Opinion
No. 20-AP-003
02-10-2020
IN RE DISQUALIFICATION OF GAUL. Lusher v. Liberty Mutual Fire Insurance Company.
{¶ 1} Plaintiff Charles Lusher has filed an affidavit and two supplemental affidavits pursuant to R.C. 2701.03 seeking to disqualify Judge Daniel Gaul from the above-referenced case.
{¶ 2} In July 2019, Mr. Lusher filed an affidavit of disqualification seeking the removal of Judge Kathleen Ann Sutula from the matter. After Judge Sutula voluntarily recused herself, the case was reassigned to Judge Gaul.
{¶ 3} In his affidavits, Mr. Lusher claims that Judge Gaul is biased against him and has engaged in judicial misconduct. Specifically, Mr. Lusher alleges that Judge Gaul has interfered with Mr. Lusher's right to terminate his and his coplaintiff's counsel, improperly struck Mr. Lusher's pro se filings, gave control over the discovery process to defense counsel, and disregarded Mr. Lusher's argument that the prior discovery orders were unlawful. Mr. Lusher also alleges that Judge Gaul had been improperly assigned to the case.
{¶ 4} Judge Gaul filed a response to the affidavit and claims that Mr. Lusher's allegations of judicial bias are unfounded. Judge Gaul denies having interfered with Mr. Lusher's right to counsel of his choice and explained his basis for striking Mr. Lusher's pro se filings. According to the judge, because of the long history of the case, he was attempting to balance the parties' right to counsel of their choice with the need for the case to be timely concluded. Judge Gaul also explained his discovery decisions and how the court's administrative judge randomly reassigned the case to him.
{¶ 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. Lusher has not established that Judge Gaul has any hostile feelings toward him or a predetermined judgment on any issue in the case. Nor has Mr. Lusher set forth a compelling argument for removing Judge Gaul to avoid an appearance of partiality. If Mr. Lusher believes that Judge Gaul's discovery rulings or the judge's refusal to allow plaintiffs' counsel to withdraw has prejudiced Mr. Lusher's case, he may have the ability to raise those claims on appeal. However, it is not the role of the chief justice in ruling on an affidavit of disqualification to second-guess a judge's pretrial rulings. See In re Disqualification of Solovan , 100 Ohio St.3d 1214, 2003-Ohio-5484, 798 N.E.2d 3, ¶ 4 (an affidavit of disqualification "is not a vehicle to contest matters of substantive or procedural law"). And although an improper judicial assignment may be grounds for disqualification, see In re Disqualification of Kiger , 156 Ohio St.3d 1232, 2019-Ohio-851, 125 N.E.3d 960, Mr. Lusher has failed to substantiate his claim that the underlying case was somehow improperly reassigned to Judge Gaul. "[V]ague, unsubstantiated allegations of the affidavit are insufficient on their face for a finding of bias or prejudice." In re Disqualification of Walker , 36 Ohio St.3d 606, 522 N.E.2d 460 (1988).
{¶ 7} The affidavits of disqualification are denied. The case may proceed before Judge Gaul.