Opinion
21-AP-075
07-14-2021
In re Disqualification of Paschke. v. University Hospitals Health System, Inc., et al. Jane and John Does 1 through 4 et al.
On Affidavit of Disqualification in Geauga County Court of Common Pleas, General and Domestic Relations Division, Case No. 20P000722.
O'Connor, C.J.
{¶ 1} Subodh Chandra has filed an affidavit pursuant to R.C. 2701.03 and Article IV, Section 5(C) of the Ohio Constitution seeking to disqualify Judge Carolyn J. Paschke from the above-referenced case.
{¶ 2} Mr. Chandra avers that he filed the affidavit on behalf of his client, Andrew Bhatnager, Ph.D., whom Mr. Chandra describes as an "Interested NonParty." Mr. Chandra incorporates the bias allegations contained in a separate affidavit of disqualification filed by his attorney, Todd Petersen.
{¶ 3} Judge Paschke filed a response to the affidavit and denies any bias. She also notes that in May 2021, the plaintiffs in the underlying case dismissed their claim against Dr. Bhatnager.
{¶ 4} Mr. Chandra has failed to establish that he has standing to file an affidavit of disqualification on behalf of Dr. Bhatnager. Under R.C. 2701.03(A), an affidavit to disqualify a judge may be filed by "any party to the proceeding or the party's counsel." As explained in previous disqualification matters, "the chief justice has strictly enforced this statutory requirement and consistently found that individuals who do not qualify as a 'party' or 'party's counsel' do not have standing to file an affidavit of disqualification." In re Disqualification of Grendell, 137 Ohio St.3d 1220, 2013-Ohio-5243, 999 N.E.2d 681, ¶ 2; In re Disqualification of Gaul, 144 Ohio St.3d 1202, 2015-Ohio-3929, 41 N.E.3d 420, ¶ 6; In re Disqualification of Ferenc, 159 Ohio St.3d 1208, 2019-Ohio-5510, 148 N.E.3d 601, ¶ 3. Here, Judge Paschke states that the plaintiffs dismissed their claim against Dr. Bhatnager, and Mr. Chandra refers to his client only as an "Interested Non-Party." Mr. Chandra avers that he filed the affidavit of disqualification on behalf of Dr. Bhatnager, but Mr. Chandra has not established that Dr. Bhatnager is one of the persons who may file an affidavit of disqualification under R.C. 2701.03(A).
{¶ 5} Alternatively, even if Dr. Bhatnager were considered a party, for the reasons explained in the decision denying Mr. Petersen's affidavit of disqualification, Mr. Chandra has not demonstrated that Judge Paschke's disqualification is warranted. See In re Disqualification of Paschke, Ohio St.3d ___, 2021-Ohio-3235, N.E.3d __.
Sealing of the affidavit of disqualification
{¶ 6} Mr. Chandra filed his affidavit of disqualification under seal, but he also objects to the affidavit remaining under seal. S.Ct.Prac.R. 3.02(A)(1)(b) provides that "[a] document that has been sealed pursuant to a court order, administrative agency order, or board order, or is the subject of a motion to seal pending in the Supreme Court, shall remain under seal and not be made available for public access unless ordered by the Supreme Court." As noted above, Mr. Chandra incorporated the bias allegations in the affidavit of disqualification filed by Mr. Petersen in In re Disqualification of Paschke, ___ Ohio St.3d ___, 2021-Ohio-3235, ___ N.E.3d ___. Because exhibit D to Mr. Petersen's affidavit remains under seal in the trial court, the exhibit shall remain under seal in this court. An affidavit- of-disqualification proceeding is not the appropriate forum in which to determine whether a trial court properly placed a document under seal. However, neither Mr. Petersen nor Mr. Chandra have indicated that other portions of their affidavits are under seal or otherwise privileged or confidential. And unless sealed, affidavit-of-disqualification files are public records.
{¶ 7} Accordingly, Mr. Chandra's affidavit of disqualification shall become publicly accessible in ten days unless any party to the underlying case-or Judge Paschke-files a motion to seal. Pursuant to S.Ct.Prac.R. 3.02(A)(1)(b), any documents subject to a motion to seal shall remain sealed and shall not be made available for public access until the motion to seal is decided. Any party may file a response to the motion to seal within ten days after the date the motion is filed. No reply briefs will be permitted.