IN RE DISQUALIFICATION OF HARWOOD. PROUDFOOT v. PROUDFOOT.
No. 13-AP-091
Supreme Court of Ohio
October 10, 2013
137 Ohio St.3d 1221, 2013-Ohio-5256
{11} Margaret Kreiner, counsel for the plaintiff, has filed an affidavit with the clerk of this court under
{12} Kreiner alleges that Judge Harwood should be disqualified because at recent prehearing and status conferences, the judge demonstrated bias in favor of defense counsel, indicated an intention to award the family home to the defendant, engaged in an improper ex parte communication, and expressed an unwillingness to continue adjudicating the case with Kreiner as counsel.
{13} Judge Harwood has responded in writing to Kreiner‘s affidavit, denying any impropriety and averring that despite the allegations against her, she can decide the underlying case fairly and impartially.
{14} For the reasons explained below, no basis has been established to order the disqualification of Judge Harwood.
{15} A “presumption of impartiality” is “accorded all judges” in affidavit-of-disqualification proceedings. In re Disqualification of Celebrezze, 101 Ohio St.3d 1224, 2003-Ohio-7352, 803 N.E.2d 823, ¶ 7. In addition, the burden in these cases falls on the affiant to submit sufficient evidence demonstrating that disqualification is warranted. See
{17} Kreiner offers only her affidavit to support her allegations, although she indicates that other people witnessed the alleged judicial misconduct, including Kreiner‘s associate and paralegal. Given the conflicting evidence in the record—and Kreiner‘s failure to substantiate her allegations with third-party affidavits or other evidence—Kreiner has failed to set forth sufficiently compelling evidence to overcome the presumption that Judge Harwood is fair and impartial. See, e.g., Baronzzi at ¶ 8 (affiant‘s “vague and unsubstantiated allegations—especially in the face of clear denials by Judge Baronzzi—are insufficient to overcome the presumption that Judge Baronzzi is fair and impartial“); In re Disqualification of Corrigan, 105 Ohio St.3d 1243, 2004-Ohio-7354, 826 N.E.2d 302, ¶ 8 (“In the wake of the conflicting stories presented by the various affiants, however, I cannot conclude that the judge is clearly biased and prejudiced * * *“).
{18} Kreiner also claims that Judge Harwood is biased in favor of defense counsel because the judge allowed defense counsel to proceed first with her arguments at the prehearing conference and because the judge “scolded” Kreiner for attempting to point out contested facts while defense counsel was speaking. For her part, Judge Harwood acknowledges allowing defense counsel to present her arguments first at the pretrial conference, but the judge further explains that she conducts such conferences informally, with no procedure as to which side speaks first. Judge Harwood also admits scolding and reprimanding Kreiner for interrupting opposing counsel but denies that these admonitions were the result of bias against Kreiner.
{19} Contrary to Kreiner‘s contention, “[t]rial judges are entitled to exercise considerable discretion in the management of the cases on their dockets,” In re Disqualification of Sutula, 105 Ohio St.3d 1237, 2004-Ohio-7351, 826 N.E.2d 297, ¶ 4, and it is not the role of the chief justice in deciding affidavits of disqualification to second-guess such matters. Here, Judge Harwood‘s alleged failure to conduct the pretrial conference in the manner in which Kreiner would have
{110} In the end, “[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 in this case.
{111} For the reasons stated above, the affidavit of disqualification is denied. The case may proceed before Judge Harwood.