[Cite as In re Disqualification of Donnelly, 134 Ohio St.3d 1221, 2011-Ohio-7080.]




                       IN RE DISQUALIFICATION OF DONNELLY.
                              LISBOA v. KLEINMAN ET AL.
        [Cite as In re Disqualification of Donnelly, 134 Ohio St.3d 1221,
                                    2011-Ohio-7080.]
Judges—Affidavit of disqualification—“Affidavit” stricken and dismissed.
                    (No. 11-AP-081—Decided August 18, 2011.)
   ON AFFIDAVIT OF DISQUALIFICATION in Cuyahoga County Court of Common
                             Pleas Case No. CV-11-753481.
                                  __________________
        O’CONNOR, C.J.
        {¶ 1} Jose Lisboa Jr. has filed a request with the clerk of this court under
R.C. 2701.03 to disqualify Judge Michael P. Donnelly from acting on any further
proceedings in case No. CV-11-753481, now pending in the Court of Common
Pleas of Cuyahoga County.
        {¶ 2} R.C. 2701.03(A) requires that a party seeking to disqualify a judge
must file an “affidavit” with the clerk of the Supreme Court. Under Ohio law, an
affidavit “is a written declaration under oath.” R.C. 2319.02. To comply with
R.C. 2701.03, an affidavit must be confirmed by oath or affirmation of the party
making it and be made before a person having authority to administer the oath or
affirmation. In re Disqualification of Pokorny, 74 Ohio St.3d 1238, 657 N.E.2d
1345 (1992), quoting Black’s Law Dictionary 54 (5th Ed.1979). See also R.C.
2701.03(B)(2) (requiring that the affidavit contain the “jurat of a notary public or
another person authorized to administer oaths or affirmations”).
        {¶ 3} Lisboa’s “affidavit” of disqualification, however, does not contain
the “jurat of a notary public or another person authorized to administer oaths or
affirmations,” as required by R.C. 2701.03(B)(2). Lisboa, who is currently in
                             SUPREME COURT OF OHIO




Brazil due to immigration issues, claims that the United States Consulate in Brazil
could not provide him with notary service before the statutory seven-day filing
requirement set forth in R.C. 2701.03(B) had passed. Thus, in lieu of a sworn
affidavit, Lisboa submitted a signed, unsworn statement pursuant to 28 U.S.C.
1746 (legitimizing certain unsworn declarations), declaring under penalty of
perjury that the allegations against Judge Donnelly are “true and correct.” But
under Ohio law, unsworn written statements that are signed under penalty of
perjury cannot be substituted for affidavits. Toledo Bar Assn. v. Neller, 102 Ohio
St.3d 1234, 2004-Ohio-2895, 809 N.E.2d 1152, ¶ 22-24 (rejecting argument that
statements made pursuant to 28 U.S.C. 1746 are valid in Ohio). Lisboa’s failure
to confirm his allegations against Judge Donnelly by oath or affirmation before a
competent officer violates R.C. 2701.03. Pokorny, 74 Ohio St.3d at 1238, 657
N.E.2d 1345; In re Disqualification of Suster, 127 Ohio St.3d 1240, 2009-Ohio-
7202, 937 N.E.2d 1026, ¶ 19.              Accordingly, Lisboa’s “affidavit” of
disqualification is stricken and is hereby dismissed. Id.
                            ______________________




                                         2
