Opinion
No. 20-AP-057
07-22-2020
IN RE DISQUALIFICATION OF O'CONNELL. CABLE, NEXT FRIEND, v. MCHENRY.
[Cite as In re Disqualification of O'Connell , ___ Ohio St.3d ___, 2020-Ohio-4792.] Judges—Affidavits of disqualification—R.C. 2701.03—Affiant failed to assert specific allegations or facts in support thereof—Disqualification denied. ON AFFIDAVIT OF DISQUALIFICATION in Montgomery County Court of Common Pleas, General Division, Case No. 2020 CV 2779. O'CONNOR, C.J.
{¶ 1} Donald McHenry has filed an affidavit pursuant to R.C. 2701.03 seeking to disqualify Judge Timothy N. O'Connell from the above-referenced case.
{¶ 2} Mr. McHenry avers that he filed the affidavit "for bias, prejudice or other disqualifying grounds." But he states only that Judge O'Connell decided three prior civil cases and that based on those cases, the judge is "fully informed of all facts and information of both parties" in the underlying matter and that it will be "impossible" for Mr. McHenry to receive a fair and meaningful hearing.
{¶ 3} R.C. 2701.03(B)(1) requires that an affidavit of disqualification include the "specific allegations on which the claim of interest, bias, prejudice, or disqualification is based and the facts to support each of those allegations." Here, Mr. McHenry failed to include "specific allegations" or "the facts to support each of those allegations" in his affidavit. He averred only that Judge O'Connell presided over prior cases and is therefore informed of the facts in the underlying matter. But "it is well established that 'a judge's participation in the trial of a prior cause, during which the judge acquired knowledge of the facts of the underlying case, does not require disqualification.' " In re Disqualification of Basinger, 135 Ohio St.3d 1293, 2013-Ohio-1613, 987 N.E.2d 687, ¶ 5, quoting In re Disqualification of Krichbaum, 81 Ohio St.3d 1205, 1206, 688 N.E.2d 511 (1997).
{¶ 4} Mr. McHenry has failed to allege how the underlying matter is similar to the prior cases—let alone why Judge O'Connell would be unduly influenced by those prior cases in such a way as to warrant his disqualification. "An affidavit must describe with specificity and particularity those facts alleged to support the claim of bias or prejudice." In re Disqualification of Mitrovich, 101 Ohio St.3d 1214, 2003-Ohio-7358, 803 N.E.2d 816, ¶ 4. Vague and unsubstantiated allegations are insufficient for a finding of bias or prejudice. In re Disqualification of Walker, 36 Ohio St.3d 606, 522 N.E.2d 460 (1988).
{¶ 5} The affidavit of disqualification is denied. The case may proceed before Judge O'Connell.