Opinion
No. 21-AP-063
06-21-2021
IN RE DISQUALIFICATION OF MCMONAGLE. The City of Medina ex rel. Jocke et al. v. The City of Medina.
{¶ 1} Plaintiff Ralph E. Jocke has filed an affidavit pursuant to R.C. 2701.03 and Article IV, Section 5(C) of the Ohio Constitution seeking to disqualify Judge Richard J. McMonagle, a retired judge sitting by assignment, from the above-referenced case.
{¶ 2} Mr. Jocke claims that Judge McMonagle is biased against him and the other plaintiffs based on the judge's conduct in a prior action involving the same parties. Specifically, Mr. Jocke asserts that in the prior action, the judge acted in a biased manner toward him after he reminded the judge that in 1981, the judge swore Mr. Jocke into the practice of law as a favor to Mr. Jocke's former law firm. Mr. Jocke also alleges that in the prior action, Judge McMonagle unfairly limited discovery, coached the defendant's counsel, and likely engaged in an improper ex parte communication with the defendant's counsel. In addition, Mr. Jocke claims that the judge made comments that demonstrate hostility toward citizen organizations similar to a group formed by some of the plaintiffs.
{¶ 3} Judge McMonagle submitted a response to the affidavit and denies any bias against the plaintiffs. The judge states that swearing in Mr. Jocke early to the practice of law was a "win win" for all those involved. Regarding any ex parte communications in the prior action, the judge asserts that he endeavored to create a settlement dialogue with the defendant's counsel, although settlement was unsuccessful. Judge McMonagle also denies making hostile comments about citizen organizations, and he believes that Mr. Jocke misinterpreted the judge's comments.
{¶ 4} In disqualification requests, "[t]he term ‘bias or prejudice’ ‘implies a hostile feeling or spirit of ill-will or undue friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will be governed by the law and the facts.’ " In re Disqualification of O'Neill , 100 Ohio St.3d 1232, 2002-Ohio-7479, 798 N.E.2d 17, ¶ 14, quoting State ex rel. Pratt v. Weygandt , 164 Ohio St. 463, 469, 132 N.E.2d 191 (1956). "The proper test for determining whether a judge's participation in a case presents an appearance of impropriety is * * * an objective one. A judge should step aside or be removed if a reasonable and objective observer would harbor serious doubts about the judge's impartiality." In re Disqualification of Lewis , 117 Ohio St.3d 1227, 2004-Ohio-7359, 884 N.E.2d 1082, ¶ 8. In addition, a "presumption of impartiality" is accorded all judges in affidavit-of-disqualification proceedings. In re Disqualification of Celebrezze , 101 Ohio St.3d 1224, 2003-Ohio-7352, 803 N.E.2d 823, ¶ 7.
{¶ 5} Mr. Jocke has not established that Judge McMonagle has hostile feelings toward him and the other plaintiffs or that the judge has formed a fixed anticipatory judgment on any issue in the underlying case. Nor has Mr. Jocke set forth a compelling argument for disqualifying Judge McMonagle to avoid an appearance of bias. An affidavit of disqualification " ‘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, this is not the appropriate forum in which to review the propriety of a judge's discovery decisions. Nor would an objective observer reasonably question Judge McMonagle's impartiality based on his 1981 interaction with Mr. Jocke or the judge's comments in the prior action. And in affidavit-of-disqualification proceedings, "the question is not whether the judge has violated the Code of Judicial Conduct, but whether the ex parte communication demonstrates bias or prejudice on the part of the judge." In re Disqualification of Nicely , 135 Ohio St.3d 1237, 2012-Ohio-6290, 986 N.E.2d 1, ¶ 10. Mr. Jocke has not established that Judge McMonagle's ex parte settlement discussion in the prior case demonstrates that the judge is biased in the pending matter.
{¶ 6} The affidavit of disqualification is denied. The case may proceed before Judge McMonagle.