Opinion
No. 21-AP-051
06-02-2021
IN RE DISQUALIFICATION OF BEATHARD. The State of Ohio v. Davidson.
{¶ 1} Defendant Richard A. Davidson has filed an affidavit and a supplemental affidavit pursuant to R.C. 2701.03 and Article IV, Section 5(C) of the Ohio Constitution seeking to disqualify Judge Steven P. Beathard from the above-referenced case. This is the second affidavit of disqualification that Mr. Davidson has filed against Judge Beathard regarding the underlying matter. See Supreme Court case No. 20-AP-056. The chief justice dismissed Mr. Davidson's prior affidavit because at the time, nothing was pending before Judge Beathard. "[T]he chief justice cannot rule on an affidavit of disqualification when * * * nothing is pending before the trial court." In re Disqualification of Hayes , 135 Ohio St.3d 1221, 2012-Ohio-6306, 985 N.E.2d 501, ¶ 6.
{¶ 2} In his present affidavit, Mr. Davidson alleges that Judge Beathard is biased against him and that he recently filed a motion for new trial. To support his bias claim, Mr. Davidson avers that after he was convicted in 2017, he hired a private detective who discovered that prior to and during Mr. Davidson's bench trial, Judge Beathard and his staff engaged in multiple ex parte communications with Mr. Davidson's ex-wife. Mr. Davidson believes that those communications tainted Judge Beathard's ability to be impartial. Mr. Davidson also alleges that while incarcerated, he posted online comments about Judge Beathard and that the judge responded by sending police officers to the prison in an attempt to "scare" Mr. Davidson. In addition, Mr. Davidson avers that after he posted the online comments, the judge refused to timely provide him with a transcript and failed to promptly rule on his postconviction motions.
{¶ 3} In Judge Beathard's first response to the pending affidavit, the judge stated that a jury had found Mr. Davidson guilty in 2017 and that no active motion or proceeding was pending in the matter. Judge Beathard did not otherwise address or respond to the substantive allegations in Mr. Davidson's affidavit.
{¶ 4} The trial-court docket supported Mr. Davidson's allegation that Judge Beathard had presided over a bench trial—not a jury trial—and that Mr. Davidson had recently filed a motion for new trial and a motion to amend his motion, which remain pending before Judge Beathard. Because motions were in fact pending in the underlying case, the chief justice requested that Judge Beathard "supplement his response to address the substantive allegations in Mr. Davidson's affidavit of disqualification."
{¶ 5} In a supplemental response, Judge Beathard acknowledged that he had inadvertently missed Mr. Davidson's pending motions and that the court had found Mr. Davidson guilty after a bench trial. The judge also categorically denied what he described as Mr. Davidson's "unsubstantiated allegation of bias." However, the judge did not directly address or respond to Mr. Davidson's specific substantive allegations.
{¶ 6} "[A] judge's failure to respond to allegations of bias and prejudice may result in the judge's disqualification to avoid the appearance of impropriety." In re Disqualification of Corrigan , 94 Ohio St.3d 1234, 1235, 763 N.E.2d 602 (2001). For example, in In re Disqualification of Gaul , 161 Ohio St.3d 1249, 2020-Ohio-5313, 162 N.E.3d 844, a judge responded to an affidavit of disqualification but failed to directly address the affiant's allegation that the judge had made biased comments at a pretrial hearing. The chief justice requested the judge to supplement his response to address, with specificity, the affiant's allegation and to submit a hearing transcript, which the judge had referred to in his response but had not submitted. The judge filed a copy of the transcript but failed to respond to the specific allegation against him. The chief justice disqualified the judge "to avoid the appearance of partiality and to ensure the parties’ and the public's confidence in the fairness and integrity of the[ ] proceedings." Id. at ¶ 6. See also In re Disqualification of Burge , 136 Ohio St.3d 1205, 2013-Ohio-2726, 991 N.E.2d 237, ¶ 8 (disqualifying a judge, in part, because he had failed to respond to some of the allegations in a supplemental affidavit of disqualification).
{¶ 7} Judge Beathard was requested to "supplement his response to address the substantive allegations in Mr. Davidson's affidavit of disqualification." The judge, however, failed to directly respond to Mr. Davidson's specific allegations. Although the record here may not lead to a finding of actual bias, "[j]udges may be disqualified when they refuse to explain or clarify their conduct, especially when they are given a second opportunity to do so." In re Disqualification of Saffold , 163 Ohio St.3d 1233, 2021-Ohio-114, 168 N.E.3d 1216, ¶ 10 ; see also In re Disqualification of Floyd , 101 Ohio St.3d 1217, 2003-Ohio-7351, 803 N.E.2d 818, ¶ 7 (an "unrefuted allegation of an ex parte discussion on substantive matters requires the judge's disqualification"). Judge Beathard's disqualification is therefore necessary to avoid any appearance of partiality and to ensure the parties’ and the public's confidence in the fairness of the proceeding.
{¶ 8} The affidavit of disqualification is granted. The assignment of a visiting judge will be addressed in a separate entry.