Opinion
No. 20-AP-116
02-08-2021
IN RE DISQUALIFICATION OF MALLORY. THE STATE OF OHIO v. SULLIVAN.
[Cite as In re Disqualification of Mallory , ___ Ohio St.3d ___, 2021-Ohio-626.] Judges—Affidavits of disqualification—R .C. 2701.03 and 2701.031—Affiant failed to demonstrate bias or prejudice by judge or that judge has a conflict of interest—Disqualification denied. ON AFFIDAVIT OF DISQUALIFICATION in Hamilton County Municipal Court Case No. 20 CRB 10470. O'CONNOR, C.J.
{¶ 1} Defendant James Sullivan has filed an affidavit pursuant to R.C. 2701.03 and 2701.031 and the Ohio Constitution, Article IV, Section 5(C), seeking to disqualify Judge William Mallory from the above-referenced case.
{¶ 2} Mr. Sullivan appears to allege that Judge Mallory, Judge Mallory's magistrate, and others have violated or conspired to violate several statutes and rules. Mr. Sullivan also asserts that Judge Mallory has violated the Ohio Code of Judicial Conduct because Judge Mallory's brother, Judge Dwane Mallory, has had "oversight on th[e] case."
{¶ 3} Judge William Mallory filed a response to the affidavit in which he details his handling of the case and denies any bias against Mr. Sullivan. The judge states that he has acted in accordance with the law and denies conspiring with anyone to deprive Mr. Sullivan of his rights. In addition, Judge Mallory states that on July 22, 2020, Mr. Sullivan appeared before a municipal-court magistrate for arraignment. The judge's brother, Judge Dwane Mallory, was the "Duty/Courtroom A Judge" that day, and in that capacity, he would have had the duty of approving any judgments made by the magistrates. But according to Judge William Mallory, the magistrate did not render any judgments regarding Mr. Sullivan on July 22 and therefore Judge Dwane Mallory's signature does not appear on any of the original entries in this case.
{¶ 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.
{¶ 5} Mr. Sullivan has not established that Judge Mallory has hostile feelings toward him or has formed a fixed anticipatory judgment on any issue in the underlying case. Nor has Mr. Sullivan set forth a compelling argument for disqualifying Judge Mallory to avoid an appearance of partiality.
{¶ 6} "An affidavit of disqualification is not the mechanism for determining whether a judge has complied with the law." In re Disqualification of Griffin, 101 Ohio St.3d 1219, 2003-Ohio-7356, 803 N.E.2d 820, ¶ 8. Therefore, most of the allegations in Mr. Sullivan's affidavit are outside the scope of this proceeding. Further, "R.C. 2701.03 does not permit the chief justice to consider claims of bias or prejudice against magistrates." In re Disqualification of Celebrezze, 135 Ohio St.3d 1218, 2012-Ohio-6304, 985 N.E.2d 499, ¶ 8. To remove a magistrate in a criminal case, a litigant should typically file a motion with the trial court. See Crim.R. 19(D)(6).
{¶ 7} Jud.Cond.R. 2.11(A)(6) requires that a judge disqualify himself or herself from any proceeding in which the judge knows that a person within the third degree of relationship to the judge "has acted as a judge in the proceeding." As previously explained, "[t]he rule clearly compels a judge's disqualification from a proceeding if a person within the third degree of relationship to the judge has previously acted as a judge in the proceeding. There is no ambiguity in the language of the rule and thus no room for interpretation." In re Disqualification of Celebrezze, 127 Ohio St.3d 1217, 2009-Ohio-7207, 937 N.E.2d 1009, ¶ 11. Here, Judge William Mallory states that although his brother acted as the duty judge on a date when a magistrate presided over Mr. Sullivan's arraignment, the magistrate did not render any judgment that day and therefore the judge's brother did not sign or approve any judgments made by the magistrate. Based on this record, there is no evidence that Judge William Mallory's brother "acted as a judge" in Mr. Sullivan's case. To the extent that Judge William Mallory might later determine that his brother has acted as a judge in the matter, Judge William Mallory must disqualify himself, as Jud.Cond.R. 2.11(A)(6) directs.
{¶ 8} The affidavit of disqualification is denied. The case may proceed before Judge Mallory.