Opinion
No. 20-AP-047
07-14-2020
IN RE DISQUALIFICATION OF CALABRESE. Woods v. Sharkin.
{¶ 1} Plaintiff Doug Woods has filed an affidavit pursuant to R.C. 2701.03 seeking to disqualify Judge J. Philip Calabrese from the above-referenced civil case, now pending on a counterclaim seeking to have Mr. Woods declared a vexatious litigator.
{¶ 2} Mr. Woods alleges that based on Judge Calabrese's familial relationship with Judge Deena Calabrese—another judge of the Cuyahoga County Court of Common Pleas—he is biased against Mr. Woods or that an appearance of bias exists. Specifically, Mr. Woods avers that in a prior case, Judge Deena Calabrese ordered sheriff's deputies to harass him and wrongly accused him of issuing fraudulent subpoenas. The defendant in the underlying matter, Mr. Woods asserts, is relying on that prior case in his effort to have Mr. Woods declared a vexatious litigator. According to Mr. Woods, the two judges are first cousins and therefore, a reasonable observer would question Judge J. Philip Calabrese's ability to decide the vexatious-litigator issue. Mr. Woods also claims that Judge Deena Calabrese may be a witness in the underlying case and that Judge J. Philip Calabrese demonstrated bias in the manner in which he dismissed Mr. Woods's complaint and denied a motion for continuance.
{¶ 3} Judge Calabrese filed a response to the affidavit and denies having any personal, familial, or other interest at stake in the underlying case. Judge Calabrese acknowledges that he and Judge Deena Calabrese are cousins, but he clarifies that they are neither first cousins nor relatives within the third degree of relationship. The judge further states that he has not had any discussions about Mr. Woods with Judge Deena Calabrese, that he is unaware of any dealings Mr. Woods may have had with Judge Deena Calabrese, and that any such dealings would have no bearing on his ability to preside impartially in the underlying matter. The judge further states that at this stage of the litigation, he has not yet decided whether testimony from any other judge will be necessary for hearing the counterclaim, which involves more than 50 lawsuits and appeals allegedly filed by Mr. Woods. The judge also notes that he denied Mr. Woods's most recent request for a continuance only after granting him two prior extensions of time.
{¶ 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. Mr. Woods has not established that Judge Calabrese has hostile feelings toward him or a fixed anticipatory judgment on any remaining issue in the case. Nor has Mr. Woods set forth a compelling argument for disqualifying Judge Calabrese to avoid an appearance of partiality.
{¶ 5} Mr. Woods has failed to sufficiently establish why an objective observer would harbor serious doubts about Judge Calabrese's impartiality merely because one of the cases supporting the defendant's counterclaim involved Judge Deena Calabrese. And just as a judge will not be disqualified "based solely on suppositions that the judge may be called as a witness," In re Disqualification of Gorman , 74 Ohio St.3d 1251, 657 N.E.2d 1354 (1993), a judge will not be disqualified based merely on a suggestion that a different judge may be called as a material witness. To be sure, if Judge Calabrese concludes that Judge Deena Calabrese's testimony is likely, he should reconsider whether his recusal is necessary. See, e.g. , In re Disqualification of O'Neill , 81 Ohio St.3d 1213, 1214-1215, 688 N.E.2d 516 (1997) (judge disqualified when fellow judge serving in the same division was to be called as witness in underlying case). However, on this record, there is no reason to question Judge J. Philip Calabrese's impartiality.
{¶ 6} Finally, nothing about the manner in which the judge dismissed Mr. Woods's complaint or denied his most recent request for a continuance is grounds for disqualification. "[A]dverse rulings, without more, are not evidence that a judge is biased or prejudiced." In re Disqualification of Russo , 110 Ohio St.3d 1208, 2005-Ohio-7146, 850 N.E.2d 713, ¶ 5. And "[t]he granting of a continuance is within a judge's discretion and the denial of a continuance is not by itself evidence of bias or prejudice." In re Disqualification of Millard , 74 Ohio St.3d 1235, 657 N.E.2d 1343 (1992).
{¶ 7} "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.
{¶ 8} The affidavit of disqualification is denied. The case may proceed before Judge Calabrese.