[Cite as In re Disqualification of Rastatter, 136 Ohio St.3d 1271, 2013-Ohio-4232.] 

IN RE DISQUALIFICATION OF RASTATTER. 

THE STATE OF OHIO v. BOYCE. 

[Cite as In re Disqualification of Rastatter, 136 Ohio St.3d 1271, 

2013-Ohio-4232.] 

Judges—Affidavit of disqualification—R.C. 2701.03—Disqualification of judge 

not warranted—Affiant failed to substantiate claims of bias or prejudice.

(No. 13-AP-068—Decided August 12, 2013.) 

ON AFFIDAVIT OF DISQUALIFICATION in Clark County Court of Common Pleas 

Case No. CR 08-CR-612. 

____________________ 

O’CONNOR, C.J. 

{¶ 1} Defendant Ramon Boyce has filed an affidavit with the clerk of 

this court under R.C. 2701.03 seeking to disqualify Judge Douglas M. Rastatter 

from presiding over any further proceedings in case No. 08-CR-612, now pending 

on Boyce’s petition for postconviction relief in the Court of Common Pleas of 

Clark County. 

{¶ 2} According to Boyce’s affidavit, Judge Rastatter has presided over 

four of Boyce’s previous trials, one of which resulted in a “large reversal.” 

Because of this history, Boyce claims that Judge Rastatter has a “predetermined 

hostile and fixed anticipatory feeling” toward him, and therefore the judge cannot 

act impartially in any proceeding involving Boyce. 

{¶ 3} Judge Rastatter has responded in writing to the allegations in 

Boyce’s affidavit, stating that the Ohio State Bar Association summarily 

dismissed Boyce’s grievance against the judge based on these same allegations. 

The judge further avers that he harbors no resentment or animosity toward Boyce, 
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that he will review the postconviction petition with objectivity and fairness, and 

that he will make his decision based solely on the evidence presented and the law. 

{¶ 4} For the reasons explained below, no basis has been established to 

order the disqualification of Judge Rastatter. 

{¶ 5} While “[a] defendant’s experience before an allegedly biased judge 

in previous proceedings is an important factor to be weighed in a bias 

determination,” State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 

N.E.2d 381, ¶ 32, Boyce has failed to substantiate his claims that Judge 

Rastatter’s previous conduct is indicative of bias and that the judge continues to 

harbor a hostile feeling or spirit of ill will against him. See In re Disqualification 

of O’Neill, 100 Ohio St.3d 1232, 2002-Ohio-7479, 798 N.E.2d 17, ¶ 14 (defining 

“bias or prejudice” as “a hostile feeling or spirit of ill-will * * * with the 

formation of a fixed anticipatory judgment on the part of the judge”). 

{¶ 6} First, it is well established that absent a showing of actual bias, “a 

judge who presided over prior proceedings involving one or more parties 

presently before the court is not thereby disqualified from presiding over later 

proceedings involving the same parties.” In re Disqualification of Aubry, 117 

Ohio St.3d 1245, 2006-Ohio-7231, 884 N.E.2d 1095, ¶ 7. Similarly, in general, 

“a judge who presided at trial is not disqualified from ruling on a subsequent 

petition for post-conviction relief.” In re Disqualification of Basinger, 77 Ohio 

St.3d 1237, 674 N.E.2d 351 (1996). And finally, bias against a party cannot be 

presumed merely because a judge was reversed on appeal. See, e.g., In re 

Disqualification of Floyd, 135 Ohio St.3d 1249, 2012-Ohio-6336, 986 N.E.2d 10, 

¶ 10 (that a trial judge’s decision “was reversed in a critical opinion by the 

appeals court does not imply that she will be biased against [the appellants] or 

somehow retaliate against them”). Thus, without evidence of actual bias, the fact 

that Judge Rastatter has presided over previous cases involving Boyce is not 

grounds for disqualification. 
January Term, 2013 

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{¶ 7} Second, Boyce claims that in these previous proceedings, Judge 

Rastatter made “biased comments” against him, insulted him, and even 

disrespected his mother, but Boyce has not submitted any examples of these 

alleged comments. In affidavit-of-disqualification proceedings, the burden falls 

on the affiant to submit specific allegations of bias or prejudice, see R.C. 

2701.03(B)(1), and an affiant is generally “required to submit evidence beyond 

the affidavit of disqualification supporting the allegations contained therein.” In 

re Disqualification of Baronzzi, 135 Ohio St.3d 1212, 2012-Ohio-6341, 985 

N.E.2d 494, ¶ 6. Here, Boyce not only failed to set forth any specific examples of 

the judge’s allegedly disparaging comments, but he also failed to submit a 

transcript or other evidence supporting these allegations. As a result, there is no 

way to determine whether Judge Rastatter made the comments or whether they 

reflect bias or prejudice against Boyce. On this record, Boyce’s vague and 

unsubstantiated allegations are insufficient for a finding of bias. See In re 

Disqualification of Walker, 36 Ohio St.3d 606, 522 N.E.2d 460 (1988). 

{¶ 8} Finally, the majority of the remaining allegations in Boyce’s 

affidavit are dedicated to criticizing Judge Rastatter’s previous legal rulings. An 

affidavit of disqualification, however, is not the mechanism for determining 

whether a judge has complied with the law, and it is well settled that a party’s 

disagreement or dissatisfaction with a court’s legal rulings, even if those rulings 

may be erroneous, is not grounds for disqualification. In re Disqualification of 

Floyd, 101 Ohio St.3d 1217, 2003-Ohio-7351, 803 N.E.2d 818, ¶ 4. Procedures 

exist by which appellate courts may review and, if necessary, correct any legal 

errors. In re Disqualification of Russo, 110 Ohio St.3d 1208, 2005-Ohio-7146, 

850 N.E.2d 713, ¶ 6. Here, Boyce has failed to indicate whether any of these 

issues were even raised in his appeals. Without more, Judge Rastatter’s various 

adverse legal rulings against Boyce cannot be evidence of bias or prejudice. 
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{¶ 9} “The statutory right to seek disqualification of a judge is an 

extraordinary remedy. A judge is presumed to follow the law and not to be 

biased, and the appearance of bias or prejudice must be compelling to overcome 

these presumptions.” In re Disqualification of George, 100 Ohio St.3d 1241, 

2003-Ohio-5489, 798 N.E.2d 23, ¶ 5. Because of the lack of supporting evidence 

in Boyce’s affidavit—and the judge’s pledge to hear the pending motion fairly 

and impartially—those presumptions have not been overcome in this case. 

{¶ 10} For the reasons stated above, the affidavit of disqualification is 

denied. The case may proceed before Judge Rastatter. 

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