[Cite as In re Disqualification of Carr, 138 Ohio St.3d 1237, 2013-Ohio-5927.]




                          IN RE DISQUALIFICATION OF CARR.
                           JACOBSON-KIRSCH v. KAFOREY.
[Cite as In re Disqualification of Carr, 138 Ohio St.3d 1237, 2013-Ohio-5927.]
Judges—Affidavit of disqualification—R.C. 2501.13 and 2701.03—Absent
        extraordinary circumstances, an appellate court judge will not be subject
        to disqualification when the only matter pending is a motion for
        reconsideration—At such a late stage, actual bias that undermines the
        fairness and integrity of the proceeding must be shown.
                   (No. 13-AP-124—Decided December 30, 2013.)
      ON AFFIDAVIT OF DISQUALIFICATION in Ninth District Court of Appeals
                                     Case No. 26708.
                                ____________________
        O’CONNOR, C.J.
        {¶ 1} Plaintiff-appellant JoAnn Jacobson-Kirsch has filed an affidavit
with the clerk of this court under R.C. 2701.03 and 2501.13 seeking to disqualify
Judge Donna J. Carr from presiding over any further proceedings in case No.
26708, pending on Jacobson-Kirsch’s application for reconsideration in the Court
of Appeals for the Ninth Judicial District.
        {¶ 2} Jacobson-Kirsch claims that Judge Carr has a “confirmable judicial
history of bias favoring” defendant Ellen C. Kaforey and an “unfavorable history
towards” Jacobson-Kirsch. In the underlying case, Jacobson-Kirsch has sued
Kaforey, who had been appointed to serve as Jacobson-Kirsch’s conservator, for
allegedly interfering with Jacobson-Kirsch’s parental custody rights.
        {¶ 3} For the reasons explained below, no basis has been established to
order the disqualification of Judge Carr.
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       {¶ 4} As an initial matter, Jacobson-Kirsch has waived her right to object
to Judge Carr based on these allegations. 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). Here, Jacobson-Kirsch claims that Judge Carr presided
over appellate proceedings involving some of the same parties in 2002 and 2004.
Yet Jacobson-Kirsch waited until after the court of appeals issued its final
decision and entry in the underlying case to file her affidavit of disqualification.
Jacobson-Kirsch claims that she did not know that Judge Carr was presiding over
her appeal, but in affidavit-of-disqualification proceedings, the affiant has the
burden to demonstrate that the affidavit is timely filed. In re Disqualification of
Capper, 134 Ohio St.3d 1271, 2012-Ohio-6287, 984 N.E.2d 1082, ¶ 11.
Jacobson-Kirsch has not further explained how she did not know the identity of
the judges deciding her appeal, and on this record, she has waived her right to
disqualify Judge Carr based on these allegations.
       {¶ 5} Alternatively, even if Jacobson-Kirsch had not waived her
objections to Judge Carr, she has not set forth sufficient grounds for
disqualification. Absent extraordinary circumstances, an appellate court judge
will not be subject to disqualification when the only matter pending is a motion
for the court of appeals to reconsider its final decision. To succeed at such a late
stage in the proceeding, the affiant must show that the appellate court judge has
an actual bias that undermines the fairness and integrity of the proceedings. Here,
Jacobson-Kirsch claims that there are some “obvious questions” suggesting
judicial bias, but these questions do not establish actual bias.
       {¶ 6} First, Jacobson-Kirsch questions whether Judge Carr can fairly
preside over the underlying civil matter because the judge presided over




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Jacobson-Kirsch’s 2002 appeal of her custody case and an unrelated 2004 case
that involved Kaforey and garnered “national news.”          However, “[s]tate and
federal courts have been virtually unanimous in holding that—absent a showing
of actual bias—a judge who presided over prior proceedings involving one or
more parties presently before the court is not thereby disqualified from presiding
over later proceedings involving the same parties.” In re Disqualification of
Bryant, 117 Ohio St.3d 1251, 2006-Ohio-7227, 885 N.E.2d 246, ¶ 4. Without
more, the fact that Judge Carr heard appeals in two previous proceedings
involving Jacobson-Kirsch and Kaforey—and the judge ruled against Jacobson-
Kirsch and in favor of Kaforey in those cases—does not show actual bias in the
underlying case.
       {¶ 7} Second, the fact that all Summit County trial court judges recused
themselves from the underlying case does not indicate a bias on behalf of Judge
Carr. Jacobson-Kirsch speculates—without providing any evidence to support
her speculation—that all Summit County common pleas court judges recused
themselves because Kaforey is a “high profile” Summit County attorney who has
been appointed as either a guardian or conservator in at least 138 cases. But as
noted above, Jacobson-Kirsch has the burden to set forth specific claims of
judicial bias. R.C. 2701.03; see also In re Disqualification of Mitrovich, 101
Ohio St.3d 1214, 2003-Ohio-7358, 803 N.E.2d 816, ¶ 4 (“An affidavit must
describe with specificity and particularity those facts alleged to support the claim
of bias or prejudice”). Here, Jacobson-Kirsch has not explained how the same
alleged conflict that applied to the common pleas court judges applies to Judge
Carr, a judge of the court of appeals.             Jacobson-Kirsch’s vague and
unsubstantiated allegation is insufficient for a finding of actual bias or prejudice.
See 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,




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and speculation—such as those alleged here—are insufficient to establish bias or
prejudice”).
       {¶ 8} “The 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 in this case.
       {¶ 9} For the reasons stated above, the affidavit of disqualification is
denied. The case may proceed before Judge Carr.
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