December 19, 2014

Elyria
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UPDATED: Chief justice finds claims of bias against Burge unfounded

 Lorain County Common Pleas Judge James Burge

Lorain County Common Pleas Judge James Burge

ELYRIA — Lorain County Common Pleas Judge James Burge has survived an effort to have him banned from hearing cases being handled by county Prosecutor Dennis Will’s office.

In a decision handed down Tuesday, Ohio Supreme Court Chief Justice Maureen O’Connor ruled that Will hadn’t presented enough evidence to support his contention that Burge was biased against his office.

The decision means that Burge will once again be able to hear cases being handled by Will’s staff, something the judge was temporarily barred from doing after Will filed the complaint against him in May. Visiting Judge Dale Crawford has been running Burge’s criminal docket in the meantime.

O’Connor wrote that Will, who accused Burge of sexually harassing and intimidating his staff, in addition to making racially charged and other inappropriate comments, had a high burden of proof to meet. Burge also was accused of seeking to find a government job for his wife and showing favoritism to certain defense attorneys,

“In order for Judge Burge to be removed from all cases involving the prosecutor’s office, Will must demonstrate that Judge Burge has illustrated bias toward Will, which manifests itself in the judge’s official duties, thereby materially impacting the fair and impartial administration of justice in Lorain County,” O’Connor wrote. “Will has not met his burden.”

Those issues might be grounds for complaints to the Supreme Court’s Board of Commissioners on Grievances and Discipline, but they weren’t a factor in deciding whether Burge was prejudiced against Will and his staff, the chief justice wrote.

“Although Will’s affidavit is being denied at this time, many of the allegations raised in his affidavit — especially regarding Judge Burge’s generally offensive language and conduct — are a cause for concern,” O’Connor wrote.

Burge said he was “grateful” for O’Connor’s ruling, but otherwise declined to comment Tuesday.

Will said he did what he thought was right in seeking to have Burge kicked off all of the cases involving his office. He said he maintains the same view he’s held after some of his previous efforts to have Burge removed from cases in the past were unsuccessful.

“I don’t have to agree with it, but I do have to accept it and abide by it, and I will do that,” Will said.

O’Connor also urged Burge and Will to fix their damaged relationship, writing that rules of professionalism require judges and prosecutors to show proper respect to each other.

“The relationship between Will and Judge Burge has risen to an unprofessional level and is less than the public deserves from these two veteran lawyers,” O’Connor wrote. “Both parties must work to improve their professional relationship. The citizens of Lorain County deserve a civil working relationship between the prosecutor’s office and the administrative judge of the common pleas court.”

Will’s complaints against Burge stretched back to 2007, the year the former defense attorney took the bench, but O’Connor ruled that so much time had passed since many of those incidents that Will had effectively waived his right to file a complaint over them.

The incident that Will has said pushed him to take action against Burge came May 7 when the judge allegedly entered his courtroom and cursed while telling Assistant County Prosecutor Jennifer Riedthaler that he was having a bad day.

When Riedthaler asked what was wrong, the judge allegedly leaned angrily over her and replied, “You will know in about two minutes. I don’t want to yell at you in front of everyone.”

Will contended that Burge then began pacing behind Riedthaler, further intimidating her. Burge, who later told Reidthaler that he was “over it,” has denied he intimidated Riedthaler. O’Connor noted that a grainy security video of the incident doesn’t show Burge pacing.

Female defense attorneys and a county sheriff’s deputy who were in the room wrote affidavits saying they didn’t witness any intimidation, while an Elyria police detective in the room backed up Riedthaler’s version of events.

In another alleged incident, Burge became upset with Riedthaler because he felt she had made him look bad in a newspaper story and yelled at her, gripped a chair in an angry manner and slammed his head against a wall.

O’Connor wrote that while Riedthaler may have felt intimidated, the two incidents didn’t prove that Burge had physically threatened Will’s staff or Riedthaler because of who she worked for.

“The judge’s conduct could have been caused by his intemperate nature,” O’Connor wrote. “But the issue here is bias, and these two incidents alone (do not) prove that Judge Burge has a bias against the prosecutor’s office warranting the extraordinary relief requested by Will in his affidavit.”

After the Reidthaler incident, Will asked the county’s other General Division judges to remove Burge as administrative judge and ban him from hearing criminal cases, a request the other judges unanimously rejected.

Burge accused Will of threatening to release embarrassing information about him to the media if the other judges didn’t agree to the request. Will has denied threatening the other judges and has said he was pointing out that information would come out if he had to ask the Supreme Court to intervene.

Will later complained in his court filings about a string of letters Burge sent him following the failed effort to oust him as administrative judge, which he argued showed “the depths of the hatred and animosity that Burge holds” against him.

O’Connor wrote that while Burge’s letters “demonstrate a deteriorated relationship between the two public officials, as both sides feel that the other has made threatening comments,” they didn’t show Burge couldn’t be fair to Will’s office.

O’Connor reached much the same conclusion in dealing with comments Burge allegedly made regarding Assistant County Prosecutor Sherry Glass, whom he acknowledged referring to as a “blond bombshell.” Burge has said he meant the comment as a compliment on Glass’ legal abilities.

Will also accused Burge of commenting to Glass during a hearing on her “librarian look” and telling her that if she let her hair down and removed her glasses, “Wow, what I would do to you.”

Burge denied making the comment and although another member of Will’s staff reported hearing the judge say it, Burge’s court reporter and the other attorney involved in the hearing said they never heard Burge say anything about Glass’ looks.

“Judge Burge should not be commenting on the appearance of attorneys or referring to any individuals in his courtroom as ‘blond bombshells.’ Such comments are undignified, unprofessional, and offensive,” O’Connor wrote. “However, the record otherwise contains conflicting evidence regarding the September 2012 hearing. If Judge Burge made the alleged comments to Glass, his behavior is indefensible. Nevertheless, the issue here is not whether Judge Burge should be disciplined for making sexually inappropriate comments.”

Although Burge successfully fended off Will’s efforts to strip him of his criminal docket, the judge remains embattled on other fronts.

He is the target of an ongoing criminal investigation being handled by state officials that appears to center, at least in part, on his finances and whether he has an ownership interest in the Lorain office building where his private law offices were housed before he became a judge.

Burge also has acknowledged being the subject of an ongoing confidential inquiry by Supreme Court’s Office of Disciplinary Counsel.

Contact Brad Dicken at 329-7147 or bdicken@chroniclet.com. Follow him on Twitter @BradDickenCT.