[Cite as In re Disqualification of Donofrio, 135 Ohio St.3d 1253, 2012-Ohio-6338.]




                   IN RE DISQUALIFICATION OF DONOFRIO ET AL.
                      THE STATE EX REL. PATEL v. CRAWFORD.
        [Cite as In re Disqualification of Donofrio, 135 Ohio St.3d 1253,
                                    2012-Ohio-6338.]
Judges—Affidavits       of   disqualification—R.C.        2701.03—Disqualification   of
        appellate panel not warranted—Allegations of erroneous rulings cannot
        be litigated in disqualification proceeding—Affiant has failed to prove
        prejudice or bias.
                   (No. 12-AP-134—Decided December 17, 2012.)
ON AFFIDAVIT OF DISQUALIFICATION in the Court of Appeals for Belmont County
                                   Case No. 12-BE-28.
                                  __________________
        O’CONNOR, C.J.
        {¶ 1} Petitioner Arvind Patel has filed an affidavit with the clerk of this
court under R.C. 2501.13 and 2701.03 seeking to disqualify Judge Gene
Donofrio, Judge Joseph J. Vukovich, and Judge Mary DeGenaro from presiding
over case No. 12-BE-28, now pending on Patel’s petition for a writ of mandamus
in the Seventh District Court of Appeals.
        {¶ 2} Patel alleges that Judge Donofrio, Judge Vukovich, and Judge
DeGenaro should be disqualified from hearing his underlying writ action because
in a different case filed by him, Patel v. Bellaire, 7th Dist. No. 10-BE-27, 2012-
Ohio-4348, they issued a biased opinion that violated his constitutional rights.
Specifically, Patel argues that the panel included false statements in the Patel
opinion, ignored “undeniable facts and evidence,” and “maliciously and
wrongfully” affirmed the trial court’s judgment against him. As a result, Patel
claims that this panel of judges is “incapable” of adjudicating the underlying writ
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action and “will again deprive Patel of his Constitutional Right to due process due
to his race and religion.”
       {¶ 3} For the following reasons, no basis has been established to order
the disqualification of Judge Donofrio, Judge Vukovich, or Judge DeGenaro.
       {¶ 4} First, the gravamen of Patel’s affidavit is that the Seventh District
violated his constitutional rights in the separate Patel case. However, whether the
appellate court erred in that case cannot be litigated in an affidavit-of-
disqualification proceeding.      It is well established 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. And a party’s disagreement or dissatisfaction with a court’s
legal rulings, even if those rulings may be erroneous, is not grounds for
disqualification. See In re Disqualification of Floyd, 101 Ohio St.3d 1217, 2003-
Ohio-7351, 803 N.E.2d 818, ¶ 4; 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”). Therefore, Patel’s
disagreement with the Seventh District’s Patel opinion does not demonstrate bias
or prejudice and is not grounds for disqualification in the underlying writ action.
The remedy for these and other legal claims, if any, lies on appeal, 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.
       {¶ 5} Second, Patel has failed to substantiate his claim of racial or
religious bias. Allegations of such bias strike at the very heart of the judiciary and
are among the most serious and damaging that can be directed at a judge. As a
result, such claims must be proven by clear evidence establishing the existence of
bias. In re Disqualification of Cunningham, 100 Ohio St.3d 1216, 2002-Ohio-
7470, 798 N.E.2d 4, ¶ 2. Here, Patel has submitted documents, transcripts, and
affidavits from the Patel record in an attempt to show that the appellate court




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erred by misinterpreting the relevant evidence.        However, he provides no
evidence, beyond speculation, to support his assertion that the alleged errors were
the product of bias—racial or otherwise. Vague or unsubstantiated allegations are
insufficient to establish bias or prejudice. In re Disqualification of Walker, 36
Ohio St.3d 606, 522 N.E.2d 460 (1988); In re Disqualification of Flanagan, 127
Ohio St.3d 1236, 2009-Ohio-7199, 937 N.E.2d 1023, ¶ 4 (“Allegations that are
based solely on hearsay, innuendo, and speculation * * * are insufficient to
establish bias or prejudice”).
          {¶ 6} Finally, because the appellate panel has been the target of his
personal criticism, Patel suggests they should be disqualified because the
probability of their bias is now “too high to be Constitutionally tolerable.” Patel
cites Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532
(1971), and Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712
(1975).      As an initial matter, neither Mayberry nor Withrow support
disqualification here. Mayberry involved the narrow issue of whether a judge
should hear the criminal-contempt trial of a defendant when the same judge was
the one reviled by the contemnor, and Withrow involved whether an
administrative agency’s combination of investigative and adjudicative functions
created an unconstitutional risk of bias. Mayberry at 466; Withrow at 47. The
issue here is much broader: whether judges on an appellate court should be
removed from a case involving a litigant who has previously criticized the court’s
judicial opinions and lodged personal attacks against the judges.
          {¶ 7} In general, absent some indication that the criticism was so great
that no reasonable judge could be expected to remain unaffected, personal attacks
on a judge—even serious allegations of racism, such as here—will not lead to the
judge’s disqualification. See Flamm, Judicial Disqualification, Section 21.8 (2d
Ed.2007). As the United States Supreme Court stated in Mayberry, “[a] judge
cannot be driven out of a case.” Id. at 464; see also Fed. Deposit Ins. Corp. v.



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Sweeney, 136 F.3d 216, 219 (1st Cir.1998), quoting 13A Wright, Miller &
Cooper, Federal Practice & Procedure, Section 3542, 577-578 (2d Ed.1984)
(“ ‘A party cannot force disqualification by attacking the judge and then claiming
that these attacks must have caused the judge to be biased against [her]’ ”
[brackets sic]). “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. Those presumptions have not been overcome in
this case. Nothing in the record suggests that Patel’s accusations against the
Seventh District judges have affected or would affect their conduct in the
underlying case. See, e.g., In re Disqualification of O’Neill, 100 Ohio St.3d 1232,
2002-Ohio-7479, 798 N.E.2d 17, ¶ 17. Accordingly, the fact that this panel of
judges has been the target of Patel’s criticism is insufficient to warrant their
disqualification.
       {¶ 8} For the reasons stated above, the affidavit of disqualification is
denied. The case may proceed before Judge Donofrio, Judge Vukovich, and
Judge DeGenaro of the Seventh District Court of Appeals.
                           ______________________




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