Opinion
No. 20-AP-049
07-20-2020
IN RE DISQUALIFICATION OF MCMONAGLE. Crenshaw v. East Cleveland Police Department.
{¶ 1} Mariah S. Crenshaw has filed an affidavit and a supplemental affidavit pursuant to R.C. 2701.03 seeking to disqualify Judge Richard J. McMonagle, a retired judge sitting by assignment, from the above-referenced cases. In those matters, Ms. Crenshaw filed citizen affidavits under R.C. 2935.09 alleging that the East Cleveland police department and individual police officers committed certain criminal offenses.
{¶ 2} Ms. Crenshaw alleges that in various ways, Judge McMonagle has demonstrated bias against her and in favor of the attorneys for the police. Primarily, she alleges that Judge McMonagle failed to properly notify her of a June 24, 2020 hearing, engaged in an improper ex parte communication by going forward with that hearing in her absence, and unfairly denied relief on her claims during the hearing. Ms. Crenshaw also suggests that Judge McMonagle may have a friendship with one of the attorneys for the police officers. And in her supplemental affidavit, she states that Judge McMonagle disregarded her fears of exposure to COVID-19.
{¶ 3} Judge McMonagle filed a response to the affidavit and denies any bias against Ms. Crenshaw. The judge states that Ms. Crenshaw's account of the June 24 hearing is "entirely mistaken." According to the judge, in a June 3 e-mail he sent to the parties, he rescheduled a June 10 hearing to June 24. The judge submitted a copy of that e-mail, which included Ms. Crenshaw's e-mail address and stated that attorneys were to be present for the hearing. The judge further states that contrary to Ms. Crenshaw's contention, he has not yet issued any substantive rulings on the merits of her claims. Instead, he scheduled another hearing so that she could be present to argue her case. The judge therefore concludes that Ms. Crenshaw was not prejudiced by missing the June 24 hearing.
{¶ 4} 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. For the reasons explained below, Ms. Crenshaw has not established that Judge McMonagle has hostility toward her or that he has expressed a fixed anticipatory judgment on any issue in the underlying matters. Nor has she set forth a compelling argument for disqualifying Judge McMonagle to avoid an appearance of partiality.
{¶ 5} First, the circumstances surrounding the June 24 hearing appear to have resulted from a miscommunication or misunderstanding rather than judicial bias. Ms. Crenshaw correctly notes that the trial-court docket does not indicate that Judge McMonagle rescheduled the June 10 hearing to June 24. Although Judge McMonagle e-mailed the parties to inform them that he was rescheduling the hearing and requiring the presence of all attorneys, he should have also ensured that the docket accurately reflected the change in the hearing date. But under these facts, that Judge McMonagle went forward with the hearing—even though Ms. Crenshaw failed to appear—does not mean that he engaged in a disqualifying ex parte communication. See , e.g. , In re Disqualification of Martin , 149 Ohio St.3d 1202, 2016-Ohio-8595, 74 N.E.3d 436, ¶ 8 ("when counsel are notified of a status conference but then fail to appear, a judge does not engage in an improper ex parte communication simply by holding the conference"). And notwithstanding any comments the judge made during the June 24 hearing, he later scheduled a continuation of the hearing so that Ms. Crenshaw could be present. Based on this record, no reasonable and objective observer would question the judge's impartiality because of the confusion regarding the June 24 hearing. {¶ 6} Second, Ms. Crenshaw has not established that Judge McMonagle has a personal relationship with an attorney for the police requiring the judge's removal. The judge admits that at a February 2020 conference, he advised one of the defense attorneys that he would be unable to attend an event honoring the attorney's father, who is a former judge. Judge McMonagle notes, however, that he made the comment in the presence of Ms. Crenshaw. The comment alone does not establish that Judge McMonagle has a significant personal relationship with the attorney. Even if the judge were friendly or acquainted with the attorney or his father, such a relationship does not automatically lead to disqualification. See In re Disqualification of Ward , 100 Ohio St.3d 1211, 798 N.E.2d 1, ¶ 4 (2002) ("The mere allegation of a friendship between a judge and an attorney will not automatically result in the judge's disqualification from cases handled by that attorney").
{¶ 7} Finally, recent increases in Ohio coronavirus cases demonstrate that precautions are still necessary. Judges should be cautious about who they require to appear and require in-person appearance only in cases with immediate need. In all other cases, judges—including Judge McMonagle and other visiting judges—should look for ways to move forward with technology that allows for remote court appearances. That being said, Judge McMonagle's mere scheduling of an in-person hearing in the underlying matters does not demonstrate that he is biased against Ms. Crenshaw. And in general, an affidavit of disqualification is not the appropriate vehicle to second guess a trial judge's management of his docket. See In re Disqualification of O'Donnell , 142 Ohio St.3d 68, 2014-Ohio-5873, 28 N.E.3d 59, ¶ 6 ("it is not the role of the chief justice in deciding an affidavit of disqualification to second-guess how a trial judge manages his or her docket").
{¶ 8} "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 here.
{¶ 9} The affidavits of disqualification are denied. The cases may proceed before Judge McMonagle.