Opinion
No. 19-AP-060
05-23-2019
IN RE Disqualification of SCHWEIKERT. In re Durrani Litigation Group Contempt Charge v. Deters.
{¶ 1} Eric C. Deters and Charles H. Deters have filed affidavits with the clerk of this court pursuant to R.C. 2701.03 seeking to disqualify Judge Mark R. Schweikert, a retired judge sitting by assignment, from presiding over the above-referenced contempt proceeding against the affiants.
{¶ 2} Eric Deters has also filed an affidavit to disqualify the chief justice from deciding the disqualification request against Judge Schweikert. Mr. Deters, however, failed to comply with the requirements of S.Ct.Prac.R. 4.04 for seeking the recusal or disqualification of a justice of this court. Regardless, the undersigned finds no reason to designate another justice to decide the affidavits of disqualification.
{¶ 3} The affiants allege that Judge Schweikert "has a bias and prejudice against them" and the other attorneys who represent plaintiffs in related medical-malpractice actions. Judge Schweikert has responded to the affidavits and denies having any bias or interest in the pending contempt proceeding.
{¶ 4} R.C. 2701.03(B)(1) requires that an affidavit of disqualification include the "specific allegations on which the claim of interest, bias, prejudice, or disqualification is based and the facts to support each of those allegations." Here, the affiants have failed to include "specific allegations" or "the facts to support each of th[e] allegations" in their affidavits. Instead, they submitted with their affidavits voluminous exhibits that they claim "detail[ ] the issue and the arguments" and "speak for themselves." However, it is not the chief justice's role in deciding an affidavit of disqualification to sift through hundreds of pages of documents to find support for an affiant's claims or to speculate as to what conduct an affiant considers disqualifying. In re Disqualification of Forchione , 134 Ohio St.3d 1235, 2012-Ohio-6303, 983 N.E.2d 356, ¶ 30. "An affidavit must describe with specificity and particularity those facts alleged to support the claim of bias or prejudice." In re Disqualification of Mitrovich , 101 Ohio St.3d 1214, 2003-Ohio-7358, 803 N.E.2d 816, ¶ 4. The affiants here have failed to comply with the requirements of R.C. 2701.03(B)(1).
{¶ 5} Further, many of the allegations in the voluminous exhibits submitted are unsworn. "In deciding a disqualification request, the chief justice cannot consider unsworn allegations by a litigant." In re Disqualification of Stucki , 156 Ohio St.3d 1236, 2019-Ohio-1624, 125 N.E.3d 963. And to the extent the affiants are raising complaints against Judge Schweikert that were raised in prior affidavits of disqualification filed by them or their co-counsel, those allegations will not be considered again.
{¶ 6} Finally, in their one new legal argument, the affiants assert that the chief justice failed to use the same disqualification standard against Judge Schweikert that was used in In re Disqualification of Crawford , 152 Ohio St.3d 1256, 2017-Ohio-9428, 98 N.E.3d 277. In Crawford , the chief justice disqualified a trial judge to avoid an appearance of impropriety and to ensure the public's confidence in the integrity of the judicial process. The affiants here have failed to allege in their affidavits that an appearance of impropriety exists in this case—let alone sufficiently explain why Judge Schweikert should be removed to avoid an appearance of impropriety.
{¶ 7} The affidavits of disqualification are denied. The case may proceed before Judge Schweikert.