a lawyer appearing before them is the judge's campaign opponent?

Plain-English summary

The Board addresses whether a judge must recuse when a lawyer who represents a party before the judge is the judge's current campaign opponent. The answer is no, unless the judge's impartiality may reasonably be questioned under Jud.Cond.R. 2.11(A).

The opinion frames the general standard: Jud.Cond.R. 1.2 requires judges to promote the independence, integrity, and impartiality of the judiciary, and Jud.Cond.R. 2.11(A) requires disqualification when the judge's impartiality may reasonably be questioned. The test is objective, asking whether a reasonable observer fully informed of the record would harbor serious doubts about the judge's impartiality (citing In re Disqualification of Lewis and In re Disqualification of Gall). The opinion stresses that disqualification is an extraordinary remedy and that judges are presumed impartial; the appearance of bias must be compelling to overcome that presumption.

Applying that standard to judicial elections, the opinion explains that a lawyer's status as a current or former campaign opponent is not, by itself, enough to disqualify the judge, and that these cases are decided case by case. The Board notes that specific campaign facts can change the result: in In re Disqualification of Maschari, the opponent's filing of two campaign grievances against the incumbent judge created an appearance of impropriety that required disqualification. The opinion directs judges to weigh factors such as the nature of the campaign and any residual personal feelings toward the opponent, and to recuse only if they cannot be fair or their impartiality could reasonably be questioned.

Opinion 2024-07 withdraws and replaces Adv. Op. 1987-023.

In practice

Under this opinion, an Ohio judge facing a former or current campaign opponent as counsel evaluates recusal under Jud.Cond.R. 2.11(A) on the specific facts rather than applying an automatic rule. The opinion treats the opponent relationship alone as insufficient for disqualification, while identifying campaign conduct that crosses into an appearance of impropriety (the Board's example is the filing of campaign grievances) as a fact that can require recusal.

Common questions

Q: Does a judge automatically have to step aside when their election opponent is the lawyer in the case?

A: No. The opinion concludes that a lawyer's status as a current or former campaign opponent is not, by itself, sufficient grounds for disqualification.

Q: When would recusal be required in this situation?

A: Per the opinion, recusal is required when facts in the record arising out of the campaign would cause the judge's impartiality to be reasonably questioned, such as the opponent filing campaign grievances against the judge (citing Maschari).

Q: What standard does the judge apply?

A: The opinion applies the objective test under Jud.Cond.R. 2.11(A): whether a reasonable observer, fully informed of all relevant facts, would harbor serious doubts about the judge's impartiality.

Background and rules framework

The opinion interprets the Ohio Code of Judicial Conduct, specifically Jud.Cond.R. 1.2 (promoting confidence in the judiciary) and Jud.Cond.R. 2.11(A) (disqualification when impartiality may reasonably be questioned). Because the scenario is not one of the enumerated grounds, the opinion analyzes it under the general 2.11(A) standard and Ohio affidavit-of-disqualification case law. The Code of Judicial Conduct, not the Rules of Professional Conduct, governs, so no Model Rule analogue is cited.

Citations and references

Rules:

• Ohio Jud.Cond.R. 1.2 (promoting independence, integrity, and impartiality)
• Ohio Jud.Cond.R. 2.11(A) (disqualification when impartiality may reasonably be questioned)

Cases:

• In re Disqualification of Lewis, 2004-Ohio-7359, objective "reasonable observer" test
• In re Disqualification of Gall, 2013-Ohio-1319, observer is fully informed of the record
• In re Disqualification of Celebrezze, 74 Ohio St.3d 1231 (1991), campaigning for or against a judge does not mandate recusal
• In re Disqualification of Maschari, 1999-Ohio-8, campaign grievances created an appearance of impropriety requiring disqualification
• In re Disqualification of Hurley, 2014-Ohio-5874; In re Disqualification of Burt, 2015-Ohio-5670, campaign issues decided case by case

See also

• Ohio BPC Op. 2024-06: Recusal When Counsel Represents the Judge
• Ohio BPC Op. 2025-01: Disclosing a Grievance Against a Judge

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2024/12/Adv.-Op.-2024-07-Board-Final.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

OPINION 2024-07
Issued December 13, 2024
Withdraws Adv. Op. 1987-023

Disqualification When Judicial Campaign Opponent Appears Before Judge

SYLLABUS: A judge is not required to recuse from a matter in which the judge's campaign opponent represents a party before the judge unless the judge's impartiality may be reasonably questioned.

APPLICABLE RULES: Jud.Cond.R. 1.2, 2.11

QUESTIONS PRESENTED:

Whether a judge must recuse himself or herself from a matter when a lawyer who represents a party before the judge is the judge's current campaign opponent.

ANALYSIS:

Disqualification in General

Judges are required to act in a manner that promotes the independence, integrity, and impartiality of the judiciary. Jud. Cond. R. 1.2. Consequently, Jud. Cond. R. 2.11(A) requires a judge to disqualify himself or herself when the judge's impartiality may be reasonably questioned, including but not limited to several enumerated circumstances in the rule. "The proper test for determining whether a judge's participation in a case presents an appearance of impropriety is * * * an objective one. A 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, 2004-Ohio-7359, paragraph 8. A "reasonable observer" is "fully informed of all the relevant facts in the record—not isolated facts divorced from their larger context." In re Disqualification of Gall, 2013-Ohio-1319, paragraph 6. The issue raised by the question presented does not fall under the circumstances specified in Jud.Cond.R. 2.11(C) and must instead be evaluated under Jud.Cond.R. 2.11(A) and relevant case law.

The statutory right to seek disqualification of a judge is an extraordinary remedy. In re Disqualification of Hunter (1988), 36 Ohio St.3d 607. Judges are "presumed to follow the law and not to be biased, and the appearance of bias or prejudice must be compelling to overcome these presumptions." In re Disqualification of George, 2003-Ohio-5489, paragraph 6. In disqualification cases, "[t]he term 'bias or prejudice' 'implies a hostile feeling or spirit of ill-will or undue friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will be governed by the law and the facts.'" In re Disqualification of O'Neill, 2002-Ohio-7479, paragraph 14, quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956), paragraph four of the syllabus. Unless evidence of personal bias or prejudice exists on the part of the judge, the presumption of impartiality is not overcome, and the judge is not required to recuse himself or herself from the matter.

Affidavit of Disqualification Case Law Relative to Judicial Elections

Ohio judges are selected by the electorate, and incumbent judges often must campaign to retain their judicial office. Judicial campaigns can give rise to questions about the incumbent judge's impartiality when his or her campaign opponent represents a party before the judge. Affidavit of disqualification cases "involving political and campaign issues are decided on a case-by-case basis." Jones v. Geauga Cty. Republican Party Cent. Comm. (In re Disqualification of Burt), 2015-Ohio-5670, paragraph 6.

It is well settled that a lawyer's status as a current or former campaign opponent of a judge is not, by itself, sufficient grounds for the judge's disqualification. Former Chief Justices have "decline[d] to establish a far-reaching rule that mandates the recusal or disqualification of a judge merely because a party to or a lawyer in the underlying case campaigned for or against the judge." In re Disqualification of Celebrezze (1991), 74 Ohio St. 3d 1231. However, a judge may be disqualified if there are facts on the record arising out of an election campaign that would cause the judge's impartiality to be reasonably questioned. In re Disqualification of Hurley, 2014-Ohio-5874. For example, in In re Disqualification of Maschari, 1999-Ohio-8, the lawyer campaign opponent filed two campaign grievances against the incumbent judge and a former Chief Justice found that this combination of factors created an appearance of impropriety that mandated the judge's disqualification.

Judicial campaigns can vary widely, ranging from candidates who conduct themselves ethically and remain cordial during and after the election to the filing of campaign conduct grievances by one or both candidates alleging campaign misconduct. Judges are encouraged to assess each situation involving a campaign opponent by considering factors such as the nature of the campaign and any residual personal feelings the judge may hold toward his or her opponent. If, after assessing the relevant factors, the judge determines that he or she can be fair and impartial while presiding over a matter involving a current or former campaign opponent and that his or her impartiality could not be reasonably questioned, then the judge's recusal is not mandated under Jud.Cond.R. 2.11 or relevant case law.