In re Disqualification of Flanagan , 127 Ohio St. 3d 1236 ( 2009 )

[Cite as In re Disqualification of Flanagan, 127 Ohio St. 3d 1236, 2009-Ohio-7199.]
IN RE DISQUALIFICATION OF FLANAGAN.
ZAVARELLA-CIRCELLI v. CIRCELLI.
[Cite as In re Disqualification of Flanagan,
127 Ohio St. 3d 1236, 2009-Ohio-7199.]
Judges — Affidavit of disqualification — Disqualification ordered.
(No. 09-AP-097 — Decided November 4, 2009.)
ON AFFIDAVIT OF DISQUALIFICATION in Cuyahoga County Court of Common
Pleas, Domestic Relations Division, Case No. DR-08-321203.
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MOYER, C.J.
{¶ 1} Joseph A. Circelli has filed an affidavit with the clerk of this court
under R.C. 2701.03 seeking the disqualification of Judge Timothy M. Flanagan
from further proceedings in case No. DR-08-321203, in the Domestic Relations
Division of the Court of Common Pleas of Cuyahoga County.
{¶ 2} Circelli alleges that Judge Flanagan has an interest in the outcome
of the underlying action and is biased against him and in favor of plaintiff and her
counsel. Specifically, Circelli claims that Judge Flanagan used the threat of
criminal prosecution to force him to agree to a grossly unfair divorce settlement.
According to Circelli, his former attorney met with plaintiff’s counsel and Judge
Flanagan in the judge’s chambers on July 21, 2009. Circelli maintains that during
this meeting, the judge and plaintiff’s counsel told his attorney that Circelli would
be indicted unless he agreed to settlement terms dictated by plaintiff’s counsel.
Circelli states that he reluctantly agreed to settle the case under fear and duress.
{¶ 3} Judge Flanagan has responded in writing to the affidavit of
disqualification. The judge expressly denies that he ever threatened criminal
prosecution to effect a settlement in this case. Judge Flanagan also states that at
SUPREME COURT OF OHIO
no time in his presence did plaintiff’s counsel do so. The judge avers that during
the trial of the underlying action, he concluded that Circelli had committed
perjury. According to the judge, he decided to report Circelli’s perjured
testimony to the prosecutor at the conclusion of trial, and he advised counsel of
his intent during the July 21 conference. Judge Flanagan states that he ultimately
decided not to report the matter because he was concerned that Circelli “had never
been advised of his Fifth Amendment right against self-incrimination” and that
“any prosecution of [Circelli] would provide him with an excuse not to comply”
with the divorce settlement.
{¶ 4} Circelli makes serious allegations of misconduct involving Judge
Flanagan and plaintiff’s counsel in this case. Yet he offers no third-party
affidavits or any other compelling evidence to support these claims. Allegations
that are based solely on hearsay, innuendo, and speculation – such as those
alleged here – are insufficient to establish bias or prejudice. See In re
Disqualification of Walker (1988), 36 Ohio St. 3d 606, 522 N.E.2d 460 (vague,
unsubstantiated allegations are insufficient to establish bias or prejudice).
{¶ 5} Nevertheless, I find that Judge Flanagan’s disqualification is
warranted because there appears to be a significant likelihood that the judge may
be called to testify in subsequent proceedings about his actions in this case.
Circelli currently has pending before Judge Flanagan a motion to vacate the
judgment entry approving the disputed settlement. The primary basis for the
motion to vacate is Circelli’s allegation that the judge and plaintiff’s counsel
forced him to settle by threatening him with prosecution. Circelli’s motion
alleges that the threat was made in Judge Flanagan’s chambers and that it was
Judge Flanagan who first threatened Circelli with prosecution. Moreover, there is
no dispute here that Judge Flanagan met with counsel in chambers and stated his
intent to report Circelli’s perjured testimony to the prosecutor. Thus, although the
record before me does not establish that Judge Flanagan engaged in the alleged
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misconduct, it does appear that he possesses evidence that is material to the
motion to vacate.
{¶ 6} Based on the foregoing, I am compelled to order Judge Flanagan’s
disqualification from further proceedings in this case. See In re Disqualification
of Bond (2001), 94 Ohio St. 3d 1221, 763 N.E.2d 593 (disqualification ordered
where it appeared that the judge would be called to testify). The Cuyahoga
County Court of Common Pleas shall assign the case to another judge of the
Domestic Relations Court.
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