Recusal Denial Not Appealable

An appeals court lacks jurisdiction to review a trial court decision denying a defense motion to disqualify an entire prosecutor’s office from the case, according to a decision issued by the Ohio Supreme Court.

The defendant is a Cuyahoga County Court of Common Pleas judge accused of a violent assault against his wife.

The Cuyahoga county bench is recused from the case; the county prosecutor’s office did not recuse itself.

The court

The Eighth District patently and unambiguously lacks jurisdiction over an interlocutory appeal of an order denying a motion to disqualify the prosecutor in a criminal case. We therefore grant the requested writ of prohibition and order the court of appeals to vacate the stay it issued in the underlying case and to remand the cause to the trial court for further proceedings.

There was a dissent

FEIFER, J., dissenting.

The Eighth District Court of Appeals should be given the opportunity to decide whether the denial of the defendant’s motion in the underlying case to disqualify the prosecutor’s office and appoint a special prosecutor is a final, appealable order. Determining whether a trial court’s order is final and appealable is what courts of appeals do. Should this court provide a shortcut in the appellate process in every instance in which a party asserts a lack of a final, appealable order in an appellate court? The fact that the answer to the question of whether an order denying the appointment of a special prosecutor seems obvious to the majority does not mean that the court of appeals “patently and unambiguously” lacks the jurisdiction to decide the question. In at least eight opinions issued in the past year, the Eighth District Court of Appeals analyzed the appealability under R.C. 2505.02 of the order appealed from and dismissed the case for lack of a final, appealable order. Should this court have jumped in and prevented that court from making those determinations? Did the fact that the court of appeals determined that it lacked jurisdiction mean that it “patently and unambiguously” lacked the jurisdiction to decide that issue in those cases?

If the appellate court were to decide the issue incorrectly in this case, this court could fix it. That’s what we do. But I dissent from the majority’s decision to prohibit the court of appeals from doing its job.

RENCH and O’NEILL, JJ., concur in the foregoing opinion.

Cleveland.com reported on the criminal charges. (Mike Frisch)