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In re Disqualification of Pokorny

Supreme Court of Ohio
Mar 26, 1992
74 Ohio St. 3d 1238 (Ohio 1992)

Summary

finding the affiant's unsworn rebuttal letter as a “ ‘nullity’ ” having “ ‘no effect on the proceedings' ”

Summary of this case from Simonetti v. Investments (In re Sheward)

Opinion

No. 91-AP-184

Decided March 26, 1992.

ON AFFIDAVIT OF DISQUALIFICATION in Cuyahoga County Court of Common Pleas case No. 26626.


This purported affidavit of disqualification was filed by Thomas Smith seeking the disqualification of Judge Thomas J. Pokorny from further proceedings in the above-styled case.

The purported affidavit sets forth facts alleging bias and prejudice on the part of Judge Pokorny and is signed by affiant, but it fails to contain the jurat of a notary public or other official authorized to administer an oath or affirmation.

R.C. 2701.03 authorizes a party or counsel to a party in a pending cause or matter to file an affidavit with the Clerk of the Supreme Court seeking disqualification of a judge of the court of common pleas before whom the case or matter is pending. By definition, an affidavit must be "confirmed by oath or affirmation of the party making it, taken before a person having authority to administer [the] oath or affirmation." Black's Law Dictionary (5 Ed. 1979) 54.

An affidavit must appear, on its face, to have been taken before the proper officer and in compliance with all legal requisites. A paper purporting to be an affidavit, but not to have been sworn to before an officer, is not an affidavit. See Benedict v. Peters (1898), 58 Ohio St. 527, 51 N.E. 37. Here, affiant failed to confirm his statement by oath or affirmation; therefore, it cannot be considered an affidavit filed pursuant to R.C. 2701.03.

For these reasons, the purported affidavit of disqualification is a nullity and has no effect on the proceedings before Judge Pokorny. See In re Disqualification of Corts (Mar. 20, 1989), No. 89-AP-052, unreported.


Summaries of

In re Disqualification of Pokorny

Supreme Court of Ohio
Mar 26, 1992
74 Ohio St. 3d 1238 (Ohio 1992)

finding the affiant's unsworn rebuttal letter as a “ ‘nullity’ ” having “ ‘no effect on the proceedings' ”

Summary of this case from Simonetti v. Investments (In re Sheward)

explaining that a party's failure to confirm allegations " ‘by oath or affirmation’ " violated R.C. 2701.03, leading to an unsworn letter having " ‘no effect on the proceedings’ "

Summary of this case from O'Malley v. O'Malley (In re Stucki)

requiring that the affidavit contain the “jurat of a notary public or other person authorized to administer oaths or affirmations”

Summary of this case from In re O.B.

requiring that the affidavit contain the “jurat of a notary public or another person authorized to administer oaths or affirmations”

Summary of this case from Lisboa v. Kleinman (In re Donnelly)
Case details for

In re Disqualification of Pokorny

Case Details

Full title:IN RE DISQUALIFICATION OF POKORNY. THE STATE OF OHIO v. SMITH

Court:Supreme Court of Ohio

Date published: Mar 26, 1992

Citations

74 Ohio St. 3d 1238 (Ohio 1992)
657 N.E.2d 1345

Citing Cases

Lisboa v. Kleinman (In re Donnelly)

To comply with R.C. 2701.03, an affidavit must be confirmed by oath or affirmation of the party making it and…

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