IN RE DISQUALIFICATION OF KNECE. ROTHWELL v. ROTHWELL.
No. 14-AP-005
Supreme Court of Ohio
March 5, 2014
138 Ohio St.3d 1274, 2014-Ohio-1414
O‘CONNOR, C.J.
{1} Kinslеy F. Nyce, counsel for defendant Mark Rothwell, filed an affidavit of disqualification on January 27, 2014, against Judge P. Randall Knece of the Court of Common Pleas of Pickaway County. Nycе‘s affidavit was denied by entry dated February 4, 2014, because the record failed to indicate what, if anything, remained pending before Judge Knece in the underlying case. See In re Disqualification of Hayes, 135 Ohio St.3d 1221, 2012-Ohio-6306, 985 N.E.2d 501, ¶ 6 (“[t]he Chiеf Justice cannot rule on an affidavit of disqualification when * * * nothing is pending before the trial court“).
{2} On February 11, 2014, Nyce filed two supplemental affidavits of disqualification, averring that since the filing of his initial affidavit, he had filed a motion in the trial court under
{3} Judge Knece has respondеd in writing to the allegations in Nyce‘s initial and supplemental affidavits, denying any bias or prejudice against Nyce or his client.
{4} For the reasons explained below, no basis has been established to order the disqualification of Judge Knece.
Nyce‘s First Supplemental Affidavit
{5} As noted above, Nyce filed his initial affidavit of disqualification on January 27, 2014. The next scheduled hearing in the underlying case was set for that same day on plaintiff‘s motion to disburse the supersedeas bond posted by
{6} Under
{7} Judge Knece appears to invoke this exception, arguing that his order disbursing the supersedeas bond was “ministerial in nature” and in compliance with the appellate court‘s directive to carry its judgment into execution. Nyce disagrees, claiming that the issue of bond disbursement was nоt yet ripe for consideration.
{9} Although a judge‘s ruling during the pendency of an affidavit could be evidence of bias, see, e.g., In re Disqualification of Celebrezze, 74 Ohio St.3d 1242, 657 N.E.2d 1348 (1992), Judge Knece‘s legal determinаtion here that the issue before the court on January 27 was “ministerial“—and therefore not prohibited by the filing of Nyce‘s affidavit—does not, by itself, indicate bias or prejudice аgainst Nyce. It is well settled that a party‘s “dissatisfaction or disagreement with a judge‘s rulings, even if those rulings may be erroneous, does not constitute bias or prejudice and is not grounds fоr the judge‘s disqualification.” In re Disqualification of Floyd, 101 Ohio St.3d 1217, 2003-Ohio-7351, 803 N.E.2d 818, ¶ 4.
{10} However, a judge could be disqualified if his or her adverse rulings were accompanied by words or conduct that call into question the manner in which the рroceedings are being conducted. In addition, attorneys have a right to file an affidavit of disqualification challenging a court‘s perceived partiality ” ‘without the court misconstruing such a challenge as an assault on the integrity of the court.’ ” Disciplinary Counsel v. Shimko, 134 Ohio St.3d 544, 2012-Ohio-5694, 983 N.E.2d 1300, ¶ 32, quoting United States v. Brown, 72 F.3d 25, 29 (5th Cir.1995). Here, Nyce claims that after he presented his affidavit to Judge Knece at the January 27 hearing, thе judge “had significant words demonstrating animosity” and engaged in a “unilateral argument.”
{11} Nyce, however, has failed to substantiate these allegations with specific examples or a transcript of the hearing. In affidavit-of-disqualification proceedings, the burden falls on the affiant to submit “specific” allegations of bias.
Nyce‘s Second Supplemental Affidavit
{12} On January 28, 2014, the day after Nyce filed his affidаvit, Judge Knece initiated a teleconference with counsel in the underlying case. Nyce claims that during the conference, the judge stated that he had reviewed the dоcket in the underlying matter and discovered that plaintiff had a motion for contempt that had not yet been ruled on by the court. Judge Knece then allegedly stated that he wоuld not make any rulings in the case pending resolution of Nyce‘s initial affidavit but that plaintiff‘s counsel should “revisit” the contempt motion. Nyce claims that the judge‘s conduct indicatеd “intentional intimidation” and was “contrary to the required elements of judicial fairness and neutrality.”
{13} In response, Judge Knece explains that Nyce had claimed in his initial affidavit thаt the court had not timely ruled upon two of Nyce‘s motions. According to Judge Knece, he therefore reviewed the case docket and determined that Nyce‘s refеrenced motions were moot. The judge asserts that in reviewing the docket, he also determined that plaintiff had filed a contempt motion in May 2012, which remained pending. Judge Knеce states that he then scheduled the teleconference for the sole purpose of “establishing procedural parameters to bring pending matters to a close, not for the purpose of intimidation.”
{14} In affidavit-of-disqualification proceedings, “[a] judge is presumed to follow the law and not to be biased, and the appеarance 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. Given Judge Knece‘s explanation for initiating the teleconference and referring to plaintiff‘s pending contempt motion, those presumptions have not been overcome in this case. Accordingly, Nyce has failed to establish that the judge‘s conduct was a product of bias against Nyce or his client.
Conclusion
{15} For the reasons explained above, Nyce‘s supplemental affidavits are denied. The cаse may proceed before Judge Knece.