Case Information
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[Cite as
In re Disqualification of Donnelly,
I N RE D ISQUALIFICATION OF D ONNELLY .
L ISBOA
v
. K LEINMAN ET AL .
[Cite as
In re Disqualification of Donnelly,
Judges—Affidavit of disqualification—“Affidavit” stricken and dismissed.
(No. 11-AP-081—Decided August 18, 2011.)
O N A FFIDAVIT OF D ISQUALIFICATION in Cuyahoga County Court of Common Pleas Case No. CV-11-753481.
__________________ O’C ONNOR , C.J.
{¶ 1} Jose Lisboa Jr. has filed a request with the clerk of this court under R.C. 2701.03 to disqualify Judge Michael P. Donnelly from acting on any further proceedings in case No. CV-11-753481, now pending in the Court of Common Pleas of Cuyahoga County.
{¶ 2}
R.C. 2701.03(A) requires that a party seeking to disqualify a judge
must file an “affidavit” with the clerk of the Supreme Court. Under Ohio law, an
affidavit “is a written declaration under oath.” R.C. 2319.02. To comply with
R.C. 2701.03, an affidavit must be confirmed by oath or affirmation of the party
making it and be made before a person having authority to administer the oath or
affirmation.
In re Disqualification of Pokorny
,
{¶ 3} Lisboa’s “affidavit” of disqualification, however, does not contain the “jurat of a notary public or another person authorized to administer oaths or affirmations,” as required by R.C. 2701.03(B)(2). Lisboa, who is currently in
S UPREME C OURT OF O HIO
Brazil due to immigration issues, claims that the United States Consulate in Brazil
could not provide him with notary service before the statutory seven-day filing
requirement set forth in R.C. 2701.03(B) had passed. Thus, in lieu of a sworn
affidavit, Lisboa submitted a signed, unsworn statement pursuant to 28 U.S.C.
1746 (legitimizing certain unsworn declarations), declaring under penalty of
perjury that the allegations against Judge Donnelly are “true and correct.” But
under Ohio law, unsworn written statements that are signed under penalty of
perjury cannot be substituted for affidavits.
Toledo Bar Assn. v. Neller
, 102 Ohio
St.3d 1234,
______________________
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