IN RE DISQUALIFICATION OF FLANAGAN. ZAVARELLA-CIRCELLI v. CIRCELLI.
No. 09-AP-097
Supreme Court of Ohio
Decided November 4, 2009
127 Ohio St.3d 1236, 2009-Ohio-7199
MOYER, C.J.
MOYER, C.J.
{11} Joseph A. Circelli has filed an affidavit with the clerk of this court under
{12} Circelli alleges that Judge Flanagan has an interest in the outcome of the underlying action and is biased against him and in favor of plaintiff and her counsel. Specifically, Circelli claims that Judge Flanagan used the threat of criminal prosecution to force him to agree to a grossly unfair divоrce settlement. According to Circelli, his former attorney met with plaintiff‘s counsel and Judge Flanagan in the judge‘s chambers on July 21, 2009. Circelli maintains that during this meeting, the judge and plaintiff‘s counsel told his attorney that Circelli would be indicted unless he agrеed to settlement terms dictated by plaintiff‘s counsel. Circelli states that he reluctantly agreed to settle the case under fear and duress.
{13} Judge Flanagan has responded in writing to the affidavit of disqualification. The judge expressly denies that he ever threatened criminal prosecution to effect a settlement in this case. Judge Flanagan also states that at no time in his presence did plaintiff‘s counsel do so. The judge avers that during the trial of
{14} Circelli makes serious allegations of misconduct involving Judge Flanagan аnd plaintiff‘s counsel in this case. Yet he offers no third-party affidavits or any other compelling evidence to support these claims. Allegations that аre based solely on hearsay, innuendo, and speculation—such as those alleged here—are insufficient to establish bias or prejudice. See In re Disqualification of Walker (1988), 36 Ohio St.3d 606, 522 N.E.2d 460 (vаgue, unsubstantiated allegations are insufficient to establish bias or prejudice).
{15} Nevertheless, I find that Judge Flanagan‘s disqualification is warranted because thеre appears to be a significant likelihood that the judge may be called to testify in subsequent proceedings about his actions in this case. Circelli сurrently has pending before Judge Flanagan a motion to vacate the judgment entry approving the disputed settlement. The primary basis for the motion to vаcate is Circelli‘s allegation that the judge and plaintiff‘s counsel forced him to settle by threatening him with prosecution. Circelli‘s motion alleges that the thrеat was made in Judge Flanagan‘s chambers and that it was Judge Flanagan who first threatened Circelli with prosecution. Moreover, there is no dispute here thаt Judge Flanagan met with counsel in chambers and stated his intent to report Circеlli‘s perjured testimony to the prosecutor. Thus, although the record beforе me does not establish that Judge Flanagan engaged in the alleged misconduct, it does appear that he possesses evidence that is materiаl to the motion to vacate.
{16} Based on the foregoing, I am compelled to order Judge Flanagan‘s disqualification from further proceedings in this case. See In re Disqualification of Bond (2001), 94 Ohio St.3d 1221, 763 N.E.2d 593 (disqualification ordered where it appeared that the judge would be called to testify). The Cuyahoga County Court of Common Pleas shall assign the case to another judge of the Domestic Relations Court.