[Cite as In re Disqualification of Crawford, 135 Ohio St.3d 1280, 2013-Ohio-1410.]




                      IN RE DISQUALIFICATION OF CRAWFORD.
                                    IN RE HELFRICH.
        [Cite as In re Disqualification of Crawford, 135 Ohio St.3d 1280,
                                    2013-Ohio-1410.]
Judges—Affidavit       of   disqualification—R.C.       2701.03—Judge’s         request   to
        prosecuting attorney to investigate party’s allegations not grounds for
        disqualification—Judge’s questioning of party’s credibility at pretrial
        conference does not per se require disqualification—Sanctions for abuse
        of disqualification process not imposed when record does not establish
        that affidavit was frivolous—Affidavit denied.
                   (No. 13-AP-010—Decided February 13, 2013.)
ON AFFIDAVIT OF DISQUALIFICATION in Licking County Court of Common Pleas
                                Case No. 2011-MD-0006.
                                  __________________
        O’CONNOR, C.J.
        {¶ 1} James Helfrich, the alleged contemnor in the underlying criminal-
contempt proceeding, has filed an affidavit with the clerk of this court under R.C.
2701.03 seeking to disqualify Judge Dale A. Crawford, a retired judge sitting by
assignment, from presiding over the contempt hearing in case No. 2011-MD-0006
in the Court of Common Pleas of Licking County.
        {¶ 2} Helfrich alleges that Judge Crawford’s conduct at a January 15,
2013 pretrial conference demonstrates bias and prejudice against Helfrich and that
because of this conduct, Judge Crawford’s impartiality at the upcoming hearing
might reasonably be questioned. Specifically, in December 2012, Helfrich filed a
motion indicating that some of the attorneys he contacted to represent him against
the contempt charges would not do so because Judge Crawford was the assigned
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judge. The motion, according to Helfrich, embarrassed Judge Crawford, and at
the pretrial conference, Judge Crawford allegedly “belittled Helfrich’s credibility
and condemned” him for his assertions in the motion. According to Helfrich,
Judge Crawford also “went so far as to order” the prosecuting attorney to contact
the attorneys named in Helfrich’s motion. The prosecutor later sent letters to
several of the attorneys explaining the matter and sought an affidavit or statement
from each in response to Helfrich’s allegations.                To support his affidavit of
disqualification, Helfrich has submitted an audio transcript of the conference.
        {¶ 3} Judge Crawford has responded in writing to the allegations in
Helfrich’s affidavit, asserting that he has no animosity toward Helfrich and no
preconceived notions regarding the validity of the contempt charges.                       Judge
Crawford acknowledges that he requested the prosecutor to “look into Mr.
Helfrich’s claims.” According to Judge Crawford, he is familiar with one of the
attorneys mentioned in Helfrich’s motion and “did not believe Mr. Helfrich was
being totally candid” with the court. In addition, Judge Crawford requested the
prosecutor to look into Helfrich’s allegations because he was concerned that “Mr.
Helfrich would subsequently make a claim that [the judge] was denying him of
his right to counsel.”
        {¶ 4} Licking County Prosecutor Kenneth W. Oswalt has also filed a
response to Helfrich’s affidavit, arguing that Helfrich’s claims are meritless and
that Judge Crawford has exhibited a “tremendous degree of patience” with
Helfrich.1 In addition, Oswalt now moves for the imposition of sanctions against


1. On February 11 and 12, 2013, Helfrich filed replies to Judge Crawford’s and Oswalt’s
responses to Helfrich’s affidavit. R.C. 2701.03, however, requires that a party or counsel seeking
to disqualify a judge in a pending action must file an affidavit. See R.C. 2701.03(B)(2) (requiring
that the affidavit contain the “jurat of a notary public or another person authorized to administer
oaths or affirmations”); In re Disqualification of Pokorny, 74 Ohio St.3d 1238, 657 N.E.2d 1345
(1992) (by definition, an affidavit must be confirmed by oath or affirmation of the party making it
and must be taken before a person having authority to administer the oath or affirmation).
Helfrich’s failure to confirm the statements in these additional reply documents “by oath or




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                                    January Term, 2013




Helfrich for abusing the disqualification process and for a declaration that
Helfrich is a vexatious litigator pursuant to this court’s practice rules.2
        {¶ 5} For the following reasons, no basis has been established to order
the disqualification of Judge Crawford.
        {¶ 6} First, the transcript of the pretrial conference does not reveal any
bias or prejudice on Judge Crawford’s part that would require his disqualification.
To be sure, if a judge’s words or actions convey the impression that the judge has
developed a “hostile feeling or spirit of ill will” or reached a “fixed anticipatory
judgment” that will prevent the judge from presiding over the case with “an open
state of mind * * * governed by the law and the facts,” State ex rel. Pratt v.
Weygandt, 164 Ohio St. 463, 469, 132 N.E.2d 191 (1956), then the judge should
not remain on the case. Here, Judge Crawford questioned the legitimacy of
Helfrich’s claims regarding why he could not obtain counsel. The transcript does
not indicate that Judge Crawford “belittled” or “condemned” Helfrich; nor does
the transcript demonstrate that Judge Crawford has developed hostility or ill will
toward him.
        {¶ 7} Second, Judge Crawford’s request to the prosecutor has not created
an appearance of impropriety and therefore does not warrant disqualification.
“The proper test for determining whether a judge’s participation in a case presents
an appearance of impropriety is * * * an objective one. A judge should step aside
or be removed if a reasonable and objective observer would harbor serious doubts
about the judge’s impartiality.” In re Disqualification of Lewis, 117 Ohio St.3d
1227, 2004-Ohio-7359, 884 N.E.2d 1082, ¶ 8. Contrary to Helfrich’s affidavit, no


affirmation” violates R.C. 2701.03. Accordingly, each document is a nullity and has no effect on
the proceedings. Id.

2. The Rules of Practice of the Supreme Court of Ohio were recently reorganized and renumbered.
Effective January 1, 2013, the rule relating to frivolous actions and vexatious litigators is
S.Ct.Prac.R. 4.03.




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reasonable and informed observer would question Judge Crawford’s impartiality
under the circumstances here. Judge Crawford requested the prosecutor to look
into Helfrich’s claims because the judge believed that Helfrich was not being
candid with the court and because he was concerned that Helfrich would later
claim that he was denied his right to counsel. Nothing about the judge’s request
to the prosecutor, or his later explanation of that request, indicates that Judge
Crawford was motivated by public embarrassment at Helfrich’s claims or a
personal prejudice or bias against Helfrich. Indeed, the judge affirms in his
response that he has “no animosity” toward Helfrich, and there is no suggestion in
the record that Judge Crawford has become so “personally embroiled” with
Helfrich as to make the judge unfit to sit in judgment on the contempt charges.
See Mayberry v. Pennsylvania, 400 U.S. 455, 465, 91 S.Ct. 499, 27 L.Ed.2d 532
(1971); compare In re Disqualification of Saffold, 134 Ohio St.3d 1204, 2010-
Ohio-6723, 981 N.E.2d 869, ¶ 2 (“When the case becomes about the judge rather
than the facts of the case and the law, it is time for the judge to step aside”).
        {¶ 8} Similarly, the fact that Judge Crawford questioned Helfrich’s
credibility at the pretrial conference does not create an appearance of impropriety.
The formation of a conditional opinion about a party’s credibility is common
during preliminary proceedings. However, the formation of such a conditional
opinion is not sufficient to counter the presumption of the judge’s ability to render
a fair decision based on the law and facts later presented at the hearing. See In re
Disqualification of Brown, 74 Ohio St.3d 1250, 1251, 657 N.E.2d 1353 (1993).
Here, Judge Crawford has affirmed that he has no “preconceived notions”
regarding the validity of the contempt charges, and in the absence of any evidence
to the contrary, the presumption of impartiality has not been overcome.
        {¶ 9} Finally, because the record does not conclusively establish that
Helfrich’s affidavit was frivolous, Oswalt’s motions for the imposition of
sanctions and to declare Helfrich a vexatious litigator under S.Ct.Prac.R. 4.03 are




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                                January Term, 2013




denied. However, given Helfrich’s history of abusing the statutory affidavit-of-
disqualification process in other cases (see case Nos. 07-AP-088, 08-AP-134, 11-
AP-140, and 12-AP-019), he is again warned that the filing of any further
frivolous, unsubstantiated, or repeated affidavits of disqualification will result in
an imposition of appropriate sanctions.
       {¶ 10} For the reasons stated above, the affidavit of disqualification is
denied. The case may proceed before Judge Crawford.
                            ______________________




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