[Cite as In re Disqualification of Swift, ___ Ohio St.3d ___, 2019-Ohio-1626.]




                          IN RE DISQUALIFICATION OF SWIFT.
                              IN RE ESTATE OF ZWINGLER.
 [Cite as In re Disqualification of Swift, ___ Ohio St.3d ___, 2019-Ohio-1626.]
Judges—Affidavits of disqualification—R.C. 2101.39 and 2701.03—Affiant failed
        to demonstrate bias or prejudice—Disqualification denied.
                      (No. 19-AP-029—Decided March 8, 2019.)
  ON AFFIDAVIT OF DISQUALIFICATION in Mahoning County Court of Common
                     Pleas, Probate Division, Case No. 13 ES 364.
                                       ____________
        O’CONNOR, C.J.
        {¶ 1} Scott A. Melton has filed an affidavit with the clerk of this court
pursuant to R.C. 2701.03 and 2101.39 seeking to disqualify Judge Thomas A.
Swift, a retired judge sitting by assignment, from presiding over any further
proceedings in the above-referenced case. Judge Swift recently scheduled a hearing
for Mr. Melton to show cause why he should not be held in contempt.
        {¶ 2} Mr. Melton claims that Judge Swift should be disqualified to avoid
any appearance of impropriety created by the judge’s relationship with Judge
Robert Rusu, the current judge of the Mahoning County Probate Court, who
recused himself due to a potential conflict of interest. According to Mr. Melton,
the judges have a close relationship and “[e]very single probate case in which Judge
Rusu has recused himself during 2018 has been assigned to Judge Swift at Judge
Rusu’s direction.” Mr. Melton also asserts that by scheduling the show-cause
hearing, Judge Swift has prejudged the issues, and Mr. Melton believes that another
attorney involved in the underlying case has engaged in forum shopping.
        {¶ 3} Judge Swift has responded in writing to the affidavit and requests that
it be denied. The judge states that prior to being assigned to this case, he did not
                             SUPREME COURT OF OHIO




know any of the parties or attorneys, and he does not believe that his scheduling of
a hearing demonstrates bias or prejudice.
       {¶ 4} For the reasons explained below, no basis has been established to
order the disqualification of Judge Swift.
       {¶ 5} First, Judge Swift’s assignment to this case does not create an
appearance of impropriety. Mr. Melton is correct that a disqualified or recused
judge ordinarily should not select his or her successor.        See Guidelines for
Assignment     of     Judges,     Section       2.5,   https://www.sc.ohio.gov/JCS/
judicialAssignment/judgeAssignGuide.pdf (accessed Mar. 27, 2019) (“if the
administrative judge has recused from a case, the administrative judge may not
request a specific judge to be assigned to that case”); Flamm, Judicial
Disqualification, Section 22.4, at 653 (2d Ed.2007) (“proper procedure ordinarily
requires that a judge should not attempt to intervene in the selection of his
successor—much less assign the case to another judge” [footnotes omitted]). But
here, the chief justice assigned Judge Swift to the underlying case—not Judge Rusu.
And although it is true that Judge Swift regularly hears cases in the Mahoning
County Probate Court as a visiting judge, Mr. Melton has failed to sufficiently
explain why Judge Swift’s professional or personal relationship with Judge Rusu
would cause an objective observer to harbor serious doubts about Judge Swift’s
impartiality in this matter. See In re Disqualification of Lewis, 117 Ohio St.3d
1227, 2004-Ohio-7359, 884 N.E.2d 1082, ¶ 8 (setting forth the proper test for
disqualifying a judge based on an appearance of impropriety).
       {¶ 6} Second, the mere fact that Judge Swift scheduled the show-cause
hearing does not establish that he is biased or that he has prejudged any issues in
the case. Nor does Mr. Melton’s belief that an attorney engaged in forum shopping
support the judge’s removal. “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-




                                            2
                                January Term, 2019




Ohio-5489, 798 N.E.2d 23, ¶ 5. Mr. Melton’s allegations have not overcome those
presumptions. He may have other remedies if he believes that the probate court
lacks jurisdiction over certain claims or if the court failed to properly notify him of
the scope of the show-cause hearing. But it is well settled that an “affidavit of
disqualification addresses the narrow issue of the possible bias or prejudice of a
judge. It 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. Without more, it is outside the scope of this proceeding to review a probate
court’s jurisdiction or the propriety of a judge’s decision to schedule a hearing.
       {¶ 7} The affidavit of disqualification is denied. The case may proceed
before Judge Swift.
                           ________________________




                                          3
