In re Disqualification of Spon

[Cite as In re Disqualification of Spon, 134 Ohio St.3d 1254, 2012-Ohio-6345.]
IN RE DISQUALIFICATION OF SPON.
IN RE O.B.
[Cite as In re Disqualification of Spon, 134 Ohio St.3d 1254, 2012-Ohio-6345.]
Judges—Affidavits of disqualification—R.C. 2701.03—Request for removal
denied—No basis established warranting disqualification.
(No. 12-AP-014—Decided April 12, 2012.)
ON AFFIDAVIT OF DISQUALIFICATION in Richland County Court of Common
Pleas, Juvenile Division, Case No. 2011-DEP-00014.
__________________
O’CONNOR, C.J.
{¶ 1} R. Scot Harvey and Edith A. Gilliland, counsel for Richland
County Children Services Board (“RCCSB”), have filed a joint affidavit with the
clerk of this court under R.C. 2701.03 seeking to disqualify Judge Ron Spon from
acting on any further proceedings in the above-captioned case. On February 27,
2012, Harvey and Gilliland filed a joint supplemental affidavit to disqualify Judge
Spon.
{¶ 2} Affiants allege that Judge Spon is biased and prejudiced against
RCCSB, Gilliland, and RCCSB’s executive director, Randy Parker. The
underlying case involves both a dependency action involving a minor child and a
contempt action against RCCSB. According to affiants, the totality of Judge
Spon’s actions and comments demonstratea a level of bias, prejudice,
impropriety, or the appearance of impropriety such that he cannot preside fairly
and impartially over any part of the underlying case.
{¶ 3} Judge Spon has responded in writing to the concerns raised in the
affidavits, offering a detailed account of his handling of the underlying case. He
contends that RCCSB has not demonstrated any bias, prejudice, or disqualifying
interest on his part. The judge maintains that he has honored his oath and
discharged his duties with fairness and impartiality and according to the
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applicable law and that he will continue to do so if permitted to remain on the
case.
{¶ 4} For the following reasons, no basis has been established for
ordering the disqualification of Judge Spon.
1. R.C. 2701.03 Procedural Matters
{¶ 5} Affiants Harvey and Gilliland seek to disqualify Judge Spon from
the underlying dependency case and the underlying contempt proceedings due to
his alleged bias and prejudice against RCCSB, Gilliland, and Executive Director
Parker. RCCSB is a party to both the dependency action and the contempt
proceedings pending before Judge Spon. Parker, however, does not appear to be a
party to the dependency case or the contempt proceedings. Likewise, the record
indicates that attorney Gilliland is not a party to the contempt proceedings. It also
appears that Gilliland represents RCCSB in the dependency case but not in the
contempt proceedings.
{¶ 6} R.C. 2701.03(A) requires that an affidavit of disqualification be
filed by a “party to the proceeding or the party’s counsel.” Because Parker and
Gilliland are not parties or counsel to the contempt proceedings, the judge’s
alleged bias or prejudice against them will be considered only insofar as it can be
imputed to their being associated with RCCSB, a party to the contempt
proceedings. The judge’s alleged bias and prejudice against Parker will be
similarly considered as it relates to the dependency case. See In re
Disqualification of Haas, 74 Ohio St.3d 1217, 657 N.E.2d 1331 (1990)
(dismissing affidavit of disqualification because affiants were not parties to the
underlying proceedings).
2. The Contempt Proceedings
Facts
{¶ 7} On August 22, 2011, an incident occurred at the offices of RCCSB
that involved the father of the dependent child at issue in the underlying case. On
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August 23, upon the guardian ad litem’s request, a subpoena was served on
RCCSB to turn over a video recording of the incident.
{¶ 8} On September 8, attorney Gilliland filed a motion to quash the
subpoena on behalf of RCCSB. On the same day, a juvenile court magistrate
denied the motion to quash after hearing the parties’ arguments. On October 24,
the magistrate issued a written order on the motion to quash and ordered RCCSB
to allow the guardian ad litem to view the video. RCCSB failed to comply with
the magistrate’s October 24 order, so the magistrate issued another order—on
November 28—for RCCSB to turn over the video. During a hearing held on
November 30, Gilliland informed the magistrate that her client, RCCSB, was not
going to release the video. Specifically, Gilliland stated that she had informed
Parker (RCCSB’s executive director) of the court’s orders to turn over the video.
According to Gilliland, Parker “reports ultimately to the Board of Directors [of
RCCSB],” and he told her that the video was not going to be released.
{¶ 9} On December 1, the magistrate issued an order requiring RCCSB
to turn over the video by December 5. On December 5, RCCSB notified the
magistrate that the video no longer existed. According to the affidavit of
disqualification, sometime between August 23 (the day the subpoena to turn over
the video was served on RCCSB) and October 24, the video recording had been
inadvertently recorded over as part of the video-recording system’s routine
operation. Affiants further allege that, although the subpoenaed video was
recorded over sometime between August 23 and October 24, RCCSB did not
discover this fact until December 5.
{¶ 10} On December 13, the guardian ad litem filed a motion for RCCSB
to show cause why it should not be held in contempt for “willfully” destroying the
video recording. Judge Spon then ordered RCCSB and Executive Director Parker
to appear in court and show cause on the contempt charge. Judge Spon
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subsequently vacated the order as to Parker, finding that the contempt action was
not directed against Parker personally or as RCCSB’s executive director.
{¶ 11} Thereafter, the parties engaged in settlement discussions regarding
the contempt action. Judge Spon actively participated in the settlement process,
including the drafting of a (1) “Proposed Contempt Action Consent Decree,” (2)
proposed “Agreed Stipulations,” and (3) proposed “Contempt Hearing Submitted
on Stipulations.”
{¶ 12} On January 24, 2012, Judge Spon conducted a status conference.
During the conference, according to affiants, the judge stated that RCCSB would
have the burden of proof at the contempt hearing. RCCSB objected, arguing that
since it faced criminal contempt, the movant (the guardian ad litem) had the
burden of proof beyond a reasonable doubt. According to affiants, Judge Spon
overruled their objection. The judge also denied a motion to quash additional
subpoenas that had been served on Parker and Gilliland at the guardian ad litem’s
request.
{¶ 13} On January 30, Judge Spon issued a “Supplemental/Clarifying
Order to Show Cause.” According to this order, it was “unclear” whether the
guardian ad litem’s motion for contempt was for indirect civil contempt, indirect
criminal contempt, or both. The order’s stated purpose was to “clarify the true
nature and scope of the contempt action” against RCCSB to “assure that the
requirements of due process of law are fulfilled.” Accordingly, Judge Spon’s
order informed RCCSB that it faced both civil and criminal contempt charges.
{¶ 14} On the same day, Judge Spon rejected a proposed “Admission of
Contempt” that was submitted by five RCCSB members. On January 31, Judge
Spon stayed the contempt proceedings so that RCCSB could pursue an appeal to
the court of appeals. RCCSB had earlier appealed Judge Spon’s decision shifting
the burden of proof and denying the motion to quash the subpoenas served on
Parker and Gilliland. It appears that RCCSB’s appeal is still pending.
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{¶ 15} Affiants raise several allegations regarding Judge Spon’s handling
of the contempt proceedings. Affiants’ primary claims will be addressed in turn.
Judge’s Involvement in Settlement Negotiations
{¶ 16} Affiants first complain that Judge Spon became actively involved
in settlement discussions on the contempt charges. According to affiants, no one
had requested that Judge Spon “assist in forging a resolution of the contempt
action, and no one requested that Judge Spon come up” with a proposed consent
decree and stipulations.
{¶ 17} Judge Spon disputes affiants’ claim. According to the judge, he
took on the task of actively facilitating a settlement of the contempt dispute
because (1) it was the express desire of all parties (especially RCCSB) to try to
reach an amicable settlement and (2) all parties “expressly and tacitly” consented
to settlement facilitation by the trial court. Moreover, the judge notes that no
party ever objected to his involvement in the settlement process.
{¶ 18} Generally, a judge will not be disqualified solely because the judge
participated in discussions regarding a potential plea bargain or settlement. In re
Disqualification of Sheward, 100 Ohio St.3d 1221, 2002-Ohio-7473, 798 N.E.2d
8, ¶ 5. Affiants apparently take issue with the level of Judge Spon’s involvement
in the settlement process, including his actions in preparing a proposed consent
decree and stipulations of facts. But the mere fact that the judge made certain
proposals as a means of facilitating a settlement does not establish the existence
of bias or prejudice. See In re Disqualification of Solovan, 101 Ohio St.3d 1222,
2003-Ohio-7353, 803 N.E.2d 821, ¶ 4 (disqualification of judge not warranted for
his having outlined several factors that parties should consider before determining
whether to settle case prior to trial). And while affiants claim that no one had
requested Judge Spon’s assistance in resolving the contempt action, nothing in
this record suggests that affiants ever objected to the judge’s participation in the
settlement process. An attorney cannot acquiesce in the trial judge’s participation
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in settlement negotiations and then later try to have the judge disqualified because
the judge was too involved in negotiations or counsel did not like the judge’s
proposed settlement. See In re Disqualification of Nadel, 74 Ohio St.3d 1214,
657 N.E.2d 1329 (1989) (a party cannot acquiesce in the judge’s participation in
plea negotiations and, if no settlement is reached, seek to disqualify the judge
based on what the judge learned during negotiations).
{¶ 19} Nothing in the case suggests that the judge’s active involvement in
settlement negotiations was improper or that he placed undue pressure on RCCSB
to settle the matter on unfavorable terms. Indeed, attorney Harvey concedes that
RCCSB was not asking that Judge Spon be disqualified because he had “engaged
in coercive behavior” during settlement discussions. And the record reflects that
RCCSB was free to reject any of the proposals offered by Judge Spon and defend
against the contempt charges during trial.
{¶ 20} Second, affiants allege that the judge’s comments, proposals, and
other actions during the settlement discussions reflect prejudgment on the
contempt matter. Affiants refer specifically to the following alleged facts: Judge
Spon (1) commented about the possibility of future contempt charges against
Parker and attorney Gilliland, who have not been charged with contempt, (2)
proposed stipulations that, if agreed to by RCCSB, would constitute a waiver of
certain legal defenses to the contempt charge, (3) refused to accept RCCSB’s
“Admission of Contempt,” because it did not include a provision requiring
RCCSB to plead guilty to criminal contempt, and (4) was adamant that Director
Parker or whoever else was responsible for the contempt appear in court and
apologize.
{¶ 21} The types of concerns raised by affiants here have been rejected in
prior cases. A judge will rarely hear preliminary aspects of a case without
forming conditional opinions about the facts or the law. Such conditional
opinions often assist the parties and their counsel in identifying and narrowing the
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issues in controversy and facilitate the settlement of cases before trial. The
formation of these conditional opinions, however, does not counter the
presumption of the judge’s ability to render a fair decision based upon the
evidence later presented at trial. In re Disqualification of Horvath, 105 Ohio
St.3d 1247, 2004-Ohio-7356, 826 N.E.2d 305, ¶ 8, citing In re Disqualification of
Brown, 74 Ohio St.3d 1250, 657 N.E.2d 1353 (1993).
{¶ 22} Certainly, the judge’s rejection of RCCSB’s “Admission of
Contempt” is not grounds for disqualification. See In re Disqualification of
Mitrovich, 74 Ohio St.3d 1219, 657 N.E.2d 1333 (1990) (judge’s rejection of
proposed plea bargain does not suggest bias or prejudgment). As to Judge Spon’s
comments during settlement talks regarding future contempt charges against
Parker and Gilliland, it is not clear how this demonstrates prejudgment. It is
proper for a judge during settlement negotiations to make clear what terms would
be acceptable or unacceptable to the court, to require certain concessions before
approval of an agreement, and even to warn of potential adverse consequences
should an agreement not be reached. See In re Disqualification of Nadel, 74 Ohio
St.3d 1214, 657 N.E.2d 1329 (judge indicated during plea negotiations that he
would not consider a probationary sentence for defendant if he was convicted at
trial). The fact that Parker and Gilliland have not yet been charged with contempt
does not preclude such charges at a later date, should evidence come to light
implicating them in the refusal to comply with the court’s orders and/or the
alleged destruction of evidence. The judge’s comments appear to be nothing
more than an offer for Parker and Gilliland to avoid any future contempt charges
as part an agreement with RCCSB to plead to the contempt charges.
{¶ 23} Finally, affiants contend that during a telephone settlement
conference, Judge Spon commented that “there is also an issue of [attorney
Gilliland’s] violating certain ethical rules.” According to affiants, this was an
issue that no one had previously raised and had never been a part of the contempt
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proceedings. Affiants further allege that the judge raised the issue a second time
later in the telephone conference.
{¶ 24} In affidavit-of-disqualification proceedings, the burden falls on the
affiant to submit sufficient argument and evidence to support the disqualification
request. See R.C. 2701.03(B)(1) (requiring affiant to include specific allegations
of bias, prejudice, or disqualifying interest and the facts to support those
allegations). Affiants’ claim is rejected because they do not allege or otherwise
explain how these remarks demonstrate bias, prejudice, or a disqualifying interest
on Judge Spon’s part.
{¶ 25} In Harvey’s March 15 rebuttal letter, he asserts that the judge’s
explanation in response to the affidavit of disqualification “leaves no doubt he
threatened to file ethical charges against Ms. Gilliland if the contempt action was
not settled to his liking.” Harvey cannot, however, raise new allegations against a
judge simply by filing a letter with the court. R.C. 2701.03 requires that a party
or counsel seeking to disqualify a judge in a pending action must file an affidavit
with the clerk of the Supreme Court. By definition, an affidavit must be
confirmed by oath or affirmation of the party making it and the oath or
affirmation must be taken before a person having authority to administer the oath
or affirmation. In re Disqualification of Pokorny, 74 Ohio St.3d 1238, 657
N.E.2d 1345 (1992). See also R.C. 2701.03(B)(2) (requiring that the affidavit
contain the “jurat of a notary public or other person authorized to administer oaths
or affirmations”). Harvey’s failure to confirm the statement in his letter “by oath
or affirmation” violates R.C. 2701.03. Accordingly, his allegation against Judge
Spon is a “nullity” and has “no effect on the proceedings before” the trial court.
Pokorny at 1238.
Judge’s Adverse Rulings
{¶ 26} Affiants also complain that the judge vacillated in categorizing the
contempt charges against RCCSB as civil or criminal. According to affiants,
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Judge Spon first made it clear that RCCSB faced criminal contempt charges, but
then later determined that the proceedings could be characterized as civil in
nature. The judge, affiants charge, did this to prevent RCCSB from invoking
certain constitutional rights that would be available if RCCSB were facing
criminal contempt charges. Affiants also assert that this allowed Judge Spon to
improperly shift the burden of proof to RCCSB at the contempt hearing. Affiants
complain that when attorney Harvey objected to the ruling that the burden of
proof rested on RCCSB, Judge Spon overruled the objection even though in a
criminal proceeding, the movant has the burden of proof beyond a reasonable
doubt. Affiants also fault Judge Spon for issuing a supplemental show-cause
order on the contempt charge, instead of relying on the guardian ad litem’s motion
to show cause. According to affiants, the judge did this to prevent RCCSB from
having a jury trial on the contempt charge.
{¶ 27} For his part, Judge Spon states that upon review of the contempt
pleadings, it appeared to him that the contempt action had elements of civil and
criminal contempt. The judge maintains that he issued the supplemental show-
cause order to dispel any confusion and to ensure that RCCSB had proper notice
of the exact nature and scope of the contempt proceedings. Judge Spon avers that
the supplemental order was issued for due process purposes only, and he
expressly denies that he was trying to prevent RCCSB from having a jury trial.
{¶ 28} It is well settled that an affidavit of disqualification “is not a
vehicle to contest matters of substantive or procedural law.” In re
Disqualification of Solovan, 100 Ohio St.3d 1214, 2003-Ohio-5484, 798 N.E.2d
3, ¶ 4. See also In re Disqualification of Floyd, 101 Ohio St.3d 1217, 2003-Ohio-
7351, 803 N.E.2d 818, ¶ 4 (disagreement or dissatisfaction with a court’s legal
rulings, even if those rulings may be erroneous, is not grounds for
disqualification). Reviewing alleged legal errors is not the chief justice’s role in
deciding an affidavit of disqualification. In re Disqualification of Russo, 110
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Ohio St.3d 1208, 2005-Ohio-7146, 850 N.E.2d 713, ¶ 6. Affiants have other legal
remedies available to challenge these decisions. And, in fact, affiants have filed
an appeal challenging the judge’s decision to shift the burden of proof.
{¶ 29} Moreover, affiants have raised serious claims; they claim that the
judge acted solely to preclude RCCSB from invoking its constitutional rights and
from having a jury trial. Yet affiants offer nothing more than their own subjective
belief to support these allegations. Subjective belief of bias alone is insufficient
to support these claims. In re Disqualification of Lewis, 117 Ohio St.3d 1227,
2004-Ohio-7359, 884 N.E.2d 1082, ¶ 7.
Judge’s Exclusion of Parker and Gilliland from Hearings
{¶ 30} Affiants assert that Judge Spon prevented Parker and Gilliland
from attending hearings in the contempt proceedings. No bias or prejudice is
evident here. The record in this case reflects that Parker and Gilliland are not
parties to the contempt proceedings. The record further indicates that attorney
Harvey—not Gilliland—represents RCCSB in the contempt proceedings.
Judge’s Dissatisfaction with RCCSB
{¶ 31} Affiants allege that Judge Spon has long been dissatisfied with
how RCCSB is run and has attempted to change it to his liking. According to
affiants, Judge Spon has admitted (1) that he had contacted one of the Richland
County commissioners (the body that makes board-of-director appointments to
RCCSB) to express his concerns about RCCSB and to request an opportunity to
provide names of potential candidates to the board of directors, (2) that his
purpose in contacting the commissioner was to attempt to initiate reforms in
RCCSB’s policies and practices through the appointment of new and/or additional
board members, and (3) that he had chastised RCCSB and made critical
comments on the record in other cases about the services provided by RCCSB.
{¶ 32} Judge Spon does not deny the above allegations. He does,
however, maintain that his comments and actions do not reflect bias or prejudice
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against RCCSB. The judge states that he has seen the quality of services provided
by RCCSB to his court “steadily decline” over several years. According to the
judge, because the services provided by RCCSB affect his court’s ability to serve
the best interests of struggling children and families, he has made numerous
attempts to have RCCSB and Director Parker address his concerns, only to be
ignored. As to his contact with the county commissioner, he avers that his sole
purpose was to provide “objective information bearing upon the current issues
affecting [his] Court’s ability to serve the best interests of children, and to support
[the] local bar association’s attempts to effectuate RCCSB policy and practice
reforms through the appointment of new and/or additional board members to
RCCSB’s board of directors.” Judge Spon also admits that in certain cases he has
“verbally expressed [his] concerns regarding RCCSB’s services provided to
children and families appearing in [his] Court.” He explains that he has
“chastised and otherwise redirected [RCCSB] on occasion * * * in a specific case,
when [he] felt that RCCSB was not doing the job it should be doing pursuant to
Ohio law.” The judge makes “no apologies” in this regard and asserts that he (as
a juvenile court judge) has statutory and inherent authority to properly address
such issues.
{¶ 33} After careful review of these allegations and admissions, this claim
is rejected for the following reasons.
{¶ 34} First, it is well settled that an affidavit of disqualification must be
filed as soon as possible after the affiant becomes aware of circumstances that
support disqualification and that failure to do so may result in waiver of the
objection. In re Disqualification of Pepple, 47 Ohio St.3d 606, 607, 546 N.E.2d
1298 (1989). RCCSB has been aware since November 7, 2011, that Judge Spon
contacted a Richland County commissioner to discuss appointments to the board.
On January 3, 2012, RCCSB, through attorney Gilliland, filed two affidavits of
disqualification against Judge Spon raising this exact claim. See affidavit of
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disqualification case Nos. 12-AP-001 and 12-AP-002. These earlier affidavits
also alleged that Judge Spon had made comments critical of RCCSB on the record
in other cases. On January 20, attorney Gilliland withdrew the earlier affidavits
of disqualification, and this court dismissed the cases as moot on January 24.
Two weeks later, on February 7, affiants filed the instant affidavit, reasserting
these same claims. The filing of the instant affidavit also followed a nearly two-
month delay from the date that the underlying contempt charges were filed against
RCCSB, December 13, 2011. As nothing in the record justifies the delay in filing
the affidavit of disqualification, this constitutes an independent ground for
denying these particular allegations. See In re Disqualification of Glickman, 100
Ohio St.3d 1217, 2002-Ohio-7471, 798 N.E.2d 5, ¶ 7-8.
{¶ 35} Second, even if affiants had not waived their objections, the
allegations against Judge Spon are without merit. Affiants automatically assume
that Judge Spon’s critical comments about RCCSB compel his disqualification.
But a judge is not prohibited from voicing concerns about the quality of work
provided by public employees who interact with the judge’s court. Judges rightly
expect that lawyers and public employees who interact with the court will behave
appropriately and do their work diligently. And when the actions or conduct of a
lawyer or party—inside or outside the courtroom—compromise the court’s ability
to perform its duties, judges are allowed to express their dissatisfaction. See In re
Disqualification of Corrigan, 105 Ohio St.3d 1243, 2004-Ohio-7354, 826 N.E.2d
302, ¶ 10 (judges are entitled to express their dissatisfaction with an attorney’s
dilatory tactics inside and outside the courtroom); see also In re Disqualification
of Sutula, 105 Ohio St.3d 1237, 2004-Ohio-7351, 826 N.E.2d 297, ¶ 6 (“A
judge’s use of forceful language inside or outside the courtroom does not prevent
the judge from serving fairly and impartially”).
{¶ 36} The judge’s dissatisfaction, however, “can and should be expressed
in a way that promotes public confidence in the integrity, dignity, and impartiality
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of the judiciary.” Corrigan at ¶ 10. See also Jud.Cond.R. 1.2. Fatal to affiants’
claim here is their failure to include transcripts of those proceedings where Judge
Spon made the complained-of comments. See In re Disqualification of Corrigan,
77 Ohio St.3d 1235, 674 N.E.2d 350 (1996) (affiants submitted evidentiary
materials showing disqualification of all county judges was warranted). Thus,
there is no way to determine whether the judge’s remarks reflect bias or prejudice
or the appearance thereof against RCCSB.
{¶ 37} As to Judge Spon’s contact with a county commissioner regarding
board appointments to RCCSB, this aspect of the case is troubling. Judge Spon
may have a unique perspective on RCCSB’s operation and the need for change.
And while it was not improper for him to share his concerns with the county bar
association and others, the better course would have been for the judge to let the
county bar take the lead to effectuate any needed reforms to RCCSB. Likewise,
had the county commissioners approached the judge for his views about new
board members, he could have given his opinion without raising questions about
his role as a fair and impartial adjudicator. Indeed, judges are often called upon to
lend their expertise and opinions on matters affecting their courts. Judge Spon,
however, should not have been the one to initiate contact with the county
commissioner and lobby to make changes to the board.
{¶ 38} If RCCSB had timely asserted this claim, then the judge’s contact
with the county commissioner may well have created an appearance of
impropriety as to the contempt proceedings. But, as noted, RCCSB has been
aware since November 7, 2011, that the judge contacted the county commissioner.
And attorney Gilliland raised this exact issue in two affidavit-of-disqualification
cases early this year, only to withdraw her affidavits before this court could
consider her claims. The matter was raised again in this case, nearly two months
after contempt charges were filed against RCCSB. If RCCSB believed that Judge
Spon’s contact with the county commissioner demonstrated bias or prejudice, it
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should have raised this issue in a more timely fashion. RCCSB’s delay suggests
that it believed that Judge Spon could remain impartial, despite his contact with
the county commissioner. In short, affiants’ decision to defer raising this issue
has undercut their claim that the judge’s contact with the county commissioner is
grounds for his disqualification.
3. The Dependency Action
Facts
{¶ 39} Throughout the child-dependency proceedings, RCCSB’s position
has been that the father’s visitation with his child should take place at RCCSB’s
facility. The juvenile court has disagreed with RCCSB’s position, believing that
it was in the child’s best interest for visitation to occur in public under the
supervision of Parent Aid, an organization that is not affiliated with RCCSB.
{¶ 40} On January 19, 2012, the magistrate issued a decision that allowed
the father to continue to have public visits with the minor child outside of
RCCSB. The decision further provided that the “supervision shall include a
member of Parent Aid staff, and that RCCSB, the Attorney for child, and the
[guardian ad litem] may attend each visit.”
{¶ 41} On January 24, the magistrate issued an order, again providing that
visitation occur in a public location outside the RCCSB facility. This order
differed from the January 19 decision in that the order required that visitation be
supervised at all times by Parent Aid “and/or” RCCSB.
{¶ 42} On February 1, during one of the public visits, the father
absconded with the minor child. The child was apparently returned to RCCSB a
short time later. On February 3, Judge Spon issued an order scheduling a
“review” hearing to take place on February 7. The judge’s order also required
RCCSB to secure the presence of any employees who had responsibility for
monitoring or supervising the February 1 visit or ensuring that the visitation
supervision was conducted in accordance with prior court orders.
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{¶ 43} The affidavit of disqualification was filed with this court on
February 7. The gravamen of the affidavit as it relates to the dependency
proceedings is that Judge Spon has predetermined that RCCSB was at fault for the
father’s abducting the child. Affiants believe that the blame for this incident
should lie with Parent Aid, not RCCSB, because the court had appointed Parent
Aid to supervise this visit.
{¶ 44} Despite the filing of the affidavit, the February 7 review hearing
went forward.1 On February 13, Judge Spon issued an order adopting the January
19 magistrate’s decision, except for the provisions dealing with visitation, which
the judge rejected. Judge Spon’s February 13 order also (1) “reaffirm[ed]” the
January 24 magistrate’s order, subject to a previously ordered temporary
suspension of all visits, and (2) required that RCCSB monitor or supervise all
future visits by sight and sound, with the assistance of a volunteer from Parent
Aid.
{¶ 45} On February 27, affiants filed a supplemental affidavit of
disqualification. In this filing, the affiants’ primary claim is that Judge Spon
wrongly found that the January 24 magistrate order took precedence over the
January 19 magistrate decision. Affiants also raise several claims regarding the
February 7 review hearing.
Judge’s February 3 Order
{¶ 46} Affiants first allege that the language in Judge Spon’s February 3
order indicates that he may have already predetermined that RCCSB was at fault
for the father’s abducting the child. Affiants quote certain language from the
judge’s order, but they do not explain specifically how this language demonstrates
prejudgment against RCCSB. The order, construed in its proper context, merely
acknowledges the court’s prior suspension of the father’s visitation with the child
1. The parties agree that the February 7 hearing was not subject to the automatic-stay provision in
R.C. 2701.03(D)(1).
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and orders the parties—including certain RCCSB employees—to attend a review
hearing concerning the February 1 incident. According to the judge, the breach in
supervision exposed the child to personal risk and he required the RCCSB
employees who were potential witnesses to the incident to attend the review
hearing merely to determine what went wrong at the February 1 visitation. In the
absence of any argument or evidence from affiants on this matter, no basis exists
for finding that Judge Spon has prejudged this matter.
February 7 Review Hearing
{¶ 47} Affiants allege that the judge’s actions during the February 7
review hearing demonstrate bias, prejudice, or an appearance of impropriety.
Affiants first contend that Judge Spon used the February 7 hearing to publicly
place the blame on RCCSB for the father’s abduction of the child. Affiants claim
that during the hearing the judge “excoriated” RCCSB for its alleged deficient
training of its employees and found, without citing any evidence, that the deficient
training contributed to the abduction.
{¶ 48} Affiants have not met their burden under R.C. 2701.03 of
submitting sufficient argument and evidence that would support this allegation.
See R.C. 2701.03(B)(1) (requiring affiant to include specific allegations of bias,
prejudice, or disqualifying interest and the facts to support those allegations).
Affiants have offered no evidence—such as a transcript of the February 7 review
hearing—that would support their claims here. In contrast, Judge Spon submitted
a partial transcript of that hearing. Nothing in this partial transcript demonstrates
that Judge Spon “excoriated” RCCSB or placed undue blame on the agency for
the child’s abduction. Vague and unsubstantiated allegations, such as those
alleged here, are insufficient to establish bias or prejudice. See In re
Disqualification of Walker, 36 Ohio St.3d 606, 522 N.E.2d 460 (1988).
{¶ 49} Second, affiants claim that during the February 7 hearing, Judge
Spon refused to allow RCCSB to argue that the court’s prior orders placed
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January Term, 2012
primary responsibility for supervising the visits on Parent Aid. RCCSB did argue
during the February 7 hearing that the magistrate’s January 19 decision is
dispositive to its claim that RCCSB was not to blame for the child’s abduction. In
RCCSB’s view, that order placed primary responsibility for supervising the visit
with Parent Aid. Judge Spon rejected RCCSB’s argument, finding instead that
the magistrate’s January 24 order set forth the parameters for the February 1
visitation. On February 13, Judge Spon issued a written order, in effect, affirming
that the January 24 order was controlling. Affiants also challenge this order in
their supplemental affidavit of disqualification.
{¶ 50} Contrary to affiants’ contention, an affidavit of disqualification is
not the mechanism for determining whether Judge Spon’s ruling was legally
correct. In re Disqualification of Griffin, 101 Ohio St.3d 1219, 2003-Ohio-7356,
803 N.E.2d 820, ¶ 8. Trial judges are entitled to exercise their discretion in ruling
on many matters, and it is not the chief justice’s role in deciding an affidavit of
disqualification to second-guess each ruling. 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.
{¶ 51} Finally, attorney Harvey claims that Judge Spon ordered him to be
seated and refused to allow him to discuss the magistrate’s January 19 order. This
is true, but what Harvey fails to mention is that the judge precluded Harvey from
speaking on this matter because Harvey was not counsel of record for RCCSB in
the dependency case. Harvey also ignores that Judge Spon allowed attorney
Gilliland, who is counsel of record for RCCSB in the dependency case, to argue
this issue. On this record, no reasonable and objective observer would harbor
serious doubts about the impartiality of Judge Spon. In re Disqualification of
Lewis, 117 Ohio St.3d 1227, 2004-Ohio-7359, 884 N.E.2d 1082, ¶ 8 (setting forth
the proper test for disqualifying a judge based on an appearance of impropriety).
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SUPREME COURT OF OHIO
The Alleged Failure to Serve the January 24 Magistrate Order on RCCSB
{¶ 52} Affiants’ final allegation is that RCCSB was not served with a
copy of the magistrate’s January 24 order that Judge Spon relied on during the
February 7 hearing. According to affiants, when Judge Spon alluded to this order
during the February 7 hearing, they were “perplexed” because neither
remembered ever seeing this order. Affiants further aver that they were both
“hesitant” to deny having received the order because they were not “entirely sure”
it had not been received. Affiants decided that it was necessary to examine their
files before representing to the trial court that they had not received the order.
Affiants maintain that they searched their files after the hearing had concluded,
but they could not locate the January 24 order.
{¶ 53} The evidence in the record refutes affiants’ claim. During the
February 7 hearing, attorney Gilliland expressly and unequivocally stated that she
had the January 24 magistrate order in her possession. Certainly if there were
some question during the February 7 hearing whether RCCSB had been served
with a copy of this order, logic would dictate that attorney Gilliland bring this to
the trial court’s attention, even if she was not “entirely sure” at that time.
4. Conclusion
{¶ 54} “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.
{¶ 55} For the reasons stated above, the affidavit and supplemental
affidavit of disqualification are denied. The case may proceed before Judge Spon.
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