[Cite as In re Disqualification of Krichbaum, 136 Ohio St.3d 1276, 2013-Ohio-4253.]




                     IN RE DISQUALIFICATION OF KRICHBAUM.
                            ADAMS v. VIVO, CLERK, ET AL.
       [Cite as In re Disqualification of Krichbaum, 136 Ohio St.3d 1276,
                                    2013-Ohio-4253.]
Judges—Affidavit of disqualification—R.C. 2701.03—When evidence may be
        obtained from witnesses or sources other than the trial judge, the judge is
        not such a material witness as to require the judge’s disqualification—
        Professional relationship between judge and a party alone is not enough
        to mandate removal of judge—Disqualification of judge not warranted.
                   (No. 13-AP-075—Decided September 5, 2013.)
  ON AFFIDAVIT OF DISQUALIFICATION in Mahoning County Court of Common
                            Pleas Case No. 2013-CV-1398.
                                ____________________
        O’CONNOR, C.J.
        {¶ 1} Plaintiff DuJuan L. Adams has filed an affidavit with the clerk of
this court under R.C. 2701.03 seeking to disqualify Judge R. Scott Krichbaum
from presiding over any further proceedings in case No. 2013-CV-1398, a civil
action pending in the Court of Common Pleas of Mahoning County.
        {¶ 2} Adams is seeking damages against the Mahoning County clerk of
courts for alleged negligent and reckless acts.              Adams asserts that Judge
Krichbaum should be disqualified from hearing the matter because the judge (1)
presided over Adams’s related criminal case, (2) has “routinely” and “reflexively”
denied Adams’s motions, (3) will be a witness at trial, and (4) is incapable of
fairly adjudicating claims “against his own clerk.”
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        {¶ 3} Judge Krichbaum has responded in writing to the allegations in
Adams’s affidavit, averring that he does not have any bias for or against any party
in the underlying proceeding.
        {¶ 4} For the reasons explained below, no basis has been established to
order the disqualification of Judge Krichbaum.
        {¶ 5} First, it is well established that “a judge’s participation in the trial
of a prior cause, during which the judge acquired knowledge of the facts of the
underlying case, does not require disqualification.” In re Disqualification of
Krichbaum, 81 Ohio St.3d 1205, 1206, 688 N.E.2d 511 (1997). Similarly, it is
well settled that “a judge’s adverse rulings, even erroneous ones, are not evidence
of bias or prejudice.” In re Disqualification of Fuerst, 134 Ohio St.3d 1267,
2012-Ohio-6344, 984 N.E.2d 1079, ¶ 14. Thus, that Judge Krichbaum presided
over Adams’s criminal matter and has previously ruled against him are not
grounds for disqualification.
        {¶ 6} Second, Adams’s supposition that Judge Krichbaum will be a
witness at trial is insufficient to establish bias or prejudice. As explained in
previous disqualification cases, when the evidence may be obtained from
witnesses or sources other than the trial judge, the judge is not such a material
witness as to require the judge’s disqualification. See In re Disqualification of
Hedric, 127 Ohio St.3d 1227, 2009-Ohio-7208, 937 N.E.2d 1016, ¶ 9; In re
Disqualification of Betleski, 113 Ohio St.3d 1229, 2006-Ohio-7232, 863 N.E.2d
631, ¶ 9. Here, Adams has failed to allege—let alone demonstrate—that Judge
Krichbaum is the source of material evidence that is otherwise unobtainable. In
contrast, Judge Krichbaum claims that whatever evidence Adams intends to
present by the judge’s testimony could be established by judgment entries. On
this record, Adams has not established that Judge Krichbaum will be a necessary
witness at trial.




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       {¶ 7} Third, that defendant Vivo is the clerk of courts—a separately
elected office in Mahoning County—does not, without more, mandate Judge
Krichbaum’s disqualification.       “Judges are elected to preside fairly and
impartially over a variety of legal disputes, including those involving public
officials * * *.” In re Disqualification of Villanueva, 74 Ohio St.3d 1277, 1278,
657 N.E.2d 1372 (1995). Disqualification may be appropriate if a judge has a
close relationship with or holds particularly strong ties to another public official
involved in the underlying case. See, e.g., In re Disqualification of Corrigan, 110
Ohio St.3d 1217, 2005-Ohio-7153, 850 N.E.2d 720 (county trial judges
disqualified from a case involving a county commissioner who wielded
considerable influence over the court’s funding and who played a leadership role
in local politics); In re Disqualification of Celebrezze, 105 Ohio St.3d 1241,
2004-Ohio-7360, 826 N.E.2d 301 (county trial judges disqualified from a case
involving a county officeholder who had significant personal and professional
connections to many judges in the county).          However, nothing in Adams’s
affidavit suggests any significant personal, professional, or political connections
between Judge Krichbaum and defendant Vivo.
       {¶ 8} Indeed, without more evidence establishing a disqualifying
relationship, the chief justice has consistently denied affidavits of disqualification
filed solely on the basis of a judge’s professional relationship with another county
officeholder or public official. See, e.g., In re Disqualification of Watson, 81
Ohio St.3d 1207, 688 N.E.2d 512 (1997) (“The mere fact that a party to a pending
case [the board of county commissioners] is the funding authority of the court in
which the case is pending does not, without more, mandate the disqualification of
the judges of that court”); In re Disqualification of Celebrezze, 74 Ohio St.3d
1231, 657 N.E.2d 1341 (1991) (without additional allegations, the fact that a
judge from a different division of the common pleas court was a party to the
underlying case did not mandate disqualification); In re Disqualification of Lotz,



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100 Ohio St.3d 1236, 2002-Ohio-7480, 798 N.E.2d 19, ¶ 4 (“[t]he fact that one of
the parties is employed by the court is not, by itself, sufficient grounds for
disqualification”); Villanueva at 1278-1279 (the fact that members of board of
elections were parties did not mandate judge’s disqualification); In re
Disqualification of Solovan, 100 Ohio St.3d 1238, 2003-Ohio-5483, 798 N.E.2d
21 (the fact that courthouse deputy sheriffs and bailiffs were victims of the
defendant’s alleged crimes did not mandate disqualification). Consistent with this
precedent—and     absent   any factors       in   the   record   demonstrating   that
disqualification is required to avoid an appearance of impropriety—Judge
Krichbaum and Vivo’s professional relationship alone is insufficient to mandate
the judge’s removal from the underlying proceeding.
       {¶ 9} In conclusion, “[t]he statutory right to seek disqualification of a
judge is an extraordinary remedy. A judge is presumed to follow the law and not
to be biased, and the appearance of bias or prejudice must be compelling to
overcome these presumptions.” In re Disqualification of George, 100 Ohio St.3d
1241, 2003-Ohio-5489, 798 N.E.2d 23, ¶ 5. Those presumptions have not been
overcome in this case.
       {¶ 10}   For the reasons stated above, the affidavit of disqualification is
denied. The case may proceed before Judge Krichbaum.
                           ________________________




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