State ex rel. Pratt v. Weygandt

• Decision Date: 01 February 1956
• Docket Number: No. 34159,34159
• Citation: 164 Ohio St. 463,58 O.O. 315,132 N.E.2d 191
• Parties: , 58 O.O. 315 The STATE ex rel. PRATT v. WEYGANDT, Chief Justice.
• Court: Ohio Supreme Court

Page 463

164 Ohio St. 463

132 N.E.2d 191, 58 O.O. 315

The STATE ex rel. PRATT v. WEYGANDT, Chief Justice.

No. 34159.

Supreme Court of Ohio.

Feb. 1, 1956.

Syllabus by the Court.

1. Section 3, Article IV of the Constitution of Ohio, providing that, until the General Assembly shall make adequate provision therefor, the Chief Justice of the Supreme Court shall pass upon the disqualification of any judge of the Court of Common Pleas, contemplates that the Chief Justice shall hear and determine an affidavit of bias or prejudice filed against such a judge.

2. Statutes relating to the same matter or subject, although passed at different times and making no reference to each other, are in pari materia and should be read together to ascertain and effectuate if possible the legislative intent.

3. Section 2701.03, Revised Code, providing that, where a judge of the Court of Common Pleas is biased or prejudiced for or against a party in a cause pending in his court, the clerk of the court, on the filing of an affidavit to that effect, shall notify the Chief Justice of the Supreme Court who shall designate and assign some other judge, and Section 141.08, Revised Code, providing that the Chief Justice shall be paid his necessary expenses in determining the disqualification of any judge of the Court of Common Pleas, are to be read together in the light of Section 3, Article IV of the Constitution of Ohio, with the result that the duty rests on the Chief Justice to hear such affidavit of bias or prejudice and determine whether such challenged judge is in fact biased or prejudiced and should be removed for that reason. (State ex rel. Chute v. Marshall, 105 Ohio St. 320, 137 N.E. 870, approved and followed.)

4. The term, 'biased or prejudiced,' when used in reference to a judge before whom a cause is pending 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.

5. Judicial discretion in connection with the hearing and determination of an affidavit of bias or prejudice filed against a judge is abused, where it is exercised to an end or purpose wholly unjustified by and clearly against reason and evidence.

6. A writ of mandamus will not issue against the Chief Justice of the Supreme Court to require him to unseat a judge against whom an affidavit of bias or prejudice has been filed, where, under the evidence presented on the hearing of such affidavit, the action taken by the Chief Justice in the matter does not disclose an abuse of judicial discretion.

This is an action in mandamus originating in this court, wherein the relator, Arno Pratt, seeks a writ to require the respondent, the Chief Justice of this court, to remove Warren S. Earhart, Judge of the Court of Common Pleas of Lawrence County, from hearing and determining a divorce action pending in that court and in which relator and his wife are the opposing parties.

The present action was instituted after the respondent heard and overruled an affidavit of prejudice filed against Judge Earhart by the relator, in connection with the above-mentioned divorce case.

In the present action, following the overruling of a demurrer to the amended petition, an answer amounting to a general denial was interposed, and the cause is now before the court for determination on the pleadings and the transcript of the evidence presented before the respondent at the hearing on the affidavit of prejudice.

Sol Goodman, Cincinnati, J. Earl Pratt, Ironton, and Stanley Goodman, Cincinnati, for relator.

C. William O'Neill, Atty Gen., and Joseph

C. William O'Neill, Atty. Gen., and Joseph

ZIMMERMAN, Judge.

Relator makes two principal contentions:

1. Under the provisions of Section 2701.03, Revised Code, where an affidavit of prejudice is filed against a judge of the Court of Common Pleas by a party or his counsel in a matter or cause pending before the court, such judge is automatically removed and it becomes the immediate duty of the Chief Justice of the Supreme Court to designate and assign another judge to try such matter or cause.

2. If the above contention is rejected, the respondent Chief Justice, on the evidence introduced at the hearing on the affidavit of prejudice, is chargeable with an abuse of discretion in declining to unseat Judge Earhart.

As to the first contention, Section 3, Article IV of the Constitution of Ohio, as amended September 3, 1912, provides in part:

'Any judge of the court of common pleas may temporarily preside and hold court in any county; and until the general assembly shall make adequate provision therefor, the chief justice of the supreme court of the state shall pass upon the disqualification or disability of any judge of the court of common pleas, and he may assign any judge to any county to hold court therein.'

Section 141.08, Revised Code (originally enacted in 1917 as Section 2253-1, General Code, 107 Ohio Laws, 628), recites:

'The chief justice of the supreme court shall receive his actual and necessary expenses incurred while performing his duties under the law and the constitution in determining the disqualification or disability of any judge of the court of common pleas or of the court of appeals * * *.'

And Section 2701.03, Revised Code (enacted in 1913 [Section 1687, General Code] in practically its present wording, 103 Ohio Laws, 417), reads:

'When a judge of the court of common pleas is interested in a cause or matter pending before the court, is related to, or has a bias or prejudice either for or against, a party to such matter or cause or to his counsel, or is otherwise disqualified to sit in such cause or matter, on the filing of an affidavit by any party to such cause or matter, or by the counsel of any party, setting forth the fact of such interest, bias, prejudice, or disqualification, the clerk of the court of common pleas shall enter the fact of such filing on the trial docket in such cause and forthwith notify the chief justice of the supreme court. The Chief Justice shall designate and assign some other judge to take the place of the judge against whom such affidavit is filed. The judge so assigned shall try such matter or cause. Such affidavit shall be filed not less than three days prior to the time set for the hearing in such matter or cause.'

In 1922, this court had before it in the case of State ex rel. Chute v. Marshall, 105 Ohio St. 320, 137 N.E. 870, the exact problem which is now before the court and held in a per curiam opinion that Section 2253-1, General Code (Section 141.08, Revised Code), and Section 1687, General Code (Section 2701.03, Revised Code), are in pari materia and should be construed together, and that when this is done, particularly with reference to Section 3, Article IV of the Constitution of Ohio, it is manifest that the question of bias or prejudice on the part of a judge of the Court of Common Pleas is to be heard and passed on by the Chief Justice of the Supreme Court.

In our view, a good deal may be said in support of the Chute case. Section 3, Article IV of the Constitution, says expressly that, 'until the general assembly shall make adequate provision therefor, the chief justice of the supreme court of the state shall pass upon the disqualification or disability of any judge of the court of common pleas.'

In Ohio and elsewhere the generally accepted rule is that statutes relating to the same matter or subject, although passed at different times and making no reference to each other, are in pari materia and should be read together to ascertain and effectuate if possible the legislative intent. 37 Ohio Jurisprudence, 599, Section 332; Thoman v. Farmers & Bankers Life Ins. Co., 155 Kan. 806, 130 P.2d 551; State ex rel. Carlton v. Weed, 208 Minn. 342, 294 N.W. 370.

What is now Section 2701.03, Revised Code, relating to the filing of an affidavit of bias or prejudice against a judge of the Court of Common Pleas and the procedure thereon, was enacted in 1913 in substantially its present language. That by such enactment the General Assembly was not attempting to relieve the Chief Justice of the Supreme Court of his constitutional duty to determine the disqualification of a judge of the Court of Common Pleas against whom an affidavit of bias or prejudice has been filed is disclosed by reference to what is now Section 141.08, Revised Code, representing legislation originally passed in 1917, wherein provision is made for paying the Chief Justice the expenses he may incur 'while performing his duties under the law and the constitution in determining the disqualification or disability of any judge of the court of common pleas.'

Besides, Section 2701.03, Revised Code, read as a whole, appears to create a factual situation as to whether the challenged judge actually has a bias or prejudice for or against a party or his counsel, which would thus require a hearing and determination by a qualified judicial officer, namely the Chief Justice of the Supreme Court, as specified in Section 3, Article IV of the Constitution. That Code section begins with the words, 'when a judge * * * has a bias or prejudice either for or against,' and the affidavit required by such section must set 'forth the fact of such * * * bias, prejudice, or disqualification.'

For over 40 years the Chief Justice of the Supreme Court has been exercising the prerogative of hearing and deciding affidavits of bias or prejudice filed against judges of the Court of Common Pleas, and his right and obligation to do so have been recognized generally by the bench and bar of this state.

An interesting case bearing on the question now under discussion is that of Duncan v. State ex rel. Brown, 82 Ohio St. 351, 92 N.E. 481, 482, decided in 1910, wherein Sections 469 and 550, Revised Statutes,...