IN RE DISQUALIFICATION OF NICELY, 74 Ohio St.3d 1266 (1994)

657 N.E.2d 1364

IN RE DISQUALIFICATION OF NICELY. MILLER v. MILLER.

No. 94-AP-162Supreme Court of Ohio.
Decided October 25, 1994.

ON AFFIDAVIT OF DISQUALIFICATION in Summit County Court of Common Pleas, Division of Domestic Relations case No. 93 09 2221.

MOYER, C.J.

This affidavit of disqualification was filed by Steve C. Bailey, counsel for defendant E. Earl Miller, Jr. in the above-captioned case. Affiant seeks the disqualification of Judge Judith A. Nicely based on her statement at a pretrial conference that she would give little weight to the opinion of the psychiatrist treating the defendant.

The record reveals that Judge Nicely’s statement was made after she had reviewed the file in this case and, in part, based on her prior contact with the

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psychiatrist. The case file revealed that the psychiatrist no longer was treating the defendant and that his report was over a year old. These facts, combined with Judge Nicely’s prior experience with the psychiatrist, caused her to suggest that the defendant seek an opinion from another psychiatrist in order to support his position. My reading of this record suggests that Judge Nicely’s comments were not the product of bias or prejudice, but were made to afford the defendant an opportunity to seek an opinion from another psychiatrist prior to trial.

For these reasons, the affidavit of disqualification is found not well taken and is hereby denied. The case shall proceed before Judge Nicely.