[Cite as In re Disqualification of Dezso, 134 Ohio St.3d 1223, 2011-Ohio-7081.]




                         IN RE DISQUALIFICATION OF DEZSO.
                        BLAIR, F.K.A. WALLACE, v. WALLACE.
          [Cite as In re Disqualification of Dezso, 134 Ohio St.3d 1223,
                                    2011-Ohio-7081.]
Judges—Affidavit of disqualification—Affidavit of disqualification denied.
                   (No. 11-AP-125—Decided December 27, 2011.)
ON AFFIDAVIT OF DISQUALIFICATION in Summit County Court of Common Pleas,
               Domestic Relations Division, Case No. 2004-02-0502.
                                  __________________
        O’CONNOR, C.J.
        {¶ 1} Defendant Scott B. Wallace has filed an affidavit with the clerk of
this court under R.C. 2701.03 seeking to disqualify Judge Carol J. Dezso from
case No. 2004-02-0502, now pending on postdecree motions in the Domestic
Relations Division of the Court of Common Pleas of Summit County.
        {¶ 2} Wallace alleges that Judge Dezso has made a public statement that
appears to commit her to rule a certain way on matters pending before her.
Wallace states that in 2008, Judge Dezso wrote a letter of public support for
plaintiff’s attorney, Michelle Smithern, who was facing felony charges at that
time. According to Wallace, Judge Dezso’s letter reasonably calls into question
her impartiality and poses an impediment to her ability to resolve any remaining
issues in a way that will appear to the public to be objective and fair. Wallace
also asserts that “Judge Dezso’s personal and professional support for Attorney
Smithern” may be the reason why the judge has refused to schedule hearings and
to rule on his motions.
        {¶ 3} Judge Dezso has responded to the concerns raised in the affidavit
of disqualification. She concedes that she wrote a letter concerning attorney
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Smithern in 2008, but she explains that the letter was in response to a subpoena in
Smithern’s criminal case. According to Judge Dezso, she was subpoenaed to
testify about her professional relationship with Smithern. Instead of appearing in
person to testify, the judge was permitted to write a letter. The judge denies any
bias, prejudgment, or appearance of impropriety arising from the letter and
maintains that her comments in that letter in no way indicate that she favors any
party or lawyer in the underlying case.
       {¶ 4} Lisa Carey Dean, counsel for plaintiff Shannon Blair, has also filed
a response in opposition to the disqualification request. Attorney Dean contends
that Judge Dezso’s statements have no bearing on any issue in the underlying
case. She also asserts that the judge’s comments in her letter do not demonstrate
predisposition. Dean further notes that attorney Smithern no longer represents the
plaintiff and has not for some time. Finally, Dean maintains that Wallace’s
objection to the letter is untimely and, moreover, that Wallace raised the issue of
Judge Dezso’s partiality only after receiving unfavorable rulings.
       {¶ 5} For the following reasons, no basis has been established for
ordering the disqualification of Judge Dezso.
                                     Waiver
       {¶ 6} It is well settled that an affidavit of disqualification must be filed
as soon as possible after the affiant becomes aware of circumstances that support
disqualification and that failure to do so may result in waiver of the objection. In
re Disqualification of Pepple, 47 Ohio St.3d 606, 607, 546 N.E.2d 1298 (1989).
Wallace complains of a letter written by Judge Dezso on September 9, 2008.
Wallace indicates that he became aware of Judge Dezso’s letter shortly before
November 9, 2010, although Wallace never states specifically when he first
discovered the letter. In any event, Wallace avers that once he “became aware of
Judge Dezso’s support of Attorney Smithern, [he] filed a Motion for Recusal.”
Judge Dezso denied the motion to recuse on June 10, 2011. Wallace, however,




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waited until November 9, 2011, before filing the instant affidavit of
disqualification against Judge Dezso. This was five months after the judge denied
Wallace’s motion for recusal and one year after Wallace claims to have first
discovered Judge Dezso’s letter. Yet Wallace offers no explanation as to why he
waited five months after Judge Dezso denied his motion to recuse to file his
affidavit of disqualification. Wallace should have raised his objections long
before November 2011, and his delay in filing the affidavit of disqualification
constitutes an independent ground for denying his disqualification request. See In
re Disqualification of Glickman, 100 Ohio St.3d 1217, 2002-Ohio-7471, 798
N.E.2d 5, ¶ 7-8.
                   The Merits of the Affidavit of Disqualification
       {¶ 7} Even if Wallace had not waived his objections, his allegations of
bias and prejudice against Judge Dezso are without merit. Each of Wallace’s
claims will be addressed in turn.
       {¶ 8} Wallace contends that Judge Dezso’s disqualification is required
by Jud.Cond.R. 2.11(A)(5). According to Wallace, the judge’s letter was a public
statement that “appears to commit her to reach a particular decision and to rule in
a particular way” on matters pending before her.
       {¶ 9} Contrary to Wallace’s assertion, Jud.Cond.R. 2.11(A)(5) does not
mandate Judge Dezso’s disqualification in this instance. Jud.Cond.R. 2.11(A)(5)
provides that a judge must be disqualified if “[t]he judge * * * has made a public
statement, other than in a court proceeding, judicial decision, or opinion, that
commits or appears to commit the judge to reach a particular result or rule in a
particular way in the proceeding or controversy.” (Emphasis added.) Judge
Dezso’s letter—submitted in a criminal case in response to a subpoena—is a
public statement.      Her public statement, however, does not run afoul of
Jud.Cond.R. 2.11(A)(5), because it was made in a court proceeding.




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       {¶ 10} In addition, the comments contained in the letter do not commit the
judge to reach a particular result or to rule a particular way. Attorney Smithern
appeared before Judge Dezso as counsel of record in a substantial number of
cases over a ten-year period. Judge Dezso, as an officer of the court, merely
expressed her professional opinion of Smithern as a practicing lawyer in her
courtroom.
       {¶ 11} Wallace argues that Judge Dezso’s comments relate directly to
matters raised in his pending motion for sanctions and objections to the
magistrate’s decision, namely attorney Smithern’s ethics and discovery practices.
He points to statements in Judge Dezso’s letter that Smithern was “extremely
ethical in her practice [and] did not stonewall discovery, or engage in other
ethically questionable practices under the pretext of zealous representation.” But
nothing in the judge’s letter commits her to any particular ruling or result in the
underlying case. Judge Dezso’s comments reflect nothing more than general
observations from the bench about Smithern’s competence as an attorney and her
professional behavior. They do not demonstrate that Judge Dezso has prejudged
any matter in the underlying case.
       {¶ 12} Finally, Wallace complains that Judge Dezso has failed to schedule
hearings and to rule on his motions. But a judge’s alleged failure to set a matter
for hearing or to promptly rule on a motion is not grounds for disqualification. In
re Disqualification of Eyster, 105 Ohio St.3d 1246, 2004-Ohio-7350, 826 N.E.2d
304, ¶ 4 (a judge’s action—or inaction—on a motion is within the judge’s sound
discretion and is not evidence of bias or prejudice); see also In re Disqualification
of Solovan, 100 Ohio St.3d 1214, 2003-Ohio-5484, 798 N.E.2d 3, ¶ 4 (an affidavit
of disqualification “is not a vehicle to contest matters of substantive or procedural
law”). Indeed, trial judges are entitled to exercise discretion in performing many
judicial and administrative functions, and it is not the chief justice’s role in




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deciding an affidavit of disqualification to second-guess how a trial judge
manages her docket.
                                   Conclusion
        {¶ 13} Judge Dezso has presided over this case for several years, and it
has long been held that absent extraordinary circumstances, a judge will not be
disqualified after having presided over lengthy proceedings in a pending case. In
re Disqualification of Light, 36 Ohio St.3d 604, 522 N.E.2d 458 (1988). No
extraordinary circumstances are present here, as Wallace points to no comment or
action on the part of Judge Dezso that would demonstrate bias, prejudice, or a
disqualifying interest. On this record, no “reasonable and objective observer
would harbor serious doubts about the judge’s impartiality.”              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).
        {¶ 14} “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.
        {¶ 15} For the reasons stated above, the affidavit of disqualification is
denied. The case may proceed before Judge Dezso.
                           ______________________




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