In re Disqualification of Forchione
(No. 21-AP-006—Decided February 4, 2021.)
ON AFFIDAVIT OF DISQUALIFICATION in Stark County Court of Common Pleas, General Division, Case No. 2020CV00418.
O’CONNOR, C.J.
{¶ 1} Plaintiff Edwin Davila has filed an affidavit pursuant to
{¶ 2} Mr. Davila alleges that for a variety of reasons, Judge Forchione is biased and prejudiced against him. Judge Forchione filed a response to the affidavit in which he denies displaying any type of prejudice against Mr. Davila.
{¶ 3} In disqualification requests, “[t]he term ‘bias or prejudice’ ‘implies a hostile feeling or 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
{¶ 4} For the reasons explained below, Mr. Davila has not established that Judge Forchione has hostile feelings toward him or a fixed anticipatory judgment on any issue in the underlying case. Nor has Mr. Davila set forth a compelling argument for disqualifying Judge Forchione to avoid an appearance of bias.
The judge’s prior conduct
{¶ 5} Mr. Davila first alleges that Judge Forchione’s animosity toward him began prior to the underlying case. According to Mr. Davila, the judge—when he was in private practice—threatened Mr. Davila for refusing to agree to a settlement in a personal-injury matter. Mr. Davila also states that after Judge Forchione took the bench, he refused to issue a final, appealable order in a case involving Mr. Davila. In response, Judge Forchione states that he has been a judge for 12 years and has no recollection of the alleged conversation with Mr. Davila regarding the personal-injury matter. The judge nonetheless denies that it occurred. The judge also disputes Mr. Davila’s version of the case history in the prior matter before the judge and notes that he never prevented Mr. Davila from pursuing any further actions in that case.
{¶ 6} “Judges are presumed to be capable of putting aside old disagreements with former opposing counsel and attоrneys appearing before them * * *.” In re Disqualification of Burge, 136 Ohio St.3d 1205, 2013-Ohio-2726, 991 N.E.2d 237, ¶ 13. Nothing in Mr. Davila’s averments would lead a reasonable person to conclude that Judge Forchione has developed such a strong personal bias against Mr. Davila—based on these two incidents—that the judge would be unable to preside fairly over the underlying case.
{¶ 7} Mr. Davila next states that in May 2020, Judge Forchione issued an entry stating, “Defendant hаs indicated that she does not intend to dispute service [of] process.” Mr. Davila argues that because he was not a part of any discussion about service of the complaint, the judgе must have engaged in an ex parte communication with the defendant. For his part, Judge Forchione denies engaging in any improper ex parte communication and states that his entry was bаsed on the pleadings. “An alleged ex parte communication constitutes grounds for disqualification when there is ‘proof that the communication * * * addressed substantive matters in the pending case.’ ” (Ellipsis sic.) In re Disqualification of Forsthoefel, 135 Ohio St.3d 1316, 2013-Ohio-2292, 989 N.E.2d 62, ¶ 7, quoting In re Disqualification of Calabrese, 100 Ohio St.3d 1224, 2002-Ohio-7475, 798 N.E.2d 10, ¶ 2. “The allegations must be substantiated and consist of something more than hearsay or speculation.” Id. Here, Mr. Davila’s allegation is based on speculation and disproved by filings that substаntiate the judge’s position.
The judge’s rulings
{¶ 8} Mr. Davila also criticizes some of Judge Forchione’s rulings in the underlying matter, including the judge’s refusal to transfer the case to a different judge and to dismiss an allegedly improper third-party complaint. It is well established, however, that an affidavit of disqualification “is not a vehicle to contest matters of substantive or procedural law.” In re Disqualification of Solovan, 100 Ohio St.3d 1214, 2003-Ohio-5484, 798 N.E.2d 3, ¶ 4. Therefore, it is outside the sсope of this proceeding to review the propriety of Judge Forchione’s legal decisions. “Dissatisfaction or disagreement with a judge’s ruling of law, without more, does not constitute bias or prejudice and thus is not grounds for disqualification.” Id.
{¶ 9} Finally, Mr. Davila asserts that Judge Forchione ordered all parties to appear in-person for a January 2021 pretrial conferencе “without issuing any coronavirus protocols.” Mr. Davila states that he has preexisting medical conditions and therefore is concerned about the alleged lack of protocols. In rеsponse, Judge Forchione states that the Stark County Court of Common Pleas has established “an extensive and thorough protocol” that complies with this court’s guidance on Coronavirus safеty measures. The judge states that as the court’s administrative judge, he created a security committee to develop the safety plan, which addresses a variety of topics, including prоtections for jurors, the screening of all trial participants, and the safety of members of the public and the media. The security committee met with the local health department to review the protocol and to obtain the department’s approval of using Plexiglas dividers in two courtrooms to separate trial participants. According to the judge, “[m]asks are required and all social distancing is followed” and the courtroom is disinfected after every use. And the judge affirms that he will enforce the protocol for pretrial conferences.
{¶ 10} In addition, Judge Forchione notes that Stark County judges have suspended jury trials and are currently conducting most pretrial conferences by Zoom or telephone in an attempt to limit the number of individuals in the courthouse. The judge understands that courts should hold in-person hearings only when necessary. He believes that an in-person hearing is necessary in the underlying case because of the animosity between the parties and the number of pending motions requiring immediate attention, including a motion to disqualify counsel that may necessitate record evidence. According to Judge Fоrchione, the “tone of the attorneys in their pleadings ha[s] become toxic” and based on the “chaos taking place between the parties,” an in-person pretrial confеrence “seemed both prudent and necessary so that the Court can sort out the discovery issues
{¶ 11} As recently explained,
During this public-health emergency, a judge’s priority must be the health and safety of court employees, trial participants, jurors, and members of the public entering the cоurthouse. Attorneys and the public have a right to know what steps a court is taking to keep them safe while the court continues conducting essential business. If attorneys or litigants believe that judges аre not taking seriously recommendations from this court, the governor, or other public-health officials, and that as a result the health of trial participants, jurors, or the public is at risk, the judge’s disqualification may be sought. If a judge cannot prove that he or she has taken steps to protect the safety of individuals in the courtroom, the judge may be disqualified, especially if the judge сannot also articulate the necessity of proceeding with jury trials during this dangerous stage of the pandemic.
In re Disqualification of Fleegle, 161 Ohio St.3d 1263, 2020-Ohio-5636, 163 N.E.3d 609, ¶ 8.
{¶ 12} Here, Judge Forchione has demonstrated that he and the other judges of the Stark County Court of Common Pleas adopted a written protocol to help protect the safety of individuals in the courthouse while the court continues to conduct its business. The judge further notes that that protocol is applicable to not only jury trials but also pretrial conferences and other types of hearings. Although Judge Forchione recognizes that in-person hearings should be required only when
{¶ 13} When one or more of the partiеs seeks a virtual pretrial, the better practice is to grant the request. The need for a record may be met with remote video technology. Courts must continue to operate with a strоng presumption toward remote proceedings and to leverage technology to conduct all proceedings remotely to the extent possible. Nevertheless, based on this rеcord, Mr. Davila has not established that Judge Forchione has disregarded Mr. Davila’s welfare or endangered the health of those who enter the courthouse to the extent that disqualificatiоn is necessary. See Fleegle at ¶ 6-9 (disqualifying a judge from presiding over two jury trials scheduled for December 2020; the judge had no written COVID-19 protocol, failed to sufficiently explain the urgency of going forward with the jury trials at that particular stage of the COVID-19 pandemic, and failed to employ remote technology to reduce the flow of people through the courthouse).
{¶ 14} As noted in Fleegle, if in-person hearings or trials cannot be avoided, “judges must ensure that scrupulous safety practices are followed, and they must effectively communicate those practices to all participants.” Id., 161 Ohio St.3d 1263, 2020-Ohio-5636, 163 N.E.3d 609, at ¶ 8.
{¶ 15} The affidavit of disqualification is denied. The case may proceed before Judge Forchione.