Opinion
No. 20-AP-119 No. 21-AP-013
02-08-2021
IN RE DISQUALIFICATION OF GIULITTO. SCHMITT v. WARD.
[Cite as In re Disqualification of Giulitto , ___ Ohio St.3d ___, 2021-Ohio-625.] Judges and magistrates—Affidavits of disqualification—R.C. 2701.03—R.C. 2701.03 does not permit the chief justice to consider claims of bias or prejudice against magistrates—Affiant failed to demonstrate bias or prejudice by judge—Disqualification denied. ON AFFIDAVIT OF DISQUALIFICATION in Summit County Court of Common Pleas, Domestic Relations Division, Case No. DR-2007-07-2217. O'CONNOR, C.J.
{¶ 1} In Supreme Court case No. 20-AP-119, defendant Shaine Ward has filed an affidavit pursuant to R.C. 2701.03 and Ohio Constitution, Article IV, Section 5(C), seeking to disqualify Judge Joseph Giulitto, a retired judge sitting by assignment, from the above-referenced domestic-relations case. Mr. Ward has also filed two supplemental affidavits of disqualification.
{¶ 2} In Supreme Court case No. 21-AP-013, Mr. Ward has filed an affidavit seeking to disqualify Magistrate Scot Stevenson from the same case. Mr. Ward's affidavit against Magistrate Stevenson also includes allegations against Judge Giulitto.
{¶ 3} As an initial matter, "R.C. 2701.03 does not permit the chief justice to consider claims of bias or prejudice against magistrates." In re Disqualification of Celebrezze, 135 Ohio St.3d 1218, 2012-Ohio-6304, 985 N.E.2d 499, ¶ 8. "To remove a magistrate, a litigant should file a motion with the trial court." In re Disqualification of Gill, ___ Ohio St.3d ___, 2021-Ohio-112, ___ N.E.3d ___, ¶ 2. Therefore, Mr. Ward's allegations against Magistrate Stevenson will not be considered.
{¶ 4} Mr. Ward seeks Judge Giulitto's removal for a variety of reasons. He primarily alleges that the judge has violated his due-process rights and has engaged in unethical behavior by, among other things, scheduling court dates when Mr. Ward was unavailable, failing to properly serve him with notices of hearings, declaring him a vexatious litigator and failing to properly rule on his motions, and failing to correct alleged discrepancies in the record regarding a June 2018 hearing. In addition, Mr. Ward avers that he filed a grievance against Judge Giulitto that included private medical information about Mr. Ward. And Mr. Ward alleges that Judge Giulitto has violated the COVID-19 policy of the Summit County Court of Common Pleas by going forward with an in-person hearing, despite his knowing that Mr. Ward could not attend because Mr. Ward was experiencing COVID-19 symptoms. Finally, Mr. Ward alleges that during the pendency of this affidavit of disqualification, Judge Giulitto issued an order requiring him to undergo a COVID-19 test, which Mr. Ward argues was illegal.
{¶ 5} Judge Giulitto filed a response in which he details his handling of the underlying case and denies any bias against Mr. Ward. The judge further states that disciplinary counsel never forwarded to him Mr. Ward's grievances before dismissing them; therefore the judge submits that he is unaware of any confidential medical information contained therein. In addition, Judge Giulitto denies requiring anyone to attend an in-person hearing that would possibly expose him or her to the coronavirus. The judge acknowledges that a day after Mr. Ward filed his first affidavit of disqualification, the judge issued an entry in the underlying case. But the judge further states that he did not receive official notice of the affidavit's filing until weeks later.
{¶ 6} 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.
{¶ 7} Mr. Ward has not established that Judge Giulitto has hostile feelings toward him or has formed a fixed anticipatory judgment on any issue in the underlying case. Nor has Mr. Ward set forth a compelling argument for disqualifying Judge Giulitto to avoid an appearance of partiality. This is not the appropriate forum to address many of Mr. Ward's concerns. For example, if he believes that Judge Giulitto unfairly declared him a vexatious litigator, violated his due-process rights, or issued any other illegal order, he should raise those issues on appeal, if necessary. 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. And a judge's adverse rulings, without more, are not evidence of bias or prejudice. See In re Disqualification of D'Apolito, 139 Ohio St.3d 1230, 2014-Ohio-2153, 11 N.E.3d 279, ¶ 5.
{¶ 8} It is also well settled that "a judge is not disqualified solely because a party or counsel in a pending case has filed a grievance against the judge." In re Disqualification of Krueger, 74 Ohio St.3d 1267, 1268, 657 N.E.2d 1365 (1995). Here, Mr. Ward is concerned mostly about alleged confidential information that he included in his grievances. But the judge avers that disciplinary counsel never forwarded him copies of the grievances prior to their dismissal.
{¶ 9} In addition, Mr. Ward has not established that Judge Giulitto's removal is necessary because the judge allegedly violated the court's COVID-19 protocols. When one or more of the parties seeks a virtual hearing, judges should grant the request, when possible. 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. Here, Judge Giulitto states that he never required Mr. Ward or anyone else to attend a hearing in person "and possibly be exposed to the virus." There is no evidence that Judge Giulitto has disregarded Mr. Ward's welfare or endangered the health of those who enter the courthouse to the extent that disqualification is warranted. Compare In re Disqualification of Fleegle, ___ Ohio St.3d ___, 2020-Ohio-5636, ___ N.E.3d ___, ¶ 6-9 (disqualifying a judge from presiding over two jury trials that were 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).
{¶ 10} Finally, pursuant to R.C. 2701.03(D)(1), if the clerk of this court accepts an affidavit of disqualification for filing, "the affidavit deprives the judge against whom the affidavit was filed of any authority to preside in the proceeding until the chief justice of the supreme court * * * rules on the affidavit." See also State v. Myers, 97 Ohio St.3d 335, 2002-Ohio-6658, 780 N.E.2d 186, ¶ 57 (the filing of an affidavit of disqualification "automatically divests the judge of jurisdiction to proceed until the matter is resolved by this court"). Here, Judge Giulitto states that when he issued the December 29, 2020 entry, he had not yet received from this court a copy of Mr. Ward's affidavit. Given the judge's response, there is no reason to question his impartiality merely because he appears to have inadvertently issued an entry during the pendency of Mr. Ward's affidavit. See, e.g., In re Disqualification of Lanzinger, 155 Ohio St.3d 1222, 2018-Ohio-5259, 120 N.E.3d 14, ¶ 7; In re Disqualification of Martin, 143 Ohio St.3d 1270, 2015-Ohio-2920, 39 N.E.3d 1256, ¶ 16.
{¶ 11} The affidavits of disqualification are denied. The case may proceed before Judge Giulitto.