The opinion
[This opinion has been published in Ohio Official Reports at 178 Ohio St.3d 1205.]
IN RE DISQUALIFICATION OF EDWARDS.
THE STATE OF OHIO v. CRISWELL
THE STATE OF OHIO v. OWENS
and
WILLIAMS v. HOPPER.
[Cite as In re Disqualification of Edwards, 2024-Ohio-6173.]
Judges—Affidavits of disqualification—R.C. 2701.03—Affidavit dismissed as to
State v. Criswell because case was not pending when affidavit was filed—
Disqualification denied as to State v. Owens and Williams v. Hopper
because affiant failed to show that judge’s conduct at county fair shows that
judge is biased or prejudiced against him or that judge should be
disqualified to avoid appearance of impropriety.
(No. 24-AP-104—Decided August 16, 2024.)
ON AFFIDAVIT OF DISQUALIFICATION in Marion County Court of Common Pleas,
General Division, Case Nos. 2022-CR-0412, 2023-CR-0484, and
2024-CV-0041.
____________
KENNEDY, C.J.
{¶ 1} Todd A. Anderson, counsel for parties in the three underlying cases,
has filed an affidavit of disqualification pursuant to R.C. 2701.03 seeking to
disqualify Judge Warren T. Edwards of the Marion County Court of Common Pleas,
General Division, from presiding over the cases. Judge Edwards filed a response
to the affidavit of disqualification.
{¶ 2} Because there were no proceedings pending before Judge Edwards in
State v. Criswell, Marion C.P. No. 2022-CR-0412, when the affidavit of
disqualification was filed, that part of the affidavit is dismissed. And as explained
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below, Anderson has not otherwise established that the judge should be
disqualified. Therefore, the remainder of the affidavit of disqualification is denied.
State v. Owens, Marion C.P. No. 2023-CR-0484, and Williams v. Hopper, Marion
C.P. No. 2024-CV-0041, shall proceed before Judge Edwards.
Trial-Court Proceedings
State v. Criswell, Marion C.P. No. 2022-CR-0412
{¶ 3} Kevin Criswell Jr. was charged in a three-count indictment on July 27,
2022, for various traffic offenses. Criswell had been operating a vehicle with a
blood-alcohol content of .183 when he failed to stop at a stop sign, drove through
the intersection, and struck another vehicle. See State v. Criswell, 2024-Ohio-1628,
¶ 2 (3d Dist.).
{¶ 4} On July 13, 2023, Criswell entered into a negotiated plea agreement
in which the State agreed to drop the more serious count of aggravated vehicular
assault in exchange for Criswell’s pleading guilty to vehicular assault and operating
a vehicle while under the influence of alcohol or drugs. On September 29, Criswell
was sentenced to one year in prison on the vehicular-assault conviction and 90 days
of local confinement for the conviction for operating a vehicle while under the
influence, with the sentences to be served consecutively.
{¶ 5} The convictions and sentence were affirmed by the Third District
Court of Appeals. Id. at ¶ 1.
{¶ 6} On May 8, 2024, Anderson filed a motion for judicial release on
Criswell’s behalf. A “tentative” hearing date was scheduled for August 16.
However, on July 2, Judge Edwards journalized an entry denying the motion as
moot. The judge based his decision on the fact that Criswell would be released
before that hearing could be held because he had been granted good-time credit.
On July 15, Anderson filed a motion to disqualify Judge Edwards, which the judge
denied.
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{¶ 7} According to the affidavit of disqualification, there is currently
nothing pending before the judge in State v. Criswell, Marion C.P. No. 2022-CR-
0412.
State v. Owens, Marion C.P. No. 2023-CR-0484
{¶ 8} There are few facts in the record about State v. Owens. Tommy Owens
was indicted on November 8, 2023, and arraigned on January 22, 2024. Anderson
entered a notice of appearance on January 29. It is not clear whether Anderson filed
a motion for Judge Edwards to recuse himself in this case. However, Anderson
avers that on February 23 in State v. Veith, Marion C.P. No. 2023-CR-0458, he
moved to disqualify Judge Edwards from all cases in which Anderson represents a
party. The judge denied Anderson’s motion.
{¶ 9} In State v. Owens, Judge Edwards held four pretrial hearings and
several motion hearings from March 19 through July 16. A pretrial conference was
scheduled for July 26.
Williams v. Hopper, Marion C.P. No. 2024-CV-0041
{¶ 10} There are also few facts in the record about Williams v. Hopper. The
complaint was filed on January 20, 2024, and the defendant filed an answer on
February 9. The matter was referred to the court’s magistrate.
{¶ 11} A telephonic pretrial conference scheduled for August 8 was
canceled. A final pretrial is scheduled for November 1, and a trial is scheduled for
December 3.
{¶ 12} On July 18, Anderson filed the affidavit of disqualification.
Affidavits of Disqualification
{¶ 13} Prior to addressing the allegations in the affidavit of disqualification,
there are two preliminary issues: whether an affidavit of disqualification may be
filed when the underlying case is closed and whether Anderson’s affidavit of
disqualification and the third-party affidavits filed in support of the affidavit of
disqualification are fully admissible. The answer to both questions is no. The focus
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of an affidavit of disqualification must be on a pending case, and portions of the
affidavit of disqualification and one of the third-party affidavits do not meet the
requirements for a valid affidavit.
The Pending-Case Requirement
{¶ 14} Article IV, Section 5(C) of the Ohio Constitution gives the chief
justice authority to “pass upon the disqualification of any judge of the courts of
appeals or courts of common pleas or division thereof.” If a judge of a court of
common pleas “allegedly is interested in a proceeding pending before the court,
allegedly is related to or has a bias or prejudice for or against a party to a proceeding
pending before the court or a party’s counsel, or allegedly otherwise is disqualified
to preside in a proceeding pending before the court,” then that party or the party’s
counsel may file an affidavit of disqualification with the clerk of this court.
(Emphasis added.) R.C. 2701.03(A).
{¶ 15} “Under the plain and unambiguous language of the statute, the chief
justice’s authority to order the disqualification of judges extends only to those
matters in which a proceeding is pending before the court.” In re Disqualification
of Ruehlman, 2024-Ohio-1306, ¶ 17. “[T]he chief justice cannot rule on an affidavit
of disqualification when . . . nothing is pending before the . . . court.” In re
Disqualification of Hayes, 2012-Ohio-6306, ¶ 6.
{¶ 16} Therefore, the chief justice has dismissed affidavits of
disqualification in which the affiant attempts to remove a judge from a closed or
inactive case. See, e.g., Ruehlman at ¶ 18; In re Disqualification of Thomakos,
2020-Ohio-6874, ¶ 3.
{¶ 17} Both Anderson and Judge Edwards indicate that State v. Criswell is
a closed case. Although Anderson asserts in the affidavit of disqualification that he
plans to file a motion in Criswell, he has failed to establish that the case was pending
at the time the affidavit of disqualification was filed. The affidavit of
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disqualification is therefore dismissed as to State v. Criswell, Marion C.P. No. 2022-
CR-0412.
{¶ 18} This decision now turns to the requirements for a valid affidavit
under Ohio law.
Requirements for a Valid Affidavit
{¶ 19} This court has long held that “an affidavit must appear on its face to
[be] . . . in compliance with all legal requisitions.” Benedict v. Peters, 58 Ohio St.
527, 536 (1898). In Ohio, an affidavit is a “written declaration [made] under oath.”
R.C. 2319.02. As such, an affidavit is a form of written testimony. See Wallick
Properties Midwest, L.L.C. v. Jama, 2021-Ohio-2830, ¶ 18 (10th Dist.). A party
may present testimony to a court only if “evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the matter.” Evid.R.
602. A witness is traditionally “‘incompetent’ to testify to any fact unless he or she
possesses firsthand knowledge of that fact.” Weissenberger, Weissenberger’s Ohio
Evidence Treatise, § 602.1 (2024); see State v. Fears, 1999-Ohio-111, ¶ 26 (holding
that testimony not based on personal knowledge was inadmissible). “Therefore,
‘statements contained in affidavits must be based on personal knowledge.’” In re
Disqualification of Beathard, 2024-Ohio-3335, ¶ 23, quoting Carkido v. Hasler,
129 Ohio App.3d 539, 548, fn. 2 (7th Dist. 1998); see 2A C.J.S., Affidavits, § 46,
at 285-287 (2023); see, e.g., Civ.R. 56(E); S.Ct.Prac.R. 12.02(B)(2).
{¶ 20} “Personal knowledge” is “‘[k]nowledge gained through firsthand
observation or experience, as distinguished from a belief based on what someone
else has said.’” Bonacorsi v. Wheeling & Lake Erie Ry. Co., 2002-Ohio-2220, ¶ 26,
quoting Black’s Law Dictionary (7th Rev.Ed. 1999). It follows that “‘[o]ne who
has no knowledge of a fact except what another has told him cannot, of course,
satisfy the . . . requirement of knowledge from observation.’” Dublin City School
Dist. Bd. of Edn. v. Franklin Cty. Bd. of Revision, 1997-Ohio-327, ¶ 12, quoting 1
McCormick, Evidence, § 10, at 40 (4th Ed. 1992).
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{¶ 21} Some of the averments supporting Anderson’s allegations that Judge
Edwards is biased or prejudiced against him or should be disqualified to avoid the
appearance of impropriety are not based on Anderson’s firsthand observation and
experience. Therefore, those portions of the affidavit are stricken. This includes
the first full paragraph on page 5, the first sentence in section 2 on page 5, the last
sentence on page 6 continuing onto page 7 and the remaining sentences of that
paragraph, the first full paragraph on page 7, the last three sentences of section 2
on page 7, and the entirety of section 3 beginning on page 7 and ending on page 9
with the exception of four sentences on page 8 beginning with the words “After
Attorney Anderson confirmed his intent to oppose Judge Edwards” and ending with
the words “However, Judge Edwards refused to disqualify himself.”
{¶ 22} Similarly, some of the averments in the affidavit of Kevin Criswell
Sr. are not based on his firsthand observation and experience. Therefore, those
portions of the affidavit are stricken. This includes the first half of the second
sentence in paragraph 13 beginning with the words “I assumed” and ending with
the words “Judge signs,” paragraph 14, and the ninth sentence in paragraph 17
beginning with the words “I believe” and ending with the words “this
conversation.”
{¶ 23} Having struck the improper portions of the affidavits, this decision
next addresses the allegations in the affidavit of disqualification related to State v.
Owens and Williams v. Hopper.
Affidavit-of-Disqualification Proceedings
{¶ 24} R.C. 2701.03(A) provides that if a judge of a court of common pleas
“allegedly is interested in a proceeding pending before the court, allegedly is related
to or has a bias or prejudice for or against a party to a proceeding pending before
the court or a party’s counsel, or allegedly otherwise is disqualified to preside in a
proceeding pending before the court,” then that party or party’s counsel may file an
affidavit of disqualification with the clerk of this court.
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{¶ 25} Anderson alleges that Judge Edwards is biased and prejudiced
against him and that the judge should be disqualified from all cases in which
Anderson is counsel of record. Even if no actual bias or prejudice is found to exist
based on the facts of this case, Anderson alleges that, at a minimum, the judge
should be disqualified to avoid the appearance of impropriety.
{¶ 26} Anderson is an attorney who regularly practices law in the Marion
County Court of Common Pleas, General Division, and he is counsel of record in
State v. Owens and Williams v. Hopper. Judge Edwards is the presiding judge in
both cases.
{¶ 27} Anderson states that Judge Edwards is seeking re-election in 2024
and that he is the judge’s opponent. During a pretrial conference in February,
Anderson requested that the judge recuse himself from all of Anderson’s pending
cases. Judge Edwards denied the request.
{¶ 28} On July 6, Anderson and Judge Edwards were both at the Marion
County Fair attending the livestock auction. Anderson’s affidavit lacks clarity as
to whether he was present and heard the conversation among Kevin Criswell Sr.,
Thomas Crawford, and Judge Edwards. Nevertheless, Anderson filed third-party
affidavits from Criswell Sr. and Crawford in the affidavit-of-disqualification
proceedings. Anderson also avers that the judge made statements to him during the
livestock auction but that he could not hear what the judge was saying over the
noise of the crowd.
{¶ 29} The affidavits of Criswell Sr. and Crawford state that Criswell Sr., a
member of the Marion County Fair Board, placed two magnetic signs supporting
Anderson for election as judge on one of the walls of the auction arena. Crawford,
another member of the Fair Board, was standing nearby, and at the request of
Criswell Sr., Crawford placed the signs higher on the wall.
{¶ 30} Shortly thereafter, Judge Edwards approached Crawford and asked
him about the propriety of placing political signs on the wall of the auction arena
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without prior authorization by the Fair Board. Criswell Sr. then inserted himself in
the conversation, refused to remove the signs, and told the judge that if the Fair
Board voted on whether the signs could be placed there, the judge would not like
the outcome. According to the affidavits of both Criswell Sr. and Crawford, as
Judge Edwards left the auction arena, the judge told Criswell Sr., “I’m keeping your
son in jail.”
{¶ 31} Anderson states that based on this behavior, Judge Edwards should
be disqualified from Anderson’s pending cases.
{¶ 32} In his response, Judge Edwards denies being biased or prejudiced
against Anderson and states that there is no basis to issue a blanket disqualification.
{¶ 33} Judge Edwards admits that Anderson filed his petitions on December
9, 2023, to oppose him in the 2024 election and acknowledges that he denied
Anderson’s request for a blanket disqualification during a pretrial hearing. In
denying the motion, Judge Edwards stated that he relied on information provided
at a mandated seminar for judicial candidates. The judge cites In re
Disqualification of Burnside, 74 Ohio St.3d 1240 (1992), which holds that it is
unnecessary for a judge to recuse himself or herself simply because a lawyer who
appears before the judge opposes the judge in an election. The holding in Burnside
was based on an opinion issued by the Board of Professional Conduct, then known
as the Board of Commissioners on Grievances and Discipline, stating that “‘it is
unnecessary for an incumbent judge to recuse himself from proceedings where his
opponent represents one of the parties, unless the judge’s impartiality might
reasonably be questioned.’” Id. at 1241, quoting Board of Commissioners on
Grievances and Discipline Opinion No. 87-023, at 1.
{¶ 34} The judge further admits speaking to Crawford on July 6. Judge
Edwards states that he believed Crawford was the vice-president of the Fair Board
and that he believed Crawford had the authority to address what were “unsponsored
and unauthorized signs in a government building, endorsing a candidate for
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election.” Judge Edwards further contends that Criswell Sr. inserted himself into
the discussion.
{¶ 35} The judge denies making the statement that he would keep Criswell
Jr. in jail or any statement that indicated retaliation.
Disqualification of a Common-Pleas-Court Judge
{¶ 36} As explained above, R.C. 2701.03(A) provides two specific grounds
and a catchall provision for the disqualification of a judge of a court of common
pleas. Granting or denying an affidavit of disqualification turns on whether the
chief justice determines that the allegations of interest, bias or prejudice, or
disqualification set forth in the affidavit exist. R.C. 2701.03(E).
{¶ 37} The burden falls on the affiant to submit “specific allegations on
which the claim of interest, bias, prejudice, or disqualification is based and the facts
to support each of those allegations.” R.C. 2701.03(B)(1). Therefore, “[a]n
affidavit must describe with specificity and particularity those facts alleged to
support the claim.” In re Disqualification of Mitrovich, 2003-Ohio-7358, ¶ 4.
{¶ 38} As set forth above, Anderson alleges that Judge Edwards should be
disqualified because he is biased and prejudiced against Anderson and to avoid an
appearance of impropriety.
{¶ 39} “R.C. 2701.03(A) speaks in terms of actual bias and prejudice . . . .”
(Emphasis in original.) In re Disqualification of Berhalter, 2023-Ohio-4881, ¶ 29.
The General Assembly did not define “bias or prejudice” for purposes of the statute.
However, as defined in prior disqualification cases, “‘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, as contradistinguished from an open state of mind which will
be governed by the law and the facts.’” In re Disqualification of O’Neill, 2002-
Ohio-7479, ¶ 14, quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 469
(1956). “‘Bias or prejudice on the part of a judge will not be presumed. In fact,
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the law presumes that a judge is unbiased and unprejudiced in the matters over
which he presides, and bias or prejudice must be strong enough to overcome the
presumption of his integrity.’” Id. at ¶ 16, quoting 48A C.J.S., Judges, § 108, at
731 (1981). A determination of whether a judge is biased or prejudiced is based on
the judge’s words and/or actions and whether those words and/or actions convey
that the judge is predisposed to a particular outcome of a case. Berhalter at ¶ 28.
{¶ 40} “A judge’s subjective bias, however, is not easy to discern. The
United States Supreme Court has recognized that ‘[t]o establish an enforceable and
workable framework, the Court’s precedents [also] apply an objective standard that,
in the usual case, avoids having to determine whether actual bias is present.’”
(Brackets added in Clark.) In re Disqualification of Clark, 2023-Ohio-4774, ¶ 47,
quoting Williams v. Pennsylvania, 579 U.S. 1, 8 (2016). Under an objective
standard, “[t]he question is ‘“whether the judge’s impartiality might reasonably be
questioned by the average person on the street who knows all the relevant facts of
a case.”‘” United States v. Melton, 738 F.3d 903, 905 (8th Cir. 2013), quoting
Moran v. Clarke, 296 F.3d 638, 648 (8th Cir. 2002), quoting In re Kansas Pub.
Emps. Retirement Sys., 85 F.3d 1353, 1358 (8th Cir. 1996). “‘[T]hese outside
observers are less inclined to credit judges’ impartiality and mental discipline than
the judiciary itself will be.’” In re Nettles, 394 F.3d 1001, 1002 (7th Cir. 2005),
quoting In re Mason, 916 F.2d 384, 386 (7th Cir. 1990).
{¶ 41} A judge “otherwise is disqualified” under R.C. 2701.03(A) when
none of the express bases for disqualification—interest, relation to a party, bias, or
prejudice—apply but other grounds for disqualification exist. In re
Disqualification of Navarre, 2024-Ohio-3336, ¶ 21. “[E]ven in cases in which no
evidence of actual bias or prejudice is apparent, a judge’s disqualification may be
appropriate to avoid an appearance of impropriety or when the public’s confidence
in the integrity of the judicial system is at issue.” In re Disqualification of
Crawford, 2017-Ohio-9428, ¶ 6. In addition, an ex parte communication between
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a judge and a party may be a ground for disqualification when the communication
“either was initiated by the judge or addressed substantive matters in the pending
case.” In re Disqualification of Calabrese, 2002-Ohio-7475, ¶ 2. Jud.Cond.R. 2.11
sets forth additional circumstances in which a judge must be disqualified, including
when the matter in controversy involves the economic interests of the judge’s
family members, Jud.Cond.R. 2.11(A)(3), and when the judge likely will be a
material witness in the proceeding, Jud.Cond.R. 2.11(A)(2)(d).
{¶ 42} These examples are not exhaustive, but they illustrate that a judge
may still be disqualified under R.C. 2701.03(A) even when the express statutory
grounds for disqualification are not applicable.
{¶ 43} A judge may be disqualified to avoid an appearance of impropriety.
An appearance of impropriety exists when “‘the [judge’s] conduct would create in
reasonable minds a perception that the judge’s ability to carry out judicial
responsibilities with integrity, impartiality and competence is impaired.’” Caperton
v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 888 (2009), quoting American Bar
Association, Annotated Model Code of Judicial Conduct, Canon 2A, Commentary
(2004); see also id. at 890 (noting that the codes of judicial conduct provide more
protection than due process requires). Again, the perspective of the ordinary
reasonable person is considered, and that person “is presumed to be fully informed
of all the relevant facts in the record—not isolated facts divorced from their larger
context.” In re Disqualification of Gall, 2013-Ohio-1319, ¶ 6.
{¶ 44} For the reasons explained below, Anderson has not established that
the disqualification of Judge Edwards from State v. Owens or Williams v. Hopper is
warranted.
Analysis
{¶ 45} Anderson relies on the same evidence to support both allegations—
i.e., that Judge Edwards is biased or prejudiced against him and that he should be
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disqualified to avoid the appearance of impropriety; therefore, the allegations will
be addressed together.
{¶ 46} Judges are selected by the people of Ohio by popular election. Ohio
Const., art. IV, § 6(A). There is no statute, provision in the Code of Judicial
Conduct, or common-law precedent that requires a sitting judge to recuse himself
or herself from a case or cases merely because a lawyer appearing before the judge
has chosen to oppose the judge in an election. Rather, “the fact that an attorney or
party voiced opposition to the election of a judge, standing alone, will not cause
that judge to harbor bias sufficient to affect [his or] her ability to be impartial in
presiding over cases in which that attorney or party subsequently appears.” Flamm,
Judicial Disqualification, § 24.2, at 398 (3d Ed. 2017). The determination whether
a judge properly assigned to a case can preside fairly and impartially when there is
a campaign for or against the judge “is best determined on a case-by-case basis.”
In re Disqualification of Celebrezze, 74 Ohio St.3d 1231, 1232 (1991).
{¶ 47} As explained above, the Board of Professional Conduct has
determined that without more, an incumbent judge is not required to recuse himself
or herself from a case merely because a lawyer is opposing the judge in an election.
See Board of Commissioners on Grievances and Discipline Opinion No. 87-023.
Chief Justice Moyer relied on the board’s opinion in denying an affidavit of
disqualification in Burnside, 74 Ohio St.3d 1240, in which an attorney had filed
petitions to run against the judge, id. at 1240-1241. But in that case, the affiant’s
opposing the judge in the election was the only fact alleged before the chief justice.
See id. By contrast, Anderson claims that Judge Edwards’s conduct and behavior
at the Marion County Fair show that the judge is biased or prejudiced against him
or, at a minimum, that he should be disqualified to avoid an appearance of
impropriety.
{¶ 48} Despite statements to the contrary, Anderson has not submitted any
actual evidence that Judge Edwards is biased or prejudiced against him. Neither
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Anderson’s affidavit nor the third-party affidavits suggest that Anderson was part
of the conversation among Criswell Sr., Crawford, and Judge Edwards or that the
judge directed any hostility specifically at Anderson. Even if Anderson had been
part of the conversation, there is no evidence that the judge made any comments
about Anderson or Anderson’s two cases that were pending before the judge, State
v. Owens and Williams v. Hopper. And Anderson’s statement that the judge said
something to him during the livestock auction lacks evidentiary value because
Anderson averred that he could not hear what the judge said over the noise of the
crowd.
{¶ 49} Therefore, this case turns on whether the purported conversation
among Criswell Sr., Crawford, and Judge Edwards would create in reasonable
minds a perception that the judge’s ability to carry out judicial responsibilities in
Anderson’s cases with integrity, impartiality, and competence is impaired. It would
not.
{¶ 50} At the outset, there is an elephant in the room—the discrepancy
between what Criswell Sr. and Crawford aver and what Judge Edwards avers was
said during their conversation. Criswell Sr., Crawford, and the judge all agree that
the judge raised the issue of the propriety of the signs being placed on the wall of
the auction arena without a vote of the Fair Board. At the end of that conversation,
Criswell Sr. and Crawford aver, the judge said, “I’m keeping your son in jail.” The
judge denies making that statement. But while that statement might, at most, show
anger directed at Criswell Sr., it does not show that the judge bore bias or prejudice
against Anderson, because the comment was not directed at him.
{¶ 51} Obviously, the difference between the averments in the affidavits
calls into question the credibility of the affiants involved in the conversation.
Credibility is not decided by the number of affidavits asserting or disputing one
version of the conversation.
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{¶ 52} On the one hand, there is Criswell Sr.—father of the defendant,
Kevin Criswell Jr., in State v. Criswell, Marion C.P. No. 2022-CR-0412—who was
angry with Judge Edwards for sentencing his son to a term in prison and a term of
local incarceration in a vehicular-assault case in which Criswell Jr. caused an
accident after failing to yield at a stop sign while operating a vehicle while under
the influence. Criswell Sr. was also a member of the Marion County Fair Board
who, as explained below, violated the rules of the Fair Board by placing magnetic
signs supporting Anderson for election as judge on the wall of the auction arena
without a prior vote of approval by the Fair Board.
{¶ 53} There also is Crawford, whose averments track the averments of
Criswell Sr. He too is a member of the Marion County Fair Board. Crawford also
violated the rules of the Fair Board by helping Criswell Sr. place the improper signs
higher on the wall of the auction arena without a prior vote of approval by the Fair
Board.
{¶ 54} The Marion County Fair Rules provide as follows:
1. . . . No roving solicitation, distribution of literature,
signature acquisitions for petitions, posting or displaying of signs,
or the selling of or free distribution of merchandise shall be
permitted on the fairgrounds unless by qualified exhibitors who may
use this privilege only from within the confines of their own
contracted concession or commercial rented space. No commercial
advertising signs, placards, stickers, or political signs/slogans may
be attached in any manner to any vehicle, tree, pole, wall, or any
other structure within the limits of the fairgrounds not immediately
contracted with the distribution of the product or service advertised.
...
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28. ANY EXCEPTIONS TO FOREGOING RULES MUST
HAVE PRIOR APPROVAL BY THE FAIR OFFICIALS.
OTHERWISE VIOLATION WILL BE CONSIDERED BASIS
FOR EXPULSION FROM FAIRGROUNDS AND FORFEITURE
OF ANY FUTURE DISPLAY PRIVILEGES.
(Emphasis added; capitalization in original.) https://marioncountyfairgrounds.com
/wp-content/uploads/2024/02/Rules-for-Midway-Vendors.pdf#page=2&zoom
=auto,-251,535 (accessed Nov. 13, 2024) [https://perma.cc/5Z4E-VT52].
{¶ 55} Criswell Sr. said that if the Fair Board had voted to allow Anderson’s
sign, Judge Edwards would not have liked the outcome. That statement contains
an admission that Criswell Sr. and Crawford violated the Fair Board’s rules in their
support of Anderson’s candidacy. An objective observer might view the willingness
of Fair Board members Criswell Sr. and Crawford to violate their own rules as
negatively affecting their credibility.
{¶ 56} Judge Edwards denies making the statement that he would keep
Criswell Jr. in jail. But even if he did make the statement, it involved only State v.
Criswell, in which the judge had already denied Criswell’s motion for judicial
release as moot. The entry denying that motion was journalized on July 2—four
days prior to the alleged conversation. So, if the judge did make the statement, he
would have merely restated a truth. The denial of the motion for judicial release
did not even keep Criswell Sr.’s son incarcerated—he was going to be released
before a hearing on the motion could be held.
{¶ 57} But it is not necessary to determine the credibility of the affiants to
resolve the remaining portion of the affidavit of disqualification. Even if Judge
Edwards did make the statement about Criswell Jr., Anderson has failed to show
how that statement would support a finding that the judge is biased or prejudiced
against him or that the judge has formed a “fixed anticipatory judgment” in his two
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pending cases, O’Neill, 2002-Ohio-7479, at ¶ 14. The judge’s statements had
nothing to do with the parties before the court in State v. Owens and Williams v.
Hopper. Moreover, any reasonable objective observer—i.e., the person on the
street—with full knowledge of the facts would not find an appearance of
impropriety in the judge’s presiding over those two cases. As stated above, there is
no evidence that Anderson was a party to the conversation, that anything was said
about him during that conversation, or that anything in the conversation could be
construed as the judge’s discussing either of Anderson’s two pending cases. The
conversation was about Criswell Sr.’s and Crawford’s violating the rules of the
Marion County Fair Board while both were Fair Board members. There is no
connection between that conversation and Anderson or Anderson’s two pending
cases. That conversation, if believed to have happened as Criswell Sr. and
Crawford described it, focused only on Criswell Sr. and his anger at the judge.
{¶ 58} While Anderson argues that this case is similar to In re
Disqualification of Maschari, 1999-Ohio-8, it is not. In Maschari, not only had the
affiant opposed the judge in an election, but the affiant also had filed two grievances
against the judge. See id. at ¶ 2. And the affiant and the members of the affiant’s
law firm were all going to be called as witnesses in the disciplinary proceedings.
Id.
{¶ 59} In contrast, there is no evidence here that Judge Edwards is biased
or prejudiced against Anderson. And the conversation among Criswell Sr.,
Crawford, and Judge Edwards would not create in reasonable minds a perception
that the judge’s ability to carry out judicial responsibilities in State v. Owens and
Williams v. Hopper with integrity, impartiality, and competence is impaired.
Therefore, the affidavit of disqualification lacks merit.
Conclusion
{¶ 60} The affidavit of disqualification is dismissed to the extent that it
pertains to State v. Criswell, Marion C.P. No. 2022-CR-0412. The remaining part
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of the affidavit of disqualification is denied. Judge Edwards shall preside over State
v. Owens, Marion C.P. No. 2023-CR-0484, and Williams v. Hopper, Marion C.P.
No. 2024-CV-0041.
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