[Cite as In re Disqualification of Swenski, ___ Ohio St.3d ___, 2014-Ohio-2599.]




                        IN RE DISQUALIFICATION OF SWENSKI.
                                    STATE v. ADAMS.
          [Cite as In re Disqualification of Swenski, ___ Ohio St.3d ___,
                                    2014-Ohio-2599.]
Judges—Affidavit of disqualification—Affiant’s decision to pursue other recusal
        remedies does not excuse the seven-day statutory requirement of R.C.
        2701.03—Disqualification denied.
                      (No. 14-AP-030—Decided April 30, 2014.)
 ON AFFIDAVIT OF DISQUALIFICATION in Lorain County Court of Common Pleas
                                 Case No. 12CR084976.
                                ____________________
        O’CONNOR, C.J.
        {¶ 1} Kreig J. Brusnahan, counsel for defendant, has filed an affidavit
with the clerk of this court under R.C. 2701.03 seeking to disqualify Judge Lisa I.
Swenski from serving on the three-judge panel in case No. 12CR084976, a capital
case pending in the Court of Common Pleas of Lorain County.
        {¶ 2} Brusnahan claims that his co-counsel recently overheard Judge
Swenski’s husband, who is a practicing attorney in Lorain County, conversing
with an assistant prosecutor assigned to the underlying case.                 According to
Brusnahan, his co-counsel heard the judge’s husband make a comment similar to
the following: “You don’t need to worry about my wife. She’s got no problem
killing someone.” Based on this comment, Brusnahan claims that Judge Swenski
is prejudiced against the defendant in that she may be predisposed to impose the
death penalty.
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       {¶ 3} Judge Swenski has responded in writing to the allegations in the
affidavit, averring that she has not prejudged defendant’s guilt or innocence, or
any potential sentence. Judge Swenski acknowledges that her husband had a
conversation with the assistant prosecutor about the death penalty, but the judge
states that Brusnahan’s affidavit is otherwise inaccurate. According to Judge
Swenski, the discussion occurred over a month ago in a pretrial room filled with
other attorneys and related to a different capital case. The judge’s husband had
commented that he did not believe the facts in that other capital case warranted
the death penalty and that he was against the death penalty, but that his wife
“[did] not have a problem with the State executing someone.” Judge Swenski
states that her husband’s comment does not accurately reflect her obligations as a
judge, as she “can impose a death sentence if one is warranted and vote against a
death sentence if it did not meet the lawful requirements.”
       {¶ 4} For the reasons explained below, no basis has been established to
order the disqualification of Judge Swenski.
       {¶ 5} First, Brusnahan’s affidavit is not timely.      Brusnahan filed his
affidavit on April 28, 2014, the day before the scheduled trial.             Under
R.C. 2701.03(B), an affidavit of disqualification must be filed “not less than seven
calendar days before the day on which the next hearing in the proceeding is
scheduled.” This statutory deadline may be set aside only “when compliance with
the provision is impossible,” such as when the alleged bias or prejudice occurs
fewer than seven days before the hearing date or the case is scheduled or assigned
to a judge within seven days of the next hearing. In re Disqualification of
Leskovyansky, 88 Ohio St.3d 1210, 723 N.E.2d 1099 (1999).
       {¶ 6} Here, Brusnahan claims that he learned of the alleged prejudicial
comment on April 17, 2014, which was five days before the statutory deadline.
Brusnahan claims that he then attempted to verify that the statement had been
made, and after obtaining verification, he contacted the presiding judge on the




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case, who set a conference for April 28 to discuss the matter. At that conference,
the presiding judge decided to move forward with the assigned three-judge panel,
and Brusnahan then filed his affidavit of disqualification. An affiant’s decision to
pursue other recusal remedies, however, does not excuse the seven-day statutory
requirement in R.C. 2701.03. See In re Disqualification of Kontos, 94 Ohio St.3d
1224, 763 N.E.2d 595 (2001); In re Disqualification of Squire, 101 Ohio St.3d
1226, 2003-Ohio-7355, 803 N.E.2d 825.
       {¶ 7} In Kontos, the affiant filed his affidavit on the same day as the
scheduled hearing, claiming that it was impossible to file his affidavit earlier
because the judge had denied the affiant’s motion for recusal only a day before
the trial. The chief justice denied the affidavit, explaining:


       Counsel and parties to pending cases are encouraged to resolve
       potential disqualification requests prior to invoking the formal
       procedures set forth in * * * R.C. 2701.03. However, any attempt
       to obtain the recusal of a judge must be made in consideration of
       the seven-day requirement established by the General Assembly
       for timely filing an affidavit of disqualification. Affiant does not
       demonstrate facts to show that it was impossible to comply with
       the statutory filing requirement.      Rather, the record before me
       indicates that affiant and his co-counsel had sufficient opportunity
       to file an affidavit of disqualification in a timely manner and
       instead chose to file a recusal motion with the trial judge * * *.


Id. at 1225.
       {¶ 8} The same reasoning applies here.              The record shows that
Brusnahan and his co-counsel had sufficient opportunity to file the affidavit in a
timely manner but instead attempted to resolve the issue through other means.



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Accordingly, Brusnahan has not established that it was impossible for him to file
the affidavit before the statutory deadline, and his affidavit is not timely filed.
        {¶ 9} Second, even if Brusnahan’s affidavit were considered timely, he
has not sufficiently substantiated his allegations. In affidavit-of-disqualification
proceedings, the burden falls on the affiant to submit sufficient evidence
demonstrating that disqualification is warranted.          “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, Brusnahan offers only his
affidavit to support his allegations, although it was his co-counsel—not
Brusnahan—who overheard the judge’s alleged prejudicial comment. As a result,
there are no sworn statements in the record from any individual with personal
knowledge of the allegations—that is, someone who actually overheard or
participated in the discussion when the allegedly prejudicial comment was made.
        {¶ 10} The disqualification of a judge is an extraordinary remedy. And, 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. On this record, Brusnahan’s unsubstantiated allegations—especially in
the face of the conflicting facts presented in the judge’s response—are insufficient
to overcome the presumption that Judge Swenski is fair and impartial. See, e.g.,
In re Disqualification of Walker, 36 Ohio St.3d 606, 522 N.E.2d 460 (1988)
(“vague, unsubstantiated allegations of the affidavit are insufficient on their face
for a finding of bias or prejudice”); In re Disqualification of Corrigan, 105 Ohio
St.3d 1243, 2004-Ohio-7354, 826 N.E.2d 302, ¶ 8 (“In the wake of the conflicting
stores presented by the various affiants, however, I cannot conclude that the judge
is clearly biased and prejudiced * * *”).




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                                January Term, 2014




         {¶ 11} For the reasons stated above, the affidavit of disqualification is
denied. The case may proceed with Judge Swenski serving on the three-judge
panel.
                           ________________________




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