Opinion
No. 21-AP-088
07-15-2021
IN RE DISQUALIFICATION OF MINGO. The City of Columbus v. Ullmann et al.
{¶ 1} Defendant Victoria E. Ullmann has filed an affidavit pursuant to R.C. 2701.03 and 2701.031 and Article IV, Section 5(C) of the Ohio Constitution seeking to disqualify Judge Stephanie Mingo from the above-referenced case.
{¶ 2} Ms. Ullmann alleges that Judge Mingo demonstrated bias against her and disrespected her by issuing a one-page entry denying Ms. Ullmann's motion to dismiss. Ms. Ullmann believes that the judge should have issued a longer opinion with citations to legal authorities. Ms. Ullmann also alleges that Judge Mingo has a conflict of interest because in a related extraordinary-writ case filed by Ms. Ullmann, an attorney from the city attorney's office represented the judge. Because the city attorney's office is also prosecuting the underlying matter, Ms. Ullmann believes that Judge Mingo must be removed. {¶ 3} For the reasons explained below, no basis has been established to order the disqualification of Judge Mingo.
{¶ 4} First, "[a]n affidavit of disqualification must be filed as soon as possible after the incident giving rise to the claim of bias and prejudice occurred," and failure to do so may result in waiver of the objection, especially when "the facts underlying the objection have been known to the party for some time." In re Disqualification of O'Grady , 77 Ohio St.3d 1240, 1241, 674 N.E.2d 353 (1996). The affiant has the burden to demonstrate that the affidavit is timely filed. In re Disqualification of Capper , 134 Ohio St.3d 1271, 2012-Ohio-6287, 984 N.E.2d 1082, ¶ 11. Here, Judge Mingo issued her allegedly biased and disrespectful entry in August 2019, and the city attorney's office entered a notice of appearance in Ms. Ullmann's related writ case in April 2019. Although Ms. Ullmann cites the COVID-19 pandemic as a reason for the delay in filing her affidavit of disqualification, she has failed to sufficiently explain why she waited until July 2021 to request disqualification based on events that occurred in mid-2019. Ms. Ullmann has therefore waived her right to seek disqualification of Judge Mingo based on conduct that allegedly occurred in 2019. See, e.g. , In re Disqualification of Dezso , 134 Ohio St.3d 1223, 2011-Ohio-7081, 982 N.E.2d 714, ¶ 6 ("[affiant's] delay in filing the affidavit of disqualification constitutes an independent ground for denying his disqualification request").
{¶ 5} Second, even if Ms. Ullmann had not waived her objections to Judge Mingo, Ms. Ullmann has not set forth adequate grounds for disqualification. 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 determining whether a judge's participation in a case presents an appearance of impropriety is * * * an objective one. A judge should step aside or be removed if a reasonable and objective observer would harbor serious doubts about the judge's impartiality." In re Disqualification of Lewis , 117 Ohio St.3d 1227, 2004-Ohio-7359, 884 N.E.2d 1082, ¶ 8. The fact that Judge Mingo denied one of Ms. Ullmann's motions in a one-page entry does not establish that the judge has hostile feelings toward her or that the judge has formed a fixed anticipatory judgment on any issue in the underlying case. Nor has Ms. Ullmann set forth a compelling argument for disqualifying Judge Mingo to avoid an appearance of bias.
{¶ 6} As previously explained:
A trial judge's impartiality may reasonably be questioned if he or she presides over a case in which a litigant is represented by the judge's own lawyer. Therefore, the chief justice and the Board of Professional Conduct have long advised that a judge should recuse himself or herself—or be disqualified—from actions in which an attorney in the case is representing the judge in another proceeding. In re Disqualification of Badger , 47 Ohio St.3d 604, 546 N.E.2d 929 (1989) ; In re Disqualification of Whitmore , 84 Ohio St.3d 1231, 704 N.E.2d 1235 (1998) ; Board of Professional Conduct Advisory Opinion 1989-34 (Nov. 2, 1989). There are, however, recognized exceptions to this rule. * * *
The rule has also been applied to prosecuting attorneys and the attorney general, who are statutorily required to represent judges when they are sued in their official capacity. If a judge is represented by the prosecuting attorney or the attorney general, the judge should not hear cases in which the same individual attorney representing the judge is also representing a litigant in a case before the judge. The appearance of another lawyer from the prosecutor's office or attorney general's office, however, would not necessitate the judge's recusal. See Whitmore at 1231-1232 [704 N.E.2d 1235 ]; Board of Professional Conduct Advisory Opinion 1989-34, at 2.
In re Disqualification of Reinbold , 152 Ohio St.3d 1221, 2017-Ohio-9427, 94 N.E.3d 570, ¶ 4-5.
{¶ 7} Here, Ms. Ullmann avers that Michael Halloran represented Judge Mingo in the writ action but that a different lawyer from the city attorney's office, Stephen Dunbar, represents the city in the underlying case. In addition, the writ case ended in 2020. See State ex rel. Ullmann v. Klein , 160 Ohio St.3d 457, 2020-Ohio-2974, 158 N.E.3d 580. Thus, there is no evidence of any ongoing attorney-client relationship between Judge Mingo and the attorney representing the city in the matter before her. See Reinbold at ¶ 6 (denying affidavit of disqualification because there was "no evidence of any ongoing attorney-client relationship between" the judge and the assistant prosecuting attorney who had formerly represented the judge in writ cases).
{¶ 8} The affidavit of disqualification is denied. The case may proceed before Judge Mingo.