[Cite as In re Disqualification of Forchione, 135 Ohio St.3d 1266, 2013-Ohio-884.]
IN RE DISQUALIFICATION OF FORCHIONE.
BERRY v. KINAST ET AL.
[Cite as In re Disqualification of Forchione, 135 Ohio St.3d 1266,
2013-Ohio-884.]
Judges—Affidavit of disqualification—R.C. 2701.03—Judge’s ruling striking
affiants’ jury demand not shown to be product of bias or prejudice—
Judge’s expression of frustration with affiants not sufficient to warrant
disqualification—Affidavit denied.
(Nos. 13-AP-006 and 13-AP-007—Decided January 28, 2013.)
ON AFFIDAVIT OF DISQUALIFICATION in Stark County Court of Common Pleas
Case No. 2011-CV-03120.
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O’CONNOR, C.J.
{¶ 1} Steven J. Hupp and Ronald A. Margolis, counsel for defendants,
have filed affidavits with the clerk of this court under R.C. 2701.03 seeking to
disqualify Judge Frank G. Forchione from presiding over further proceedings in
case No. 2011-CV-03120, a medical-malpractice and wrongful-death action now
pending for trial in the Court of Common Pleas of Stark County.
{¶ 2} Hupp and Margolis allege that Judge Forchione is biased and
prejudiced in favor of plaintiff because, at a January 22, 2013 oral hearing, he
granted plaintiff’s motion to strike defendants’ jury demand. According to Hupp,
Judge Forchione’s decision was “baseless” and “fundamentally unfair” and
violates his clients’ constitutional rights to a jury trial. In addition, Margolis
claims that Judge Forchione’s “mannerisms, tone of voice and overall dismissal of
constitutionally protected rights and applicable law” at the January 22 hearing
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demonstrate that he lacks judicial objectivity. On January 24, 2013, Hupp and
Margolis submitted a transcript of the January 22 oral hearing.
{¶ 3} Judge Forchione has responded in writing to the concerns raised in
the affidavits. Judge Forchione explains that he granted plaintiff’s motion to
strike defendants’ jury demand because the defense did not timely pay jury costs.
He further asserts that at the January 22 oral hearing, he treated all attorneys in a
professional and respectful manner.
{¶ 4} For the following reasons, no basis has been established to order
the disqualification of Judge Forchione.
{¶ 5} First, contrary to affiants’ assertions, it is well established that
“[r]ulings that are adverse to a party in a pending case and with which a party
disagrees or is dissatisfied are not grounds for disqualification, even if those
rulings later are reversed on appeal.” In re Disqualification of Sheward, 77 Ohio
St.3d 1258, 1259, 674 N.E.2d 365 (1996), citing In re Disqualification of Murphy,
36 Ohio St.3d 605, 522 N.E.2d 459 (1988). An affidavit-of-disqualification
proceeding addresses the narrow issue of the possible bias or prejudice of a judge,
and “[i]t is not a vehicle to contest matters of substantive or procedural law
* * *.” In re Disqualification of Solovan, 100 Ohio St.3d 1214, 2003-Ohio-5484,
798 N.E.2d 3, ¶ 4. Accordingly, it is not within the scope of this proceeding to
evaluate or review Judge Forchione’s decision striking defendants’ jury demand.
The remedy for this and other legal claims, if any, lies on 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.
{¶ 6} Second, the transcript from the January 22 hearing does not
demonstrate that Judge Forchione is partial to plaintiff or that he has a bias against
defendants or their counsel. To be sure, if a judge’s words or actions convey the
impression that the judge has developed a “ ‘hostile feeling or spirit of ill will,’ ”
or if the judge has reached a “ ‘fixed anticipatory judgment’ ” that will prevent the
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judge from hearing the case with “ ‘an open state of mind * * * governed by the
law and the facts,’ ” then the judge should not remain on the case. In re
Disqualification of Hoover, 113 Ohio St.3d 1233, 2006-Ohio-7234, 863 N.E.2d
634, ¶ 7, quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 469, 132
N.E.2d 191 (1956). Here, Judge Forchione expressed frustration with Margolis
for failing to timely deposit jury costs and to timely file motions in limine, and
Judge Forchione repeatedly stated that he was “disturbed” because the trial had
already been continued once and one of the defendants had not made himself
available for a deposition. But “[j]udges are certainly entitled to express
dissatisfaction with attorneys’ dilatory tactics inside and outside the courtroom,”
as long as that dissatisfaction is “expressed in a way that promotes public
confidence in the integrity, dignity, and impartiality of the judiciary.” In re
Disqualification of Corrigan, 105 Ohio St.3d 1243, 2004-Ohio-7354, 826 N.E.2d
302, ¶ 10. Even if affiants are ultimately correct in that they could not timely
deposit jury fees pursuant to the magistrate’s scheduling order, nothing about the
tone or nature of the judge’s comments would cause a reasonable and objective
observer to harbor serious doubts about the judge’s impartiality. The transcript
shows that Margolis and Judge Forchione strongly disagreed about when
defendants should have deposited jury fees and that Judge Forchione was
frustrated with what he perceived as defense counsel’s dilatory tactics. But the
transcript does not conclusively establish that Judge Forchione has a “hostile
feeling or spirit of ill will” against the affiants mandating his disqualification.
{¶ 7} Moreover, Judge Forchione expressed similar frustration with
plaintiff’s counsel when he denied plaintiff’s motion for leave to file an untimely
motion for summary judgment (“It doesn’t seem like it’s fair to the defense to file
this summary judgment. Again, I am getting concerned with things being filed
past the deadlines”). And the judge admonished all counsel for failing to bring
their clients to the hearing (“Nobody is taking this Court very seriously. That’s
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what I am starting to see”). These facts undercut affiants’ claims that the judge
exhibited partiality.
{¶ 8} “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.
{¶ 9} For the reasons stated above, the affidavits of disqualification are
denied. The case may proceed before Judge Forchione.
_______________________
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