[Cite as In re Disqualification of Baronzzi, 135 Ohio St.3d 1212, 2012-Ohio-6341.]




                       IN RE DISQUALIFICATION OF BARONZZI.
                                        IN RE G.E.
        [Cite as In re Disqualification of Baronzzi, 135 Ohio St.3d 1212,
                                    2012-Ohio-6341.]
Judges—Affidavit of disqualification—R.C. 2701.03—Disqualification of judge
        not warranted—Affiant failed to prove prejudice or bias.
                   (No. 12-AP-098—Decided September 13, 2012.)
 ON AFFIDAVIT OF DISQUALIFICATION in Columbiana County Court of Common
                   Pleas, Juvenile Division, case No. C2006-0067.
                                  __________________
        O’CONNOR, C.J.
        {¶ 1} Francesca T. Carinci, counsel for the obligor in the underlying
case, E.E., has filed an affidavit with the clerk of this court under R.C. 2701.03
seeking to disqualify Judge Thomas M. Baronzzi from presiding over any further
proceedings in case No. C2006-0067, now pending on the request of obligee in
the underlying case, C.S., for child-support modification in the Juvenile Division
of the Court of Common Pleas of Columbiana County.
        {¶ 2} Carinci alleges that Judge Baronzzi is biased and prejudiced
against E.E. Carinci’s allegations can be grouped into four main categories: (1)
C.S. is involved in a romantic relationship with “a good friend” of Judge
Baronzzi, (2) Judge Baronzzi has made disparaging comments about E.E. off the
record, (3) Judge Baronzzi has attempted to “co-counsel the case” by
“pressur[ing]” C.S.’s attorney to conduct more discovery, and (4) Judge Baronzzi
exhibited bias against E.E. in an August 6, 2012 entry.
        {¶ 3} Judge Baronzzi has responded in writing to the concerns raised in
Carinci’s affidavit. Judge Baronzzi denies almost every statement in the affidavit
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and finds her “false accusations” to be “outrageous, disturbing and frivolous.”
Judge Baronzzi admits that he has been “very frustrated” with E.E.’s “failure to
adequately respond to discovery.” However, Judge Baronzzi disclaims any bias
or prejudice against E.E., and he contends that E.E. will be afforded “courtesy and
professionalism through the conclusion of the case.”
         {¶ 4} For the reasons explained below, no basis has been established to
order the disqualification of Judge Baronzzi.
                                      Analysis
                      Judge Baronzzi’s alleged “good friend”
         {¶ 5} Carinci’s allegation that C.S. is involved in a romantic relationship
with a “good friend” of Judge Baronzzi does not mandate disqualification.
Carinci has failed to identify this “good friend,” and she has failed to explain how
Judge Baronzzi’s friendship with this person could reasonably affect his
impartiality in the underlying case. Just as the “mere existence of a friendship
between a judge and an attorney or between a judge and a party will not
disqualify the judge from cases involving that attorney or party,” In re
Disqualification of Bressler, 81 Ohio St.3d 1215, 688 N.E.2d 517 (1997), the
mere allegation that a party before a judge is a friend of a friend of the judge will
not result in judicial disqualification.       Because Carinci’s assertion lacks an
affirmative indication that Judge Baronzzi’s friendship with the unidentified
person will somehow affect the judge’s consideration of the case, it is not well
taken.
             Judge Baronzzi’s alleged comments made off the record
                   and alleged attempts to “co-counsel” the case
         {¶ 6} Carinci has failed to substantiate her claims that Judge Baronzzi
made disparaging comments about E.E. off the record and attempted to “co-
counsel” the case. In affidavit-of-disqualification proceedings, the burden falls on
the affiant to submit sufficient evidence demonstrating that disqualification is




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warranted.     See R.C. 2701.03(B)(1) (requiring affiant to include specific
allegations of bias, prejudice, or disqualifying interest and the facts to support
those allegations). Generally, an affiant is required to submit evidence beyond the
affidavit of disqualification supporting the allegations contained therein.
Compare In re Disqualification of Corrigan, 77 Ohio St.3d 1235, 674 N.E.2d 350
(1996) (judges disqualified when affiants submitted evidentiary materials showing
disqualification of all county judges was warranted) with In re Disqualification of
Crow, 91 Ohio St.3d 1209, 741 N.E.2d 137 (2000) (judge not disqualified when
affiants failed to support their general allegations with third-party affidavits).
       {¶ 7} Carinci offers only her affidavit to support her allegations. A
number of her claims, however, could have been substantiated by other means.
For example, as part of her “co-counseling” allegation, Carinci claims that at an
April 2012 hearing, Judge Baronzzi demanded that E.E. provide certain evidence,
even though C.S.’s counsel had not requested the information. Yet Carinci failed
to submit a transcript from the hearing to support her allegation.           Likewise,
Carinci failed to submit any third-party affidavit or other evidence to support her
allegation that Judge Baronzzi made disparaging comments about her client off
the record during pretrial conferences. Carinci’s need for supporting evidence is
exacerbated here because Judge Baronzzi flatly denies making any of the alleged
comments or attempting to “co-counsel” the case.             Judge Baronzzi further
indicates that Carinci’s accusations are “false” and “frivolous.”          Because of
Carinci’s failure to substantiate her claims, there is no way to determine whether
Judge Baronzzi made the alleged comments, let alone whether the comments
reflect bias or prejudice against E.E.
       {¶ 8} The disqualification of a judge is an extraordinary remedy. In re
Disqualification of Hunter, 36 Ohio St.3d 607, 522 N.E.2d 461 (1988). Further, 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



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Disqualification of George, 100 Ohio St.3d 1241, 2003-Ohio-5489, 798 N.E.2d
23, ¶ 5.   On this record, Carinci’s vague and unsubstantiated allegations—
especially in the face of clear denials by Judge Baronzzi—are insufficient to
overcome the presumption that Judge Baronzzi is fair and impartial. See, e.g., In
re Disqualification of Cacioppo, 77 Ohio St.3d 1245, 674 N.E.2d 356 (1996)
(hearsay allegations of affiant “will not stand in the face of an affirmative denial
by the trial judge”); In re Disqualification of Corrigan, 105 Ohio St.3d 1243,
2004-Ohio-7354, 826 N.E.2d 302, ¶ 8 (“In the wake of the conflicting stories
presented by the various affiants, however, I cannot conclude that the judge is
clearly biased and prejudiced * * *”); 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”).
                      Judge Baronzzi’s August 6, 2012 entry
        {¶ 9} In July 2012, Carinci filed a motion for Judge Baronzzi to recuse
himself based on alleged prejudicial comments by the judge about E.E.’s lifestyle
and income. Carinci has failed to submit a copy of her motion; thus, the record
does not include any information regarding the substance of these alleged
comments. By entry of August 6, 2012, Judge Baronzzi denied the motion. In
that entry, Judge Baronzzi admits that he previously commented that E.E. was
“living the life,” but Judge Baronzzi claims that this comment was neither
prejudicial nor inappropriate. Instead, the comment was meant to communicate to
E.E. that his claims of “near poverty” were “ridiculous.” As support for the
“living the life” comment, the August 6 entry states that (1) there is evidence in
the record demonstrating that E.E. drives expensive vehicles, takes expensive
shopping trips, and travels to Las Vegas for gambling and (2) E.E. has “extensive
tattoos, which were openly displayed for the Court during his testimony.”
        {¶ 10} In her affidavit of disqualification, Carinci describes Judge
Baronzzi’s August 6 entry as a “collection of musings” about E.E.’s “expensive




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tattoos,” and Carinci states that Judge Baronzzi should recuse himself if he has
“jealousy or anger because of the appearance of Mr. [E.E.]” In addition, Carinci
claims that the August 6 entry demonstrates that Judge Baronzzi has reached the
opinion—before the final hearing on the matter—that E.E. is not being truthful
about his income level.
       {¶ 11} To be sure, “[i]f a judge’s words or actions convey the impression
that the judge has developed a ‘hostile feeling or spirit of ill will’ or reached a
‘fixed anticipatory judgment’ that will prevent the judge from presiding over the
case with ‘an open state of mind * * * governed by the law and the facts,’
* * * then the judge should not remain on the case.” In re Disqualification of
Synenberg, 127 Ohio St.3d 1220, 2009-Ohio-7206, 937 N.E.2d 1011, ¶ 24,
quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 469, 132 N.E.2d 191
(1956). Here, Judge Baronzzi’s comments in the August 6 entry about E.E.’s
tattoos were unnecessary, but they do not demonstrate that he has developed
hostile feelings toward E.E. based on his appearance. As an initial matter, the
August 6 entry states that E.E. has “extensive” tattoos, not “expensive” tattoos, as
Carinci alleges in her affidavit. Regardless, it is clear from the entry that Judge
Baronzzi mentions E.E.’s tattoos—along with his cars and shopping and gambling
trips—to imply that E.E. has more income than he portrays in court filings. A
person’s tattoos, however, are not indicative of the person’s current income level.
Thus, Judge Baronzzi’s comments about E.E.’s appearance were unfortunate and
probably best left unsaid. See, e.g., Disqualification of Corrigan, 105 Ohio St.3d
1243, 2004-Ohio-7354, 826 N.E.2d 302, ¶ 10 (“[R]emarks * * * about attorneys’
clothing are probably best left unsaid by judges during official proceedings”).
       {¶ 12} Judge Baronzzi’s August 6 entry also does not indicate that he has
predetermined E.E.’s income level. Judges often form conditional opinions about
a case during preliminary matters, but it is well settled that the formation of these
conditional opinions does not counter the presumption of the judge’s ability to



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preside fairly and impartially over future proceedings. In re Disqualification of
Horvath, 105 Ohio St.3d 1247, 2004-Ohio-7356, 826 N.E.2d 305, ¶ 8; In re
Disqualification of Brown, 74 Ohio St.3d 1250, 1251, 657 N.E.2d 1353 (1993).
Judge Baronzzi affirms that he “has reserved judgment as to any amount of
income or earnings of Mr. [E.E.] pending final hearing.” At the final hearing,
E.E. will have the opportunity to present evidence to dispute any claims about his
income level.    Because nothing in the record contradicts Judge Baronzzi’s
assurances, there is no clear existence of a fixed anticipatory judgment.
Disqualification is therefore not warranted.
                                    Conclusion
       {¶ 13} For the reasons stated above, the affidavit of disqualification is
denied. The case may proceed before Judge Baronzzi.
                            ______________________




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