Opinion
No. 21-AP-049
04-15-2021
IN RE DISQUALIFICATION OF HEISER. Wise v. Buckland.
{¶ 1} M. David Burton, counsel for the plaintiff, has filed an affidavit pursuant to R.C. 2701.03 and Article IV, Section 5(C) of the Ohio Constitution seeking to disqualify Judge Larry N. Heiser from the above-referenced cases.
{¶ 2} Mr. Burton alleges that on April 9, 2021, a trial commenced on the defendant's motion to reallocate parental rights and responsibilities and that the defendant, as the movant, has the burden of proof. But according to Mr. Burton, Judge Heiser required the plaintiff to commence presentation of her evidence before the defendant's case-in-chief. By improperly reversing the usual sequence, Mr. Burton asserts, Judge Heiser prejudged the cogency of the defendant's motion and prejudiced the plaintiff. Mr. Burton believes that the judge's actions demonstrate bias or create the appearance of bias.
The timing of the affidavit of disqualification
{¶ 3} R.C. 2701.03(B) requires that an affidavit of disqualification 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 Gaul , 147 Ohio St.3d 1219, 2016-Ohio-7034, 63 N.E.3d 1211, ¶ 3, quoting In re Disqualification of Leskovyansky , 88 Ohio St.3d 1210, 723 N.E.2d 1099 (1999). Here, Mr. Burton filed his affidavit one day before the scheduled resumption of the trial on April 15. Mr. Burton avers, however, that it was impossible to comply with the statutory deadline because the alleged bias occurred on April 9—less than seven days before the next scheduled trial date. In light of Mr. Burton's averments, the affidavit was properly accepted for filing. See In re Disqualification of Saffold , 163 Ohio St.3d 1233, 2021-Ohio-114, 168 N.E.3d 1216, ¶ 4-5. The merits of the affidavit of disqualification
{¶ 4} "When an affidavit is filed after commencement of a trial and presentation of evidence, a judge should be disqualified only when the record ‘clearly and unquestionably demonstrates a "fixed anticipatory judgment" that undermines the absolute confidence of the public in the fairness and integrity of the proceedings.’ " In re Disqualification of Fuhry , 145 Ohio St.3d 1253, 2015-Ohio-5684, 49 N.E.3d 1305, ¶ 4, quoting In re Disqualification of Kate , 88 Ohio St.3d 1208, 1209, 723 N.E.2d 1098 (1999), quoting State ex rel. Pratt v. Weygandt , 164 Ohio St. 463, 469, 132 N.E.2d 191 (1956). Considering that the trial in the underlying case has already commenced, Mr. Burton has not met his heavy burden to establish that disqualification is warranted. {¶ 5} If Mr. Burton believes that Judge Heiser has erred or improperly placed the burden of proof on Mr. Burton's client, he may raise those issues on appeal. An affidavit of disqualification, however, "is not a vehicle to contest matters of substantive or procedural law." In re Disqualification of Solovan , 100 Ohio St.3d 1214, 2003-Ohio-5484, 798 N.E.2d 3, ¶ 4. And "[t]rial judges are entitled to exercise discretion in ruling on many matters, and it is not the chief justice's role in deciding an affidavit of disqualification to second-guess each ruling." In re Disqualification of Lawson , 135 Ohio St.3d 1243, 2012-Ohio-6337, 986 N.E.2d 6, ¶ 6. Without more, Mr. Burton has failed to sufficiently explain why it is necessary to intervene in the underlying trial to disqualify Judge Heiser.
{¶ 6} The affidavit of disqualification is denied. The cases may proceed before Judge Heiser.