Opinion
Nos. 19-AP-069 19-AP-070
06-27-2019
IN RE Disqualification of DIGIACOMO. The State of Ohio v. Grow. The State of Ohio v. Burns.
{¶ 1} Michela Huth, counsel for codefendants Kenneth Grow and Chelsea Burns, has filed affidavits with the clerk of this court pursuant to R.C. 2701.03 and 2701.031 seeking to disqualify Judge Laura DiGiacomo from the above-referenced cases.
{¶ 2} Ms. Huth claims that her clients do not believe they will receive a fair trial before Judge DiGiacomo based on one of the judge's alleged comments at Ms. Burns's arraignment and the fact that the judge denied the defendants' motions to dismiss before time had expired for the defendants to submit reply briefs.
{¶ 3} Judge DiGiacomo has responded to the affidavits and states that she has been fair and impartial in the underlying matters. The judge denies making the comment attributed to her by Ms. Burns, and the judge explains the circumstances that led her to deny the defendants' motions to dismiss.
{¶ 4} "The statutory right to seek disqualification of a judge is an extraordinary remedy. 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." (Citation omitted.) In re Disqualification of George , 100 Ohio St.3d 1241, 2003-Ohio-5489, 798 N.E.2d 23, ¶ 5 ; see also In re Disqualification of Harwood , 137 Ohio St.3d 1221, 2013-Ohio-5256, 999 N.E.2d 681, ¶ 5, quoting In re Disqualification of Celebrezze , 101 Ohio St.3d 1224, 2003-Ohio-7352, 803 N.E.2d 823, ¶ 7 ("A ‘presumption of impartiality’ is ‘accorded all judges’ in affidavit-of-disqualification proceedings"). In addition, the burden in affidavit-of-disqualification cases falls on the affiant to submit specific allegations and facts to demonstrate that disqualification is warranted. See R.C. 2701.03(B)(1). {¶ 5} Here, Ms. Burns and Judge DiGiacomo recall the events of Ms. Burns's arraignment differently. Given the conflicting evidence in the record—and given Ms. Huth's failure to substantiate Ms. Burns's allegations with a transcript, third-party affidavit, or other evidence—Ms. Huth has failed to set forth sufficiently compelling evidence to overcome the presumption that Judge DiGiacomo is fair and impartial. See Harwood at ¶ 5-7. Further, a judge's isolated comment in a moment of frustration is generally insufficient to establish that the judge is unable to fairly and impartially preside over the underlying trial. See, e.g. , In re Disqualification of Martin , 149 Ohio St.3d 1233, 2016-Ohio-8590, 75 N.E.3d 225, ¶ 6 ; In re Disqualification of Zmuda , 149 Ohio St.3d 1241, 2017-Ohio-317, 75 N.E.3d 1255, ¶ 8.
{¶ 6} Finally, "it is not the role of the chief justice in deciding an affidavit of disqualification to second-guess how a trial judge manages his or her docket." In re Disqualification of O'Donnell , 142 Ohio St.3d 68, 2014-Ohio-5873, 28 N.E.3d 59, ¶ 6. Based on this record, the timing of Judge DiGiacomo's denial of the defendants' motions to dismiss is not grounds for disqualification.
{¶ 7} The affidavits of disqualification are denied. The cases may proceed before Judge DiGiacomo.