Opinion
No. 21-AP-039
04-19-2021
IN RE DISQUALIFICATION OF FLOYD. In re J.C. In re G.C.
{¶ 1} John W. Shryock, counsel for the mother, has filed an affidavit pursuant to R.C. 2701.03 and Article IV, Section 5(C) of the Ohio Constitution seeking to disqualify Judge Alison Floyd from the above-referenced custody matters.
{¶ 2} Mr. Shryock asserts that the delays in the underlying cases—and especially Judge Floyd's failure to hold a rehearing as directed by a 2019 decision of the court of appeals—have created an impression of bias. Mr. Shryock also asserts that at a January 2021 pretrial conference, Judge Floyd made a comment indicating that she has prejudged a contempt issue.
{¶ 3} Judge Floyd filed a response to the affidavit and denies any bias against Mr. Shryock or his client. The judge details her handling of the cases and notes that she scheduled the required rehearing for May 5 through 7, 2021. The judge also denies expressing or having any predisposition on any pending issue.
{¶ 4} 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.
{¶ 5} Mr. Shryock has not established that Judge Floyd has hostile feelings toward him or his client or that the judge has formed a fixed anticipatory judgment on any issue in the underlying cases. Nor has Mr. Shryock set forth a compelling argument for disqualifying Judge Floyd to avoid an appearance of bias. Although there have been delays in the underlying cases, the record does not support a finding that Judge Floyd's actions have been so egregious or that she has neglected her judicial duties to such an extent that she should be disqualified a few weeks before the scheduled rehearing. See, e.g. , In re Disqualification of Collier-Williams , 150 Ohio St.3d 1286, 2017-Ohio-5718, 83 N.E.3d 928, ¶ 7-8.
{¶ 6} In addition, Mr. Shryock and Judge Floyd appear to recall the events of the January 2021 pretrial differently. Judge Floyd has nevertheless affirmed that she has not formed a fixed anticipatory judgment on any issue. Without more, Mr. Shryock has failed to set forth sufficiently compelling evidence to overcome the presumption that Judge Floyd is fair and impartial. See, e.g. , In re Disqualification of Harwood , 137 Ohio St.3d 1221, 2013-Ohio-5256, 999 N.E.2d 681, ¶ 7. A judge's isolated comment—especially at this late stage of the litigation—is typically insufficient to require disqualification. 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 Swenski , 160 Ohio St.3d 1274, 2020-Ohio-3850, 158 N.E.3d 628, ¶ 4-5 (given the judge's significant and lengthy involvement with the parties, undignified and unprofessional comments that the judge made at a hearing did not require her removal).
{¶ 7} The affidavit of disqualification is denied. The cases may proceed before Judge Floyd.