In re Disqualification of Russo - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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IN RE DISQUALIFICATION OF RUSSO.
COHEN, M.D., ET AL. v. BANKERS LIFE AND CASUALTY COMPANY ET AL.
[Cite as In re Disqualification of Russo (1997), ___ Ohio St.3d ___.]
Judges -- Affidavit of disqualification -- Disqualification not required when judge
was previously employed by two insurance companies, including one of the
defendants in the underlying case -- Judge need not check his or her
experience at the courthouse door upon assuming the bench.
(No. 97-AP-049 -- Decided April 21, 1997.)
ON AFFIDAVIT OF DISQUALIFICATION in Cuyahoga County
Court of Common Pleas case No. 294256.

MOYER, C.J. Affiant, Richard Gurbst, has filed an affidavit seeking the
disqualification of Judge Nancy M. Russo from further proceedings in the
underlying case. Affiant is counsel for the plaintiffs in a potential class action suit
that involves the alleged failure of various insurance companies to make full
payments to providers of outpatient mental health services to persons covered by
Medicare.

In support of his claim of bias and prejudice, affiant alleges that Judge
Russo previously was employed by two insurance companies, including one of the
defendants in the underlying case. Affiant asserts that Judge Russo has allowed
this employment and her past experience in the insurance industry to influence her
judgment in this case and references two recent adverse rulings on motions. In
making these rulings, affiant contends that Judge Russo expressed opinions and
reached conclusions that were not evidenced in the record and that demonstrate
bias against his clients.

Having reviewed the record, I cannot conclude that Judge Russo's
disqualification is warranted because of the existence of a bias or prejudice against

affiant's clients or to avoid the appearance of impropriety. Judge Russo's prior
employment with one of the defendant insurance companies ended in 1994. There
is no indication that this employment, or her prior employment with another
insurance company, was related to the subject matter of the underlying case or
exposed the judge to disputed evidentiary facts in the underlying proceeding, such
that would mandate her disqualification under the Code of Judicial Conduct.

While there is no doubt that Judge Russo's prior employment and education
provides her with some degree of expertise in the substantive area of law at issue
in the underlying case, her reliance on this expertise in considering matters before
her does not mandate her disqualification. Judges are elected to office, at least in
part, because of their personal and professional experiences. A judge's practice of
law often allows the judge to develop a proficiency in one or more areas of the
law. A judge is not required, either by the Code of Judicial Conduct or to avoid
any reasonable question of his or her impartiality, to check his or her experience at
the courthouse door upon assuming the bench. Rather, the public expects that a
judge will use that experience appropriately in fulfilling his or her responsibilities
in a manner consistent with the Code of Judicial Conduct and the judicial oath of
office.

For these reasons, the affidavit of disqualification is found to be not well
taken and is denied. The case shall proceed before Judge Russo.