Opinion
21-AP-058
05-25-2021
In re Disqualification of Coss. v. Lykins Lykins
On Affidavit of Disqualification in Clermont County Court of Common Pleas, Domestic Relations Division, Case No. 2015 DRA 00621.
O'Connor, C.J.
{¶ 1} Defendant Donald H. Lykins has filed an affidavit pursuant to R.C. 2701.03 and Article IV, Section 5(C) of the Ohio Constitution seeking to disqualify Judge Rocky A. Coss, a visiting judge sitting by assignment, from the underlying divorce case.
{¶ 2} Mr. Lykins alleges that Judge Coss is biased against him. To support his allegation, Mr. Lykins primarily criticizes Judge Coss's decisions regarding parental rights, child support, and attorney fees and accuses the judge of ignoring his evidence and abusing judicial discretion. Mr. Lykins also states that he has filed three appeals and that the matter has been remanded because of the judge's errors. In addition, Mr. Lykins claims that Judge Coss has attempted to intimidate him by having armed deputies sit behind him during court proceedings.
{¶ 3} Judge Coss submitted a response to the affidavit that thoroughly addresses Mr. Lykins's allegations. The judge denies any bias and states that his rulings have been based on the law and the facts and were mostly affirmed on appeal. According to the judge, he requested the presence of a deputy sheriff because of Mr. Lykins's hostile behavior toward the plaintiff, counsel, and court staff. The judge further states that he takes seriously his responsibility to ensure the safety of court participants and that he normally has a deputy sheriff present for hearings in his courtroom.
{¶ 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. In addition, a "presumption of impartiality" is accorded all judges in affidavit-of-disqualification proceedings. In re Disqualification of Celebrezze, 101 Ohio St.3d 1224, 2003-Ohio-7352, 803 N.E.2d 823, ¶ 7.
{¶ 5} Mr. Lykins has not established that Judge Coss has hostile feelings toward him or that the judge has formed a fixed anticipatory judgment on any issue in the underlying case. Nor has Mr. Lykins set forth a compelling argument for disqualifying Judge Coss to avoid an appearance of bias. An affidavit of disqualification "addresses the narrow issue of the possible bias of a judge" and" 'is not a vehicle to contest matters of substantive or procedural law.'" In re Disqualification of McGrath, 149 Ohio St.3d 1224, 2016-Ohio-8601, 74 N.E.3d 453, ¶ 2, quoting In re Disqualification of Solovan, 100 Ohio St.3d 1214, 2003-Ohio-5484, 798 N.E.2d 3, ¶ 4. Therefore, it is outside the scope of this proceeding to review Judge Coss's various legal rulings, and Mr. Lykins's mere disagreement with those rulings is not evidence of bias or prejudice. In addition, it is well settled that "a judge may remain on a case that has been remanded from the court of appeals." In re Disqualification of Hurley, 113 Ohio St.3d 1228, 2006-Ohio-7229, 863 N.E.2d 630, ¶ 6. And Mr. Lykins has failed to establish that Judge Coss requested the presence of a deputy sheriff to intimidate or harass Mr. Lykins.
{¶ 6} The affidavit of disqualification is denied. The case may proceed before Judge Coss.