Opinion
No. 20-AP-015
02-11-2020
IN RE DISQUALIFICATION OF DEWEY. LaFountaine v. Cooley.
{¶ 1} Defendant Frederick L. Cooley has filed an affidavit pursuant to R.C. 2701.03 seeking to disqualify Judge John P. Dewey from the above-referenced civil case.
{¶ 2} Mr. Cooley filed his affidavit on February 10, 2020, and he averred that the next hearing in the matter is a pretrial conference scheduled for February 14, 2020.
{¶ 3} Under R.C. 2701.03(B), an affidavit of disqualification must be filed "not less than seven calendar days before the day on which the next hearing in the proceeding is scheduled." This statutory deadline may be set aside "only when compliance with the provision is impossible," such as when the alleged bias or prejudice occurs fewer than seven days before the hearing date or the case is scheduled or assigned to a judge within seven days of the next hearing. In re Disqualification of Leskovyansky , 88 Ohio St.3d 1210, 723 N.E.2d 1099 (1999).
{¶ 4} Mr. Cooley alleges that he became aware of Judge Dewey's alleged bias fewer than seven days before the scheduled pretrial conference. Yet the bias alleged in Mr. Cooley's affidavit—that Judge Dewey engaged in an ex parte communication in March 2018 and that Judge Dewey has a conflict of interest and will be called as a witness—did not occur within seven days of the February 14 pretrial conference. And Mr. Cooley has not attempted to explain why it was impossible for him to discover this information prior to the statutory filing deadline.
{¶ 5} Mr. Cooley also alleges that on February 4, he moved to continue the pretrial conference and that Judge Dewey denied his motion the following day. Even assuming the truth of Mr. Cooley's allegations, he still had two days to timely file his affidavit of disqualification after receiving notice that Judge Dewey had denied his motion. And regardless, it is well-settled that "a judge's decision to grant or deny a motion for a continuance is within the judge's sound discretion and is not, by itself, evidence of bias or prejudice." In re Disqualification of Suster , 127 Ohio St.3d 1240, 2009-Ohio-7202, 937 N.E.2d 1026, ¶ 7.
{¶ 6} Mr. Cooley has not set forth reasons sufficient to excuse his failure to comply with the seven-day filing requirement in R.C. 2701.03(B). His affidavit of disqualification is therefore dismissed as untimely.