In re Disqualification of Harwood

[Cite as In re Disqualification of Harwood, 137 Ohio St.3d 1221, 2013-Ohio-5256.]
IN RE DISQUALIFICATION OF HARWOOD.
PROUDFOOT v. PROUDFOOT.
[Cite as In re Disqualification of Harwood, 137 Ohio St.3d 1221,
2013-Ohio-5256.]
Judges—Affidavit of disqualification—R.C. 2701.03—Judges are entitled to
express dissatisfaction with an attorney’s conduct—Dissatisfaction should
be expressed in a way that promotes public confidence in the integrity,
dignity, and impartiality of the judiciary.
(No. 13-AP-091—Decided October 10, 2013.)
ON AFFIDAVIT OF DISQUALIFICATION in Trumbull County Court of Common
Pleas, Domestic Relations Division, Case No. 13-DR-74.
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O’CONNOR, C.J.
{¶ 1} Margaret Kreiner, counsel for the plaintiff, has filed an affidavit
with the clerk of this court under R.C. 2701.03 seeking to disqualify Judge Sandra
Stabile Harwood from presiding over any further proceedings in case No. 13-DR-
74, a divorce action pending in the domestic relations division of the Court of
Common Pleas of Trumbull County.
{¶ 2} Kreiner alleges that Judge Harwood should be disqualified because
at recent prehearing and status conferences, the judge demonstrated bias in favor
of defense counsel, indicated an intention to award the family home to the
defendant, engaged in an improper ex parte communication, and expressed an
unwillingness to continue adjudicating the case with Kreiner as counsel.
{¶ 3} Judge Harwood has responded in writing to Kreiner’s affidavit,
denying any impropriety and averring that despite the allegations against her, she
can decide the underlying case fairly and impartially.
SUPREME COURT OF OHIO
{¶ 4} For the reasons explained below, no basis has been established to
order the disqualification of Judge Harwood.
{¶ 5} A “presumption of impartiality” is “accorded all judges” in
affidavit-of-disqualification proceedings. In re Disqualification of Celebrezze,
101 Ohio St.3d 1224, 2003-Ohio-7352, 803 N.E.2d 823, ¶ 7. In addition, the
burden in these cases falls on the affiant to submit sufficient evidence
demonstrating that disqualification is warranted. See R.C. 2701.03(B)(1).
“Generally, an affiant is required to submit evidence beyond the affidavit of
disqualification supporting the allegations contained therein.” In re
Disqualification of Baronzzi, 135 Ohio St.3d 1212, 2012-Ohio-6341, 985 N.E.2d
494, ¶ 6.
{¶ 6} Here, Kreiner’s affidavit and Judge Harwood’s response indicate
that they remember the events at the recent prehearing and status conferences very
differently. For example, Kreiner claims that Judge Harwood told her to “shut
up” and that the judge did “not want to see [Kreiner] again.” Judge Harwood
states that this allegation is “totally false” and an “outright lie.” Kreiner alleges
that Judge Harwood engaged in an improper ex parte communication with
defense counsel. Judge Harwood states that this charge is “completely false” and
that Kreiner’s perception is “totally inaccurate” because the judge did not discuss
any issue with counsel outside of Kreiner’s presence. And Kreiner alleges that
Judge Harwood has indicated that she will award the family home to defendant
regardless of the facts in the case. According to Judge Harwood, this allegation is
“totally and completely false.”
{¶ 7} Kreiner offers only her affidavit to support her allegations,
although she indicates that other people witnessed the alleged judicial
misconduct, including Kreiner’s associate and paralegal. Given the conflicting
evidence in the record—and Kreiner’s failure to substantiate her allegations with
third-party affidavits or other evidence—Kreiner has failed to set forth
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sufficiently compelling evidence to overcome the presumption that Judge
Harwood is fair and impartial. See, e.g., Baronzzi at ¶ 8 (affiant’s “vague and
unsubstantiated allegations—especially in the face of clear denials by Judge
Baronzzi—are insufficient to overcome the presumption that Judge Baronzzi is
fair and impartial”); In re Disqualification of Corrigan, 105 Ohio St.3d 1243,
2004-Ohio-7354, 826 N.E.2d 302, ¶ 8 (“In the wake of the conflicting stories
presented by the various affiants, however, I cannot conclude that the judge is
clearly biased and prejudiced * * *”).
{¶ 8} Kreiner also claims that Judge Harwood is biased in favor of
defense counsel because the judge allowed defense counsel to proceed first with
her arguments at the prehearing conference and because the judge “scolded”
Kreiner for attempting to point out contested facts while defense counsel was
speaking. For her part, Judge Harwood acknowledges allowing defense counsel
to present her arguments first at the pretrial conference, but the judge further
explains that she conducts such conferences informally, with no procedure as to
which side speaks first. Judge Harwood also admits scolding and reprimanding
Kreiner for interrupting opposing counsel but denies that these admonitions were
the result of bias against Kreiner.
{¶ 9} Contrary to Kreiner’s contention, “[t]rial judges are entitled to
exercise considerable discretion in the management of the cases on their dockets,”
In re Disqualification of Sutula, 105 Ohio St.3d 1237, 2004-Ohio-7351, 826
N.E.2d 297, ¶ 4, and it is not the role of the chief justice in deciding affidavits of
disqualification to second-guess such matters. Here, Judge Harwood’s alleged
failure to conduct the pretrial conference in the manner in which Kreiner would
have preferred does not reflect bias on the judge’s part. Id. Similarly, judges are
entitled to express dissatisfaction with an attorney’s conduct, especially if the
judge perceives that a litigant is acting unprofessionally. That dissatisfaction,
however, “ ‘can and should be expressed in a way that promotes public
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confidence in the integrity, dignity, and impartiality of the judiciary.’ ” In re
Disqualification of Bates, 134 Ohio St.3d 1249, 2012-Ohio-6342, 984 N.E.2d 17,
¶ 15, quoting In re Disqualification of Corrigan, 105 Ohio St.3d 1243, 2004-
Ohio-7354, 826 N.E.2d 302, ¶ 10. On this record, Judge Harwood’s admonitions
to Kreiner do not establish bias or prejudice mandating her disqualification.
{¶ 10} In the end, “[t]he 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-Ohio-5489, 798 N.E.2d 23, ¶ 5. Those presumptions have not been
overcome in this case.
{¶ 11} For the reasons stated above, the affidavit of disqualification is
denied. The case may proceed before Judge Harwood.
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