Guardianship & Protective Services, Inc. v. SetinsekGuardianship & Protective Services, Inc. v. Setinsek
O‘CONNOR, C.J.
{¶ 1} Rudolph Setinsek and his attorney, David Engler, have filed affidavits with the clerk of this court under
{¶ 3} Judge Swift has responded in writing to the allegations in Setinsek‘s and Engler‘s affidavits, offering a detailed account of the underlying cases.
{¶ 4} For the reasons explained below, no basis has been established to order the disqualification of Judge Swift.
{¶ 5} First, it is well settled that “absent extraordinary circumstances, a judge will not be subject to disqualification after having presided over lengthy proceedings in a pending case.” In re Disqualification of Celebrezze, 94 Ohio St.3d 1228, 1229, 763 N.E.2d 598 (2001). Further, when an affidavit is filed after commencement of a trial and after the presentation of evidence has begun, a judge should be disqualified only when the record “clearly and unquestionably demonstrates a * * * ‘fixed anticipatory judgment’ that undermines the absolute confidence of the public in the fairness and integrity of the proceedings.” In re Disqualification of Kate, 88 Ohio St.3d 1208, 1209, 723 N.E.2d 1098 (1999), quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 469, 132 N.E.2d 191 (1956). According to Judge Swift, he has presided over the underlying cases since 2008 and 2010, and trial commenced in the declaratory-judgment action in June 2010 and is set to continue on September 3, 2013. Given the length of the underlying proceedings and Judge Swift‘s significant involvement in the continued trial, disqualification is warranted only under “extraordinary circumstances” that clearly show a “fixed anticipatory judgment.” Affiants have failed to adduce sufficient proof to carry this heavy burden.
{¶ 6} Second, even if affiants were not bound by this standard, most of affiants’ allegations are not grounds for disqualification. For example, this is not the appropriate forum for affiants’ complaints about the conduct of court-appointed attorneys. Affidavit-of-disqualification proceedings are narrow in scope and “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
{¶ 7} Third, affiants’ vague allegations regarding the spouse of the trustee are inadequate to establish bias or prejudice. “[T]he fact that one of the parties is related to an employee of the court is not, by itself, sufficient grounds for disqualification of the judge.” In re Disqualification of Niehaus, 100 Ohio St.3d 1240, 2003-Ohio-5488, 798 N.E.2d 22, ¶ 3. Further, an affidavit of disqualification must allege with specificity the purported grounds for disqualification, including specific facts that demonstrate judicial bias. See
{¶ 8} Fourth, Engler has waived his objection to Judge Swift based on the incident relating to Engler‘s public-records request. An affidavit of disqualification must be filed “as soon as possible after the incident giving rise to the claim of bias and prejudice occurred,” and failure to do so may result in waiver of the objection, especially when “the facts underlying the objection have been known to the party for some time.” In re Disqualification of O‘Grady, 77 Ohio St.3d 1240, 1241, 674 N.E.2d 353 (1996). The incident occurred on June 7, 2013, yet Engler waited until August 22, 2013—12 days before the scheduled trial—to file his affidavit. As nothing in the record justifies the delay in filing the affidavit of disqualification, Engler waived the right to disqualify Judge Swift based on this allegation. See In re Disqualification of Corrigan, 91 Ohio St.3d 1210, 741 N.E.2d 137 (2000) (affiant waived objections to judge when incidents giving rise to claim of bias occurred “several months prior to the filing of the affidavit” and affiant filed affidavit “less than three weeks before the scheduled trial“); In re Disqualification of Belskis, 74 Ohio St.3d 1252, 657 N.E.2d 1355 (1993) (denying affidavit when incident giving rise to claim of bias had been known for “some months prior” to filing of affidavit, but affiant waited “until a few days before a scheduled hearing“).
{¶ 10} In conclusion, “[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 here.
{¶ 11} For the reasons stated above, the affidavits of disqualification are denied. The cases may proceed before Judge Swift.