Opinion
No. 19-AP-074
07-08-2019
IN RE Disqualification of YARBROUGH. FitzGerald v. FitzGerald.
{¶ 1} Defendant Sean P. FitzGerald has filed an affidavit and a supplemental affidavit with the clerk of this court pursuant to R.C. 2701.03 seeking to disqualify Judge Stephen A. Yarbrough, a retired judge sitting by assignment, from presiding over any further proceedings in the above-referenced case. This is the second affidavit of disqualification that Mr. FitzGerald has filed against Judge Yarbrough regarding the underlying matter. His first affidavit was denied in an entry dated February 21, 2019. In re Disqualification of Yarbrough , 156 Ohio St.3d 1239, 2019-Ohio-1625, 125 N.E.3d 965. The case is pending for trial in two days.
{¶ 2} Mr. FitzGerald claims that Judge Yarbrough should be disqualified for multiple reasons, including that the judge made comments demonstrating that he has prejudged Mr. FitzGerald's credibility and the outcome of this case, abused his contempt powers, and improperly refused to reschedule the trial due to the unavailability of Mr. FitzGerald's trial counsel.
{¶ 3} Judge Yarbrough has responded to Mr. FitzGerald's affidavits and denies any bias against the defendant.
{¶ 4} "The 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). Mr. FitzGerald has not established that Judge Yarbrough has hostility toward him combined with a fixed anticipatory judgment on any issue in the underlying case.
{¶ 5} To support his bias claims, Mr. FitzGerald points to several of Judge Yarbrough's comments during pretrial proceedings, including remarks about Mr. FitzGerald's credibility and other criticisms of his conduct. However, "[t]he formation of a conditional opinion about a party's credibility is common during preliminary proceedings," and such opinions are typically "not sufficient to counter the presumption of the judge's ability to render a fair decision based on the law and facts later presented at the hearing." In re Disqualification of Crawford , 135 Ohio St.3d 1280, 2013-Ohio-1410, 986 N.E.2d 1003, ¶ 8 ; see also In re Disqualification of Baronzzi , 138 Ohio St.3d 1210, 2013-Ohio-5899, 3 N.E.3d 1196, ¶ 9 (explaining that "when a judge's opinion regarding a party's credibility is formed on the basis of evidence presented during the course of proceedings, that opinion is not deemed to be the product of bias or prejudice").
{¶ 6} Further, "[a] judge is certainly entitled to criticize or express dissatisfaction with conduct that he or she perceives as unprofessional, although that dissatisfaction should be expressed in a way that promotes public confidence in the integrity, dignity, and impartiality of the judiciary." In re Disqualification of Gilligan , 145 Ohio St.3d 1209, 2015-Ohio-5663, 47 N.E.3d 860, ¶ 11. Even if Judge Yarbrough made a few isolated and unnecessary comments in moments of frustration, the record does not establish that he should be removed for bias, especially considering the tone and content of the judge's response to Mr. FitzGerald's affidavits. See, e.g. , In re Disqualification of Martin , 149 Ohio St.3d 1233, 2016-Ohio-8590, 75 N.E.3d 225, ¶ 6 ; In re Disqualification of Corrigan , 105 Ohio St.3d 1243, 2004-Ohio-7354, 826 N.E.2d 302, ¶ 10-11.
{¶ 7} Mr. FitzGerald also alleges that Judge Yarbrough has abused his contempt powers—not only by finding Mr. FitzGerald in direct contempt and sentencing him to jail but also by threatening Mr. FitzGerald with a second contempt finding and threatening his appellate counsel with contempt for merely filing a recusal motion. But in general, the fact that a judge found a litigant in contempt—or threatened contempt—does not mean that the judge has lost the ability to remain impartial. See Gilligan at ¶ 11 ; In re Disqualification of Pokorny , 156 Ohio St.3d 1245, 2019-Ohio-1709, 125 N.E.3d 970, ¶ 4. And more importantly, here, the court of appeals is currently reviewing whether Judge Yarbrough abused his discretion in finding Mr. FitzGerald in contempt. The propriety of the judge's decision must be determined through the appellate process—not in an affidavit of disqualification. See In re Disqualification of Solovan , 100 Ohio St.3d 1214, 2003-Ohio-5484, 798 N.E.2d 3, ¶ 4 ("An affidavit of disqualification addresses the narrow issue of the possible bias or prejudice of a judge. It is not a vehicle to contest matters of substantive or procedural law * * *"). However, it is important to note that filing an affidavit of disqualification is not the only avenue to seek a judge's recusal from a case. See In re Disqualification of Navarre , 156 Ohio St.3d 1208, 2019-Ohio-850, 124 N.E.3d 843, ¶ 5. Indeed, the chief justice has previously encouraged litigants "to resolve potential disqualification requests prior to invoking the formal procedures of * * * R.C. 2701.03." In re Disqualification of Kontos , 94 Ohio St.3d 1224, 1225, 763 N.E.2d 595 (2001).
{¶ 8} Finally, it is well-established that "a trial court's decision on a motion to continue a trial is not grounds for disqualification." In re Disqualification of O'Donnell , 142 Ohio St.3d 68, 2014-Ohio-5873, 28 N.E.3d 59, ¶ 6, citing In re Disqualification of Pontious , 94 Ohio St.3d 1235, 1236, 763 N.E.2d 603 (2001) ("A judge's decision to grant or deny a party's request for a continuance is within the sound discretion of the judge and is not, by itself, evidence of bias or prejudice"). "Trial judges are entitled to exercise considerable discretion in the management of the cases on their dockets, and any abuse of that discretion can be remedied on appeal." Id.
{¶ 9} "[A]bsent extraordinary circumstances, a judge will not be subject to disqualification after having presided over lengthy proceedings in a pending case." In re Disqualification of Celebrezze , 94 Ohio St.3d 1228, 1229, 763 N.E.2d 598 (2001). Given Judge Yarbrough's lengthy and significant involvement in this domestic-relations matter, Mr. FitzGerald has failed to demonstrate that the judge's disqualification is necessary—especially at this late stage of the litigation.
{¶ 10} The affidavits of disqualification are denied.