Opinion
No. 20-AP-118
02-09-2021
IN RE DISQUALIFICATION OF RUSSO. LARSON v. BRONER.
[Cite as In re Disqualification of Russo , ___ Ohio St.3d ___, 2021-Ohio-1246.] Judges—Affidavits of disqualification—R.C. 2701.03—Affiant failed to demonstrate bias, prejudice, or appearance of impropriety or that judge had disregarded defendant's welfare or endangered health of those who enter courthouse—Disqualification denied. ON AFFIDAVIT OF DISQUALIFICATION in Cuyahoga County Court of Common Pleas, General Division, Case No. CV-19-916299. O'CONNOR, C.J.
{¶ 1} Marcus S. Sidoti, counsel for the defendant, has filed an affidavit pursuant to R.C. 2701.03 and Article IV, Section 5(C) of the Ohio Constitution seeking to disqualify Judge Nancy Margaret Russo from the above-referenced civil case. Mr. Sidoti also requests leave of one day to file a supplement to his original affidavit.
{¶ 2} For the reasons explained below, Mr. Sidoti's request for leave is granted but his affidavit of disqualification and supplemental affidavit are denied.
Merits of the affidavit of disqualification
{¶ 3} Mr. Sidoti claims that Judge Russo's conduct toward him and his client demonstrates bias or creates the appearance of bias. To support this claim, Mr. Sidoti primarily alleges that Judge Russo entered an unfair default judgment against the defendant based on a discovery sanction while the defendant was acting pro se, ordered the defendant to pay the statutory maximum in damages based on irrelevant posts from the defendant's social-media account, jailed the defendant for a discovery violation during a peak in the COVID-19 pandemic, made threatening comments to the defendant, subjected Mr. Sidoti to a contempt hearing soon after the defendant had retained him and without any allegation that Mr. Sidoti had violated a court order, ordered deputy sheriffs to appear for contempt hearings in an attempt to "intimidate and bully" the defendant, and denied all of the defendant's motions or refused to rule on them.
{¶ 4} Judge Russo submitted a response to the affidavit in which she denies any bias against Mr. Sidoti or the defendant and addresses each of Mr. Sidoti's allegations.
{¶ 5} 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.
{¶ 6} Mr. Sidoti has not established that Judge Russo has hostile feelings toward him or the defendant or that she has formed a fixed anticipatory judgment on any remaining issue in the underlying case. Nor has Mr. Sidoti set forth a compelling argument for disqualifying Judge Russo to avoid an appearance of bias. This is not the appropriate forum to address many of Mr. Sidoti's concerns. For example, if he believes that Judge Russo unfairly entered a default judgment or awarded excessive damages, he should raise those issues on appeal. It is well settled that an affidavit of disqualification "is not a vehicle to contest matters of substantive or procedural law." In re Disqualification of Solovan, 100 Ohio St.3d 1214, 2003-Ohio-5484, 798 N.E.2d 3, ¶ 4. Therefore, Mr. Sidoti's disagreement or dissatisfaction with Judge Russo's rulings cannot supply the evidentiary showing necessary to so reflect on the judge's partiality as to mandate disqualification. In re Disqualification of D'Apolito, 139 Ohio St.3d 1230, 2014-Ohio-2153, 11 N.E.3d 279, ¶ 5.
{¶ 7} Further, a review of Judge Russo's challenged comments does not establish that she has disqualifying hostility or animosity toward Mr. Sidoti or his client. See In re Disqualification of Winkler, 135 Ohio St.3d 1271, 2013-Ohio-890, 986 N.E.2d 996, ¶ 11 (disqualifying a judge whose comments "crossed the line between acceptable sentencing comments about a defendant's character and comments that convey the appearance of bias or prejudice"). Judges are entitled to express dissatisfaction with a party's perceived dilatory tactics, although that dissatisfaction "can and should be expressed in a way that promotes the public confidence in the integrity, dignity, and impartiality of the judiciary." In re Disqualification of Corrigan, 105 Ohio St.3d 1243, 2004-Ohio-7354, 826 N.E.2d 302, ¶ 10.
{¶ 8} Similarly, that Judge Russo requested the presence of sheriff's deputies for the contempt hearings does not require her removal. The judge denies any attempt to intimidate or bully the defendant or Mr. Sidoti. Rather, she states that the deputies were present because the defendant was facing possible remand and that deputies are responsible for remanding individuals into the custody of the county jail. "A judge is presumed to follow the law and not to be biased, and the appearance of bias or prejudice must be compelling to overcome these presumptions." In re Disqualification of George, 100 Ohio St.3d 1241, 2003-Ohio-5489, 798 N.E.2d 23, ¶ 5. Mr. Sidoti's subjective belief that the judge may have had a nefarious motive, without more, is insufficient to overcome the presumption that she is fair and impartial.
{¶ 9} Mr. Sidoti has also not established that Judge Russo should be disqualified for abusing her contempt powers. 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." In re Disqualification of Yarbrough, 157 Ohio St.3d 1228, 2019-Ohio-4450, 134 N.E.3d 1233, ¶ 7. The record here is unclear why Judge Russo noticed Mr. Sidoti for a contempt hearing only days after he was retained and without any allegation that he had personally violated the order that the defendant was alleged to have violated. But in the end, the judge decided against holding Mr. Sidoti in contempt during the hearing, which lessens any prejudicial impact of Mr. Sidoti's allegation.
{¶ 10} Finally, Judge Russo's disqualification is not necessary because she remanded the defendant during the COVID-19 pandemic. Judge Russo states that the defendant repeatedly violated court orders and that "[p]andemic or not, the jail is open, operating and performing its obligations for the public." The COVID-19 pandemic, however, has dramatically changed operations for judges across the state; it is no longer business as usual. Judges must be cognizant of the dangers of ordering a defendant to jail, and judges should strive to utilize alternatives when possible, especially in a civil case.
{¶ 11} Judge Russo also continues to require parties and their counsel to appear in-person for hearings in the underlying matter. When one or more of the parties seeks a virtual hearing, the better practice is to grant the request. Courts must continue to operate with a strong presumption toward remote proceedings and to leverage technology to conduct all proceedings remotely to the extent possible.
{¶ 12} That being said, Mr. Sidoti has not established that Judge Russo has disregarded the defendant's welfare or endangered the health of those who enter the courthouse to the extent that disqualification is warranted. See In re Disqualification of Fleegle, 161 Ohio St.3d 1263, 2020-Ohio-5636, 163 N.E.3d 609, ¶ 6-9 (disqualifying a judge from presiding over two jury trials scheduled for December 2020; the judge had no written COVID-19 protocols, failed to sufficiently explain the urgency of going forward with the jury trials at that particular stage of the COVID-19 pandemic, and failed to employ remote technology to reduce the flow of people through the courthouse).
Merits of the supplemental affidavit
{¶ 13} On January 21, 2021, Mr. Sidoti requested leave to permit him to supplement his affidavit by January 27. His request was granted the following day. On January 28, Mr. Sidoti filed a request for leave of one day to file the supplement. With his request, Mr. Sidoti submitted a copy of his supplemental affidavit. In the supplemental affidavit, Mr. Sidoti avers that his law firm recently merged with another law firm and that a co-managing partner of the new law firm, Alphonse Gerhardstein, previously sued Judge Russo in contentious litigation. Mr. Sidoti asserts that his new association with Mr. Gerhardstein demonstrates bias or the appearance of bias.
{¶ 14} Judge Russo filed a response, arguing that Mr. Sidoti's request for leave should be denied. The judge also states the following: she had no knowledge that Mr. Sidoti's law firm had merged with Mr. Gerhardstein's law firm, Mr. Gerhardstein brought the prior lawsuit against her nearly 15 years ago, she only vaguely recalls her interactions with Mr. Gerhardstein in that matter, and she has no ill will toward Mr. Sidoti or Mr. Gerhardstein.
{¶ 15} As a matter of judicial efficiency, Mr. Sidoti's request for leave is granted. However, he has failed to establish that his new business relationship requires Judge Russo's removal. According to Mr. Sidoti, the new law firm was created in January 2021—after he had filed his initial affidavit of disqualification. Since the merger, Judge Russo has not taken any actions or issued any rulings in the underlying matter. Therefore, Mr. Sidoti's new partnership with Mr. Gerhardstein cannot be a basis for the judge's alleged biased conduct and rulings in the case. And without more, the new partnership alone does not automatically create a conflict for the judge or suggest the appearance of bias. Mr. Gerhardstein is not an attorney in the underlying case, and according to the judge, his prior lawsuit against her ended nearly 15 years ago. Even if Judge Russo and Mr. Gerhardstein had a continuing personal conflict, that conflict would not necessarily be imputed to other members of Mr. Gerhardstein's law firm, especially considering that Judge Russo has presided over the underlying matter since the summer of 2019. See, e.g., In re Disqualification of Celebrezze, 145 Ohio St.3d 1242, 2015-Ohio-5672, 49 N.E.3d 306 (disqualification not required in a case in which the judge's brother was a nonequity attorney with a law firm representing one of the parties, the judge's brother was not involved in the case, and the judge had presided over the matter for 18 months before her brother joined the law firm).
Conclusion
{¶ 16} Mr. Sidoti's request for leave is granted. The affidavit of disqualification and supplemental affidavit are denied. The case may proceed before Judge Russo.