COLUMBUS – The Ohio Supreme Court has denied a request by a defendant in two local property lawsuits to have the Hocking County judge who’s hearing the cases removed.
In a judgment entry filed June 23, Chief Justice Maureen O’Connor found that Mark Anthony of Logan had not presented a compelling argument for disqualifying Hocking County Common Pleas Judge John T. Wallace from hearing the civil cases in which Anthony is named as a defendant.
Anthony is a defendant in two lawsuits, both related to a 142-acre piece of property on state Route 664 that has been used for two different outdoor adventure/zip lining parks. The first suit dates back to 2013. It was the fallout from the disintegration of a business, Hocking Peaks LLC, that Anthony had started with his business partner Karry Gemmell, to operate the now-defunct Hocking Peaks Adventure Park at the Route 664 site.
That lawsuit is still ongoing, though Gemmell appears to have largely prevailed in the litigation, having won a money judgment of around $500,000.
The second suit was filed in March of this year by Eventuresencore, Inc., a Canal Winchester, Ohio-based company that sought to open a new adventure park business at the old Hocking Peaks location. In its legal complaint Eventuresencore alleged that after a dispute arose between the company and Anthony over payment for some construction work at the site, Anthony began trying to sabotage the park and keep it from opening. Judge Wallace has issued a restraining order in that case, essentially barring Anthony from entering the property.
On May 28, Anthony submitted an affidavit to the state supreme court, asking that Wallace be disqualified from hearing the suits. In it, he claimed that Wallace’s rulings in the cases so far suggest that he favors the plaintiffs’ causes over Anthony’s. One of the examples Anthony cited in support of his claim was Wallace’s issuance of the restraining order against him, followed by an extension of that order, without Anthony’s having attended any court hearing on the issue.
Wallace filed a response in the disqualification action, in which he asked the high court to deny Anthony’s disqualification request, and said that he has sought to hear the lawsuits in which Anthony is involved “without bias or prejudice.”
In the June 23 judgment entry, Chief Justice O’Connor notes that in the context of a judge disqualification request, the 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.”
She goes on to state that the standard for assessing whether a particular judge’s hearing a case appears improper 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 judge-disqualification proceedings, the judgment entry adds, the judge is granted a “presumption of impartiality” – i.e., the burden of proof is on the person alleging bias. Anthony has not overcome that presumption, the entry concludes.
“Mr. Anthony has not established that Judge Wallace has hostile feelings toward him or that the judge has formed a fixed anticipatory judgment on any issue in the underlying cases,” O’Connor writes. “Nor has Mr. Anthony set forth a compelling argument for disqualifying Judge Wallace to avoid an appearance of bias.”
The mere fact that Wallace has issued and extended the restraining order, the entry states, does not mean the judge will be unable to weigh the evidence impartially at a hearing to determine whether he should issue a preliminary injunction.
Another point in Wallace’s favor is that it’s well established in Ohio case law that when a judge has been presiding over a case for a long time, they should not be removed except in “extraordinary circumstances.” Wallace has done service as the judge on the earlier lawsuit for eight years, which has included holding a trial in 2016 and issuing an 81-page decision in 2019.
“Considering Judge Wallace’s significant and lengthy involvement with these parties and subject matter, Mr. Anthony has not alleged any facts that would rise to the level of extraordinary circumstances warranting Judge Wallace’s removal at this stage of the litigation,” the entry states.
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