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IN RE Disqualification of OLEARY. Meraglio v. Andolsek.

Supreme Court of Ohio2019-04-01No. No. 19-AP-036
128 N.E.3d 2482019 Ohio 1729156 Ohio St. 3d 1280

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Opinion

majority opinion

OConnor, C.J.

{¶ 1} Yolanda Andolsek has filed an affidavit with the clerk of this court pursuant to R.C. 2701.03 and 2701.031 seeking to disqualify Judge Ronald J.H. OLeary from presiding over any further proceedings in the above-referenced case.

{¶ 2} Ms. Andolsek claims that Judge OLeary lacks subject-matter jurisdiction and that the courts magistrate has made prejudicial comments to her.

{¶ 3} For the reasons explained below, no basis has been established to order the disqualification of Judge OLeary.

{¶ 4} First, Ms. Andolsek has not complied with the requirements for filing an affidavit of disqualification. R.C. 2701.03(B)(4) requires that the affidavit include [t]he date of the next scheduled hearing in the proceeding or, if there is no hearing scheduled, a statement that there is no hearing scheduled. Ms. Andolseks affidavit indicates that she swore to the allegations on March 12, 2019, and that the next scheduled hearing was March 19, 2019. Yet Ms. Andolsek filed her affidavit on March 27, 2019-eight days after the March 19 hearing. Along with her affidavit, she submitted an unsworn document, dated March 22, indicating that there were no new hearings scheduled in the case.

{¶ 5} Because Ms. Andolseks sworn affidavit includes a hearing date prior to the date she filed her affidavit, she has not properly identified the date of the next scheduled hearing as required by R.C. 2701.03(B). And the unsworn document cannot cure [her] mistake. In re Disqualification of Daugherty , 145 Ohio St.3d 1208, 2015-Ohio-5668, 47 N.E.3d 859, ¶ 3 ; see also In re Disqualification of Fuerst , 134 Ohio St.3d 1267, 2012-Ohio-6344, 984 N.E.2d 1079, ¶ 19 (allegations raised in an unsworn letter cannot be considered as part of an affidavit of disqualification).

{¶ 6} Second, even if Ms. Andolsek had complied with the filing requirements, she failed to set forth adequate grounds for Judge OLearys disqualification. An affidavit of disqualification addresses the narrow issue of the possible bias of a judge and is not a vehicle to contest matters of substantive or procedural law. In re Disqualification of McGrath , 149 Ohio St.3d 1224, 2016-Ohio-8601, 74 N.E.3d 453, ¶ 2, quoting In re Disqualification of Solovan , 100 Ohio St.3d 1214, 2003-Ohio-5484, 798 N.E.2d 3, ¶ 4. Therefore, it is outside the scope of this proceeding to determine a courts subject-matter jurisdiction. In addition, R.C. 2701.03 does not permit the chief justice to consider claims of bias or prejudice against magistrates. In re Disqualification of Celebrezze , 135 Ohio St.3d 1218, 2012-Ohio-6304, 985 N.E.2d 499, ¶ 8.

{¶ 7} The affidavit of disqualification is denied. The case may proceed before Judge OLeary.