In re Disqualification of Capper, 984 N.E.2d 1082

Polen filed an affidavit under R.C. 2701.03 seeking to disqualify Judge Capper from case 00-DR-0023 in Clark County Domestic Relations.
The custody case originated from a 2000 divorce with ongoing parental-rights modifications; by 2010 Herier held sole legal custody and Polen had visitation.
In March 2011 Polen used an unlicensed individual, Kimberley Bukstein, as a civil rights advocate at a hearing; Bukstein sat at counsel table and was reported to the Board on Unauthorized Practice of Law.
In March 2012 Polen moved for custody while Herier moved to suspend Polen’s visitation; Judge Capper held an in-camera interview of the child resulting in restrictions and a June hearing.
Polen subsequently violated court orders by discussing the case with the child; in May 2012 Capper limited Polen’s parenting time to supervised visits.
Polen filed the affidavit on July 5, 2012 after discovering that Bukstein and others had filed disciplinary complaints; two allegations were timely but later deemed waived.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the affidavit warrants disqualification on the merits	Polen asserts bias or prejudice by Capper against her and favor toward Herier.	Capper denies bias and argues rulings and conduct fall within discretion; no extraordinary circumstances shown.	No disqualification; no extraordinary circumstances shown.
Whether waivable untimely allegations defeat disqualification	Geyer relationship and 1999 real estate transaction show bias.	Waived due to late filing; grounds lacking timely support.	Waiver upheld; these two allegations are not considered.
Whether alleged investigative conduct constitutes bias	Capper investigated Bukstein, signaling hostility toward Polen.	Investigation was professional due to Bukstein’s conduct; not bias against Polen.	Not bias; investigative conduct does not require disqualification.
Whether appearance of impropriety exists from disciplinary complaints	Pending complaints create impropriety and justify disqualification.	Without formal disciplinary proceedings involving Capper, appearance of impropriety is not proven.	No appearance of impropriety; proceedings do not require disqualification.

In re Disqualification of O’Grady, 77 Ohio St.3d 1240 (1996) (timeliness of affidavit bears on waiver)
In re Disqualification of Celebrezze, 94 Ohio St.3d 1228 (2001) (extraordinary circumstances required for post-trial disqualification)
In re Disqualification of Eyster, 105 Ohio St.3d 1246 (2004) (judge’s action/inaction on a motion within sound discretion)
In re Disqualification of O’Neill, 100 Ohio St.3d 1232 (2002) (bias requires hostile feeling and fixed anticipatory judgment)
In re Disqualification of Lucci, 117 Ohio St.3d 1242 (2006) (appearance of impropriety evaluated objectively)
In re Disqualification of Synenberg, 127 Ohio St.3d 1220 (2009) (courts defer to trial court discretion on rulings unless bias proven)
In re Disqualification of Maschari, 88 Ohio St.3d 1212 (1999) (unique combination of factors can warrant disqualification)
In re Disqualification of O’Neill, 100 Ohio St.3d 1228 (2002) (unique combination of factors—formal complaint against judge)