State v. Criswell (In re Edwards)

• Docket Number: 24-AP-104
• Decision Date: 16 August 2024
• Citation: 178 Ohio St.3d 1205
• Parties: In re Disqualification of Edwards. The State of Ohio v. Criswell The State of Ohio v. Owens Williams v. Hopper.
• Court: Ohio Court of Common Pleas

178 Ohio St.3d 1205

In re Disqualification of Edwards.

The State of Ohio v. Criswell

The State of Ohio v. Owens

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.

178 Ohio St.3d 1205

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 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.).

178 Ohio St.3d 1206

{¶ 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.

{¶ 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.

178 Ohio St.3d 1207

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 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, 2024-0hio-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, 2012-0hio-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 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.

178 Ohio St.3d 1208

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, 2021-0hio-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., 2002-0hio-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).

{¶ 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...