In re Disqualification of Russo - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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IN RE DISQUALIFICATION OF RUSSO.
WHITE ET AL. v. DERRICK, EXR., ET AL.
[Cite as In re Disqualification of Russo (1997), 81 Ohio St.3d 1217.]
Judges -- Affidavit of disqualification must be filed not less than seven days
before next hearing, unless facts are set forth to show that it could not have
been filed on time -- R.C. 2701.03(B) -- Reconsideration of first affidavit of
disqualification not required when arguments are essentially restated.
(No. 97-AP-107 -- Decided September 30, 1997.)
ON AFFIDAVIT OF DISQUALIFICATION in Cuyahoga County
Court of Common Pleas case No. 302146.

MOYER, C.J. Affiant, Margaret Mary Meko, counsel for the defendants
Ethel W. Derrick, executor of the estate of Milford Derrick et al., in the above-
captioned case, has filed a motion requesting reconsideration of an August 1, 1997
entry denying her affidavit of disqualification. Affiant raises two contentions in
support of her motion: (1) that affiant could not have timely filed her affidavit of
disqualification prior to trial because of the seven-day requirement of R.C.
2701.03 and, therefore, did not waive her objection to Judge Nancy Russo's
participation in the trial; and (2) that Judge Russo has prejudged issues related to
affiant's post-judgment motions and should be disqualified.

Affiant's first contention is not well taken. R.C. 2701.03(B), which
contains procedures to implement the authority granted to the Chief Justice by
Section 5(C) Article IV of the Ohio Constitution, imposes a requirement that an
affidavit of disqualification be filed "not less than seven calendar days before the
day on which the next hearing in the proceeding is scheduled." However, the
statutory time requirement has been held not to apply where the affidavit sets forth
facts to show that it could not have been filed on time. In re Disqualification of

Badger (1989), 43 Ohio St.3d 601, 538 N.E.2d 1023, citing Bedford v. Lacey
(1985), 30 Ohio App.3d 1, 30 OBR 38, 506 N.E.2d 224, and Household Consumer
Discount Co. v. Pokorny (1978), 60 Ohio App.2d 253, 14 O.O.3d 232, 396 N.E.2d
803. Thus, affiant could have raised the issue of Judge Russo's alleged bias and
prejudice prior to the trial by filing an affidavit of disqualification and including in
that affidavit the circumstances that precluded her from complying with the seven-
day requirement of the statute.

Affiant's second contention essentially represents a restatement of
arguments made in support of her original affidavit of disqualification. As these
allegations previously were considered in ruling on the affidavit of
disqualification, reconsideration of the August 1, 1997 ruling is not required.

For these reasons, the motion for reconsideration is overruled, and the case
shall proceed before Judge Russo.

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