[Cite as In re Disqualification of Swift, ___ Ohio St.3d ___, 2014-Ohio-3133.]




                          IN RE DISQUALIFICATION OF SWIFT.
 IN RE CLETUS P. MCCAULEY AND MARY A. MCCAULEY TRUST (SIX CASES).
 [Cite as In re Disqualification of Swift, ___ Ohio St.3d ___, 2014-Ohio-3133.]
Judges—Affidavit        of    disqualification—R.C.        2701.03—Affiant       failed   to
        demonstrate bias or conflict of interest—Disqualification denied.
                       (No. 14-AP-029—Decided May 7, 2014.)
  ON AFFIDAVIT OF DISQUALIFICATION in Stark County Court of Common Pleas,
           Probate Division, Case Nos. 220494, 205029, 208532, 209055,
                              209512, 215368, and 219397.
                                 ____________________
        O’CONNOR, C.J.
        {¶ 1} Craig T. Conley, counsel in the underlying cases, has filed an
affidavit with the clerk of this court under R.C. 2701.03 seeking to disqualify
Judge Thomas A. Swift, a visiting judge sitting by assignment, from presiding
over all matters related to the Cletus P. McCauley and Mary A. McCauley
Irrevocable Trust, in the Stark County Probate Court.
        {¶ 2} Conley represents the beneficiaries of the trust, and he claims that
Judge Swift’s recent communications—to all counsel—regarding a new case, case
No. 220494, amounted to legal advice to the trust fiduciary. Therefore, Conley
claims that Judge Swift has a conflict of interest that precludes him from
presiding over the new case, as well as over six other trust-related matters.
        {¶ 3} Judge Swift has responded in writing to the affidavit, averring that
he has not given the trust fiduciary any preferential treatment.
        {¶ 4} For the reasons explained below, no basis has been established to
order the disqualification of Judge Swift.
                             SUPREME COURT OF OHIO




       {¶ 5} As an initial matter, Judge Swift has not been assigned to the new
case, case No. 220494, and that matter will be assigned to a different visiting
judge. Under R.C. 2701.03(A), the chief justice cannot rule on an affidavit of
disqualification when, as in case No. 220494, the matter is not pending before the
judge against whom the affidavit is filed.
       {¶ 6} As to the remaining trust-related cases, Conley has failed to
establish that disqualification is warranted. An affidavit of disqualification is not
the appropriate mechanism for determining whether a judge has complied with
applicable law or even the Code of Judicial Conduct. In re Disqualification of
Griffin, 101 Ohio St.3d 1219, 2003-Ohio-7356, 803 N.E.2d 820, ¶ 8. The issue in
these proceedings is narrow and “ ‘limited to determining whether a judge in a
pending case has a bias, prejudice, or other disqualifying interest that mandates
the judge’s disqualification.’ ” Id. at ¶ 9, quoting In re Disqualification of Kate,
88 Ohio St.3d 1208, 1209, 723 N.E.2d 1098 (1999). “The term ‘bias or prejudice’
‘implies a hostile feeling or spirit of ill-will or undue friendship or favoritism
toward one of the litigants or his attorney, with the formation of a fixed
anticipatory judgment on the part of the judge, as contradistinguished from an
open state of mind which will be governed by the law and the facts.’ ” In re
Disqualification of O’Neill, 100 Ohio St.3d 1232, 2002-Ohio-7479, 798 N.E.2d
17, ¶ 14, quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d
191 (1956).    In addition, it has long been held that, “absent extraordinary
circumstances, a judge will not be subject to disqualification after having presided
over lengthy proceedings in a pending case.”            In re Disqualification of
Celebrezze, 94 Ohio St.3d 1228, 1229, 763 N.E.2d 598 (2001).
       {¶ 7} Given the length of the other McCauley-related proceedings and
Judge Swift’s significant involvement in those complex cases, Conley has not
demonstrated that “extraordinary circumstances” exist here that would mandate
Judge Swift’s removal. Specifically, Conley has not established that Judge Swift




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                               January Term, 2014




has any hostile feelings toward him or has reached a fixed anticipatory judgment
in any of the matters pending before the judge. “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.
       {¶ 8} For the reasons stated above, the affidavit of disqualification is
denied. The cases may proceed before Judge Swift. The assignment of a visiting
judge to preside over case No. 220494 will be addressed in a separate entry.
                          ________________________




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