Opinion
No. 22-AP-034
03-28-2022
IN RE DISQUALIFICATION OF TUCKER. Harvest Land Co-Op, Inc. v. Hora et al.
{¶ 1} Appellant Frankie J. Hora Sr. has filed an affidavit pursuant to R.C. 2701.03 and 2501.13 and Article IV, Section 5(C) of the Ohio Constitution seeking to disqualify Judge Michael L. Tucker from the above-referenced appellate cases.
{¶ 2} Mr. Hora alleges that Judge Tucker participated in the underlying cases while he was serving as a trial-court judge. Mr. Hora also alleges that in the court-of-appeals cases, Judge Tucker abused his discretion, denied Mr. Hora's motions, and violated Mr. Hora's constitutional rights by failing to properly serve him with the court's entries.
{¶ 3} 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. In addition, a "presumption of impartiality" is accorded all judges in affidavit-of-disqualification proceedings. In re Disqualification of Celebrezze , 101 Ohio St.3d 1224, 2003-Ohio-7352, 803 N.E.2d 823, ¶ 7.
{¶ 4} Mr. Hora has not established that Judge Tucker has hostile feelings toward him or that the judge has formed a fixed anticipatory judgment on any issue in the underlying cases. Nor has Mr. Hora set forth a compelling argument for disqualifying Judge Tucker to avoid an appearance of partiality. Jud.Cond.R. 2.11(A)(7)(d) requires a judge to disqualify himself or herself from any proceeding in which the judge "previously presided as a judge over the matter in another court." To support his argument that Judge Tucker participated in the underlying cases, Mr. Hora submitted a copy of a 2014 order signed by Judge Tucker in his capacity as the administrative judge of the Montgomery County Court of Common Pleas. The order transferred one of Mr. Hora's cases from Judge McGee to Judge Adkins "pursuant to Local Rule." The order, however, was in case No. 2014 CV 03959. According to Mr. Hora's affidavit, the underlying appeals are from case No. 2010 CV 2284. More importantly, the fact that Judge Tucker—in his former capacity as administrative judge of the trial court—signed an order transferring a case from one judge to another judge does not mean that he "presided as a judge over the matter" for purposes of Jud.Cond.R. 2.11(A)(7)(d).
{¶ 5} Further, Mr. Hora's disagreement with the appellate court's rulings does not demonstrate that the judge is biased. In re Disqualification of D'Apolito , 139 Ohio St.3d 1230, 2014-Ohio-2153, 11 N.E.3d 279, ¶ 5. Nor is this the appropriate forum in which to determine whether Mr. Hora was properly served or whether his due-process rights were violated. In re Disqualification of Giesler , 135 Ohio St.3d 1201, 2011-Ohio-7083, 985 N.E.2d 486, ¶ 10 ("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").
{¶ 6} The affidavit of disqualification is denied. The cases may proceed before Judge Tucker.