[Cite as In re Disqualification of Donofrio, 135 Ohio St.3d 1253, 2012-Ohio-6338.]

I N RE D ISQUALIFICATION OF D ONOFRIO ET AL . T HE S TATE EX REL . P ATEL v. C RAWFORD . [Cite as In re Disqualification of Donofrio, 135 Ohio St.3d 1253, 2012-Ohio-6338.] Judges—Affidavits of disqualificati on—R.C. 2701.03—Disqualification of appellate panel not warranted—Allegati ons of erroneous rulings cannot be litigated in disqualification proceeding—Affiant has failed to prove prejudice or bias. (No. 12-AP-134

— Decided December 17, 2012.)
O N A FFIDAVIT OF D ISQUALIFICATION in the Court of Appeals for Belmont County
Case No. 12-BE-28.

__________________ O’C ONNOR , C.J. {¶ 1} Petitioner Arvind Patel has filed an affidavit with the clerk of this
court under R.C. 2501.13 and 2701.03 seekin g to disqualify Judge Gene Donofrio, Judge Joseph J. Vukovich, and J udge Mary DeGenaro from presiding over case No. 12-BE-28, now pending on Patel’s petition for a writ of mandamus in the Seventh District Court of Appeals. {¶ 2} Patel alleges that Judge Dono frio, Judge Vukovich, and Judge DeGenaro should be disqualified from he aring his underlying writ action because in a different case filed by him, Patel v. Bellaire , 7th Dist. No. 10-BE-27, 2012- Ohio-4348, they issued a biased opinion th at violated his constitutional rights. Specifically, Patel argues that the panel included false statements in the Patel opinion, ignored “undeniable facts a nd evidence,” and “maliciously and wrongfully” affirmed the trial court’s judgment against him. As a result, Patel claims that this panel of judges is “i ncapable” of adjudicating the underlying writS UPREME C OURT OF O HIO

2 action and “will again deprive Patel of his Constitutional Right to due process due to his race and religion.” {¶ 3} For the following reasons, no basis has been established to order the disqualification of Judge Donofrio, Judge Vukovich, or Judge DeGenaro. {¶ 4} First, the gravamen of Patel’s affidavit is that the Seventh District violated his constitutional rights in the separate Patel case. However, whether the appellate court erred in that case ca nnot be litigated in an affidavit-ofdisqualification proceeding. It is well established that an affidavit of disqualification “is not a vehi cle 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. And a party’s disagreem ent or dissatisfacti on with a court’s legal rulings, even if those rulings may be erroneous, is not grounds for disqualification. See In re Disqualification of Floyd , 101 Ohio St.3d 1217, 2003- Ohio-7351, 803 N.E.2d 818, ¶ 4; In re Disqualification of Light , 36 Ohio St.3d 604, 522 N.E.2d 458 (1988) (“alleged errors of law or procedure are legal issues subject to appeal and are not grounds for disqualification”). Therefore, Patel’s disagreement with the Seventh District’s Patel opinion does not demonstrate bias or prejudice and is not grounds for disqua lification in the underlying writ action. The remedy for these and other legal claims , if any, lies on appeal, not through the filing of an affidavit of disqualification. In re Disqualification of Russo , 110 Ohio St.3d 1208, 2005-Ohio-7146, 850 N.E.2d 713, ¶ 6. {¶ 5} Second, Patel has failed to substantiate his claim of racial or religious bias. Allegations of such bias st rike at the very heart of the judiciary and are among the most serious and damaging that can be directed at a judge. As a result, such claims must be proven by clear evidence establishing the existence of
bias. In re Disqualification of Cunningham , 100 Ohio St.3d 1216, 2002-Ohio7470, 798 N.E.2d 4, ¶ 2. Here, Patel has s ubmitted documents, transcripts, and
affidavits from the Patel record in an attempt to show that the appellate courtJanuary Term, 2012

3 erred by misinterpreting the relevant evidence. However, he provides no evidence, beyond speculation, to support his a ssertion that the alleged errors were the product of bias—racial or otherwise. Vague or unsubstantiated allegations are insufficient to establish bias or prejudice. In re Disqualification of Walker , 36 Ohio St.3d 606, 522 N.E.2d 460 (1988); In re Disqualification of Flanagan , 127 Ohio St.3d 1236, 2009-Ohio-7199, 937 N.E.2d 1023, ¶ 4 (“Allegations that are based solely on hearsay, innuendo, and sp eculation * * * are insufficient to establish bias or prejudice”). {¶ 6} Finally, because the appellate panel has been the target of his personal criticism, Pa tel suggests they should be disqualified because the probability of their bias is now “too high to be Constitutionally tolerable.” Patel
cites Mayberry v. Pennsylvania , 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971), and Withrow v. Larkin , 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). As an initia l matter, neither Mayberry nor Withrow support disqualification here. Mayberry involved the narrow issue of whether a judge should hear the criminal-contempt trial of a defendant when the same judge was the one reviled by the contemnor, and Withrow involved whether an administrative agency’s combination of investigative and adjudicative functions
created an unconstitutional risk of bias. Mayberry at 466; Withrow at 47. The
issue here is much broader: whether judges on an appellate court should be removed from a case involving a litigant who has previously criticized the court’s judicial opinions and lodged pers onal attacks against the judges. {¶ 7} In general, absent some indication that the criticism was so great that no reasonable judge could be expected to remain unaffected, personal attacks on a judge—even serious allega tions of racism, such as here—will not lead to the judge’s disqualification. See Flamm, Judicial Disqualification, Section 21.8 (2d Ed.2007). As the United States Supreme Court stated in Mayberry , “[a] judge
cannot be driven out of a case.” Id. at 464; see also Fed. Deposit Ins. Corp. v.S UPREME C OURT OF O HIO

4 Sweeney , 136 F.3d 216, 219 (1st Cir.1998), quoting 13A Wright, Miller & Cooper, Federal Practice & Procedure , Section 3542, 577-578 (2d Ed.1984) (“ ‘A party cannot force disqualification by attacking the judge and then claiming that these attacks must have caused the judge to be biased against [her]’ ” [brackets sic]). “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. Those presumptions have not been overcome in this case. Nothing in the record sugg ests that Patel’s accusations against the Seventh District judges ha ve affected or would affect their conduct in the underlying case. See, e.g. , In re Disqualification of O’Neill , 100 Ohio St.3d 1232, 2002-Ohio-7479, 798 N.E.2d 17, ¶ 17. Accordingly, the fact that this panel of judges has been the target of Patel’s criticism is insufficient to warrant their disqualification. {¶ 8} For the reasons stated above, the affidavit of disqualification is denied. The case may proceed before Judge Donofrio, Judge Vukovich, and Judge DeGenaro of the Seventh District Court of Appeals.

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