In re Disqualification of Yarbrough , 2019 Ohio 1625 ( 2019 )

[Cite as In re Disqualification of Yarbrough, ___ Ohio St.3d ___, 2019-Ohio-1625.]
IN RE DISQUALIFICATION OF YARBROUGH.
FITZGERALD v. FITZGERALD.
[Cite as In re Disqualification of Yarbrough, ___ Ohio St.3d ___,
2019-Ohio-1625.]
Judges—Affidavits of disqualification—R.C. 2701.03—Affiant failed to present
sufficient evidence that judge neglected matter, demonstrated bias, or
engaged in unconscionable conduct—Disqualification denied.
(No. 19-AP-010—Decided February 21, 2019.)
ON AFFIDAVIT OF DISQUALIFICATION in Wood County Court of Common Pleas,
General and Domestic Relations Division, Case Nos. 2017DR0012 and
2018CV0014.
____________
O’CONNOR, C.J.
{¶ 1} Sean P. FitzGerald has filed an affidavit with the clerk of this court
pursuant to R.C. 2701.03 seeking to disqualify Judge Stephen Yarbrough, a retired
judge sitting by assignment, from presiding over any further proceedings in the
above-referenced cases.
{¶ 2} Mr. FitzGerald claims that Judge Yarbrough has neglected the
underlying divorce case, the judge is biased against him, and the judge engaged in
unconscionable conduct. Judge Yarbrough has responded in writing to the affidavit
and denies any bias against Mr. FitzGerald. The judge also explained some of the
circumstances that have led to delays in the divorce matter.
{¶ 3} For the reasons explained below, no basis has been established to
order the disqualification of Judge Yarbrough.
{¶ 4} First, “[a]lthough a judge’s neglect or unreasonable delay in a case
could be a reason to disqualify the judge” (emphasis sic), In re Disqualification of
SUPREME COURT OF OHIO
Collier-Williams, 150 Ohio St. 3d 1286, 2017-Ohio-5718, 83 N.E.3d 928, ¶ 8, Mr.
FitzGerald has not established that Judge Yarbrough’s actions or inactions require
his removal here. The judge acknowledged that the case “has taken longer than the
usual case,” but he also explained the reasons for the delay. The record does not
support a finding that the actions of Judge Yarbrough have been so egregious or
that he has neglected his judicial duties such that he should be removed for
unreasonably delaying the divorce case.
{¶ 5} Second, Mr. FitzGerald has not demonstrated that the judge’s
comments or actions demonstrate bias against him. Mr. FitzGerald alleged that
numerous remarks by the judge “demonstrated deep-seated, open antagonism and
hostility” toward him—allegedly based on his pro se status. However, upon review
of the transcripts, the judge’s challenged comments were either directed at all
parties and counsel or were not indicative of judicial bias.
{¶ 6} Third, the basis for Mr. FitzGerald’s “unconscionable conduct”
allegation appears to be his disagreement with some of the judge’s legal rulings,
including the judge’s suspension of Mr. FitzGerald’s parenting time and
garnishment of his wages. In response, Judge Yarbrough has explained the bases
for those and other legal decisions. Regardless, it is well settled that “[a]dverse
rulings, without more, are not evidence that a judge is biased or prejudiced.” In re
Disqualification of Russo, 110 Ohio St. 3d 1208, 2005-Ohio-7146, 850 N.E.2d 713,
¶ 5. “[A]lleged errors of law or procedure are legal issues subject to appeal and are
not grounds for disqualification.” In re Disqualification of Light, 36 Ohio St. 3d
604, 522 N.E.2d 458 (1988).
{¶ 7} “The statutory right to seek disqualification of a judge is an
extraordinary remedy. * * * 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.” In re Disqualification of George, 100 Ohio St. 3d 1241, 2003-
2
January Term, 2019
Ohio-5489, 798 N.E.2d 23, ¶ 5. Those presumptions have not been overcome in
this case.
{¶ 8} The affidavit of disqualification is denied. The cases may proceed
before Judge Yarbrough.
________________________
3