Opinion
No. 21-AP-008
01-22-2021
IN RE DISQUALIFICATION OF GEHRES. THE STATE OF OHIO v. FOLLEY.
[Cite as In re Disqualification of Gehres , ___ Ohio St.3d ___, 2021-Ohio-250.] Judges—Affidavits of disqualification—R .C. 2701.03 and 2701.031—Document purporting to be affidavit not sworn to or affirmed before competent officer is not affidavit within meaning of R .C. 2701.03 and cannot be considered pursuant to that statute—Affiant otherwise failed to demonstrate bias or prejudice by judge—Disqualification denied. ON AFFIDAVIT OF DISQUALIFICATION in Dayton Municipal Court Case No. 2019 CR 01878. O'CONNOR, C.J.
{¶ 1} Defendant Derek Folley has attempted to file an affidavit pursuant to R.C. 2701.03 and 2701.031 seeking to disqualify Judge Daniel G. Gehres from the above-referenced case.
{¶ 2} According to online records, the above-referenced case number involving Mr. Folley is pending in the Montgomery County Court of Common Pleas. Judge Gehres is a judge of the Dayton Municipal Court. Because the case identified in Mr. Folley's filing does not appear to be pending before Judge Gehres, Mr. Folley's filing may be denied on that basis alone. See, e.g., In re Disqualification of Krueger, 152 Ohio St.3d 1259, 2017-Ohio-9430, 98 N.E.3d 279, ¶ 9.
{¶ 3} In the event that Judge Gehres is assigned to one of Mr. Folley's other cases, Mr. Folley's filing must be denied for the following two independent reasons.
{¶ 4} First, R.C. 2701.03(A) authorizes a party or a party's counsel in a pending case to file an affidavit of disqualification. Under Ohio law, an affidavit " 'is a written declaration under oath.' " In re Disqualification of Donnelly, 134 Ohio St.3d 1221, 2011-Ohio-7080, 982 N.E.2d 713, ¶ 2, quoting R.C. 2319.02. To comply with R.C. 2701.03, "an affidavit must be confirmed by oath or affirmation of the party making it and be made before a person having authority to administer the oath or affirmation." Donnelly at ¶ 2. Although Mr. Folley's purported affidavit of disqualification includes the jurat of a notary, it does not show that Mr. Folley swore to or affirmed the written statements supporting his request for disqualification. "A document purporting to be an affidavit that is not sworn to or affirmed before a competent officer is not an affidavit within the meaning of R.C. 2701.03 and cannot be considered pursuant to that statute." In re Disqualification of Sheward, 134 Ohio St.3d 1210, 2011-Ohio-7078, 981 N.E.2d 874, ¶ 3; see also In re Capizzi, 155 Ohio St.3d 1206, 2018-Ohio-5256, 120 N.E.3d 2, ¶ 2. Further, it does not appear that Mr. Folley incorporated his factual allegations supporting disqualification into his separate affidavit of indigence, which was properly notarized.
{¶ 5} Second, Mr. Folley has failed to set forth sufficient grounds for disqualification. Mr. Folley alleges that in a previous case, Judge Gehres found him in contempt of court without any evidence and that in the underlying matter, the judge violated his constitutional rights by allowing authorities to take a sample of his DNA. But "in general, the fact that a judge found a litigant in contempt—or threatened contempt—does not mean that the judge has lost the ability to remain impartial." In re Yarbrough, 157 Ohio St.3d 1228, 2019-Ohio-4450, 134 N.E.3d 1233, ¶ 7. And "it is well settled that an affidavit of disqualification is not the mechanism for determining whether a judge has violated a party's constitutional rights." In re Disqualification of Giesler, 135 Ohio St.3d 1201, 2011-Ohio-7083, 985 N.E.2d 486, ¶ 10.
{¶ 6} The affidavit of disqualification is denied.