In re Disqualification of Forsthoefel

[Cite as In re Disqualification of Forsthoefel, 135 Ohio St.3d 1316, 2013-Ohio-2292.]
IN RE DISQUALIFICATION OF FORSTHOEFEL.
THE STATE OF OHIO v. HOLSON.
THE STATE OF OHIO v. PEPPER.
[Cite as In re Disqualification of Forsthoefel, 135 Ohio St.3d 1316,
2013-Ohio-2292.]
Judges—Affidavit of disqualification—R.C. 2701.03—Judge’s participation in the
trial of a prior cause, during which the judge acquired knowledge of the
facts of the underlying case, does not require disqualification—Affidavit
denied.
(Nos. 13-AP-028 and 13-AP-029—Decided April 11, 2013.)
ON AFFIDAVITS OF DISQUALIFICATION in Ashland County Court of Common Pleas
Case Nos. 09-CRI-066 and 09-CRI-064.
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O’CONNOR, C.J.
{¶ 1} James H. Banks, counsel for the defendants in the underlying
cases, has filed two affidavits with the clerk of this court under R.C. 2701.03
seeking to disqualify Judge Ronald P. Forsthoefel from presiding over any further
proceedings in case Nos. 09-CRI-066 and 09-CRI-064, now pending for a hearing
on defendants’ motions to withdraw their guilty pleas and vacate their
convictions.
{¶ 2} Banks alleges that Judge Forsthoefel has been exposed to false,
derogatory, and embarrassing information about these same defendants in other
cases or from sources outside of the underlying case records. According to
Banks, the county prosecutor is responsible for making most of these false
statements, in an attempt to “smear, discredit and intimidate [the defendants] and
present [them] in a sordid and repulsive light before Judge Forsthoefel.” Because
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the judge has been exposed to this information, Banks claims that he has formed a
“negative opinion” of the defendants, and disqualification is necessary to avoid an
appearance of impropriety.
{¶ 3} Judge Forsthoefel has responded in writing to the allegations in
Banks’s affidavits, explaining that he has “not been privy to any information that
is not public record in the proceedings at issue.” He further believes that the
prosecutor’s statements have not tainted his ability to make “a fair, unbiased and
reasonable decision in these matters.”
{¶ 4} For the following reasons, no basis has been established to order
the disqualification of Judge Forsthoefel.
Judge Forsthoefel’s February 13 judgment entry
{¶ 5} Banks first claims that Judge Forsthoefel’s February 13, 2013
judgment entry denying, in part, defendants’ motions to withdraw their guilty
pleas was not based on record evidence, and Banks further alleges that statements
in the entry appear to be a result of false statements made by the prosecutor in her
brief and/or of ex parte communications with the prosecutor, law enforcement
officials, or former counsel in the case. The judge disagrees, claiming that his
decision was “based on a review of the record of the proceedings and the facts
already admitted to by the defendants.”
{¶ 6} An affidavit of disqualification, however, is not the mechanism for
determining whether Judge Forsthoefel properly relied on or interpreted the
evidence in the record. See In re Disqualification of Griffin, 101 Ohio St.3d 1219,
2003-Ohio-7356, 803 N.E.2d 820, ¶ 8. Rather, the issue in a disqualification
proceeding is a narrow one: “ ‘The constitutional and statutory responsibility of
the Chief Justice in ruling on an affidavit of disqualification is limited to
determining whether a judge in a pending case has a bias, prejudice, or other
disqualifying interest that mandates the judge’s disqualification from that case.’ ”
Id. at ¶ 9, quoting In re Disqualification of Kate, 88 Ohio St.3d 1208, 1209, 723
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January Term, 2013
N.E.2d 1098 (1999). 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. The remedy for these and
other legal claims, if any, lies on appeal, not through the filing of an affidavit of
disqualification. In re Disqualification of Russo, 110 Ohio St.3d 1208, 2005-
Ohio-7146, 850 N.E.2d 713, ¶ 6.
{¶ 7} Similarly, Banks’s suspicion that Judge Forsthoefel’s entry may
have resulted from ex parte communications is insufficient to warrant
disqualification. An alleged ex parte communication constitutes grounds for
disqualification when there is “proof that the communication * * * addressed
substantive matters in the pending case.” In re Disqualification of Calabrese, 100
Ohio St.3d 1224, 2002-Ohio-7475, 798 N.E.2d 10, ¶ 2. The allegations must be
substantiated and consist of something more than hearsay or speculation. In re
Disqualification of Floyd, 101 Ohio St.3d 1215, 2003-Ohio-7354, 803 N.E.2d
816, ¶ 7. Banks speculates, without providing any actual evidence to support this
speculation, that Judge Forsthoefel appears to have engaged in ex parte
communications with the prosecutor and/or law enforcement officials and/or
former counsel in the case. “Allegations that are based solely on hearsay,
innuendo, and speculation * * * are insufficient to establish bias or prejudice.” In
re Disqualification of Flanagan, 127 Ohio St.3d 1236, 2009-Ohio-7199, 937
N.E.2d 1023, ¶ 4.
Alleged false statements in other proceedings
{¶ 8} Banks next claims that Judge Forsthoefel has been “unnecessarily
privy to and heard numerous false, selective and irrelevant allegations” from the
prosecutor and other individuals in related proceedings. It is well established,
however, that “a judge’s participation in the trial of a prior cause, during which
the judge acquired knowledge of the facts of the underlying case, does not require
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disqualification.” In re Disqualification of Krichbaum, 81 Ohio St.3d 1205, 1206,
688 N.E.2d 511 (1997). What a judge learns in his judicial capacity in a prior
proceeding “ ‘is a proper basis for judicial observation, and the use of such
information is not the kind of matter that results in disqualification.’ ” State v.
D’Ambrosio, 67 Ohio St.3d 185, 188, 616 N.E.2d 909 (1993), quoting United
States v. Bernstein, 533 F.2d 775, 785 (2d Cir.1976). In other words, because
“ ‘evidence in the trial of a prior cause * * * do[es] not stem from an extrajudicial
source,’ it creates no personal bias requiring recusal.” Id., quoting State v. Smith,
242 N.W.2d 320, 324 (Iowa 1976).
{¶ 9} Accordingly, the mere fact that Judge Forsthoefel heard the
prosecutor’s allegedly false and embarrassing statements about defendants in his
capacity as the judge in the other civil or criminal cases does not mandate his
disqualification from the underlying cases. Just as “[a] judge is presumed to
follow the law and not to be biased,” In re Disqualification of George, 100 Ohio
St.3d 1241, 2003-Ohio-5489, 798 N.E.2d 23, ¶ 5, a judge is presumed to be
capable of separating what may properly be considered from what may not be
considered. Because Judge Forsthoefel avers that the prosecutor’s statements in
the other cases have not tainted his ability to rule fairly in the underlying cases—
and because nothing else in Banks’s affidavits suggests that Judge Forsthoefel has
been unduly influenced by information heard in the previous cases—these
presumptions have not been overcome here.
{¶ 10} For the reasons stated above, the affidavits of disqualification are
denied. The cases may proceed before Judge Forsthoefel.
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