Opinion
No. 20-AP-034
07-07-2020
IN RE DISQUALIFICATION OF YARBROUGH. Andrews v. Andrews.
{¶ 1} Plaintiff Amanda A. Andrews has filed an affidavit and an amended affidavit pursuant to R.C. 2701.03 seeking to disqualify Judge Stephen Yarbrough, a retired judge sitting by assignment, from the above-referenced divorce case.
{¶ 2} Ms. Andrews alleges that Judge Yarbrough is biased against her or that his removal is necessary to avoid an appearance of bias. Primarily, she asserts that Judge Yarbrough has delayed ruling on numerous motions and engaged in multiple improper ex parte communications.
{¶ 3} Judge Yarbrough filed a response that includes his own affidavit. The judge denies any bias against Ms. Andrews, disputes that he has unreasonably delayed the case, and denies engaging in any ex parte communications about substantive matters.
{¶ 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. Ms. Andrews has not established that Judge Yarbrough has hostile feelings toward her or a fixed anticipatory judgment on any remaining issue in the case. Nor has Ms. Andrews set forth a compelling argument for disqualifying Judge Yarbrough to avoid an appearance of partiality. {¶ 5} Judge Yarbrough acknowledges that since December 2019, the parties have filed 17 substantive motions, many of which apparently remain pending. Ms. Andrews alleges that Judge Yarbrough is "stalling" and allowing the case to sit "in limbo," restricting her ability to enjoy parenting time with her children. The judge has attempted to explain some of the delays in resolving those motions, and he notes that he has held four status conferences in 2020. "Parties rightfully expect to receive prompt, efficient, and fair resolutions of their cases," and "[j]udges must meet these expectations impartially and diligently." Disciplinary Counsel v. Sargeant , 118 Ohio St.3d 322, 2008-Ohio-2330, 889 N.E.2d 96, ¶ 34. Lengthy delays diminish confidence in the legal system and are especially injurious when they profoundly affect the lives of those before the court. See id. at ¶ 30. But based on this record, Ms. Andrews has not established that any delays here are so egregious that Judge Yarbrough should be removed for neglecting or unreasonably delaying the case—especially considering Judge Yarbrough's significant involvement in the matter and that he has already presided over a three-day evidentiary hearing. See In re Disqualification of Celebrezze , 94 Ohio St.3d 1228, 1229, 763 N.E.2d 598 (2001) ("absent extraordinary circumstances, a judge will not be subject to disqualification after having presided over lengthy proceedings in a pending case").
{¶ 6} Nor has Ms. Andrews demonstrated that Judge Yarbrough should be disqualified for engaging in ex parte communications. "An alleged ex parte communication constitutes grounds for disqualification when there is ‘proof that the communication * * * addressed substantive matters in the pending case.’ " (Ellipsis sic.) In re Disqualification of Forsthoefel , 135 Ohio St.3d 1316, 2013-Ohio-2292, 989 N.E.2d 62, ¶ 7, quoting In re Disqualification of Calabrese , 100 Ohio St.3d 1224, 2002-Ohio-7475, 798 N.E.2d 10, ¶ 2. But "[t]he allegations must be substantiated and consist of something more than hearsay or speculation." Id. Here, Ms. Andrews has failed to properly substantiate her claims. For example, she alleges that in January 2020, Judge Yarbrough sent an e-mail to defense counsel, the guardian ad litem, and Ms. Andrews's former attorney. Ms. Andrews states that at the time, Judge Yarbrough was "more than aware" of her pro se status but nevertheless failed to include her as a recipient of the e-mail. In response, Judge Yarbrough acknowledges that he mistakenly included Ms. Andrews's former attorney as a recipient of his e-mail. But the judge further states that his e-mail concerned only the scheduling of the next conference—not any substantive matters.
{¶ 7} For these reasons, the affidavit of disqualification is denied. The case may proceed before Judge Yarbrough. In addition, Ms. Andrews's motion to strike Judge Yarbrough's response to her amended affidavit is denied. The motion primarily challenges factual statements in Judge Yarbrough's response. S.Ct.Prac.R. 21.02(C) prohibits an affiant from filing a reply to a judge's response. In addition, Ms. Andrews makes a number of factual allegations in her motion, but "[i]n deciding a disqualification request, the chief justice cannot consider unsworn allegations by a litigant," In re Disqualification of Stucki , 156 Ohio St.3d 1236, 2019-Ohio-1624, 125 N.E.3d 963, ¶ 5.