[Cite as In re Disqualification of Knece, 138 Ohio St.3d 1274, 2014-Ohio-1414.]




                         IN RE DISQUALIFICATION OF KNECE.
                               ROTHWELL v. ROTHWELL.
          [Cite as In re Disqualification of Knece, 138 Ohio St.3d 1274,
                                    2014-Ohio-1414.]
Judges—Affidavit of disqualification—R.C. 2701.03(D)(3)—Judge may undertake
        ministerial acts during the pendency of an affidavit of disqualification—
        Disqualification denied.
                      (No. 14-AP-005—Decided March 5, 2014.)
   ON AFFIDAVIT OF DISQUALIFICATION in Pickaway County Court of Common
                             Pleas Case No. 2009-DV-0335.
                                ____________________
        O’CONNOR, C.J.
        {¶ 1} Kinsley F. Nyce, counsel for defendant Mark Rothwell, filed an
affidavit of disqualification on January 27, 2014, against Judge P. Randall Knece
of the Court of Common Pleas of Pickaway County. Nyce’s affidavit was denied
by entry dated February 4, 2014, because the record failed to indicate what, if
anything, remained pending before Judge Knece in the underlying case. See In re
Disqualification of Hayes, 135 Ohio St.3d 1221, 2012-Ohio-6306, 985 N.E.2d
501, ¶ 6 (“[t]he Chief Justice cannot rule on an affidavit of disqualification
when * * * nothing is pending before the trial court”).
        {¶ 2} On February 11, 2014, Nyce filed two supplemental affidavits of
disqualification, averring that since the filing of his initial affidavit, he had filed a
motion in the trial court under Civ.R. 59 and 60. Nyce also set forth additional
bias allegations against Judge Knece.
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        {¶ 3} Judge Knece has responded in writing to the allegations in Nyce’s
initial and supplemental affidavits, denying any bias or prejudice against Nyce or
his client.
        {¶ 4} For the reasons explained below, no basis has been established to
order the disqualification of Judge Knece.
                          Nyce’s First Supplemental Affidavit
        {¶ 5} As noted above, Nyce filed his initial affidavit of disqualification
on January 27, 2014. The next scheduled hearing in the underlying case was set
for that same day on plaintiff’s motion to disburse the supersedeas bond posted by
defendant.1 After filing his affidavit, Nyce appeared for the scheduled hearing
and presented a copy of the affidavit to Judge Knece. Judge Knece moved
forward with the hearing and entered an order directing the clerk of courts to
disburse the supersedeas bond proceeds to plaintiff. Nyce argues that the filing of
his initial affidavit should have barred Judge Knece from proceeding with the
January 27 hearing and disbursing the bond proceeds. Nyce further states that at
the hearing, Judge Knece “functioned in a manner not appropriate to neutral
judicial temperament,” engaged in a “unilateral argument” with Nyce about the
affidavit of disqualification, “had significant words demonstrating animosity,”
and was “aggressive, demeaning and unresponsive” to Nyce’s arguments.
        {¶ 6} Under R.C. 2701.03(D)(1), if the clerk of this court accepts an
affidavit of disqualification for filing, “the affidavit deprives the judge against
whom the affidavit was filed of any authority to preside in the proceeding until
the chief justice of the supreme court * * * rules on the affidavit.” See also State

1. Under R.C. 2701.03(B), an affidavit of disqualification must be filed “not less than seven
calendar days before the day on which the next hearing in the proceeding is scheduled.” However,
this statutory deadline may be set aside “when compliance with the provision is impossible,” such
as when the alleged bias or prejudice occurs fewer than seven days before the hearing date or the
case is scheduled or assigned to a judge within seven days of the next hearing. In re
Disqualification of Leskovyansky, 88 Ohio St.3d 1210, 723 N.E.2d 1099 (1999). Here, Nyce
sufficiently demonstrated that he had received notice of the hearing on January 25, 2014, which
was less than seven days before the hearing. Therefore, his affidavit was considered timely filed.




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v. Myers, 97 Ohio St.3d 335, 2002-Ohio-6658, 780 N.E.2d 186, ¶ 57 (the filing of
an affidavit “automatically divests the judge of jurisdiction to proceed until the
matter is resolved”). However, there are statutory exceptions to this prohibition
against proceeding after the filing of an affidavit of disqualification. See R.C.
2701.03(D)(2) and (3). Most relevant here, R.C. 2701.03(D)(3) authorizes a
judge against whom an affidavit is filed to decide matters that do not “affect a
substantive right of any of the parties.” Courts have interpreted this exception as
allowing a judge to undertake ministerial acts during the pendency of the
affidavit. See, e.g., State ex rel. Stern v. Mascio, 81 Ohio St.3d 297, 299, 691
N.E.2d 253 (1998); State ex rel. Kreps v. Christiansen, 88 Ohio St.3d 313, 317,
725 N.E.2d 663 (2000) (interpreting analogous provision in R.C. 2701.031);
Columbus Checkcashers, Inc. v. Guttermaster, Inc., 10th Dist. Franklin No.
13AP-106, 2013-Ohio-5543, ¶ 18, 28.
         {¶ 7} Judge Knece appears to invoke this exception, arguing that his
order disbursing the supersedeas bond was “ministerial in nature” and in
compliance with the appellate court’s directive to carry its judgment into
execution. Nyce disagrees, claiming that the issue of bond disbursement was not
yet ripe for consideration.
         {¶ 8} If there is any question whether a judge’s ruling during the
pendency of an affidavit could affect a party’s substantive rights, the more
prudent course of action would be to refrain from making such a ruling until the
affidavit is resolved. However, it is beyond the scope of this proceeding to
determine whether Judge Knece had statutory authority to issue the January 27
order.    The issue in disqualification proceedings is “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. Compare Stern at 299-300 (issuing writ of prohibition voiding a judge’s



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orders on substantive matters relating to a contempt conviction issued during the
pendency of an affidavit of disqualification) and Kreps at 317 (denying a request
for writs of prohibition and mandamus against a judge who had made a
“ministerial” order directing a party to pay a previously ordered judgment during
the pendency of an affidavit).
       {¶ 9} Although a judge’s ruling during the pendency of an affidavit
could be evidence of bias, see, e.g., In re Disqualification of Celebrezze, 74 Ohio
St.3d 1242, 657 N.E.2d 1348 (1992), Judge Knece’s legal determination here that
the issue before the court on January 27 was “ministerial”—and therefore not
prohibited by the filing of Nyce’s affidavit—does not, by itself, indicate bias or
prejudice against Nyce.     It is well settled that a party’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.
       {¶ 10} However, a judge could be disqualified if his or her adverse rulings
were accompanied by words or conduct that call into question the manner in
which the proceedings are being conducted. In addition, attorneys have a right to
file an affidavit of disqualification challenging a court’s perceived partiality
“ ‘without the court misconstruing such a challenge as an assault on the integrity
of the court.’ ” Disciplinary Counsel v. Shimko, 134 Ohio St.3d 544, 2012-Ohio-
5694, 983 N.E.2d 1300, ¶ 32, quoting United States v. Brown, 72 F.3d 25, 29 (5th
Cir.1995). Here, Nyce claims that after he presented his affidavit to Judge Knece
at the January 27 hearing, the judge “had significant words demonstrating
animosity” and engaged in a “unilateral argument.”
       {¶ 11} Nyce, however, has failed to substantiate these allegations with
specific examples or a transcript of the hearing. In affidavit-of-disqualification
proceedings, the burden falls on the affiant to submit “specific” allegations of




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                                January Term, 2014




bias.   R.C. 2701.03(B)(1).    And the affiant is generally “required to submit
evidence beyond the affidavit of disqualification supporting the allegations
contained therein.” In re Disqualification of Baronzzi, 135 Ohio St.3d 1212,
2012-Ohio-6341, 985 N.E.2d 494, ¶ 6.          Instead of submitting the transcript
himself, Nyce requests this court to obtain the January 27 transcript for him. But
it is not the chief justice’s duty in deciding an affidavit of disqualification to
further investigate an affiant’s claims or obtain evidence on the affiant’s behalf.
Nyce had the burden of proof, and based on the record here, his vague and
unsubstantiated allegations regarding Judge Knece’s alleged animosity are
insufficient for a finding of bias or prejudice. See In re Disqualification of
Walker, 36 Ohio St.3d 606, 522 N.E.2d 460 (1988) (“vague, unsubstantiated
allegations of the affidavit are insufficient on their face for a finding of bias or
prejudice”).
                      Nyce’s Second Supplemental Affidavit
        {¶ 12} On January 28, 2014, the day after Nyce filed his affidavit, Judge
Knece initiated a teleconference with counsel in the underlying case. Nyce claims
that during the conference, the judge stated that he had reviewed the docket in the
underlying matter and discovered that plaintiff had a motion for contempt that had
not yet been ruled on by the court. Judge Knece then allegedly stated that he
would not make any rulings in the case pending resolution of Nyce’s initial
affidavit but that plaintiff’s counsel should “revisit” the contempt motion. Nyce
claims that the judge’s conduct indicated “intentional intimidation” and was
“contrary to the required elements of judicial fairness and neutrality.”
        {¶ 13} In response, Judge Knece explains that Nyce had claimed in his
initial affidavit that the court had not timely ruled upon two of Nyce’s motions.
According to Judge Knece, he therefore reviewed the case docket and determined
that Nyce’s referenced motions were moot. The judge asserts that in reviewing
the docket, he also determined that plaintiff had filed a contempt motion in May



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2012, which remained pending. Judge Knece states that he then scheduled the
teleconference for the sole purpose of “establishing procedural parameters to
bring pending matters to a close, not for the purpose of intimidation.”
       {¶ 14} In affidavit-of-disqualification proceedings, “[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. Given
Judge’s Knece’s explanation for initiating the teleconference and referring to
plaintiff’s pending contempt motion, those presumptions have not been overcome
in this case. Accordingly, Nyce has failed to establish that the judge’s conduct
was a product of bias against Nyce or his client.
                                    Conclusion
       {¶ 15} For the reasons explained above, Nyce’s supplemental affidavits
are denied. The case may proceed before Judge Knece.
                          _________________________




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