Opinion
No. 20-AP-043
07-21-2020
IN RE DISQUALIFICATION OF SWENSKI. Allen v. Addi.
{¶ 1} Plaintiff Benjamin P. Allen has filed an affidavit pursuant to R.C. 2701.03 seeking to disqualify Judge Lisa I. Swenski from the above-referenced divorce case.
{¶ 2} Mr. Allen avers that Judge Swenski should be removed for several reasons, including that she allegedly destroyed evidence in violation of a criminal statute and various court rules, failed to timely resolve the case, hold hearings, and rule on his motions, engaged in ex parte contacts with the defendant or defense counsel, and abused her discretion in ruling on various issues.
{¶ 3} Judge Swenski filed a response to the affidavit and requests that it be denied. The judge denies destroying any evidence, summarizes her handling of the case, explains the nature of any ex parte orders and contacts, and explains the delays in the case, some of which she claims were caused by Mr. Allen.
{¶ 4} For the reasons explained below, no basis has been established to order the disqualification of Judge Swenski.
{¶ 5} First, Mr. Allen makes allegations of serious criminal and judicial misconduct against the judge, including that she tampered with evidence by destroying various exhibits, one of which he identifies. For her part, Judge Swenski has thoroughly explained why the court did not retain the identified exhibit. Mr. Allen's allegations of misconduct are based entirely on speculation, and it is well-settled that "[a]llegations that are based solely on hearsay, innuendo, and speculation * * * are insufficient to establish bias or prejudice," In re Disqualification of Flanagan , 127 Ohio St.3d 1236, 2009-Ohio-7199, 937 N.E.2d 1023, ¶ 4.
{¶ 6} Second, regarding any delays in the case, the record does not support a finding that the judge's actions have been so egregious that she has neglected her judicial duties such that she should be removed for unreasonably delaying the case. See In re Disqualification of Collier-Williams , 150 Ohio St.3d 1286, 2017-Ohio-5718, 83 N.E.3d 928, ¶ 7-8.
{¶ 7} Third, "[a]n 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. As Judge Swenski correctly notes, there are circumstances in domestic-relations cases when a judge may issue temporary or emergency ex parte orders. An affidavit of disqualification is not the appropriate vehicle to review the propriety of such orders. And Mr. Allen has failed to sufficiently substantiate his allegation that Judge Swenski engaged in other improper ex parte communications about substantive issues in the underlying matter.
{¶ 8} Finally, Mr. Allen may have other remedies, including appeal, if he believes that Judge Swenski has abused her discretion in ruling on various matters. However, reviewing legal errors is not the role of the chief justice in deciding affidavits of disqualification, and " ‘neither a party's disagreement with a judge's determination, nor its dissatisfaction with a particular result, can supply the evidentiary showing needed to so reflect upon a judge's partiality as to mandate judicial disqualification.’ " In re Disqualification of D'Apolito , 139 Ohio St.3d 1230, 2014-Ohio-2153, 11 N.E.3d 279, ¶ 5, quoting Flamm, Judicial Disqualification , Section 16.2, at 445-446 (2d Ed.2007).
{¶ 9} "The 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." (Citation omitted.) 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.
{¶ 10} The affidavit of disqualification is denied. The case may proceed before Judge Swenski.