In re Disqualification of Bickerton
(No. 21-AP-016—Decided March 11, 2021.)
ON AFFIDAVIT OF DISQUALIFICATION in Columbiana County Court of Common Pleas, General and Domestic Relations Division, Case No. 2017 CV 00137.
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O‘CONNOR, C.J.
{¶ 1} David E. Oeschger Jr., attorney for the defendant, Dr. Fu-Nen Lee, has filed an affidavit pursuant to
Background
{¶ 2} In May 2020, Judge Bickerton scheduled a jury trial for February 16, 2021. In January 2021, Judge Bickerton held a pretrial conference and indicated that despite the COVID-19 pandemic, jury trials had resumed in the Columbiana County Court of Common Plеas. Although Mr. Oeschger and Judge Bickerton dispute some of what occurred at the January pretrial, they appear to agree that Mr. Oeschger raised concerns about requiring Dr. Lee, who is 79 years old, to travel from Florida to appear in person for the triаl and that Judge Bickerton indicated that Dr. Lee could testify via remote technology. After the hearing, Mr. Oeschger
{¶ 3} In his affidavit, Mr. Oeschger claims that by requiring Dr. Lee to appear in person for trial, Judge Bickerton would endanger the health and safety of Dr. Lee in a manner that warrants her disqualification under the legal standard established in In re Disqualification of Fleegle, 161 Ohio St.3d 1263, 2020-Ohio-5636, 163 N.E.3d 609. Mr. Oeschger further asserts that Judge Bickerton has not complied with the chief justice‘s pandemic guidance and that Judge Bickerton‘s jury-trial protocol is insuffiсient to alleviate Dr. Lee‘s specific health concerns. In addition, Mr. Oeschger alleges that Judge Bickerton‘s February 3 entry denying his requеst for a continuance demonstrated an “unwarranted bias and prejudice towards Dr. Lee and his counsel” and that Judge Bickerton had “аrbitrarily withdraw[n] Dr. Lee‘s option to testify at the trial remotely.”
{¶ 4} Judge Bickerton filed a response to the affidavit and requests that it be denied. She states that her main concern is to continue court operations in a manner that protects the health and safety of all participants. In distinguishing the facts here from Fleegle, Judge Bickerton notes that she has implemented and enforces a COVID-19 jury-trial protocol. She furthеr states that in deciding to resume jury trials, she consulted with the county health department and considered the decreasing infection and сommunity-spread rates in Columbiana County. The judge believes that she has complied with all guidance from this court and the Centers for Disease Control and Prevention. She also notes that she ordered Dr.
Merits of the affidavit of disqualification
{¶ 5} In Fleegle, a defense attorney sought to disqualify a judge from two jury trials scheduled for December 2020, arguing that the judge had failed to implement precautions to protect against the spread of the Coronavirus in his cоurtroom. The judge had no written COVID-19 protocol, and there was no evidence that he had employed remote technology to reduce the flow of people in the courthouse. In addition, the judge failed to sufficiently explain the urgency of going forward with the jury trials at “what could be the height of the COVID-19 pandemic” and when “daily numbers of confirmed COVID-19 cases, hospitalizations, and deaths ha[d] significantly increased.” Fleegle at ¶ 5. The judge was removed from the two cases, and it was noted that a judge‘s failure to comply with public-health directives “endangers thе health of those who enter the courthouse and their families” and “whittles away at the public‘s trust and confidence in the judiciary.” Id. at ¶ 8.
{¶ 6} Contrary to Mr. Oeschger‘s contention, Judge Bickerton has not violated any legal standard established in Fleegle. “[T]he ability of a judge to preside fairly and impаrtially in a particular matter must be analyzed on a case-by-case basis.” In re Disqualification of Blanchard, 150 Ohio St.3d 1260, 2017-Ohio-5543, 80 N.E.3d 504, ¶ 5. Judge Bickerton has adopted a detailed written jury-trial рrotocol that she shared with the underlying parties. She notes that facial coverings are required during all hearings, social distancing is enforced by marks on the floors and chairs, and the courtroom is sanitized daily and in between hearings. And to accommodate Dr. Lee‘s concerns about appearing in person, she has indicated that he could participate remotely.
{¶ 8} Nor does Judge Bickerton‘s February 3 entry demonstrate that she is otherwise biased against Dr. Lee or his counsel. In disqualification requests, “[t]he term ‘bias or prejudice’ ‘implies a hostile feeling оr spirit of ill-will or undue friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will be governed by the law and the facts.’ ” In re Disqualification of O‘Neill, 100 Ohio St.3d 1232, 2002-Ohio-7479, 798 N.E.2d 17, ¶ 14, quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 469, 132 N.E.2d 191 (1956). “The proper test for determining whеther a judge‘s participation in a case presents an appearance of impropriety is * * * an objective one. A judge should step aside or be removed if a reasonable and objective observer would harbor serious doubts about the judge‘s impаrtiality.” In re Disqualification of Lewis, 117 Ohio St.3d 1227, 2004-Ohio-7359, 884 N.E.2d 1082, ¶ 8. The judge‘s entry does not indicate that she has hostile feelings toward Dr. Lee or that she has formed a fixed anticipatory judgment on any issue in the underlying case. Nor has Mr. Oeschger set forth a compelling argument for disqualifying Judge Bickerton to avoid an appearance of bias.
{¶ 9} The affidavit of disqualification is denied. The case may proceed before Judge Bickerton.