O'Malley v. O'Malley (In Re Stucki), 2019 Ohio 1624

Patrick J. O’Malley filed an affidavit under R.C. 2701.03 seeking to disqualify Judge David Stucki (retired judge sitting by assignment) from a Cuyahoga County domestic-relations matter.
O’Malley alleged improper ex parte communications, failure to follow custody-case timing guidelines, failure to hold hearings on pending motions, and that the judge prioritized collecting guardian-ad-litem fees over locating the parties’ children.
O’Malley submitted a sworn affidavit plus an unsworn document titled “Request For Disqualification” that contained additional factual assertions but lacked a jurat.
Judge Stucki filed a written response denying bias, ex parte contacts about substantive matters, and explaining his relationships with the guardian ad litem and the facility involved.
The Ohio Supreme Court considered whether the affidavit and accompanying material met statutory requirements and whether the allegations, if credited, required disqualification.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether unsworn memorandum attached to affidavit may be considered	O’Malley relied on factual allegations in the unsworn memorandum as part of his disqualification request	Judge argued only sworn allegations are proper under R.C. 2701.03	Court held unsworn allegations cannot be considered; affidavit must be sworn before authorized officer
Whether vague allegations of ex parte communications suffice	O’Malley claimed awareness of many ex parte discussions involving the judge	Judge denied substantive ex parte communications about the case	Court held vague, unsubstantiated claims insufficient; must show communication addressed substantive matters
Whether procedural/substantive complaints (e.g., missed hearings, timelines, guardian fees) can be litigated via disqualification	O’Malley contended judge failed to hold hearings, ignored timing guidelines, and prioritized fees	Judge contended such procedural disputes do not demonstrate bias	Court held disqualification is not a vehicle to relitigate procedural or substantive rulings; other remedies exist
Ultimate disposition	O’Malley sought removal of Judge Stucki from the case	Judge sought to remain assigned	Court denied the affidavit; case may proceed before Judge Stucki

In re Disqualification of Donnelly, 134 Ohio St.3d 1221 (2011) (an affidavit must be a written declaration under oath)
In re Disqualification of Fuerst, 134 Ohio St.3d 1267 (2012) (unsworn letters or assertions have no effect under R.C. 2701.03)
In re Disqualification of Pokorny, 74 Ohio St.3d 1238 (1992) (failure to confirm allegations by oath invalidates them)
In re Disqualification of Forsthoefel, 135 Ohio St.3d 1316 (2013) (ex parte communication requires proof it addressed substantive matters)
In re Disqualification of Calabrese, 100 Ohio St.3d 1224 (2002) (standards for when ex parte communications warrant disqualification)
In re Disqualification of Walker, 36 Ohio St.3d 606 (1988) (vague, unsubstantiated allegations insufficient to show bias)
In re Disqualification of Solovan, 100 Ohio St.3d 1214 (2003) (disqualification procedure is not for attacking substantive or procedural rulings)