Opinion
No. 21-AP-035
04-06-2021
IN RE DISQUALIFICATION OF REECE. IN RE CASES RELATING TO ABUBAKAR ATIQ DURRANI.
[Cite as In re Disqualification of Reece , ___ Ohio St.3d ___, 2021-Ohio-1751.] Judges—Affidavits of disqualification—R.C. 2701.03—Affiant failed to demonstrate bias or prejudice—R .C. 2701.03 does not provide for disqualification of law clerks—Disqualification denied. ON AFFIDAVIT OF DISQUALIFICATION in Hamilton County Court of Common Pleas, General Division, Case Nos. A1706463 et al. O'CONNOR, C.J.
{¶ 1} Alexander J. Petraglia has filed an affidavit pursuant to R.C. 2701.03 and Article IV, Section 5(C) of the Ohio Constitution seeking to disqualify Judge Guy L. Reece II, a retired judge sitting by assignment, from the cases identified in Exhibit A of Mr. Petraglia's affidavit. Mr. Petraglia represents the plaintiffs in medical-malpractice actions against Dr. Abubakar Atiq Durrani and various hospitals. Plaintiffs' counsel and others previously filed numerous affidavits of disqualification against the prior judge assigned to the underlying matters. See, e.g., In re Disqualification of Schweikert, 155 Ohio St.3d 1207, 2018-Ohio-5255, 120 N.E.3d 3; 155 Ohio St.3d 1273, 2018-Ohio-5415, 121 N.E.3d 388; 155 Ohio St.3d 1220, 2018-Ohio-5421, 120 N.E.3d 12; 157 Ohio St.3d 1201, 2019-Ohio-3352, 131 N.E.3d 90; 158 Ohio St.3d 1211, 2019-Ohio-5487, 141 N.E.3d 258; 158 Ohio St.3d 1201, 2019-Ohio-5451, 139 N.E.3d 936; 158 Ohio St.3d 1234, 2019-Ohio-5509, 143 N.E.3d 546; see also Supreme Court case Nos. 18-AP-065, 18-AP-073, 18-AP-089, 18-AP-104, 18-AP-128, 19-AP-008, 19-AP-027, 19-AP-030, 19-AP-137, and 19-AP-138.
{¶ 2} Mr. Petraglia alleges that Judge Reece is biased against the plaintiffs. Judge Reece filed a response to the affidavit in which he details his handling of the underlying cases and denies any bias.
{¶ 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. In addition, a "presumption of impartiality" is accorded all judges in affidavit-of-disqualification proceedings. In re Disqualification of Celebrezze, 101 Ohio St.3d 1224, 2003-Ohio-7352, 803 N.E.2d 823, ¶ 7. Mr. Petraglia has not established that Judge Reece has hostile feelings toward the plaintiffs or has formed a fixed anticipatory judgment on any issue in the underlying cases. Nor has Mr. Petraglia set forth a compelling argument for disqualifying Judge Reece to avoid an appearance of bias.
{¶ 4} Mr. Petraglia alleges that Judge Reece has failed to timely rule on certain motions and that because of the judge's delay, the plaintiffs recently withdrew their motions for prejudgment interest. Mr. Petraglia further states that Judge Reece refused to sign a "simple one-page judgement entry" after the plaintiffs' trial wins and violated the civil rules by allowing the defense to file motions notwithstanding the verdicts a year after the verdicts. In addition, Mr. Petraglia alleges that Judge Reece has refused group trials. For his part, Judge Reece explains some of the delays in concluding the cases that have already gone to trial and notes that the COVID-19 pandemic has delayed other trials. The judge affirms that issuing final judgment entries is a priority and that he will do so after resolution of a few remaining issues. Judge Reece further notes that he has an interest in conducting group trials when it is safe and appropriate to do so.
{¶ 5} As previously explained to plaintiffs' counsel, an affidavit-of-disqualification proceeding "is not the appropriate forum to review the propriety of a judge's legal decisions or case-management schedule." Schweikert, 158 Ohio St.3d 1211, 2019-Ohio-5487, 141 N.E.3d 258, at ¶ 6. Therefore, it is outside the scope of such a proceeding to second-guess how a trial judge manages his docket or to determine whether the judge has complied with the civil rules. Considering Judge Reece's thorough response to the affidavit, Mr. Petraglia has failed to establish that any of the judge's actions—or alleged inaction—has been the product of bias against the plaintiffs.
{¶ 6} Mr. Petraglia also argues that Judge Reece's law clerk has animus toward the plaintiffs, improperly signed an order, and is "playing the judge." In response, Judge Reece states that Mr. Petraglia misunderstood some of the law clerk's words and explained why his law clerk, with authorization, signed the judge's name to an entry. According to Judge Reece, all final decisions have been his own. R.C. 2701.03 does not permit the chief justice to disqualify law clerks or magistrates. Regardless, Mr. Petraglia has failed to establish that Judge Reece has improperly entrusted judicial duties to court staff in a manner that demonstrates judicial bias.
{¶ 7} The affidavit of disqualification is denied. The cases may proceed before Judge Reece.