Opinion
No. 21-AP-028
04-06-2021
IN RE DISQUALIFICATION OF PITTMAN. THE STATE OF OHIO v. O'NEIL.
[Cite as In re Disqualification of Pittman , ___ Ohio St.3d ___, 2021-Ohio-1682.] Judges—Affidavits of disqualification—R.C. 2701.03—Affiant failed to demonstrate bias or prejudice—Disqualification denied. ON AFFIDAVIT OF DISQUALIFICATION in Portage County Court of Common Pleas, General Division, Case No. 2008CR00177. O'CONNOR, C.J.
{¶ 1} Eric Allen, counsel for the defendant, has filed an affidavit pursuant to R.C. 2701.03 and Article IV, Section 5(C) of the Ohio Constitution seeking to disqualify Judge Laurie J. Pittman from the above-referenced case, now pending on the defendant's motion for leave to file a motion for new trial.
{¶ 2} Mr. Allen avers that Judge Pittman made two comments at the defendant's sentencing that showed bias against the defendant and require her disqualification. Judge Pittman filed a response to the affidavit. She believes that the defendant was afforded a fair and impartial sentencing, and she vows to rule on any postsentencing motions without bias.
{¶ 3} R.C. 2701.03(B)(1) requires that an affidavit of disqualification include the "specific allegations on which the claim of interest, bias, prejudice, or disqualification is based and the facts to support each of those allegations." Thus, in disqualification matters, "the burden falls on the affiant to submit sufficient argument and evidence to support the disqualification request." In re Disqualification of Spon, 134 Ohio St.3d 1254, 2012-Ohio-6345, 984 N.E.2d 1069, ¶ 24. Mr. Allen has failed to include "specific allegations" or "the facts to support each of those allegations" in his affidavit.
{¶ 4} Mr. Allen first alleges that at the defendant's sentencing, Judge Pittman accused the defendant of threatening the court and a complaining witness. The transcript shows that Judge Pittman indeed stated that the defendant had given her a "gun sign" in an attempt to intimidate the court and a witness. In her response to Mr. Allen's affidavit, Judge Pittman again states that the defendant made gun gestures to the court and a witness. It is unclear, however, why Mr. Allen believes that the judge's comments show judicial bias.
{¶ 5} As a general rule, a litigant's threats against a judge do not lead to the judge's disqualification.
Our adversarial system produces dissatisfaction with the decisions of judges who are elected to fairly and impartially administer justice. This dissatisfaction sometimes manifests itself in threats and other retaliatory actions directed at judges and other persons involved in the judicial process. Whether real or perceived, these threats and actions are not, without more, evidence of bias or prejudice that mandates disqualification of a judge. To hold otherwise would afford a party an ample opportunity to disrupt the orderly administration of justice.In re Disqualification of Lane, 74 Ohio St.3d 1274, 1274-1275, 657 N.E.2d 1369 (1995). Of course, there may be occasions when a judge should not preside over a case involving a party who threatened the judge. For example, "some threats against a judge or a judge's family could be of such a personal or hostile nature that the risk of bias would be intolerably high if the judge presided over any case involving the person who made the threats." In re Disqualification of Leuthold, 155 Ohio St.3d 1240, 2018-Ohio-5426, 120 N.E.3d 845, ¶ 7. But Mr. Allen has not made any such argument here. Vague, 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).
{¶ 6} Mr. Allen next alleges that Judge Pittman referred to the defendant as a "thug" during his sentencing. But again, Mr. Allen has failed to offer any additional facts or context to support his belief that the judge's language demonstrated bias. "[A] judge's harsh sentencing comments will not ordinarily lead to disqualification." In re Disqualification of Zmuda, 149 Ohio St.3d 1241, 2017-Ohio-317, 75 N.E.3d 1255, ¶ 8 (noting that "[i]t is not unusual for trial judges to use strong language when sentencing defendants who have been convicted of sexual crimes against children"). Here, the defendant was convicted of rape, aggravated robbery, aggravated burglary, kidnapping, and intimidation. Each offense included a gun specification. In addition, Judge Pittman believed that the defendant had attempted to threaten her and a complaining witness. Without further explanation from Mr. Allen, the judge's isolated use of "thug" during the defendant's sentencing—standing alone—does not establish that she is unable to fairly and impartially preside over the pending postconviction motion.
{¶ 7} "An affidavit must describe with specificity and particularity those facts alleged to support the claim of bias or prejudice." In re Disqualification of Mitrovich, 101 Ohio St.3d 1214, 2003-Ohio-7358, 803 N.E.2d 816, ¶ 4. If there are reasons why Judge Pittman cannot serve fairly and impartially, Mr. Allen was required under R.C. 2701.03 to explain those reasons specifically.
{¶ 8} The affidavit of disqualification is denied. The case may proceed before Judge Pittman.