[Cite as In re Disqualification of Hayes, 135 Ohio St.3d 1221, 2012-Ohio-6306.]




                          IN RE DISQUALIFICATION OF HAYES.
                                   TAYLOR v. SCANLON.
          [Cite as In re Disqualification of Hayes, 135 Ohio St.3d 1221,
                                     2012-Ohio-6306.]
Judges—Affidavit of disqualification—R.C. 2701.03—Request for removal
        denied—No basis established warranting disqualification.
                     (No. 12-AP-102—Decided October 9, 2012.)
ON AFFIDAVIT OF DISQUALIFICATION in Summit County Court of Common Pleas,
             Domestic Relations Division, Case No. DR-1999-06-1352.
                                   __________________
        O’CONNOR, C.J.
        {¶ 1} Defendant in the underlying case, Susan I. Hamlin Scanlon, has
filed an affidavit with the clerk of this court under R.C. 2701.03 seeking to
disqualify Judge Jerry Hayes, a retired judge sitting by assignment, from
presiding over any further proceedings in case No. DR-1999-06-1352, in the
Domestic Relations Division of the Court of Common Pleas of Summit County.
        {¶ 2} Scanlon alleges that Judge Hayes is biased and prejudiced against
her.    Specifically, Scanlon alleges that Judge Hayes engaged in ex parte
communications with the plaintiff in the underlying case, Gary Taylor, in March
2012 and that Judge Hayes acted as Taylor’s “personal advocate” between
December 2011 and April 2012 by attempting to vacate a judgment lien that
Scanlon obtained in a different court. Scanlon also alleges that Judge Hayes has
“incorrect views” of the parties’ financial situations.1



1. In addition, Scanlon attempts to “incorporate” allegations she made against Judge Hayes in her
previous affidavit of disqualification filed in November 2007. That affidavit was denied by entry
                                 SUPREME COURT OF OHIO




        {¶ 3} Judge Hayes has responded in writing to the concerns raised in
Scanlon’s affidavit. Judge Hayes denies having had any ex parte communication
with Taylor and expresses his surprise that Scanlon filed the affidavit because,
according to Judge Hayes, he gave Scanlon “everything she asked for” in the
parties’ recent dispute.
        {¶ 4} Because Scanlon has failed to identify any matter currently
pending before Judge Hayes, there is no basis to order disqualification. R.C.
2701.03(A) reads:


                 If a judge of the court of common pleas allegedly is
        interested in a proceeding pending before the court, allegedly is
        related to or has a bias or prejudice for or against a party to a
        proceeding pending before the court or a party’s counsel, or
        allegedly otherwise is disqualified to preside in a proceeding
        pending before the court, any party to the proceeding or the party’s
        counsel may file an affidavit of disqualification * * *.


(Emphasis added.)        Under this language, the chief justice cannot rule on an
affidavit of disqualification when the affiant fails to specify what is currently
pending before the judge against whom the affidavit is filed. See, e.g., In re
Disqualification of Grossmann, 74 Ohio St.3d 1254, 1255, 657 N.E.2d 1356
(1994) (“[The] language [of the statute] clearly limits the authority of the Chief
Justice in determining the existence of interest, bias, prejudice, or disqualification
to matters pending before the court of common pleas”).
        {¶ 5} Here, Scanlon admits that the latest dispute with Taylor, over
payment of their son’s medical expenses, has been “settled,” and she

of December 6, 2007, and those issues cannot be relitigated in this affidavit-of-disqualification
proceeding.




                                               2
                                January Term, 2012




acknowledges that there are no scheduled hearings. Judge Hayes’s response
confirms that “nothing [is] pending in the case,” and prior to the parties’ recent
dispute regarding payment of their son’s medical expenses, there had not been
activity in the case for two years. Scanlon nonetheless requests disqualification
because Judge Hayes has continuing jurisdiction over the custody action until her
daughter turns 18, and so, she claims, there remains a “threat of future repetition
of past misconduct.”
       {¶ 6} Contrary to Scanlon’s contention, affidavit-of-disqualification
proceedings are not the appropriate vehicle to litigate a judge’s alleged past
“misconduct,” nor may the proceedings be used to remove a judge based on the
“threat” of future litigation. The statutory right to seek disqualification of a judge
is an extraordinary remedy. In re Disqualification of Hunter, 36 Ohio St.3d 607,
522 N.E.2d 461 (1988). Therefore, the chief justice cannot rule on an affidavit of
disqualification when, as here, nothing is pending before the trial court. See, e.g.,
In re Disqualification of Mason, No. 11-AP-025 (Mar. 7, 2011) (dismissing
affidavit because nothing was pending before trial judge where affiant indicated
he would be submitting a motion for injunctive relief in the future); In re
Disqualification of Collier, No. 11-AP-064 (June 27, 2011) (dismissing affidavit
because nothing was pending before trial judge where affiant planned to “soon”
file a petition for postconviction relief); In re Disqualification of Brown, No. 11-
AP-050 (June 2, 2011) (dismissing affidavit because nothing was pending before
trial court where judge had sentenced affiant and the sentence had been affirmed
on appeal). Should any matter come before Judge Hayes in the future, Scanlon
may file another affidavit of disqualification.
       {¶ 7} For these reasons, the affidavit of disqualification is denied.
                            ______________________




                                          3
