[Cite as In re Disqualification of Nicely, 135 Ohio St.3d 1237, 2012-Ohio-6290.]




                         IN RE DISQUALIFICATION OF NICELY.
                               O’MALLEY v. O’MALLEY.
          [Cite as In re Disqualification of Nicely, 135 Ohio St.3d 1237,
                                    2012-Ohio-6290.]
Judges—Affidavits of disqualification—R.C. 2701.03—Alleged improper ex parte
        communications—Alleged overburdened case load—Alleged violation of
        mandatory time guidelines for domestic relations cases—Request for
        removal denied—No basis established warranting disqualification.
                   (No. 12-AP-115—Decided November 26, 2012.)
   ON AFFIDAVIT OF DISQUALIFICATION in Cuyahoga County Court of Common
           Pleas, Domestic Relations Division, Case No. DR-04-299141.
                                  __________________
        O’CONNOR, C.J.
        {¶ 1} Plaintiff Vicki M. O’Malley (“O’Malley”) and her attorney,
Colleen Mary O’Toole, have filed affidavits with the clerk of this court under
R.C. 2701.03 seeking to disqualify Judge Judith A. Nicely, a retired judge sitting
by assignment in case No. DR-04-299141, now pending on defendant Patrick
O’Malley’s contempt motion, in the Domestic Relations Division of the Court of
Common Pleas of Cuyahoga County.                  Michael Bassett, O’Malley’s former
counsel, and Joan Meier, the Executive Director of the Domestic Violence Legal
Empowerment and Appeals Project, have also filed affidavits to support
O’Malley’s allegations.
        {¶ 2} This is the third affidavit filed by or on behalf of O’Malley in the
underlying divorce and custody case.            In 2004, Chief Justice Moyer granted
O’Malley’s first affidavit and disqualified all Cuyahoga County judges from
hearing the case because, at that time, defendant Patrick O’Malley was a county
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officeholder with significant personal and professional connections to many of the
judges. See In re Disqualification of Celebrezze, 105 Ohio St.3d 1241, 2004-
Ohio-7360, 826 N.E.2d 301. O’Malley’s second affidavit of disqualification,
which was filed against Judge Nicely, was denied by entry on March 24, 2011.
See In re Disqualification of Nicely, case No. 11-AP-008.
       {¶ 3} In the present affidavit, O’Malley and O’Toole allege that Judge
Nicely’s conduct has been “grossly prejudicial” to O’Malley. Specifically, they
allege that Judge Nicely has engaged in improper ex parte communications, failed
to report suspected child abuse, and refused to appoint separate counsel for the
O’Malley children. Affiants also allege that Judge Nicely is too burdened with
case assignments to preside over this complex litigation and that she has violated
the mandatory time guidelines for domestic relations cases.
       {¶ 4} Judge Nicely has responded in writing to the concerns raised in the
affidavits. Judge Nicely denies that she has engaged in any improper ex parte
communications, and she further asserts that the affidavits are a direct result of
O’Malley’s dissatisfaction with the court’s July 2012 final order designating
Patrick O’Malley as the residential parent and legal custodian of the two
O’Malley children.
       {¶ 5} For the reasons explained below, no basis has been established to
order the disqualification of Judge Nicely.
                                      Waiver
       {¶ 6} 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, most of the events giving rise to the affidavits occurred months, or even
years, ago. Specifically, O’Malley alleges that Judge Nicely engaged in ex parte




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communications with Joan Meier at a September 2011 legal seminar and with two
court-appointed psychologists in April or early May 2012. O’Malley further
claims that in January 2010, her children informed Judge Nicely that they were
abused by Patrick O’Malley. O’Malley moved to appoint separate counsel for the
children; the judge refused. And affiants allege that Judge Nicely violated the
time guidelines for domestic relations cases because the trial on O’Malley’s 2008
motion to modify parental rights was not concluded until February 2012 and the
final order was not issued until July 20, 2012.
       {¶ 7} Yet O’Malley and O’Toole did not file their affidavits until
October 1, 2012—over two months after the court’s final order and exactly eight
days before the scheduled hearing on Patrick O’Malley’s contempt motion. If
affiants believed that Judge Nicely’s conduct demonstrated bias or prejudice—
especially the conduct allegedly occurring in January 2010 or September 2011—
they should have timely sought disqualification, i.e., “as soon as possible after the
incident giving rise to the claim of bias and prejudice occurred.” O’Grady, 77
Ohio St.3d at 1241, 674 N.E.2d 353. As nothing in the record justifies the delay
in filing the affidavits of disqualification, affiants have waived the right to
disqualify Judge Nicely based on these allegations.              See, e.g., In re
Disqualification of Corrigan, 91 Ohio St.3d 1210, 1210-1211, 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
“less than three weeks before the scheduled trial”); In re Disqualification of
Belskis, 74 Ohio St.3d 1252, 1253, 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”).




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                  Merits of the Affidavits of Disqualification
       {¶ 8} Even if the affiants had not waived most of their objections, their
claims of bias and prejudice are without merit. As an initial matter, 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). 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). Judge Nicely was assigned to this
case in 2004. She presided over a 15-day trial that included evidence from 33
individuals and resulted in an 83-page final order. Given the length of these
proceedings and Judge Nicely’s significant involvement, disqualification is
warranted only under “extraordinary circumstances” that clearly show a “fixed
anticipatory judgment.”    As explained below, affiants have not met this
heightened standard.
                        Alleged ex parte communications
       {¶ 9} Affiants allege that Judge Nicely engaged in four improper ex
parte communications. First, affiants claim that Judge Nicely communicated with
Joan Meier at a September 2011 legal seminar about the qualifications of Dr.
Joyanna Silberg, one of O’Malley’s proposed expert witnesses. Affiants allege
that after the communication, Judge Nicely acted on Meier’s recommendation and
qualified Dr. Silberg as an expert. This conduct, according to affiants, violated
Jud.Cond.R. 2.9, which prohibits a judge from engaging in ex parte
communications and from independently investigating the facts of a case.




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                                January Term, 2012




       {¶ 10} Judge Nicely denies discussing Dr. Silberg’s qualifications with
Meier, and she denies that her encounter with Meier had any influence on her
decision to qualify the expert. But even if affiants had established that Judge
Nicely violated her ethical duties, in affidavit-of-disqualification proceedings, the
question is not whether the judge has violated the Code of Judicial Conduct, but
whether the ex parte communication demonstrates bias or prejudice on the part of
the judge. In re Disqualification of Saffold, 94 Ohio St.3d 1238, 1239, 763
N.E.2d 605 (2001). Affiants have failed to explain how Judge Nicely’s alleged
communication, which they concede resulted in a favorable decision for
O’Malley, demonstrates bias or prejudice against O’Malley.             Under these
circumstances, affiants’ allegation is not well taken.
       {¶ 11} Second, affiants claim that Judge Nicely engaged in improper
communications with two court-appointed psychologists.           The psychologists
allegedly told O’Malley that Judge Nicely was “not happy” with the parties,
which, according to O’Malley, is evidence of an ex parte communication.
Affiants also point to comments in Judge Nicely’s final order from which they
infer that the psychologists were the source of the comments, and therefore
another improper communication occurred. In response, Judge Nicely admits that
she communicated with the psychologists about administrative matters in the
underlying case, but she denies having any improper or substantive
communication with them. As to how the psychologists could conclude that
Judge Nicely was “not happy” with the parties, Judge Nicely explains that her
interim order, which she gave to the psychologists, criticizes both Patrick and
Vicki O’Malley’s conduct and could give any reasonable reader a sufficient basis
to conclude that the judge was “not happy” with the parties. Further, Judge
Nicely traces the comments in her final order to information directly received
from O’Malley at a May 23, 2012 hearing—not from the psychologists.




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       {¶ 12} On this record, disqualification is not warranted. An alleged ex
parte communication constitutes grounds for disqualification where there is
“proof that the communication * * * addressed substantive matters in the pending
case.” In re Disqualification of Calabrese, 100 Ohio St.3d 1224, 2002-Ohio-
7475, 798 N.E.2d 10, ¶ 2. The allegations must be substantiated and consist of
something more than hearsay or speculation. In re Disqualification of Floyd, 101
Ohio St.3d 1215, 2003-Ohio-7354, 803 N.E.2d 816, ¶ 7. Affiants have failed to
satisfy either test.   Affiants simply speculate, without providing any actual
evidence to support this speculation, that Judge Nicely engaged in substantive
communications with the psychologists. Without more, removal is not necessary.
See Calabrese at ¶ 2 (disqualification not warranted when affiant could not
substantiate allegation that encounter between judge and opposing counsel
immediately prior to pretrial conference involved ex parte communication about
underlying case).
       {¶ 13} The same reasoning applies to affiants’ two remaining claims of
improper ex parte communications. Affiants speculate that Judge Nicely engaged
in an ex parte communication with Patrick O’Malley because in August 2012, he
told hospital staff that Judge Nicely was “made fully aware” of the O’Malley
children’s hospitalization. Similarly, affiant O’Toole infers that Judge Nicely
engaged in ex parte communications with hospital legal staff because the staff
told her that they had spoken to Judge Nicely’s law clerk about the children’s
treatment and the court’s custody order. In response, Judge Nicely flatly denies
having any ex parte communication with either Patrick O’Malley or the hospital
legal staff.   She acknowledges that the domestic relations court received a
telephone call from the hospital staff expressing concerns about releasing the
children to Patrick O’Malley, and she acknowledges that a staff attorney who
received the phone call told the hospital to follow the court’s final custody order.




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                                January Term, 2012




       {¶ 14} Again, affiants’ speculation here is insufficient to mandate Judge
Nicely’s disqualification, especially in light of the judge’s affirmative denial of
any improper communication. See, e.g., In re Disqualification of Cacioppo, 77
Ohio St.3d 1245, 674 N.E.2d 356 (1996) (“The hearsay allegations of the affiant
will not stand in the face of an affirmative denial by the trial judge of substantive
ex parte contacts”).      Affiants’ claim regarding the hospital legal staff’s
communication is based on hearsay, and it appears that the communication did
not involve the merits of the case, because the record shows only that the hospital
was told to follow the court’s final order. “A judge will not be disqualified based
on vague and unsubstantiated claims of ex parte communications.”               In re
Disqualification of Fuerst, 94 Ohio St.3d 1237, 1238, 763 N.E.2d 604 (2001).
   Alleged failure to report child abuse and to appoint counsel for the children
       {¶ 15} Affiants next allege that Judge Nicely should be removed because
she failed to report suspected child abuse, as R.C. 2151.421 requires for all
attorneys, and because she did not appoint separate counsel for the O’Malley
children, in violation of their constitutional rights, the Code of Judicial Conduct,
and the Rules of Superintendence. In response, Judge Nicely states that the
suspected abuse had already been reported to the appropriate authorities. In fact,
the court held an evidentiary hearing in which police officers, doctors, and social
workers testified about the suspected abuse. In addition, Judge Nicely asserts that
the issue of whether to appoint counsel for the children is on appeal.
       {¶ 16} Affidavit-of-disqualification proceedings are not the appropriate
forum to determine whether a judge has complied with a statute, the Code of
Judicial Conduct, or court rules. These proceedings are narrow in scope and are
“ ‘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, 88 Ohio St.3d at 1209, 723 N.E.2d 1098.




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Thus, affiants cannot litigate here whether Judge Nicely violated her statutory
duties under R.C. 2151.421 or whether she violated the O’Malley children’s
constitutional rights. Further, affiants’ disagreement or dissatisfaction with Judge
Nicely’s refusal to appoint separate counsel for the children, even if the decision
is erroneous, is not grounds for disqualification. In re Disqualification of Floyd,
101 Ohio St.3d 1217, 2003-Ohio-7351, 803 N.E.2d 818, ¶ 4. The remedy for
these and other legal claims, if any, lies on appeal, not through the filing of an
affidavit of disqualification. In re Disqualification of Russo, 110 Ohio St.3d
1208, 2005-Ohio-7146, 850 N.E.2d 713, ¶ 6.
                      Alleged failure to follow trial guidelines
       {¶ 17} In their final allegation, affiants complain that Judge Nicely is
years beyond the mandatory time guidelines for disposition of domestic relations
cases and that she is “carrying too large a case load to continue with this involved,
conflicted, and ongoing matter.” As evidence, affiants submitted a list of Judge
Nicely’s case assignments, and they point to the fact that it took Judge Nicely
almost four years to decide postdecree motions filed in 2008 and that Judge
Nicely could hold consecutive-day hearings on only three occasions during the
15-day trial.   Judge Nicely did not specifically respond to this allegation.
However, the trial court’s final order sets forth several reasons for the prolonged
nature of the case, including Patrick O’Malley’s incarceration, the fact that
O’Malley has had multiple successive attorneys, the judge’s, the attorneys’, and
the guardian ad litem’s “busy schedules,” and the previous affidavit of
disqualification filed in 2011.
       {¶ 18} The trial court’s delay in deciding the parents’ motions to modify
parental rights—and the prolonged period of the trial—is a matter for concern.
But similar to the other allegations in this proceeding, affiants have failed to
demonstrate that the court’s delay is the product of bias or prejudice against
O’Malley. Thus, the delay itself is not a reason to remove Judge Nicely. See e.g.,




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In re Disqualification of Hall, 94 Ohio St.3d 1230, 763 N.E.2d 599 (2001)
(“While a delay in ruling on objections to the magistrate’s decision may have
adverse consequences to the defendant, affiant has failed to present any evidence
that the delay is the product of bias or prejudice on the part of [the judge] toward
her or her client”).
        {¶ 19} Moreover, the facts here present a weak case for the notion that a
judge’s “overburdened” docket is a disqualifying interest under R.C. 2701.03.
Affiants complained about Judge Nicely’s allegedly busy docket after the court’s
final order, which was adverse to O’Malley, and only eight days before the
hearing on Patrick O’Malley’s contempt motion.            Far from proving bias,
prejudice, or disqualifying interest, the affidavits appear to have been filed to
obtain a delay of the scheduled hearing. The statutory process for seeking the
disqualification of a trial judge is “to be used exclusively to determine the
existence of bias, prejudice, or other disqualifying interest and not as a tactic of
delay.” In re Disqualification of Lorig, 75 Ohio St.3d 1212, 664 N.E.2d 943
(1996). Further, parties are not permitted to continue to participate in an action
once they discover what they believe is a biased attitude on the part of the judge
“and then avoid an adverse ruling by belatedly raising the issue of
disqualification.” In re Disqualification of Murphy, 36 Ohio St.3d 605, 522
N.E.2d 459 (1988).      Affiants, therefore, have failed to establish that Judge
Nicely’s schedule warrants disqualification under R.C. 2701.03.
                                   Conclusion
        {¶ 20} “The statutory right to seek disqualification of a judge is an
extraordinary remedy.” In re Disqualification of George, 100 Ohio St.3d 1241,
2003-Ohio-5489, 798 N.E.2d 23, ¶ 5. “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.” Id. at 1241-1242. Those presumptions have not
been overcome in this case. Moreover, the record does not support a finding of




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“extraordinary circumstances,” which an affiant is required to establish after a
judge has participated in lengthy trial proceedings. See Celebrezze, 94 Ohio St.3d
at 1229, 763 N.E.2d 598.
       {¶ 21} Accordingly, for the reasons stated above, the affidavits of
disqualification are denied. The case may proceed before Judge Nicely.
                           ______________________




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