[Cite as In re Disqualification of Swift, 136 Ohio St.3d 1273, 2013-Ohio-4464.]




                           IN RE DISQUALIFICATION OF SWIFT.
                           IN RE GUARDIANSHIP OF SETINSEK.
        IN RE GUARDIANSHIP & PROTECTIVE SERVICES, INC. v. SETINSEK.
[Cite as In re Disqualification of Swift, 136 Ohio St.3d 1273, 2013-Ohio-4464.]
Judges—Affidavit of disqualification—R.C. 2101.39 and 2701.03—The fact that
        one of the parties is related to an employee of the court is not by itself
        sufficient grounds for disqualification of the judge.
                      (No. 13-AP-080—Decided August 30, 2013.)
   ON AFFIDAVIT OF DISQUALIFICATION in Trumbull County Court of Common
      Pleas, Probate Division, Case Nos. 2008 GDP 0169 and 2010 CVA 005.
                                  ____________________
        O’CONNOR, C.J.
        {¶ 1} Rudolph Setinsek and his attorney, David Engler, have filed
affidavits with the clerk of this court under R.C. 2101.39 and 2701.03 seeking to
disqualify Judge Thomas A. Swift from presiding over any further proceedings in
the above-referenced matters, now pending for continuation of trial in the probate
division of the Court of Common Pleas of Trumbull County.1
        {¶ 2} Setinsek’s affidavit is critical of the court-appointed attorneys,
guardians, trustees, and investigators in the underlying matters—claiming that
they are unqualified and have “squandered” his family’s money through “court
sanctioned billing.”       Engler claims that Judge Swift has demonstrated “bias,
antagonism, and hostility” toward him by angrily scolding him for filing a public-


1. It appears that affiants identified one of the underlying cases with the appellate-court case
number, rather than the trial-court case number. Even though affiants have not properly identified
the underlying cases, the affidavits will nevertheless be treated as filed in In re Guardianship of
Setinsek, case No. 2008 GDP 0169, and Guardianship & Protective Servs., Inc. v. Setinsek, case
No. 2010 CVA 005.
                             SUPREME COURT OF OHIO




records request, threatening to report him to disciplinary counsel for filing that
request, and denying Engler’s recent motion for an extension of time. Both
affiants also state that the spouse of the court-appointed trustee in one of the
underlying cases is employed by the probate court.
         {¶ 3} Judge Swift has responded in writing to the allegations in
Setinsek’s and Engler’s affidavits, offering a detailed account of the underlying
cases.
         {¶ 4} For the reasons explained below, no basis has been established to
order the disqualification of Judge Swift.
         {¶ 5} First, it is well settled 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). Further, when an affidavit is filed after
commencement of a trial and after the presentation of evidence has begun, a judge
should be disqualified only when the record “clearly and unquestionably
demonstrates a ‘fixed anticipatory judgment’ * * * that undermines the absolute
confidence of the public in the fairness and integrity of the proceedings.” In re
Disqualification of Kate, 88 Ohio St.3d 1208, 1209, 723 N.E.2d 1098 (1999),
quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 469, 132 N.E.2d 191
(1956). According to Judge Swift, he has presided over the underlying cases
since 2008 and 2010, and trial commenced in the declaratory-judgment action in
June 2010 and is set to continue on September 3, 2013. Given the length of the
underlying proceedings and Judge Swift’s significant involvement in the
continued trial, disqualification is warranted only under “extraordinary
circumstances” that clearly show a “fixed anticipatory judgment.” Affiants have
failed to adduce sufficient proof to carry this heavy burden.
         {¶ 6} Second, even if affiants were not bound by this standard, most of
affiants’ allegations are not grounds for disqualification. For example, this is not




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the appropriate forum for affiants’ complaints about the conduct of court-
appointed attorneys.     Affidavit-of-disqualification proceedings are narrow in
scope 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
from that case.’ ” In re Disqualification of Griffin, 101 Ohio St.3d 1219, 2003-
Ohio-7356, 803 N.E.2d 820, ¶ 9, quoting Kate at 1209. If affiants disagree with
an attorney’s bills—or with Judge Swift’s approval of those bills—they may have
a remedy on appeal or in other courts. But it is well settled that a party’s or
lawyer’s “dissatisfaction or disagreement with a judge’s rulings, even if those
rulings may be erroneous, does not constitute bias or prejudice and is not grounds
for the judge’s disqualification.” In re Disqualification of Floyd, 101 Ohio St.3d
1217, 2003-Ohio-7351, 803 N.E.2d 818, ¶ 4. Similarly, “a judge’s decision to
grant or deny a motion for a continuance is within the judge’s sound discretion
and is not, by itself, evidence of bias or prejudice.” In re Disqualification of
Suster, 127 Ohio St.3d 1240, 2009-Ohio-7202, 937 N.E.2d 1026, ¶ 7.
       {¶ 7} Third, affiants’ vague allegations regarding the spouse of the
trustee are inadequate to establish bias or prejudice. “[T]he fact that one of the
parties is related to an employee of the court is not, by itself, sufficient grounds
for disqualification of the judge.” In re Disqualification of Niehaus, 100 Ohio
St.3d 1240, 2003-Ohio-5488, 798 N.E.2d 22, ¶ 3.            Further, an affidavit of
disqualification must allege with specificity the purported grounds for
disqualification, including specific facts that demonstrate judicial bias. See R.C.
2701.03(B)(1). Here, affiants have not identified the position that the spouse has
with the probate court or how that relationship creates bias or an appearance of
bias against them.     “[V]ague, unsubstantiated allegations of the affidavit are
insufficient on their face for a finding of bias or prejudice.” In re Disqualification
of Walker, 36 Ohio St.3d 606, 522 N.E.2d 460 (1988).




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       {¶ 8} Fourth, Engler has waived his objection to Judge Swift based on
the incident relating to Engler’s public-records request.           An affidavit of
disqualification must be filed “as soon as possible after the incident giving rise to
the claim of bias and prejudice occurred,” and failure to do so may result in
waiver of the objection, especially when “the facts underlying the objection have
been known to the party for some time.” In re Disqualification of O'Grady, 77
Ohio St.3d 1240, 1241, 674 N.E.2d 353 (1996). The incident occurred on June 7,
2013, yet Engler waited until August 22, 2013—12 days before the scheduled
trial—to file his affidavit. As nothing in the record justifies the delay in filing the
affidavit of disqualification, Engler waived the right to disqualify Judge Swift
based on this allegation. See In re Disqualification of Corrigan, 91 Ohio St.3d
1210, 741 N.E.2d 137 (2000) (affiant waived objections to judge when incidents
giving rise to claim of bias occurred “several months prior to the filing of the
affidavit” and affiant filed affidavit “less than three weeks before the scheduled
trial”); In re Disqualification of Belskis, 74 Ohio St.3d 1252, 657 N.E.2d 1355
(1993) (denying affidavit when incident giving rise to claim of bias had been
known for “some months prior” to filing of affidavit, but affiant waited “until a
few days before a scheduled hearing”).
       {¶ 9} Even if Engler had not waived this objection, judges are entitled to
express dissatisfaction with attorneys’ conduct and tactics inside and outside the
courtroom, as long as that dissatisfaction is “ ‘expressed in a way that promotes
public confidence in the integrity, dignity, and impartiality of the judiciary.’ ” In
re Disqualification of Synenberg, 127 Ohio St.3d 1220, 2009-Ohio-7206, 937
N.E.2d 1011, ¶ 24, quoting In re Disqualification of Corrigan, 105 Ohio St.3d
1243, 2004-Ohio-7354, 826 N.E.2d 302, ¶ 10. As Jud.Cond.R. 2.8(B) directs,
judges should be “patient, dignified, and courteous” to parties and their lawyers,
even in what they perceive as challenges to the judge’s integrity. The record here
includes conflicting accounts of Engler’s and Judge Swift’s conversation on June




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7, 2013. Without more—and given the length of this litigation—this isolated
incident is insufficient for a finding that Judge Swift has clearly reached a “fixed
anticipatory judgment” mandating his removal from these cases.
       {¶ 10} In conclusion, “[t]he 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. Those presumptions have not
been overcome here.
       {¶ 11} For the reasons stated above, the affidavits of disqualification are
denied. The cases may proceed before Judge Swift.
                          ________________________




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