In re Disqualification of Collier

[Cite as In re Disqualification of Collier, ___ Ohio St.3d ___, 2019-Ohio-3744.]
IN RE DISQUALIFICATION OF COLLIER.
KERR BUILDINGS, INC. v. BISHOP.
[Cite as In re Disqualification of Collier, ___ Ohio St.3d ___,
2019-Ohio-3744.]
Judges—Affidavits of disqualification—R.C. 2701.03—Affiant failed to
demonstrate bias or prejudice—Merits of judge’s orders challenged by
affiant are outside scope of disqualification proceeding—Disqualification
denied.
(No. 19-AP-068—Decided June 20, 2019.)
ON AFFIDAVIT OF DISQUALIFICATION in Henry County Court of Common Pleas
Case No. 11CV0001.
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O’CONNOR, C.J.
{¶ 1} Third-party defendant Jeremy Kerr has filed an affidavit with the clerk
of this court pursuant to R.C. 2701.03 seeking to disqualify Judge John S. Collier
from presiding over any further proceedings in the above-referenced case.
{¶ 2} Mr. Kerr claims that for various reasons, Judge Collier is biased and
prejudiced against him. Judge Collier has thoroughly responded to the allegations
in Mr. Kerr’s affidavit and denies having any bias.
{¶ 3} For the reasons explained below, no basis has been established to
order the disqualification of Judge Collier.
{¶ 4} First, Mr. Kerr alleges that Judge Collier and the defendant are
“drinking buddies” and that the judge engaged in an ex parte communication with
the defendant or the defendant’s counsel. In response, Judge Collier states that
although he is acquainted with the defendant, the judge has no social relationship
with him and that they have never had a drink together—in public or in private.
SUPREME COURT OF OHIO
The judge further denies engaging in any ex parte communication with the
defendant or his counsel.
{¶ 5} “[I]t is well established that a judge’s ‘passing acquaintance’ with a
party does not require the judge’s disqualification from cases involving that party.”
In re Disqualification of Goslee, 155 Ohio St. 3d 1302, 2018-Ohio-5436, 122
N.E.3d 188, ¶ 5, quoting In re Disqualification of Panagis, 74 Ohio St. 3d 1213,
657 N.E.2d 1328 (1989). Based on this record, nothing suggests that Judge Collier
has the type of close personal relationship with the defendant that would cause an
objective observer to question the judge’s ability to remain impartial. In addition,
“[a]n alleged ex parte communication constitutes grounds for disqualification when
there is ‘proof that the communication * * * addressed substantive matters in the
pending case.’ ” (Ellipsis sic.) In re Disqualification of Forsthoefel, 135 Ohio
St.3d 1316, 2013-Ohio-2292, 989 N.E.2d 62, ¶ 7, quoting In re Disqualification of
Calabrese, 100 Ohio St. 3d 1224, 2002-Ohio-7475, 798 N.E.2d 10, ¶ 2. But “[t]he
allegations must be substantiated and consist of something more than hearsay or
speculation.” Id. Offering merely speculation, Mr. Kerr has failed to establish that
Judge Collier engaged in any ex parte communication about substantive matters
that would require his disqualification from this case.
{¶ 6} Second, Mr. Kerr claims that Judge Collier has issued a series of void
orders, starting with the judge’s order appointing a receiver. An affidavit of
disqualification, however, addresses the narrow issue of the possible bias or
prejudice of a judge. It is outside the scope of this proceeding to determine whether
Judge Collier had legal authority to appoint a receiver or issue similar orders.
Procedures exist by which appellate courts may review—and, if necessary,
correct—rulings made by trial courts. But adverse rulings, without more, are not
evidence that a judge is biased or prejudiced and therefore are not grounds for
disqualification. In re Disqualification of D’Apolito, 139 Ohio St. 3d 1230, 2014-
Ohio-2153, 11 N.E.3d 279, ¶ 5.
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January Term, 2019
{¶ 7} Third, Mr. Kerr claims that Judge Collier has a financial interest in
the outcome of the underlying case. Specifically, Mr. Kerr claims that because
Judge Collier granted the receiver powers outside the scope of applicable law, the
judge is “financially accountable” for any costs incurred or damages caused by the
receiver. To support this proposition, Mr. Kerr cites 2115-2121 Ontario Bldg.,
L.L.C. v. Anter, 8th Dist. Cuyahoga No. 98627, 2013-Ohio-2995. That decision,
however, does not stand for the proposition for which Mr. Kerr cites it, and he has
otherwise failed to demonstrate how Judge Collier has any financial interest in or
link to the underlying case.
{¶ 8} The affidavit of disqualification is denied. The case may proceed
before Judge Collier.
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