[Cite as In re Disqualification of Pokorny, 135 Ohio St.3d 1268, 2013-Ohio-915.]
IN RE DISQUALIFICATION OF POKORNY.
SIZEMORE v. FARM CREDIT SERVICES OF MID-AMERICA.
[Cite as In re Disqualification of Pokorny, 135 Ohio St.3d 1268,
2013-Ohio-915.]
Judges—Affidavit of disqualification—R.C. 2701.03—Affiant’s civil suit against
judge in federal court does not alone constitute grounds for
disqualification in common pleas court—Alleged bias against women and
pro se litigants not proven—Disqualification denied.
(No. 13-AP-008—Decided January 29, 2013.)
ON AFFIDAVIT OF DISQUALIFICATION in Ashland County Court of Common Pleas
Case No. 11-CIV-371.
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O’CONNOR, C.J.
{¶ 1} Terrie Sizemore, plaintiff in the underlying case, has filed an
affidavit with the clerk of this court under R.C. 2701.03 seeking to disqualify
Judge Thomas John Pokorny, a retired judge sitting by assignment, from
presiding over any further proceedings in case No. 11-CIV-371, now pending in
the Court of Common Pleas of Ashland County.
{¶ 2} According to Sizemore’s affidavit, the initial judge hearing her
case, Judge Ronald P. Forsthoefel, voluntarily recused himself after Sizemore
filed a federal civil action against him. Sizemore alleges that his replacement,
Judge Pokorny, should be disqualified for four main reasons: (1) Sizemore has
moved to supplement her complaint in the federal case to add Judge Pokorny as a
defendant, (2) it appears that Judge Pokorny has conspired with Judge Forsthoefel
and defendant’s counsel, Greg Melick, to conceal material facts and to deny
Sizemore her right to defend herself, (3) Judge Pokorny appears to be biased
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against women and pro se litigants, and (4) Judge Pokorny has scheduled a
hearing on defendant’s motion for summary judgment on its counterclaim to
declare Sizemore a vexatious litigator.
{¶ 3} For the following reasons, no basis has been established to order
the disqualification of Judge Pokorny.
{¶ 4} First, the fact that Sizemore is attempting to name Judge Pokorny
as a defendant in her federal case does not automatically lead to his
disqualification in the underlying state-court proceeding. It is well established
that a judge will not be disqualified solely because a litigant in a case pending
before the judge has filed a lawsuit against that judge. To hold otherwise would
invite parties to file lawsuits solely to obtain a judge’s disqualification, which
would severely hamper the orderly administration of judicial proceedings. See In
re Disqualification of Hunter, 36 Ohio St.3d 607, 608, 522 N.E.2d 461 (1988); In
re Disqualification of Kilpatrick, 47 Ohio St.3d 605, 606, 546 N.E.2d 929 (1989).
{¶ 5} Second, Sizemore has failed to substantiate her claim that Judge
Pokorny is engaging in a conspiracy with Judge Forsthoefel and Melick. In an
affidavit-of-disqualification proceeding, the burden falls on the affiant to submit
sufficient evidence demonstrating that disqualification is warranted. See R.C.
2701.03(B)(1). The affiant is often required to submit evidence beyond the
affidavit itself supporting the allegations contained therein. See In re
Disqualification of DeWine, ___ Ohio St.3d ___, 2012-Ohio-6288, ___ N.E.2d
___, ¶ 18. To support her conspiracy claim, Sizemore attached a December 10,
2012 letter from Judge Forsthoefel to the parties. Judge Forsthoefel attached to
the letter a copy of the certificate of assignment reassigning Judge Pokorny to the
case, and he informed the parties that “upon Judge Pokorny’s request,” a hearing
on the defendant’s motion for summary judgment was scheduled for February 1,
2013. Sizemore claims that because Judge Forsthoefel had already recused
himself at the time he sent the letter, his participation gives the “overt appearance
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of conspiracy” to deprive her of her federal rights and gives the appearance that
both judges are conspiring with Melick. But on its face, the letter merely informs
the parties that Judge Pokorny has scheduled a hearing on a pending motion, and
Sizemore has acknowledged that she does not have “any way of ascertaining if
there is a relationship between these two Judges.” Vague or unsubstantiated
allegations—such as those here—are insufficient to establish bias or prejudice.
See In re Disqualification of Walker, 36 Ohio St.3d 606, 522 N.E.2d 460 (1988).
{¶ 6} Third, Sizemore has similarly failed to substantiate her claim that
Judge Pokorny is biased against female and pro se litigants. Allegations of such
bias strike at the very heart of the judiciary and are among the most serious and
damaging that can be directed at a judge. As a result, such claims must be proven
by clear evidence establishing the existence of bias. See In re Disqualification of
Cunningham, 100 Ohio St.3d 1216, 2002-Ohio-7470, 798 N.E.2d 4, ¶ 2 (setting
forth standard for evaluating allegations of racial bias). Sizemore repeatedly
asserts that Judge Pokorny is biased in favor of men and attorneys—mostly
because he has promptly responded to the defendant’s motions but has failed to
rule on Sizemore’s motions. However, Sizemore has not provided any actual
evidence, beyond speculation or conjecture, to support her assertion that Judge
Pokorny’s actions are the product of bias—based on gender, pro se status, or
otherwise. Allegations that are based solely on innuendo and speculation are
insufficient to establish bias or prejudice. In re Disqualification of Flanagan, 127
Ohio St.3d 1236, 2009-Ohio-7199, 937 N.E.2d 1023, ¶ 4.
{¶ 7} Fourth, the fact that Judge Pokorny has scheduled a hearing on
defendant’s motion for summary judgment is not grounds for disqualification.
Sizemore claims that Judge Pokorny scheduled this hearing without legal grounds
to do so, in violation of the Civil Rules, in violation of her right to a jury trial, and
without regard to the evidence in the record. It is well settled, however, that a
party’s disagreement or dissatisfaction with a court’s legal rulings, even if those
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rulings may be erroneous, is not grounds for disqualification. In re
Disqualification of Floyd, 101 Ohio St.3d 1217, 2003-Ohio-7351, 803 N.E.2d
818, ¶ 4. Similarly, a judge’s action, or inaction, on a pending motion is within
the judge’s sound discretion and is not evidence of bias or prejudice. In re
Disqualification of Eyster, 105 Ohio St.3d 1246, 2004-Ohio-7350, 826 N.E.2d
304, ¶ 4. Trial judges are entitled to exercise discretion in ruling on many
matters, and it is not the chief justice’s role in deciding an affidavit of
disqualification to second-guess each ruling. The remedy for these and other
legal claims, if any, lies in appeal, not through the filing of an affidavit of
disqualification. In re Disqualification of Russo, 110 Ohio St.3d 1208, 2005-
Ohio-7146, 850 N.E.2d 713, ¶ 6.
{¶ 8} Finally, affidavit-of-disqualification proceedings are narrow in
scope and “ ‘limited to determining whether a judge in a pending case has a bias,
prejudice, or other disqualifying interest that mandates the judge’s disqualification
from that case.’ ” In re Disqualification of Griffin, 101 Ohio St.3d 1219, 2003-
Ohio-7356, 803 N.E.2d 820, ¶ 9, quoting In re Disqualification of Kate, 88 Ohio
St.3d 1208, 1209, 723 N.E.2d 1098 (1999). Many of Sizemore’s allegations in
her affidavit are directed against Judge Forsthoefel and attorney Melick.
However, this is not the proper forum to evaluate whether the previous judge in
the case or an attorney engaged in any wrongdoing or professional misconduct.
{¶ 9} In conclusion, “[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.” In re Disqualification of George, 100 Ohio St.3d
1241, 2003-Ohio-5489, 798 N.E.2d 23, ¶ 5. Those presumptions have not been
overcome in this case.
{¶ 10} For the reasons stated above, the affidavit of disqualification is
denied. The case may proceed before Judge Pokorny.
______________________
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