Potts v. Schwartz

Moyer, C.J. This affidavit of disqualification was filed by Sanford I. Atkin seeking the disqualification of Judge Janet R. Burnside from further proceedings in the above-captioned case. Based on information that the above-captioned case was concluded and a final judgment entered, an entry dated May 20, 1992 was signed finding the affidavit of disqualification moot and denying it. Subsequently, it was learned that post-decree motions were pending before Judge Burnside. Accordingly, the May 20, 1992 entry denying the affidavit of disqualification is stricken and the merits of the affidavit of disqualification will be considered. In the affidavit of disqualification, affiant, who is counsel for defendant Max Schwartz in the underlying case, alleges Judge Burnside should be disqualified [1241] because affiant has filed petitions to be a candidate in opposition to the judge. In Opinion No. 87-023, the Board of Commissioners on Grievances and Discipline determined that “it is unnecessary for an incumbent judge to recuse himself from proceedings where his opponent represents one of the parties, unless the judge’s impartiality might reasonably be questioned.” In In re Disqualification of Celebrezze (1991), 74 Ohio St.3d 1231, 657 N.E.2d 1341, it was held that disqualification was not mandated because a party to or counsel in the underlying case campaigned for or against the sitting judge. The opinion went on to conclude that the determination as to whether disqualification is required should be made on a case-by-case basis. Here, there is no indication that Judge Burnside’s continued participation in this case could reasonably be questioned. Affiant speculates that the judge may demonstrate bias and prejudice against him, but offers no specific evidence or occurrence of events in support of this claim. Accordingly, the affidavit of disqualification is found not well taken and is denied.