[Cite as In re Disqualification of Stucki, ___ Ohio St.3d ___, 2019-Ohio-1624.]




                         IN RE DISQUALIFICATION OF STUCKI.
                               O’MALLEY v. O’MALLEY.
[Cite as In re Disqualification of Stucki, ___ Ohio St.3d ___, 2019-Ohio-1624.]
Judges—Affidavits of disqualification—R.C. 2701.03—Document attached to
        affidavit but not sworn to before an authorized officer may not be
        considered in deciding disqualification request—Remaining vague
        allegations of affiant insufficient to require removal of trial-court judge—
        Disqualification denied.
                    (No. 19-AP-001—Decided January 30, 2019.)
   ON AFFIDAVIT OF DISQUALIFICATION in Cuyahoga County Court of Common
           Pleas, Domestic Relations Division, Case No. DR-04-229141.
                                       ____________
        O’CONNOR, C.J.
        {¶ 1} Defendant, Patrick Joseph O’Malley, has filed an affidavit with the
clerk of this court pursuant to R.C. 2701.03 seeking to disqualify Judge David
Stucki, a retired judge sitting by assignment, from presiding over any further
proceedings in the above-referenced case.
        {¶ 2} Mr. O’Malley alleges that Judge Stucki engaged in improper ex parte
discussions, violated the court’s time guidelines for child-custody cases, failed to
hold hearings on pending motions, and has been more focused on collecting money
owed to the guardian ad litem rather than locating the parties’ children, who
evidently disappeared from a Nebraska children’s facility.
        {¶ 3} Judge Stucki has responded in writing to the affidavit and denies any
bias against Mr. O’Malley. The judge also denies engaging in any ex parte
communications and explains his relationships with the guardian ad litem and the
facility in which he placed the parties’ children.
                             SUPREME COURT OF OHIO




       {¶ 4} For the reasons explained below, no basis has been established to
order the disqualification of Judge Stucki.
       {¶ 5} First, many of Mr. O’Malley’s allegations cannot be considered. With
his sworn affidavit, Mr. O’Malley submitted an unsworn document entitled
“Request For Disqualification.” The unsworn document included many factual
allegations that went beyond those in his affidavit. R.C. 2701.03(B)(1) and (2),
however, authorize a party to file an affidavit of disqualification, which must
include “specific allegations” of bias sworn to before a “jurat of a notary public or
another person authorized to administer oaths or affirmations.” Under Ohio law,
an affidavit “ ‘is a written declaration under oath.’ ” In re Disqualification of
Donnelly, 134 Ohio St.3d 1221, 2011-Ohio-7080, 982 N.E.2d 713, ¶ 2, quoting
R.C. 2319.02. In deciding a disqualification request, the chief justice cannot
consider unsworn allegations by a litigant. See In re Disqualification of Fuerst,
134 Ohio St.3d 1267, 2012-Ohio-6344, 984 N.E.2d 1079, ¶ 19, quoting In re
Disqualification of Pokorny, 74 Ohio St.3d 1238, 657 N.E.2d 1345 (1992)
(explaining that a party’s failure to confirm allegations “ ‘by oath or affirmation’ ”
violated R.C. 2701.03, leading to an unsworn letter having “ ‘no effect on the
proceedings’ ”).    Accordingly, Mr. O’Malley’s unsworn allegations in his
memorandum cannot be considered in deciding his disqualification request.
       {¶ 6} Second, the vague allegations in Mr. O’Malley’s affidavit are
insufficient to require Judge Stucki’s removal. For example, Mr. O’Malley states
that he is “aware of many ex-parte discussions which had involved [J]udge David
Stucki with others.” It is well established, however, that “[a]n alleged ex parte
communication constitutes grounds for disqualification when there is ‘proof that
the communication * * * addressed substantive matters in the pending case.’ ”
(Ellipsis sic.) In re Disqualification of Forsthoefel, 135 Ohio St.3d 1316, 2013-
Ohio-2292, 989 N.E.2d 62, ¶ 7, quoting In re Disqualification of Calabrese, 100
Ohio St.3d 1224, 2002-Ohio-7475, 798 N.E.2d 10, ¶ 2. “The allegations must be




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                                January Term, 2019




substantiated and consist of something more than hearsay or speculation.” Id.
Here, Mr. O’Malley has not alleged—let alone established—that Judge Stucki
engaged in ex parte communications about substantive matters in the case. “This
and the other vague, unsubstantiated allegations of the affidavit are insufficient on
their face for a finding of bias or prejudice.” In re Disqualification of Walker, 36
Ohio St.3d 606, 522 N.E.2d 460 (1988).
       {¶ 7} Similarly, “[a]n affidavit of disqualification * * * is not a vehicle to
contest matters of substantive or procedural law.”       In re Disqualification of
Solovan, 100 Ohio St.3d 1214, 2003-Ohio-5484, 798 N.E.2d 3, ¶ 4. Mr. O’Malley
may have other remedies if he believes that Judge Stucki has failed to hold required
hearings or if the guardian ad litem charged excessive fees. Those issues, however,
cannot be litigated in a disqualification matter.      And Mr. O’Malley’s mere
disagreement with the judge’s legal decisions does not prove bias or prejudice. Id.
       {¶ 8} The affidavit of disqualification is denied. The case may proceed
before Judge Stucki.
                           ________________________




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