[Cite as In re Disqualification of Rastatter, 136 Ohio St.3d 1271, 2013-Ohio-4232.]




                      IN RE DISQUALIFICATION OF RASTATTER.
                             THE STATE OF OHIO v. BOYCE.
        [Cite as In re Disqualification of Rastatter, 136 Ohio St.3d 1271,
                                     2013-Ohio-4232.]
Judges—Affidavit of disqualification—R.C. 2701.03—Disqualification of judge
        not warranted—Affiant failed to substantiate claims of bias or prejudice.
                     (No. 13-AP-068—Decided August 12, 2013.)
  ON AFFIDAVIT OF DISQUALIFICATION in Clark County Court of Common Pleas
                                Case No. CR 08-CR-612.
                                 ____________________
        O’CONNOR, C.J.
        {¶ 1} Defendant Ramon Boyce has filed an affidavit with the clerk of
this court under R.C. 2701.03 seeking to disqualify Judge Douglas M. Rastatter
from presiding over any further proceedings in case No. 08-CR-612, now pending
on Boyce’s petition for postconviction relief in the Court of Common Pleas of
Clark County.
        {¶ 2} According to Boyce’s affidavit, Judge Rastatter has presided over
four of Boyce’s previous trials, one of which resulted in a “large reversal.”
Because of this history, Boyce claims that Judge Rastatter has a “predetermined
hostile and fixed anticipatory feeling” toward him, and therefore the judge cannot
act impartially in any proceeding involving Boyce.
        {¶ 3} Judge Rastatter has responded in writing to the allegations in
Boyce’s affidavit, stating that the Ohio State Bar Association summarily
dismissed Boyce’s grievance against the judge based on these same allegations.
The judge further avers that he harbors no resentment or animosity toward Boyce,
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that he will review the postconviction petition with objectivity and fairness, and
that he will make his decision based solely on the evidence presented and the law.
       {¶ 4} For the reasons explained below, no basis has been established to
order the disqualification of Judge Rastatter.
       {¶ 5} While “[a] defendant’s experience before an allegedly biased judge
in previous proceedings is an important factor to be weighed in a bias
determination,” State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951
N.E.2d 381, ¶ 32, Boyce has failed to substantiate his claims that Judge
Rastatter’s previous conduct is indicative of bias and that the judge continues to
harbor a hostile feeling or spirit of ill will against him. See In re Disqualification
of O’Neill, 100 Ohio St.3d 1232, 2002-Ohio-7479, 798 N.E.2d 17, ¶ 14 (defining
“bias or prejudice” as “a hostile feeling or spirit of ill-will * * * with the
formation of a fixed anticipatory judgment on the part of the judge”).
       {¶ 6} First, it is well established that absent a showing of actual bias, “a
judge who presided over prior proceedings involving one or more parties
presently before the court is not thereby disqualified from presiding over later
proceedings involving the same parties.” In re Disqualification of Aubry, 117
Ohio St.3d 1245, 2006-Ohio-7231, 884 N.E.2d 1095, ¶ 7. Similarly, in general,
“a judge who presided at trial is not disqualified from ruling on a subsequent
petition for post-conviction relief.” In re Disqualification of Basinger, 77 Ohio
St.3d 1237, 674 N.E.2d 351 (1996). And finally, bias against a party cannot be
presumed merely because a judge was reversed on appeal.             See, e.g., In re
Disqualification of Floyd, 135 Ohio St.3d 1249, 2012-Ohio-6336, 986 N.E.2d 10,
¶ 10 (that a trial judge’s decision “was reversed in a critical opinion by the
appeals court does not imply that she will be biased against [the appellants] or
somehow retaliate against them”). Thus, without evidence of actual bias, the fact
that Judge Rastatter has presided over previous cases involving Boyce is not
grounds for disqualification.




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                               January Term, 2013




       {¶ 7} Second, Boyce claims that in these previous proceedings, Judge
Rastatter made “biased comments” against him, insulted him, and even
disrespected his mother, but Boyce has not submitted any examples of these
alleged comments. In affidavit-of-disqualification proceedings, the burden falls
on the affiant to submit specific allegations of bias or prejudice, see R.C.
2701.03(B)(1), and an affiant is generally “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, Boyce not only failed to set forth any specific examples of
the judge’s allegedly disparaging comments, but he also failed to submit a
transcript or other evidence supporting these allegations. As a result, there is no
way to determine whether Judge Rastatter made the comments or whether they
reflect bias or prejudice against Boyce.     On this record, Boyce’s vague and
unsubstantiated allegations are insufficient for a finding of bias.     See In re
Disqualification of Walker, 36 Ohio St.3d 606, 522 N.E.2d 460 (1988).
       {¶ 8} Finally, the majority of the remaining allegations in Boyce’s
affidavit are dedicated to criticizing Judge Rastatter’s previous legal rulings. An
affidavit of disqualification, however, is not the mechanism for determining
whether a judge has complied with the law, and it is well settled that a party’s
disagreement or dissatisfaction with a court’s legal rulings, even if those rulings
may be erroneous, is not grounds for disqualification. In re Disqualification of
Floyd, 101 Ohio St.3d 1217, 2003-Ohio-7351, 803 N.E.2d 818, ¶ 4. Procedures
exist by which appellate courts may review and, if necessary, correct any legal
errors. In re Disqualification of Russo, 110 Ohio St.3d 1208, 2005-Ohio-7146,
850 N.E.2d 713, ¶ 6. Here, Boyce has failed to indicate whether any of these
issues were even raised in his appeals. Without more, Judge Rastatter’s various
adverse legal rulings against Boyce cannot be evidence of bias or prejudice.




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                           SUPREME COURT OF OHIO




       {¶ 9} “The statutory right to seek disqualification of a judge is an
extraordinary remedy. 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. Because of the lack of supporting evidence
in Boyce’s affidavit—and the judge’s pledge to hear the pending motion fairly
and impartially—those presumptions have not been overcome in this case.
       {¶ 10} For the reasons stated above, the affidavit of disqualification is
denied. The case may proceed before Judge Rastatter.
                         ________________________




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