Opinion
No. 21-AP-015
03-03-2021
IN RE DISQUALIFICATION OF FREGIATO. GREEN v. QUINT-GREEN.
[Cite as In re Disqualification of Fregiato , ___ Ohio St.3d ___, 2021-Ohio-1265.] Judges—Affidavits of disqualification—R.C. 2701.03—Affiant waived right to disqualify judge based on certain comments—A judge's undignified comment does not necessarily reflect judicial bias or preclude the judge from fairly and impartially deciding future legal issues in a case—Affiant failed to demonstrate bias or prejudice—Disqualification denied. ON AFFIDAVIT OF DISQUALIFICATION in Belmont County Court of Common Pleas, General and Domestic Relations Division, Case No. 18 DR 0024. O'CONNOR, C.J.
{¶ 1} Renee F. Eubanks, counsel for the defendant, Ashleigh Quint, has filed an affidavit pursuant to R.C. 2701.03 and Article IV, Section 5(C) of the Ohio Constitution seeking to disqualify Judge Frank A. Fregiato from the above-referenced divorce case.
{¶ 2} Ms. Eubanks avers that Judge Fregiato's rulings and comments demonstrate that he is biased against Ms. Quint. Judge Fregiato filed a response to the affidavit in which he denies any bias and requests that the affidavit be denied.
{¶ 3} 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. For the reasons explained below, Ms. Eubanks has not established that Judge Fregiato has hostile feelings toward Ms. Quint or has formed a fixed anticipatory judgment on any issue in the underlying case. Nor has Ms. Eubanks set forth a compelling argument for disqualifying Judge Fregiato to avoid an appearance of bias.
The judge's rulings
{¶ 4} Ms. Eubanks alleges that Judge Fregiato is biased based on several of his rulings, including his restrictions on Ms. Quint's parenting time and his granting of the plaintiff's recent discovery motion. It is well established, however, that an affidavit of disqualification "addresses the narrow issue of the possible bias of a judge" and " 'is not a vehicle to contest matters of substantive or procedural law.' " In re Disqualification of McGrath, 149 Ohio St.3d 1224, 2016-Ohio-8601, 74 N.E.3d 453, ¶ 2, quoting In re Disqualification of Solovan, 100 Ohio St.3d 1214, 2003-Ohio-5484, 798 N.E.2d 3, ¶ 4. Therefore, it is outside the scope of this proceeding to review the propriety of Judge Fregiato's custody or discovery decisions. And Ms. Eubanks's disagreement or dissatisfaction with those rulings cannot supply the evidentiary showing needed to so reflect on his partiality as to require disqualification. See In re Disqualification of D'Apolito, 139 Ohio St.3d 1230, 2014-Ohio-2153, 11 N.E.3d 279, ¶ 5.
The judge's comments about Ms. Quint's testimony
{¶ 5} Ms. Eubanks next alleges that throughout the underlying litigation, Judge Fregiato made negative comments about Ms. Quint's testimony. It appears, however, that the judge made most of the comments at issue in March or April 2019. "An affidavit of disqualification must be filed as soon as possible after the incident giving rise to the claim of bias and prejudice occurred," and failure to do so may result in waiver of the objection, especially when "the facts underlying the objection have been known to the party for some time." In re Disqualification of O'Grady, 77 Ohio St.3d 1240, 1241, 674 N.E.2d 353 (1996). The affiant has the burden to demonstrate that the affidavit is timely filed. In re Disqualification of Capper, 134 Ohio St.3d 1271, 2012-Ohio-6287, 984 N.E.2d 1082, ¶ 11. Here, Judge Fregiato made the challenged remarks almost two years ago. Yet Ms. Eubanks raised the allegations in an affidavit filed one week before a February 2021 hearing. Nothing in the record justifies the delay in raising the allegations, and Ms. Eubanks therefore has waived the right to disqualify Judge Fregiato based on those comments. See In re Disqualification of Corrigan, 91 Ohio St.3d 1210, 1210-1211, 741 N.E.2d 137 (2000) (affiant waived objections to judge when incidents giving rise to claim of bias occurred several months prior to affidavit's filing and affidavit was filed less than three weeks before scheduled trial).
{¶ 6} Even if Ms. Eubanks had not waived the objections, she has failed to sufficiently explain why the judge's comments require his removal. Most of the comments relate to Judge Fregiato's belief that Ms. Quint refused to answer questions during her testimony. A judge is entitled to express dissatisfaction with what the judge considers evasive or incomplete testimony, although that dissatisfaction should be expressed in a way that promotes confidence in the integrity, dignity, and impartiality of the judiciary. See In re Disqualification of Carroll, 160 Ohio St.3d 1264, 2020-Ohio-3094, 157 N.E.3d 802, ¶ 6-7. In addition, "a judge, like any trier of fact, is expected to assess a witness's character and credibility," and when a judge's opinion regarding a party's credibility is formed on the basis of evidence presented during the course of the proceedings, that opinion is generally not deemed to be the product of bias or prejudice. In re Disqualification of Baronzzi, 138 Ohio St.3d 1210, 2013-Ohio-5899, 3 N.E.3d 1196, ¶ 9.
The judge's comment in chambers on January 29, 2021
{¶ 7} Ms. Eubanks also alleges that during a recent in-chambers meeting with only the attorneys, Judge Fregiato used language that was dismissive toward Ms. Quint's concerns and showed the judge's bias. For his part, Judge Fregiato states only that he lacks sufficient information to form a belief as to the truth or falsity of Ms. Eubanks's allegation and therefore denies it. If Judge Fregiato made the alleged comment, it was unprofessional, undignified, and disrespectful to Ms. Eubanks. The use of such language degrades the decorum of the court and diminishes public confidence in the judiciary. "[N]otwithstanding the conduct of litigants or counsel, a judge 'has an ethical obligation to conduct himself or herself in a courteous and dignified manner that does not convey the appearance of bias or prejudice toward litigants or their attorneys.' " In re Disqualification of Swenski, 140 Ohio St.3d 1208, 2014-Ohio-3299, 15 N.E.3d 859, ¶ 6, quoting In re Disqualification of Cleary, 88 Ohio St.3d 1220, 1222-1223, 723 N.E.2d 1106 (2000).
{¶ 8} That being said, a judge's undignified comment—especially during an attorney-only conference outside the courtroom—does not necessarily reflect judicial bias or preclude the judge from fairly and impartially deciding future legal issues in a case. See, e.g., In re Disqualification of Corrigan, 105 Ohio St.3d 1243, 2004-Ohio-7354, 826 N.E.2d 302. More relevant here, it is well established that "absent 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). In the underlying case, Judge Fregiato presided over a three-day trial in 2018 and another three-day hearing in 2019. Considering his significant and lengthy involvement with these parties, the alleged comment does not rise to the level of extraordinary circumstances requiring his removal at this late stage of the litigation. See, e.g., In re Disqualification of Stucki, 157 Ohio St.3d 1259, 2019-Ohio-4534, 137 N.E.3d 1230, ¶ 5 (given the judge's four-year involvement in the parties' domestic-relations matter, his intemperate language at a hearing did not require his disqualification); In re Disqualification of Yarbrough, 157 Ohio St.3d 1228, 2019-Ohio-4450, 134 N.E.3d 1233, ¶ 6 (even if judge "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 the affidavits of disqualification); In re Disqualification of Swenski, 160 Ohio St.3d 1274, 2020-Ohio-3850, 158 N.E.3d 628, ¶ 4-5 (given judge's significant and lengthy involvement with the parties, her undignified and unprofessional comment did not require her removal).
{¶ 9} The affidavit of disqualification is denied. The case may proceed before Judge Fregiato.