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In re Disqualification of Sheward

Supreme Court of Ohio

July 3, 2013

In re Disqualification of Sheward.
v.
Adams-Karl Investments, L.L.C., et al. Simonetti et al. Adams
v.
Simonetti et al.

On Affidavit of Disqualification in Franklin County Court of Common Pleas Case Nos. 11CVH-2192 and 12CV-4166.

O'Connor, C.J.

(¶ 1} Bret Adams has filed affidavits with the clerk of this court under R.C. 2701.03 seeking to disqualify Judge Richard S. Sheward from presiding over any further proceedings in the above-captioned cases, both of which are pending for trial in the Court of Common Pleas of Franklin County.

(¶ 2} Adams alleges that Judge Sheward is biased and prejudiced against him and the other defendants, as evidenced by the judge's alleged (1) "personal attacks" against Adams, (2) attempt to "force a settlement, " (3) disclosure of confidential information to plaintiffs, and (4) ex parte communications with Adams's counsel.

(¶ 3} Judge Sheward has responded in writing to the allegations in Adams's affidavits, offering a detailed account of his handling of both cases. Judge Sheward denies any bias or prejudice against Adams.

(¶ 4} For the reasons explained below, no basis has been established to order the disqualification of Judge Sheward.

Alleged personal attacks and attempt to force settlement

(¶ 5} Adams claims that Judge Sheward has made "pointed personal attacks" against him and attempted to force settlement to lighten the judge's docket. Judge Sheward denies making any such attacks, and he "fervently dispute[s]" that he encouraged settlement in order to remove the cases from his docket.

(¶ 6} Adams has failed to substantiate these claims. In affidavit-of-disqualification proceedings, the burden falls on the affiant to submit sufficient evidence and argument demonstrating that disqualification is warranted. See R.C. 2701.03(B)(1). "Generally, an affiant is required to submit evidence beyond the affidavit of disqualification supporting the allegations contained therein." In re Disqualification of Baronzzi, 135 Ohio St.3d 1212, 2012-Ohio-6341, 985 N.E.2d 494, ¶ 6. Here, Adams offers only his affidavits to support these allegations. He concedes that he did not witness Judge Sheward's alleged improper settlement conduct, yet none of the three attorneys who he says did witness it submitted an affidavit supporting Adams's claims. Further, and contrary to R.C. 2701.03, Adams has not set forth any specific examples of the alleged personal attacks made against him. See R.C. 2701.03(B)(1) (requiring the affiant to 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").

(¶ 7} On this record, Adams's vague and unsubstantiated allegations-especially in the face of clear denials by Judge Sheward-are insufficient to establish bias or prejudice. See In re Disqualification of Walker, 36 Ohio St.3d 606, 522 N.E.2d 460 (1988); In re Disqualification of Synenberg, 127 Ohio St.3d 1220, 2009-Ohio-7206, 937 N.E.2d 1011, ¶ 25 ("in the wake of the conflicting stories presented here, I cannot conclude that the judge should be removed * * *"); In re Disqualification of Flanagan, 127 Ohio St.3d 1236, 2009-Ohio-7199, 937 N.E.2d 1023, ¶ 4 ("Allegations that are based solely on hearsay, innuendo, and speculation-such as those alleged here-are insufficient to establish bias or prejudice").

(¶ 8} Adams also claims that Judge Sheward stated: "Bret I do not like your style of intimidation and aggressiveness, " "Mr. Adams likes to keep secrets from this Court, " and "Attorney Adams likes to run attorneys off his cases." To the extent that these comments are the alleged "personal attacks" cited in Adams's affidavits, the comments do not warrant judicial disqualification. First, Judge Sheward does not recall making some of these statements, and, if he did make them, he claims that they are "inaccurate" and have been "taken out of context." Because Adams failed to substantiate his allegations with a transcript or third-party affidavit, there is no way to determine whether Judge Sheward made the comments, let alone whether the comments reflect bias or prejudice against Adams.

(¶ 9} Second,

[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). If the comments were made, they appear unnecessary, but the comments alone do not convey the impression that Judge Sheward has developed a hostile feeling ...


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