Opinion
No. 21-AP-096
07-26-2021
IN RE DISQUALIFICATION OF BERKOWITZ. The State of Ohio v. Hammock.
{¶ 1} Defendant Elena Hammock has filed another affidavit pursuant to R.C. 2701.03 and 2701.031 and Article IV, Section 5(C) of the Ohio Constitution seeking to disqualify Judge Joshua Berkowitz from the above-referenced cases. This is Ms. Hammock's fifth affidavit of disqualification against Judge Berkowitz. Her prior affidavits were denied in entries dated April 12, June 30, and July 16, 2021. See Supreme Court case Nos. 21-AP-047, 21-AP-082, 21-AP-083, and 21-AP-086.
{¶ 2} In her present affidavit, Ms. Hammock again alleges that Judge Berkowitz prevented her from speaking at a hearing and threatened to hold her in contempt, thereby demonstrating bias against her and violating her constitutional rights and the court's rules of practice. Ms. Hammock raised these same claims in her most recent affidavit. It was previously explained to her:
"[I]t is well settled that an affidavit of disqualification is not the mechanism for determining whether a judge has violated a party's constitutional rights." In re Disqualification of Giesler , 135 Ohio St.3d 1201, 2011-Ohio-7083, 985 N.E.2d 486, ¶ 10. Nor is this the appropriate forum to review whether a judge has complied with court rules. And "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. Although Ms. Hammock claims that Judge Berkowitz refused to allow her to speak at a recent hearing, she failed to submit a copy of the transcript to substantiate her allegation. See In re Disqualification of Gilligan , 145 Ohio St.3d 1209, 2015-Ohio-5663, 47 N.E.3d 860, ¶ 5.
July 16, 2021 entry in Supreme Court case No. 21-AP-086.
{¶ 3} Nonetheless, Ms. Hammock raises the same arguments in her current affidavit and again failed to submit a transcript or any other evidence to support her allegations. "When necessary, an affiant should submit evidence beyond the affidavit to support the allegations contained therein." In re Disqualification of Trimmer , 164 Ohio St.3d 1212, 2021-Ohio-2320, 172 N.E.3d 192, ¶ 5. But Ms. Hammock has repeatedly failed to do so. If Ms. Hammock believes that Judge Berkowitz has violated her constitutional rights, she may have the opportunity to raise the issue on appeal. But as previously explained to her, this is not the appropriate forum in which to litigate such legal issues.
{¶ 4} The affidavit of disqualification is denied. {¶ 5} Ms. Hammock has now filed five meritless affidavits of disqualification in less than four months. "The statutory right to seek disqualification of a judge is an extraordinary remedy not to be used in a frivolous manner. Indeed, the filing of frivolous, unsubstantiated, or repeated affidavits of disqualification is contrary to the purpose of R.C. 2701.03 and a waste of judicial resources." In re Disqualification of Browne , 136 Ohio St.3d 1279, 2013-Ohio-4468, 996 N.E.2d 944, ¶ 8. The chief justice previously warned Ms. Hammock that the filing of any repetitive, unsubstantiated, or frivolous affidavits may result in the imposition of sanctions. See Supreme Court case No. 21-AP-086. This admonition, however, has been ignored. Accordingly, it is sua sponte ordered that Ms. Hammock is prohibited from filing any additional affidavits of disqualification relating to State v. Hammock , Hamilton M.C. case No. C-20-CRB-12575, and State v. Hammock , Hamilton M.C. case No. C-21-CRB-10373, without first obtaining leave. Any request for leave shall be submitted to the clerk of this court for the chief justice's review.