[Cite as In re Disqualification of Park, 136 Ohio St.3d 1214, 2013-Ohio-2734.]




                          IN RE DISQUALIFICATION OF PARK.
                      IN RE TESTAMENTARY TRUST OF CONLEY.
[Cite as In re Disqualification of Park, 136 Ohio St.3d 1214, 2013-Ohio-2734.]
Judges—Affidavit of disqualification—R.C. 2701.03—Judge’s opinion of law in
          affiant’s case, even if erroneous, is not grounds for disqualification
          without evidence of bias or prejudice—Judge will not be disqualified
          merely because affiant has filed lawsuit against judge.
                      (No. 13-AP-038—Decided May 24, 2013.)
  ON AFFIDAVIT OF DISQUALIFICATION in Stark County Court of Common Pleas,
                          Probate Division, Case No. 195704.
                                ____________________
          O’CONNOR, C.J.
          {¶ 1} Craig T. Conley, counsel for trustee Joan E. Collier, has filed an
affidavit with the clerk of this court under R.C. 2701.03 seeking to disqualify
Judge Dixie Park from presiding over any further proceedings in case No. 195704
and from all future cases involving Conley.
          {¶ 2} Conley claims that in the underlying probate matter, Judge Park
has exhibited bias against him and Collier. Conley also claims that Judge Park
has a bias against him “arising from other unrelated Stark County Probate Court
cases.”
          {¶ 3} Judge Park has responded in writing to the allegations in Conley’s
affidavit. She disclaims any personal bias against Conley and affirms that she is
able to preside fairly and impartially in the current matter and all future cases
involving Conley.
                            SUPREME COURT OF OHIO




       {¶ 4} For the reasons explained below, no basis has been established to
order the disqualification of Judge Park.
                In re Testamentary Trust of Kathleen B. Conley
       {¶ 5} On April 22, 2013, the Fifth District Court of Appeals held that
Judge Park had abused her discretion by sua sponte vacating a previous entry
approving trustee Collier’s partial account. See In re Testamentary Trust of
Conley, 5th Dist. No. 2012-CA-00133, 2013-Ohio-1631, ¶ 18.             Judge Park
claimed that she vacated the account’s prior approval to “correct a clerical error”
under Civ.R. 60(A), but the appeals court found that she “went beyond the scope
of merely correcting a clerical mistake” and “substantively changed” her previous
approval of the account, which required reversal of the judge’s sua sponte entry.
       {¶ 6} In his affidavit, Conley speculates that because there was no
“clerical error” to correct, as Judge Park had claimed, she “must have a bias or
prejudice” against Collier and Conley. Conley also claims that Judge Park’s
failure to rule on Collier’s application for trustee fees further demonstrates bias.
It is well established, however, that a judge’s opinion of law, even if later found
erroneous, is not by itself evidence of bias or prejudice and therefore not grounds
for disqualification. In re Disqualification of Kimmel, 36 Ohio St.3d 602, 522
N.E.2d 456 (1987); see also In re Disqualification of Floyd, 135 Ohio St.3d 1249,
2012-Ohio-6336, 986 N.E.2d 10, ¶ 8 (appeals court holding that trial court abused
its discretion does not itself demonstrate bias or prejudice). Similarly, a judge’s
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. Procedures exist by which appellate
courts may review—and, as here, correct—rulings made by trial courts. Because
nothing in the appeals court opinion indicates that Judge Park’s decision was the
product of bias or prejudice against Conley or Collier, Conley’s affidavit
pertaining to the underlying proceeding is not well taken.




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              Conley’s requested blanket order of disqualification
       {¶ 7} Conley also claims that Judge Park has a bias against him arising
from unrelated cases, and therefore she should be removed from all cases
involving Conley. Conley, however, has failed to establish the need for a blanket
order of disqualification.
       {¶ 8} First, Conley claims that Judge Park has repeatedly referred to him
as “the devil incarnate.” Conley has not explained to whom or when Judge Park
allegedly made this statement, and Judge Park flatly denies referring to Conley in
such a way. On this record, Conley’s vague and unsubstantiated allegation—
especially in the face of a clear denial by Judge Park—is insufficient to establish
bias or prejudice. See 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”).
       {¶ 9} Second, Conley claims that he previously drafted two affidavits of
disqualification against Judge Park, resulting in her voluntary recusal from the
underlying cases. In response, Judge Park acknowledges recusing herself from
those two cases, but she further claims that there was no indication that Conley
drafted or was otherwise involved in the filing of the affidavits of disqualification.
Both affidavits were filed pro se and did not indicate Conley’s participation as
counsel, and Conley was not counsel of record for the affiants in the underlying
cases. Moreover, Judge Park states that in each case, her decision to recuse had
nothing to do with Conley.
       {¶ 10} Conley has not established that Judge Park was aware of his
involvement in the two previous affidavit-of-disqualification cases, and even if
she had been aware, Conley has not established that his involvement contributed
to the judge’s decision to recuse. More importantly, Conley has not shown how
these previous affidavit cases show an ongoing judicial bias against him. In
affidavit-of-disqualification proceedings, the burden falls on the affiant to submit



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sufficient evidence and argument demonstrating that disqualification is warranted.
See R.C. 2701.03(B)(1). “[I]t is well established that a judge’s voluntary removal
from an earlier case does not, by itself, support disqualification from an unrelated
case involving that same party or attorney.” In re Disqualification of Celebrezze,
135 Ohio St.3d 1218, 2012-Ohio-6304, 985 N.E.2d 499, ¶7. Without more, these
previous affidavit-of-disqualification cases do not support a claim of bias or
prejudice.
       {¶ 11} Third, Conley claims that since September 2011, he has been
forced to file two extraordinary-writ actions against Judge Park: (1) a public-
records mandamus case, which Conley voluntarily dismissed after Judge Park
complied with his records request, and (2) a procedendo action, in which Conley
was successful. Conley further asserts that Judge Park failed to timely follow the
appellate court’s writ of procedendo, which in turn caused Conley to file a motion
to show cause against the judge.
       {¶ 12} “[A] judge will not be disqualified solely because a litigant in a
case pending before the judge has filed a lawsuit against the judge.” In re
Disqualification of Pokorny, 135 Ohio St.3d 1268, 2013-Ohio-915, 986 N.E.2d
993, ¶ 4. But even more important here, Judge Park has thoroughly explained her
actions relating to the two writ cases. For example, Judge Park states that her
delay in responding to Conley’s public-records request was due to court-
equipment issues, and when the probate court procured the necessary equipment,
she responded to the request. Similarly, Judge Park explains why she issued the
stay that led to the procedendo action. While the appeals court ultimately did not
agree with Judge Park’s decision issuing the stay, the judge’s legal opinion is not
evidence of bias against Conley. See In re Disqualification of Light, 36 Ohio
St.3d 604, 522 N.E.2d 458 (1988) (“alleged errors of law or procedure are legal
issues subject to appeal and are not grounds for disqualification”). Further, Judge
Park states that following the remand from the appellate court, the matter was




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rescheduled for hearing in less than 30 days; therefore, Conley’s claim that the
judge disregarded the appellate court’s order is not credible. Based on this record,
no reasonable observer would question Judge Park’s impartiality based on her
conduct in these two writ cases.
                                   Conclusion
       {¶ 13} “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). The significance of that remedy is heightened here
because Conley, an admittedly “active practitioner and litigator in Stark County,”
seeks a blanket order of disqualification. “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. Conley has failed to submit
compelling evidence to overcome those presumptions, and therefore he has failed
to establish an appearance of impropriety warranting a blanket order of
disqualification.
       {¶ 14} For the reasons stated above, the affidavit of disqualification is
denied. The case may proceed before Judge Park.
                          ________________________




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