[Cite as In re Disqualification of Floyd, 135 Ohio St.3d 1249, 2012-Ohio-6336.]




                        IN RE DISQUALIFICATION OF FLOYD.
                                       IN RE D.C.J.
          [Cite as In re Disqualification of Floyd, 135 Ohio St.3d 1249,
                                    2012-Ohio-6336.]
Judges—Disqualification—R.C. 2701.03—Affidavits of disqualification rejected—
       Judge whose rulings were reversed on appeal can preside over retrial—
       Erroneous rulings not evidence of prejudice or bias—Election challenge
       to judge by party’s attorney insufficient to warrant removal.
                  (No. 12-AP-119—Decided December 14, 2012.)
  ON AFFIDAVIT OF DISQUALIFICATION in Cuyahoga County Court of Common
                  Pleas, Juvenile Division, Case No. CU03109953.
                                 __________________
       O’CONNOR, C.J.
       {¶ 1} The maternal grandparents of the minor child D.C.J., who is the
subject of the underlying custody case, and their attorney, John H. Lawson, have
filed affidavits with the clerk of this court under R.C. 2701.03 seeking to
disqualify Judge Alison L. Floyd from presiding over any further proceedings in
case No. CU03109953, now pending for a new trial in the Juvenile Division of the
Court of Common Pleas of Cuyahoga County.
       {¶ 2} This is the second affidavit of disqualification that Lawson has
filed against Judge Floyd in the underlying custody case. In June 2012, Lawson
filed an affidavit requesting Judge Floyd’s removal because they were opponents
in a “hotly contested” primary election for Judge Floyd’s juvenile court judge
seat. Lawson’s affidavit was denied by entry of August 10, 2012. See In re
Disqualification of Floyd, No. 12-AP-069 (Aug. 10, 2012).
                             SUPREME COURT OF OHIO




       {¶ 3} Since that entry, the Court of Appeals for the Eighth Appellate
District reversed Judge Floyd’s decision designating the father of D.C.J. as the
legal custodian of the child and remanded the matter for a new trial. See In re
D.C.J., 8th Dist. Nos. 97681 and 97776, 2012-Ohio-4154, 976 N.E.2d 931. The
appeals court held that Judge Floyd committed numerous errors that deprived the
grandparents of their right to a fair trial. Id. at ¶ 53. In addition, the court
admonished Judge Floyd for failing to promptly handle the custody proceeding,
which was pending for more than three years. Id. at ¶ 61.
       {¶ 4} In their present affidavit, the grandparents claim that Judge Floyd
is partial to the father, as evidenced by the appeals court opinion.        Lawson
similarly claims that the appeals court’s “stunning rebuke” of Judge Floyd’s
custody decision, combined with his election history against Judge Floyd, raises
doubts about her ability to conduct a new trial with impartiality. Lawson has also
filed a sworn rebuttal, in which he claims that Judge Floyd’s recent assignment of
a new evaluator is suspect and “gives the appearance of expert shopping.”
       {¶ 5} Judge Floyd has responded in writing to the concerns raised in the
affidavits. Judge Floyd asserts that she does not harbor any hostile feelings
towards the grandparents or Lawson and that she has “attempted to conduct these
proceedings with an open state of mind, guided only by the law and the facts.”
Joseph J. Triscaro, counsel for the father, has also responded to the affidavits,
asserting that the proceedings already conducted before Judge Floyd have been
“extensive, lengthy and complex” and that removing the judge at this late stage
would be prejudicial to his client.
       {¶ 6} For the following reasons, no basis has been established to order
the disqualification of Judge Floyd.
                          The Grandparents’ Affidavit
       {¶ 7} The grandparents claim that the appellate court’s reversal of Judge
Floyd’s custody decision and its admonishment of Judge Floyd for the undue




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delay demonstrate that she is biased and prejudiced against them and partial to the
father. They also question Judge Floyd’s ability to remain impartial for the
retrial. Id. The grandparents’ averments, however, do not mandate Judge Floyd’s
removal.
       {¶ 8} First, it has long been established that a trial judge’s opinions of
law, even if erroneous, are not by themselves evidence of bias or prejudice and
therefore are not grounds for disqualification. In re Disqualification of Kimmel,
36 Ohio St.3d 602, 522 N.E.2d 456 (1987); In re Disqualification of Light, 36
Ohio St.3d 604, 522 N.E.2d 458 (1988) (“alleged errors of law or procedure are
legal issues subject to appeal and are not grounds for disqualification”). The
record here shows that the appeals court determined that Judge Floyd abused her
discretion with respect to four evidentiary rulings. While affiants allege that the
appeals court opinion exposes Judge Floyd’s bias, nothing in the record
demonstrates that Judge Floyd’s errors were the product of bias or prejudice
against the grandparents. Indeed, the appeals court blamed Judge Floyd’s errors,
in part, on her misconception of the rules of evidence—not on favoritism towards
the father. See In re D.C.J., 2012-Ohio-4154, 976 N.E.2d 931, ¶ 20.
       {¶ 9} Second, there is no indication from the appeals court opinion that
Judge Floyd’s failure to promptly handle the underlying proceeding is the result
of bias or prejudice against the grandparents. Thus, the judge’s delay is not a
reason to remove her. See, e.g., 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”). Further, as Triscaro asserts,
the delay was equally prejudicial to the father, as the grandparents were granted
temporary custody of the child during the pendency of the lengthy trial court
proceedings.



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       {¶ 10} Finally, it is also well established that “a judge may preside over
the retrial of a case even if that judge’s rulings of law were reversed on appeal.”
Kimmel, 36 Ohio St.3d at 602, 522 N.E.2d 456; see also In re Disqualification of
Hurley, 113 Ohio St.3d 1228, 2006-Ohio-7229, 863 N.E.2d 630, ¶ 6 (“a judge
may remain on a case that has been remanded from the court of appeals”). Here,
the grandparents question Judge Floyd’s ability to remain impartial, but there is
no evidence that Judge Floyd is predisposed against the grandparents because
they obtained a successful reversal of the custody decision. Similarly, the mere
fact that Judge Floyd’s decision was reversed in a critical opinion by the appeals
court does not imply that she will be biased against the grandparents or somehow
retaliate against them. See generally Flamm, Judicial Disqualification, Section
12.8 (2d Ed.2007). Judges are often called on to reconsider prior rulings, and
Judge Floyd has pledged to hear the new trial fairly and impartially and to follow
the mandate of the court of appeals.          Accordingly, while there may be
circumstances in which a new judge should preside over a retrial after remand
from an appellate court, affiants have not proven that any such disqualifying
circumstances exist here. Compare Columbus v. Hayes, 68 Ohio App.3d 184, 189,
587 N.E.2d 939 (10th Dist.1990) (remanding for further proceedings before a
different municipal court judge where original sentencing judge, after being
reversed, made it clear that he did not intend to follow the mandate of the appeals
court by declaring that he would impose the same sentence as before, even if he
were reversed ten times).
                               Lawson’s Affidavit
       {¶ 11} According to Lawson’s affidavit, two new events have occurred
since the denial of his previous affidavit:    (1) issuance of the appeals court
opinion, which he claims is a “stunning rebuke” of Judge Floyd’s custody
decision, and (2) Judge Floyd’s assignment of a new evaluator, which, according




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                               January Term, 2012




to Lawson, looks like “expert shopping.” Neither of these allegations, however, is
sufficient to justify Judge Floyd’s removal.
       {¶ 12} In making his first argument, Lawson cites the entry denying his
previous affidavit of disqualification against Judge Floyd, which held that “absent
extraordinary circumstances, a judge will not be disqualified after having presided
over lengthy proceedings in a pending case.” In re Disqualification of Floyd, No.
12-AP-069 (Aug. 10, 2012), citing In re Disqualification of Light, 36 Ohio St.3d
604, 522 N.E.2d 458 (1988). Lawson argues that extraordinary circumstances
exist here because of the critical appeals court opinion and Judge Floyd’s
“likelihood of resentment” towards him due to his near-successful election
challenge.
       {¶ 13} Contrary to Lawson’s contention, there are no extraordinary
circumstances here requiring judicial disqualification.     As an initial matter,
precedent is clear: a judge ordinarily will not be disqualified based on the fact
that a lawyer in a pending case was the judge’s election opponent (In re
Disqualification of Maschari, 88 Ohio St.3d 1212, 1213, 723 N.E.2d 1101
(1999)); and the fact that a judge’s rulings were reversed on appeal does not lead
to automatic disqualification of that judge for a retrial (Kimmel, 36 Ohio St.3d at
602, 522 N.E.2d 456). Here, Lawson suggests that the two allegations combined
create an appearance of impropriety. He might have had a case if, for example, he
had established that Judge Floyd issued blatantly incorrect legal rulings against
Lawson’s clients during their contentious election race. However, the underlying
trial was held in April and May 2011, and Judge Floyd issued her custody
decision on December 6, 2011. Lawson obtained petitions to run against Judge
Floyd after issuance of the custody decision and long after the evidentiary rulings
were made during the 2011 trial. Thus, there is no evidence that the incorrect
evidentiary rulings were the result of Lawson’s candidacy, and there is no
apparent connection between the two.



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                             SUPREME COURT OF OHIO




       {¶ 14} Instead, Lawson seeks to disqualify Judge Floyd based wholly on
his speculation that Judge Floyd may have resentment towards him based on the
election and the appeals court opinion. In response to Lawson’s affidavit, Judge
Floyd vows to conduct future proceedings “fairly and impartially in accordance
with the judgment and mandate rendered by the Court of Appeals.” Based on this
record, no reasonable and objective observer would doubt Judge Floyd’s ability to
remain impartial, and Lawson’s speculation is insufficient to establish that any
extraordinary circumstances exist requiring Judge Floyd’s disqualification. 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, and
speculation * * * are insufficient to establish bias or prejudice”).
       {¶ 15} In addition, Lawson has failed to substantiate his claims that the
assignment of a new evaluator was the result of “expert shopping.” Lawson
claims that after the appeals court decision, Judge Floyd met with the director of
the court’s diagnostic clinic and expressed dissatisfaction with the two previous
custody evaluations. A new evaluator was later assigned to conduct an updated
custody evaluation. According to Lawson, the assignment of a new evaluator is
highly unusual and suspect. In response, Judge Floyd admits that she met with
the director of the court’s diagnostic clinic to discuss the need for an updated
evaluation. However, Judge Floyd denies expressing any dissatisfaction with the
previous evaluations, and she explains that the director of the clinic selected a
new evaluator because the previous evaluator had limited availability and the
director believed that a “fresh perspective” would be beneficial. Judge Floyd
reiterates that the decision to select a new evaluator was made by the director
“without any input or influence from Judge Floyd.”
       {¶ 16} Given Judge Floyd’s response, Lawson’s vague and speculative
argument, which is also based on hearsay, is insufficient to demonstrate bias or
prejudice. In re Disqualification of Walker, 36 Ohio St.3d 606, 522 N.E.2d 460




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                                January Term, 2012




(1988) (“vague, unsubstantiated allegations of the affidavit are insufficient on
their face for a finding of bias or prejudice”). Lawson’s affidavit, therefore, is not
well taken.
                                    Conclusion
        {¶ 17} “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.
        {¶ 18} For the reasons stated above, the affidavits of disqualification are
denied. The case may proceed before Judge Floyd.
                            ______________________




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