In re Disqualification of Floyd , 135 Ohio St. 3d 1204 ( 2012 )

[Cite as In re Disqualification of Floyd, 135 Ohio St.3d 1204, 2012-Ohio-6353.]
IN RE DISQUALIFICATION OF FLOYD.
IN RE J.K.
IN RE D.C.J.
[Cite as In re Disqualification of Floyd, 135 Ohio St.3d 1204,
2012-Ohio-6353.]
Judges—Affidavit of disqualification—R.C. 2701.03—Affiant opposed judge in
“contentious” primary election—Affiant has failed to demonstrate beyond
mere speculation that judge harbors actual bias or prejudice—Affidavit
denied.
(Nos. 12-AP-060 and 12-AP-069—Decided August 10, 2012.)
ON AFFIDAVIT OF DISQUALIFICATION in Cuyahoga County Court of Common
Pleas, Juvenile Division, Case Nos. AD10915427 and CU03109953.
__________________
O’CONNOR, C.J.
{¶ 1} Attorney John H. Lawson has filed two affidavits with the clerk of
this court under R.C. 2701.03 seeking to disqualify Judge Alison L. Floyd from
acting on any further proceedings in case Nos. AD10915427 and CU03109953 in
the Juvenile Division of the Court of Common Pleas of Cuyahoga County.
Lawson also requests a “standing order” that disqualifies Judge Floyd from any
matter in which Lawson represents a party.
{¶ 2} Lawson and Judge Floyd were opponents in the March 2012
primary election for Judge Floyd’s juvenile court seat. Because of the
“contentious nature of the campaign,” Lawson claims that Judge Floyd’s
impartiality “might reasonably be questioned” in the two underlying cases, as well
as all future cases involving Lawson as counsel.
SUPREME COURT OF OHIO
{¶ 3} Judge Floyd has responded in writing to the concerns raised in the
affidavits, stating that she “takes seriously her solemn obligation to perform her
judicial duties impartially” and “harbors no hostile feelings against affiant [or] his
clients.”
{¶ 4} Joseph J. Triscaro, opposing counsel to Lawson in case No.
CU03109953, has also filed an affidavit and memorandum. Triscaro asserts that
Judge Floyd has presided over the matter for eight years and that it would be
“extremely prejudicial” to his client if Judge Floyd were now disqualified after
such a lengthy and complex proceeding.
{¶ 5} For the following reasons, no basis has been established for
ordering disqualification of Judge Floyd.
In re J.K., case No. AD10915427
{¶ 6} It is well established that “a judge ordinarily will not be
disqualified based solely on the fact that a lawyer in a pending case is or has been
the judge’s election opponent.” In re Disqualification of Maschari, 88 Ohio St.3d
1212, 1213, 723 N.E.2d 1101 (1999), citing In re Disqualification of Burnside, 74
Ohio St.3d 1240, 657 N.E.2d 1346 (1992). See also In re Disqualification of
Krueger, 74 Ohio St.3d 1267, 1268, 657 N.E.2d 1365 (1995) (“Affiant has failed
to demonstrate the existence of bias or prejudice based on the fact that she and
Judge Krueger were opponents in the previous election”); In re Disqualification
of Osowik, 117 Ohio St.3d 1237, 2006-Ohio-7224, 884 N.E.2d 1089, ¶ 6 (“The
fact that the defendant may have opposed the judge’s bid for elected office is
insufficient to warrant disqualification, absent some evidence of actual bias”).
This court has also held, however, that disqualification may be warranted where a
“combination of factors” creates an “appearance of impropriety.” Maschari at
1213. For example, in Maschari, the affiant was not only the judge’s previous
election opponent, but the affiant would likely be a witness in any disciplinary
2
January Term, 2012
proceeding against the judge. Id. Under this unique “combination of factors,” an
appearance of impropriety existed, which mandated disqualification. Id.{¶ 7} Lawson relies on the Maschari decision to support disqualification,
but he has failed to demonstrate that a similar unique combination of factors
exists here. In the underlying case, Lawson represents the mother in a child-
custody proceeding. Lawson alleges that Judge Floyd’s ability to remain
impartial may be “reasonably questioned” based on the following: (1) Judge
Floyd denied Lawson’s motion for recusal, which is “inconsistent” with recusal
decisions in two other cases involving Lawson, (2) Judge Floyd’s supporters
during the campaign “attempted to intimidate” Lawson’s supporters, including a
“key member” of Lawson’s campaign committee, (3) Judge Floyd received
“negative publicity” during the campaign, including several articles in the
Cleveland Plain Dealer endorsing Lawson over Judge Floyd, and (4) the election
was “hotly contested,” with Lawson making “highly critical” public comments
about Judge Floyd.
{¶ 8} Only the first allegation suggests that Judge Floyd’s own actions
convey a personal bias against Lawson, i.e., Judge Floyd’s allegedly
“inconsistent” recusal orders. However, it has long been held that a judge’s
voluntary removal from an earlier case does not by itself support disqualification
from another unrelated case involving that same party. In re Disqualification of
Martin, 74 Ohio St.3d 1221, 657 N.E.2d 1334 (1990). Moreover, Judge Floyd
has thoroughly explained her decisions to step aside in the two unrelated cases
involving Lawson. In the first case, Judge Floyd recused herself because one of
the parties sought sanctions against Lawson during the election campaign. In the
second case, Judge Floyd recused herself because the best interests of the child
necessitated that the juvenile court case continue without interruption by a lengthy
disqualification proceeding. Lawson has failed to demonstrate that the same
disqualifying interests present in those cases are present in the underlying case
3
SUPREME COURT OF OHIO
here, and therefore he has failed to demonstrate any inconsistency in Judge
Floyd’s decisions. In an affidavit-of-disqualification proceeding, the burden falls
on the affiant to submit sufficient evidence and argument demonstrating that
disqualification is warranted. See R.C. 2701.03(B)(1) (requiring affiant to include
specific allegations of bias, prejudice, or disqualifying interest and the facts to
support those allegations). Lawson has not met that burden here.
{¶ 9} Similarly, Lawson has failed to substantiate his claim that Judge
Floyd’s supporters intimidated a key member of his campaign. As an initial
matter, this allegation is not directed against Judge Floyd’s conduct, but that of
her supporters. Further, Lawson failed to set forth evidence to support his
allegation, which is generally required in affidavit-of-disqualification
proceedings. See, e.g., In re Disqualification of Crow, 91 Ohio St.3d 1209, 741
N.E.2d 137 (2000) (denying affidavit where affiants failed to provide supporting
affidavits from participants in alleged improper conversations). Lawson has not
included a third-party affidavit from this “key member” of his campaign to
substantiate the claim. Vague or unsubstantiated allegations, such as those
alleged here, are insufficient to establish bias or prejudice. In re Disqualification
of Walker, 36 Ohio St.3d 606, 522 N.E.2d 460 (1988).
{¶ 10} The only remaining allegations are Lawson’s claims that he was
“highly critical” of Judge Floyd during the campaign and that Judge Floyd
received “negative publicity.” Lawson speculates that because of these facts,
Judge Floyd will not remain impartial to him in future proceedings. Such
speculation, however, cannot demonstrate bias or an appearance of bias. See, e.g.,
Burnside, 74 Ohio St.3d at 1241, 657 N.E.2d 1346 (denying affidavit of judge’s
election opponent where he “speculates that the judge may demonstrate bias and
prejudice against him, but offers no specific evidence or occurrence of events in
support of this claim”). Lawson’s allegations here do not suggest that Judge
4
January Term, 2012
Floyd has done or said anything that reflects bias, prejudice, or partiality on her
part.
{¶ 11} Finally, in his rebuttal affidavit, Lawson claims that Judge Floyd’s
“self-serving statement” that she can remain impartial should not be accepted, and
if it is, there is “no point” to these affidavit-of-disqualification proceedings. A
judge’s subjective belief as to his or her own impartiality is not the decisive factor
in deciding disqualification requests. In re Disqualification of Lewis, 117 Ohio
St.3d 1227, 2004-Ohio-7359, 884 N.E.2d 1082, ¶ 11. However, the judge’s own
assessment is “entitled to some weight.” Id. Here, Judge Floyd expressly states
that she has no hostile feelings towards Lawson and that she is willing and able to
serve impartially. Aside from speculation, Lawson has not set forth any
compelling evidence to suggest that the presumption of impartiality afforded to all
judges has been overcome. See In re Disqualification of George, 100 Ohio St.3d
1241, 2003-Ohio-5489, 798 N.E.2d 23, ¶ 5 (“A judge is presumed to follow the
law and not to be biased, and the appearance of bias or prejudice must be
compelling to overcome these presumptions”). Further, Lawson has failed to
demonstrate the existence of a unique “combination of factors”—which were
present in the Maschari case—warranting disqualification based on an appearance
of impropriety.
{¶ 12} On the record here, it cannot be said that a “reasonable and
objective observer would harbor serious doubts about the judge’s impartiality
* * *.” Lewis at ¶ 8. Lawson’s affidavit in case No. AD10915427 is, therefore,
not well taken.
In re D.C.J., case No. CU03109953
{¶ 13} In In re D.C.J., case No. CU03109953, Lawson represents the
maternal grandparents of the minor child in a custody case against the child’s
father. After a seven-day trial, Judge Floyd issued an order in December 2011
designating the father as the legal custodian. Lawson subsequently filed an
5
SUPREME COURT OF OHIO
appeal, which remains pending in the Eighth District Court of Appeals. On April
16, 2012, the father filed a motion in the juvenile court to modify the temporary
custody arrangement during pendency of the appeal. Lawson opposed the motion
and filed a motion for recusal. On May 30, 2012, Judge Floyd ordered that the
father’s motion be held in abeyance and granted the father leave to request a
limited remand from the Eighth District so that Judge Floyd could decide the
father’s motions. On June 6, 2012, the appeals court denied the father’s request
for a limited remand. Judge Floyd has not ruled on Lawson’s motion for recusal.
{¶ 14} To support disqualification, Lawson sets forth the same allegations
against Judge Floyd as he set forth in the case discussed above. For the reasons
explained in the preceding section, those allegations are insufficient to warrant
disqualification.
{¶ 15} In addition, Lawson claims that Judge Floyd’s May 30, 2012 order
in this case and Judge Floyd’s refusal to rule on Lawson’s motion for recusal
demonstrate her alleged prejudice against Lawson. An affidavit of
disqualification, however, “is not a vehicle to contest matters of substantive or
procedural law.” In re Disqualification of Solovan, 100 Ohio St.3d 1214, 2003-
Ohio-5484, 798 N.E.2d 3, ¶ 4. Indeed, it is well settled that a party’s
disagreement or dissatisfaction with a court’s legal rulings, even if those rulings
may be erroneous, is not grounds for disqualification. In re Disqualification of
Floyd, 101 Ohio St.3d 1217, 2003-Ohio-7351, 803 N.E.2d 818, ¶ 4. Accordingly,
Lawson’s dissatisfaction with Judge Floyd’s May 30, 2012 order does not
demonstrate prejudice. Likewise, Judge Floyd’s refusal to rule on Lawson’s
motion for recusal is not grounds for disqualification. See In re Disqualification
of Eyster, 105 Ohio St.3d 1246, 2004-Ohio-7350, 826 N.E.2d 304, ¶ 4 (a judge’s
action—or inaction—on a motion is within the judge’s sound discretion and is not
evidence of bias or prejudice). Moreover, nothing in the record suggests that
Judge Floyd’s refusal to rule on Lawson’s motion is the result of prejudice. In
6
January Term, 2012
fact, Judge Floyd claims that because of Lawson’s appeal to the Eighth District—
and that court’s denial of the father’s request for a limited remand—she is
divested of jurisdiction to rule on the pending motions.
{¶ 16} Judge Floyd has presided over this case for eight years, and it has
long been held that absent extraordinary circumstances, a judge will not be
disqualified after having presided over lengthy proceedings in a pending case. In
re Disqualification of Light, 36 Ohio St.3d 604, 522 N.E.2d 458 (1988). No
extraordinary circumstances are present here, as Lawson points to no action on
the part of Judge Floyd that would demonstrate bias, prejudice, or a disqualifying
interest. As in the case discussed above, on this record, no “reasonable and
objective observer would harbor serious doubts about the judge’s impartiality.”
Lewis, 117 Ohio St.3d 1227, 2004-Ohio-7359, 884 N.E.2d 1082, ¶ 8. Lawson’s
affidavit in case No. CU03109953 is not well taken.
Conclusion
{¶ 17} For the reasons stated herein, the affidavits of disqualification are
denied. Lawson’s request for a standing order is also denied. The cases may
proceed before Judge Floyd.
______________________
7