In re Disqualification of Patton.
Coleman. The City of Cleveland
Affidavit of Disqualification in Cleveland Municipal Court
Case No. 2016 CRB 013647.
1} Defendant, Kathy W. Coleman, has filed an
affidavit with the clerk of this court under R.C. 2701.03 and
2701.031 seeking to disqualify Judge Charles L. Patton from
presiding over any further proceedings in the above-captioned
case. This is the third affidavit of disqualification that
Ms. Coleman has filed against Judge Patton. Her first
affidavit was dismissed as untimely on February 16, 2017,
see In re Disqualification of Patton, ___ Ohio St.3d
___, 2017-Ohio-2839, ___ N.E.3d ___, and her second affidavit
was denied on the merits on April 5, 2017, see In re
Disqualification of Patton, ___ Ohio St.3d ___,
2017-Ohio-7054, ___ N.E.3d ___.
2} In her third affidavit of disqualification, Ms.
Coleman repeats some of the allegations of bias that she
raised in her second affidavit. For example, she avers that
Judge Patton should be removed because he refused to appoint
counsel to represent her. But as previously explained when
her second affidavit was denied, an affidavit of
disqualification is not the appropriate forum to determine
whether a litigant is entitled to appointed counsel in a
3} Ms. Coleman also avers that Judge Patton recently
harassed her by improperly issuing docket entries while her
previous affidavits of disqualification were pending.
Specifically, she claims that before the chief justice
decided her second affidavit, Judge Patton continued a
previously scheduled pretrial hearing and then rescheduled it
for a later date. Ms. Coleman believes that Judge
Patton's entries were improper, prove his bias against
her, and are grounds for the judge's removal.
4} Under R.C. 2701.03(D)(1), if the clerk of this
court accepts an affidavit of disqualification for filing,
"the affidavit deprives the judge against whom the
affidavit was filed of any authority to preside in the
proceeding until the chief justice of the supreme court * * *
rules on the affidavit." See also State v.
Myers, 97 Ohio St.3d 335, 2002-Ohio-6658, 780 N.E.2d
186, ¶ 57 (the filing of an affidavit
"automatically divests the judge of jurisdiction to
proceed until the matter is resolved"). However, there
are statutory exceptions to this prohibition against
proceeding after the filing of an affidavit of
disqualification. See R.C. 2701.03(D)(2) and (3).
For example, R.C. 2701.03(D)(3) authorizes a judge against
whom an affidavit is filed to decide matters that do not
"affect a substantive right of any of the parties."
Courts have interpreted this exception as allowing a judge to
undertake ministerial acts during the pendency of the
affidavit. See, e.g., State ex rel. Stern v. Mascio,
81 Ohio St.3d 297, 299, 691 N.E.2d 253 (1998); State ex
rel. Kreps v. Christiansen, 88 Ohio St.3d 313, 317, 725
N.E.2d 663 (2000) (interpreting analogous provision in R.C.
2701.031); Columbus Checkcashers, Inc. v. Guttermaster,
Inc., 10th Dist. Franklin Nos. 13AP-106 and 13AP-107,
2013-Ohio-5543, 2013 WL 6708396, ¶ 18, 28.
5} Here, Judge Patton's entries continuing and
rescheduling a pretrial hearing due to Ms. Coleman's
filing of an affidavit of disqualification fall within the
exception in R.C. 2701.03(D)(3). Moreover, although a
judge's ruling during the pendency of an affidavit could
be evidence of bias, see, e.g., In re Disqualification of
Celebrezze, 74 Ohio St.3d 1242, 657 N.E.2d 1348 (1992),
Ms. Coleman has not established how Judge Patton's
scheduling entries in this case establish that he is biased
and prejudiced against her, see In re Disqualification of
Knece, 138 Ohio St.3d 1274, 2014-Ohio-1414, 7 N.E.3d
1213, ¶ 9-11.
6} Finally, as noted above, this is Ms.
Coleman's third affidavit of disqualification against
Judge Patton in this case. Ms. Coleman is warned that the
filing of any further frivolous, repetitive, or
unsubstantiated affidavits may result in sanctions. See
In re Disqualification of Browne, 136 Ohio St.3d 1279,
2013-Ohio-4468, 996 N.E.2d 944, ¶ 8 ("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").
7} Accordingly, the affidavit of disqualification is
denied. The case ...