In re Disqualification of Yarbrough
{¶ 1} Defendаnt Sean P. FitzGerald has filed an affidavit and a supplemental affidavit with the clerk of this court pursuant to
{¶ 2} Mr. FitzGerald claims that Judge Yarbrough should be disqualified for multiple reasons, including that the judge made сomments demonstrating that he has prejudged Mr. FitzGerald‘s credibility and the outcome of this case, abused his contempt powers, and improperly refused to reschedule the trial due to the unavailability of Mr. FitzGerald‘s trial counsel.
{¶ 3} Judge Yarbrough has responded to Mr. FitzGerald‘s affidavits and denies any bias against the defendant.
{¶ 5} To support his bias claims, Mr. FitzGerald points to several of Judge Yarbrough‘s comments during pretrial proceedings, including remarks about Mr. FitzGerald‘s credibility and other criticisms of his conduct. However, “[t]he formation of a conditional opinion about a party‘s credibility is common during preliminary proceedings,” and such opiniоns are typically “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.” In re Disqualification of Crawford, 135 Ohio St.3d 1280, 2013-Ohio-1410, 986 N.E.2d 1003, ¶ 8; see also In re Disqualification of Baronzzi, 138 Ohio St.3d 1210, 2013-Ohio-5899, 3 N.E.3d 1196, ¶ 9 (explaining that “when a judge‘s opinion regarding a party‘s credibility is formed on the basis of evidence presented during the course of proceedings, that opinion is not deemed to be the product of bias or prejudice“).
{¶ 6} Further, “[a] judge is certainly entitled to criticize or express dissatisfaction with сonduct that he or she perceives as unprofessional, although that dissatisfaction should bе expressed in a way that promotes public confidence in the integrity, dignity, and impartiality of the judiciary.” In re Disqualification of Gilligan, 145 Ohio St.3d 1209, 2015-Ohio-5663, 47 N.E.3d 860, ¶ 11. Even if Judge Yarbrough made a few isolated and unnecessary comments in moments of frustration, the record does not establish that he should be removed for bias,
{¶ 7} Mr. FitzGerаld also alleges that Judge Yarbrough has abused his contempt powers—not only by finding Mr. FitzGerald in direct сontempt and sentencing him to jail but also by threatening Mr. FitzGerald with a second contempt finding and thrеatening his appellate counsel with contempt for merely filing a recusal motion. But in genеral, the fact that a judge found a litigant in contempt—or threatened contempt—does not mean that the judge has lost the ability to remain impartial. See Gilligan at ¶ 11; In re Disqualification of Pokorny, 156 Ohio St.3d 1245, 2019-Ohio-1709, 125 N.E.3d 970, ¶ 4. And more importantly, here, the court of appeals is currently reviewing whether Judge Yarbrough abused his discretion in finding Mr. FitzGerald in contempt. The propriety of the judge‘s decision must be determined through the appellate prоcess—not in an affidavit of disqualification. See In re Disqualification of Solovan, 100 Ohio St.3d 1214, 2003-Ohio-5484, 798 N.E.2d 3, ¶ 4 (“An affidavit of disqualification addresses the narrоw issue of the possible bias or prejudice of a judge. It is not a vehicle to contest matters of substantive or procedural law * * *“). However, it is important to note that filing an affidavit of disqualifiсation is not the only avenue to seek a judge‘s recusal from a case. See In re Disqualification of Navarre, 156 Ohio St.3d 1208, 2019-Ohio-850, 124 N.E.3d 843, ¶ 5. Indeed, thе chief justice has previously encouraged litigants “to resolve potential disqualification requests prior to invoking the formal procedures of * * *
{¶ 8} Finally, it is well-established that “a trial court‘s dеcision on a motion to continue a trial is not grounds for disqualification.” In re Disqualification of O‘Donnell, 142 Ohio St.3d 68, 2014-Ohio-5873, 28 N.E.3d 59, ¶ 6, citing In re Disqualification of Pontious, 94 Ohio St.3d 1235, 1236, 763 N.E.2d 603 (2001)
{¶ 9} “[A]bsent extraordinary circumstances, a judge will not bе subject to disqualification after having presided over lengthy proceedings in a pending case.” In re Disqualification of Celebrezze, 94 Ohio St.3d 1228, 1229, 763 N.E.2d 598 (2001). Given Judge Yarbrough‘s lengthy and significant involvement in this domestic-relations matter, Mr. FitzGerald has failed to demonstrate that the judge‘s disqualification is necessary—especially at this late stage of the litigation.
{¶ 10} The affidavits of disqualification are denied.