Opinion
Nos. 20-AP-041 20-AP-051
07-29-2020
IN RE DISQUALIFICATION OF SWENSKI. Rowley v. Rowley Simo v. Simo.
{¶ 1} Michael J. Tony has filed affidavits and supplemental affidavits pursuant to R.C. 2701.03 seeking to disqualify Judge Lisa I. Swenski from the above-referenced cases and all other matters in which he appears as counsel. To avoid any appearance of bias, the affidavits are granted.
Background
{¶ 2} In 2014, Judge Swenski began recusing herself from cases in which Mr. Tony appeared as counsel. In 2016, the judge refused to recuse herself from a particular matter, and Mr. Tony filed an affidavit of disqualification against her. See Supreme Court case No. 16-AP-060. Although Judge Swenski initially opposed Mr. Tony's filing, she later issued an entry recusing herself from his cases, and the affidavit was dismissed as moot. In 2018, Judge Swenski issued an entry specifying in more detail when she would—and would not—recuse herself from Mr. Tony's cases. However, in May 2020, Judge Swenski refused to recuse herself from a case in which a party had recently retained Mr. Tony, and in June 2020, she refused to recuse herself from a newly filed case in which Mr. Tony represented a litigant. As a result, Mr. Tony filed the present affidavits seeking Judge Swenski's disqualification from the two pending cases and any other current or future cases in which he appears as counsel.
{¶ 3} To support his disqualification request, Mr. Tony primarily points to Judge Swenski's 2016 public comments—both in her response to the prior affidavit of disqualification and during a newspaper interview—connecting him to Michael Fine, a former attorney who was then charged with hypnotizing and sexually assaulting clients. According to Mr. Tony, Judge Swenski publicly stated that she had given statements to the police about both Mr. Fine and Mr. Tony, that the police would be investigating Mr. Tony after they had completed their investigation of Mr. Fine, and that she may be a witness against Mr. Tony. He believes that those "ruthless, public, and false statements" linking him to Mr. Fine's nefarious activities created at least an appearance of bias and justify her "blanket recusal" from all his cases. Mr. Tony also asserts that in 2017, Judge Swenski conducted an improper ex parte investigation in an attempt to prove that he was forum shopping. Relating to this allegation, Mr. Tony submitted another attorney's affidavit stating that after the judge contacted him by telephone, he recorded her making unfavorable comments about Mr. Tony. Finally, Mr. Tony believes that the judge's recent refusal to honor her 2018 recusal entry is additional evidence of bias against him. {¶ 4} Judge Swenski denies that she is biased against Mr. Tony. Although the judge acknowledges that she "did not exercise great judgment" in making her 2016 public comments about him, she notes that he "bears some responsibility also" and that the newspaper had "lured" her into the interview. Regardless, she believes that the "process worked as it was supposed to" because any investigation into Mr. Tony ended without charges and that sufficient time has passed since her comments. Because the reasons precipitating her prior recusals no longer exist, the judge asserts, Mr. Tony should now either appear in her courtroom, partner with an attorney who will appear in her courtroom, or not accept clients with cases assigned to her docket. The judge further notes that her prior recusals from Mr. Tony's cases had "extremely negative consequences" for her and the Lorain County Court of Common Pleas, Domestic Relations and Juvenile Division, and that his arguments in favor of her blanket disqualification are "simply inadequate" when balanced against those consequences. {¶ 5} Judge Swenski denies engaging in any improper investigation in 2017 and denies that Mr. Tony was the subject of her communication that was secretly recorded by the other attorney. The judge also asserts that Mr. Tony has misinterpreted her 2018 recusal entry, and regardless, she notes that she was free to modify the entry. She concludes that Mr. Tony has not met the "exceptionally high burden" to support a blanket order of disqualification and that the "appearance of impropriety from 2016 was not perpetual and has [been] resolved." Finally, in Supreme Court case No. 20-AP-041, the judge has filed a motion to strike Mr. Tony's supplemental affidavit and a motion to strike his reply to her first motion to strike.
Merits of the affidavits of disqualification
{¶ 6} "The statutory right to seek disqualification of a judge is an extraordinary remedy * * *." In re Disqualification of Hunter , 36 Ohio St.3d 607, 608, 522 N.E.2d 461 (1988). "[T]he significance of that remedy is heightened when, as here, an active litigant or practitioner seeks a blanket order disqualifying a judge from all of that person's cases." In re Disqualification of Carroll , 160 Ohio St.3d 1264, 2020-Ohio-3094, 157 N.E.3d 802, ¶ 4. But despite the heightened significance of the remedy—and despite Judge Swenski's insistence that she has no bias against Mr. Tony—the test for determining whether a judge's participation presents an appearance of impropriety remains 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. Based on this record, a reasonable and objective observer would question Judge Swenski's impartiality in a case involving Mr. Tony.
{¶ 7} Judge Swenski acknowledges that her prior public—and very serious—comments about Mr. Tony were a mistake, but she also claims that he "bears some responsibility," even though she fails to sufficiently explain how his actions justified her public comments. The judge similarly criticizes the newspaper that published her comments, although she chose to sit for the interview and made the statements. That Judge Swenski continues to deflect responsibility for her own actions suggests that she does not objectively view this situation—or her role in it. Similarly, the tone of the judge's responses to the affidavits, her repeated suggestions of forum shopping, and her framing of the issue as Mr. Tony's prejudice against her or his "choosing to not appear" in her courtroom suggest that she does not fully grasp the magnitude of her prior comments or how someone in Mr. Tony's shoes could reasonably believe that those comments demonstrate judicial bias. Nor are the judge's proposed solutions—e.g., that Mr. Tony either refrain from representing clients in her courtroom or associate with a law partner—acceptable, especially considering that she caused the conflict. See, e.g. , Ohio State Bar Assn. v. Evans , 137 Ohio St.3d 441, 2013-Ohio-4992, 999 N.E.2d 674, ¶ 13 (determining that it was improper for a judge to cure his conflict with an attorney by removing the attorney from all pending cases before the judge, rather than disqualifying himself).
{¶ 8} And although Mr. Tony's allegations about the 2017 secret recording are largely irrelevant, Judge Swenski appears to acknowledge that after an attorney moved to withdraw from a case, she called the attorney in what she describes as an "allowable" ex parte communication to determine whether his client was trying to remove the case from her court by hiring Mr. Tony. When circumstances require it, an ex parte communication is permitted only for scheduling, administrative, or emergency purposes. See Jud.Cond.R. 2.9(A)(1). If Judge Swenski had concerns about the substance of a motion pending before her, she should have scheduled a hearing—as she claims she later did—rather than call the moving party's counsel to independently investigate the facts underlying the motion. Judge Swenski is correct to the extent that she was free to withdraw her 2018 recusal entry if she believed that the grounds precipitating that entry no longer existed. See In re Disqualification of Burge , 138 Ohio St.3d 1271, 2014-Ohio-1458, 7 N.E.3d 1211, ¶ 8, fn. 1. But rather than vacate her 2018 entry, the judge has set forth a questionable interpretation of it and—apparently without warning to Mr. Tony—decided to stop honoring it altogether after he filed the first pending affidavit of disqualification.
{¶ 9} In the end, Judge Swenski's responses to the affidavits suggest that she is not able to view Mr. Tony's allegations objectively, calling into question her ability to preside impartially over his cases or to fairly evaluate his professional work. See In re Disqualification of Hoover , 113 Ohio St.3d 1233, 2006-Ohio-7234, 863 N.E.2d 634, ¶ 6 (disqualifying a judge from an attorney's cases when the judge's response to the affidavit suggested, among other things, that the judge was not able to view the statements in the affidavit objectively and therefore called into doubt his ability to preside fairly and impartially over cases involving that attorney). Judge Swenski's disqualification is therefore necessary to assure the underlying parties and the public that the legal issues before the court will be resolved dispassionately and fairly and to make certain that the outcome of cases will not be affected by the judge's unfortunate history with Mr. Tony. Indeed, based on the multiple back-and-forth filings in these matters, it appears that both Judge Swenski and Mr. Tony need additional time before they are able to approach cases involving each other with the requisite objectivity.
{¶ 10} Finally, although a "rule of necessity may override the rule of disqualification," Jud.Cond.R. 2.11, Comment 3, Judge Swenski has not established that the problems resulting from a blanket order outweigh the factors favoring her disqualification from Mr. Tony's cases. It is not uncommon for a judge to have a conflict with an attorney. Because the Lorain County Court of Common Pleas, Domestic Relations and Juvenile Division, is a three-judge court, the judges should have a system in place to fairly exchange or distribute cases after the transfer of Mr. Tony's cases from Judge Swenski.
Conclusion
{¶ 11} The affidavits of disqualification are granted. Judge Swenski is disqualified from the two underlying cases and, until further order of this court, from all other current and future cases in which Mr. Tony appears as counsel. The two underlying cases are returned to the administrative judge for reassignment. In addition, Judge Swenski's motions to strike are denied.
{¶ 12} Because the blanket order of disqualification may have the unintended result of encouraging litigants to retain Mr. Tony solely for the purpose of having their cases heard by a judge other than Judge Swenski, Mr. Tony and other attorneys and litigants are cautioned that the applicability of this entry to specific circumstances is subject to review and modification when necessary to prevent its abuse. See In re Disqualification of Morley , 74 Ohio St.3d 1257, 1259, 657 N.E.2d 1358 (1994).