[Cite as In re Disqualification of Sheward, 136 Ohio St.3d 1256, 2013-Ohio-3643.]




                       IN RE DISQUALIFICATION OF SHEWARD.
                           TODD ET AL. v. AXELROD ET AL.
        [Cite as In re Disqualification of Sheward, 136 Ohio St.3d 1256,
                                    2013-Ohio-3643.]
Judges—Affidavit of disqualification—R.C. 2701.03—Judge’s remarks at show-
        cause hearing, viewed objectively, conveyed appearance of bias or
        prejudice—Affidavit granted.
                      (No. 13-AP-035—Decided June 17, 2013.)
ON AFFIDAVIT OF DISQUALIFICATION in Franklin County Court of Common Pleas
                               Case No. 12CVH-011845.
                                ____________________
        O’CONNOR, C.J.
        {¶ 1} Plaintiff William M. Todd has filed an affidavit 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 case No. 12CVH-011845, now
pending in the Court of Common Pleas of Franklin County on a motion to hold
Todd in contempt of court.
        {¶ 2} Todd claims that Judge Sheward is biased and prejudiced against
him. Specifically, Todd claims that Judge Sheward held a show-cause hearing
“solely to harass” Todd and claims that at that hearing, the judge threatened to jail
Todd’s counsel for attempting to clarify whether the hearing was for civil
contempt or criminal contempt. According to Todd, he has “never encountered a
judge at any level who has been so openly and obviously hostile to a lawyer or a
party” in his over 36 years of practicing law in Ohio. Todd’s counsel, David
Bloomfield, has also filed an affidavit supporting disqualification. Bloomfield
avers that a reasonable person would “firmly conclude” that Judge Sheward has
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personal biases against Todd and that those biases will continue to prejudice Todd
in proceedings before the judge.
       {¶ 3} Judge Sheward has responded to the allegations in Todd’s
affidavit, denying any bias against Todd and stating that Todd’s accusations are
not supported by the underlying case record.
       {¶ 4} As explained more fully below, Todd’s affidavit is well taken.
Judge Sheward is disqualified from the underlying case in order to “avoid even an
appearance of bias, prejudice, or impropriety, and to ensure the parties, their
counsel, and the public the unquestioned neutrality of an impartial judge.” In re
Disqualification of Floyd, 101 Ohio St.3d 1215, 2003-Ohio-7354, 803 N.E.2d
816, ¶ 10.
                                   Background
       {¶ 5} Todd filed the underlying action against his former law-firm
partners, pursuant to R.C. 1776.63, for judicial supervision over the partnership’s
dissolution.   After months of negotiations, the parties appeared to reach a
settlement agreement; however, Todd claims that the agreement was never
finalized. Todd states that after he became concerned about Judge Sheward’s
handling of the case, he mentioned to his former law partners that he was
considering filing a voluntary-bankruptcy petition on behalf of the partnership as
its dissolution partner.   Defendant Brian Laliberte then filed a motion for a
temporary restraining order to prevent Todd from filing the bankruptcy petition,
arguing that the action would violate the parties’ settlement agreement. Judge
Sheward issued the temporary restraining order, which removed Todd as
dissolution partner, prohibited him from taking certain actions, and required him
to immediately turn over firm records to the new dissolution partner. Todd
thereafter filed an involuntary-bankruptcy petition against the partnership on
behalf of himself and others as creditors of the partnership. In response, Laliberte
filed a motion to hold Todd in contempt for violating the temporary restraining




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order—not only because Todd filed the bankruptcy petition but also because he
allegedly did not turn over the firm’s records, as commanded by the judge’s order.
       {¶ 6} Judge Sheward held a show-cause hearing on April 12, 2013.
Bloomfield claims that at the start of the hearing, the judge precluded him from
attempting to clarify whether the hearing was for criminal or civil contempt. The
transcript reads:


               MR. BLOOMFIELD: Your Honor, before Mr. Laliberte
       begins, just so the record is clear here and understanding that
       you’re apparently hearing the contempt hearing at this point, are
       you, Your Honor—
               THE COURT: Mr. Bloomfield—
               MR. BLOOMFIELD: Yes.
               THE COURT: —sit down.
               MR. BLOOMFIELD:           Yes, Your Honor.          Are you
       asking—
               THE COURT: I said, “sit down.” You stand up with a lot
       of assumptions. Okay? So sit down until you have something
       besides an assumption.
               Now, as I was about to say before I was so rudely
       interrupted, do you have anything, Mr. Laliberte, to add?


       {¶ 7} Later in the hearing, when Todd’s argument time began, the
following exchange occurred:


               MR. BLOOMFIELD: I am still—and Your Honor asks
       and I asked a fundamental question here and I guess I still would




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       like to know, is this a criminal or a civil contempt proceeding at
       this moment?
                THE COURT: Well, Mr. Bloomfield, you know, it is like
       when you have a witness on the witness stand. I ask the questions
       and you answer them. Okay?
                MR. BLOOMFIELD: As a matter of—
                THE COURT: Now just a minute, just a minute. Listen.
       We are having a hearing. The reason we are having a hearing is so
       I can decide what needs to be done, and so I am giving you the
       opportunity to talk about that. And that does not include, nor do I
       appreciate, nor am I going to submit to your barrage of questions at
       me as to why I have jurisdiction. Now, if you don’t think I have
       jurisdiction, I’ve got a couple of deputies back there and we will
       put you in a cell and then we will explain it to you. Is that what
       you want to do, David?


       {¶ 8} After both parties presented legal arguments, Judge Sheward
decided to continue the hearing until a future date, but not without first expressing
several of his thoughts about Todd. Judge Sheward remarked that Todd saw the
dissolution proceeding as “an action whereby he can profit from the other two”
partners, that Todd was using the law as a “sword” and not a “shield,” that Todd’s
motives had been called into question, that Todd might not have complied with
his duties of loyalty and care to the other partners, that Todd seemed to have the
attitude that “he knows everything and no one else knows anything, especially the
Court,” and that Todd’s bankruptcy petition appeared to be a way to “circumvent
the law, avoid the law, disobey the law in every conceivable way that he can
manufacture.”     Judge Sheward eventually clarified that when the hearing
resumed, Todd was to be prepared to defend civil-contempt charges and to




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“address specifically [Todd’s] claimed, ‘lame,’ if you will, excuse for not
understanding” the temporary restraining order, “Todd’s failure * * * of not
turning over all and every record of this partnership,” and the “box of junk” that
Todd did turn over.
       {¶ 9} Todd filed his affidavit of disqualification before resumption of the
show-cause hearing.
                                     Analysis
       {¶ 10} As an initial matter, it is important to recognize that none of Judge
Sheward’s legal decisions are grounds for his disqualification. Much of Todd’s
affidavit is devoted to criticizing Judge Sheward’s temporary restraining order
and other decisions.      It is well settled, however, that an affidavit of
disqualification “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. Indeed, a party’s disagreement or dissatisfaction with a court’s
legal rulings, even if those rulings may be erroneous, does not constitute bias or
prejudice. In re Disqualification of Floyd, 101 Ohio St.3d 1217, 2003-Ohio-7351,
803 N.E.2d 818, ¶ 4. The underlying case has created several complicated factual
and legal issues, such as whether the parties entered a settlement agreement,
whether Todd violated that alleged agreement or the temporary restraining order,
and whether the trial court has authority to continue hearing matters after the
filing of Todd’s involuntary-bankruptcy petition.      To the extent that Todd’s
affidavit of disqualification complains about the judge’s decisions on these issues,
his remedy lies on appeal or through other courts, 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.
       {¶ 11} Instead, Judge Sheward is being removed because of his comments
and conduct at the show-cause hearing. As explained in previous affidavit-of-
disqualification proceedings under R.C. 2701.03, if a judge’s words or actions



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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 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) (setting forth the definition of bias and prejudice).
And “[t]he proper test for determining whether a judge’s participation in a case
presents an appearance of impropriety is * * * an objective one. A judge should
step aside or be removed if a reasonable and objective observer would harbor
serious doubts about the judge’s impartiality.” In re Disqualification of Lewis,
117 Ohio St.3d 1227, 2004-Ohio-7359, 884 N.E.2d 1082, ¶ 8.
       {¶ 12} Judges may express frustration toward attorneys and parties in
their courtrooms, especially when a party may have violated a court order. But a
judge, “notwithstanding the conduct of litigants or counsel, has an ethical
obligation to conduct himself or herself in a courteous and dignified manner that
does not convey the appearance of bias or prejudice toward litigants or their
attorneys.” In re Disqualification of Cleary, 88 Ohio St.3d 1220, 1222-1223, 723
N.E.2d 1106 (2000), citing Canon 3(B)(4) and (5) of the former Code of Judicial
Conduct (superseded by Canon 2 and rules analogous to the former code
provisions, effective Mar. 1, 2009). Even if Judge Sheward found it necessary to
comment on Todd’s motives and credibility before actually deciding whether
Todd should be held in contempt and before hearing all the evidence, he should
have refrained from unnecessary disparagement and limited his comments to what
was reasonably necessary for the orderly progress of the hearing. An objective
observer who has read the entire record—and especially the judge’s one-sided
commentary at the end of the April show-cause hearing—might reasonably
question whether Judge Sheward can now set aside his seemingly fixed views




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about Todd, weigh fairly and impartially any arguments Todd offers at the
continued show-cause hearing, and decide the contempt motion based on the law
and facts before the court. In addition, Judge Sheward’s response to Bloomfield’s
seemingly reasonable inquiry regarding the nature of the contempt hearing might
cause an objective observer to question whether the judge has developed hostile
feelings toward Todd and his counsel.
       {¶ 13} Judge Sheward steadfastly maintains that he can hear this matter
without bias, and that may be true. And the judge correctly notes that some of
Todd’s other allegations in his affidavit of disqualification are not supported by
the record. But even in cases where no evidence of actual personal bias or
prejudice is apparent, “disqualification is appropriate when the public’s
confidence in the integrity of the judicial system is at stake.”                In re
Disqualification of Saffold, 134 Ohio St.3d 1204, 2010-Ohio-6723, 981 N.E.2d
869, ¶ 6. As this court has long stated, “[i]t is of vital importance that the litigant
should believe that he will have a fair trial.” State ex rel. Turner v. Marshall, 123
Ohio St. 586, 587, 176 N.E. 454 (1931). In this case, it is fair to say that Todd
and his counsel no longer hold that belief, and an objective observer who has read
the contempt-hearing transcript might reasonably agree. Ultimately, instead of
supervising the partnership’s dissolution, the judge through his comments has
exacerbated the situation. “When the case becomes about the judge rather than
the facts of the case and the law, it is time for the judge to step aside.” In re
Disqualification of Saffold at ¶ 2.
       {¶ 14} Accordingly, on this record, Judge Sheward’s impartiality could
reasonably be questioned and disqualification is necessary to avoid an appearance
of partiality. The chief justice has followed the same course in similar cases. See,
e.g., In re Disqualification of Winkler, 135 Ohio St.3d 1271, 2013-Ohio-890, 986
N.E.2d 996, ¶ 13, and cases cited therein.




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                                     Conclusion
       {¶ 15} For the reasons stated above, the affidavit of disqualification is
granted, and it is ordered that Judge Richard S. Sheward participate no further in
the underlying proceeding. The case is returned to the administrative judge of the
Franklin County Court of Common Pleas for reassignment.
       {¶ 16} In addition, in accordance with Sup.R. 45(E), it is ordered that the
notebook labeled “Confidential Documents,” which was filed in camera in the
trial court and included in Judge Sheward’s response to the affidavit of
disqualification, shall be placed under seal by the clerk of this court.
                           ________________________




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