[Cite as In re Disqualification of Hedric, 127 Ohio St.3d 1227, 2009-Ohio-7208.]

IN RE DISQUALIFICATION OF HEDRIC. 

THE STATE OF OHIO v. PHILLIPS. 

[Cite as In re Disqualification of Hedric, 

127 Ohio St.3d 1227, 2009-Ohio-7208.] 

Judges — Affidavit of disqualification — Disqualification denied. 

(No. 09-AP-061 — Decided July 6, 2009.) 

ON AFFIDAVIT OF DISQUALIFICATION in Butler County Court of Common Pleas 

Case No. CR2008-01-0006. 

__________________ 

MOYER, C.J. 

{¶ 1} Scott N. Blauvelt, counsel for defendant, Michael Dale Phillips, 

has filed an affidavit with the clerk of this court under R.C. 2701.03 seeking the 

disqualification of Judge Craig D. Hedric from acting on any further proceedings 

in case No. CR2008-01-0006, a criminal matter in the Court of Common Pleas of 

Butler County. 

{¶ 2} According to Blauvelt, the defendant was charged with operating a 

motor vehicle under the influence, a felony of the third degree. The indictment 

also alleged that defendant has at least one other felony OMVI conviction and 

included a specification that defendant has five or more prior OMVI convictions 

within the past 20 years. Blauvelt further states that while serving as an assistant 

prosecuting attorney for Butler County, Judge Hedric prosecuted one of 

defendant’s prior OMVI convictions. Blauvelt thus maintains that the Code of 

Judicial Conduct bars Judge Hedric from presiding over defendant’s trial because 

the judge previously served as a lawyer in the matter in controversy and also 

possesses personal knowledge of disputed facts. 
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{¶ 3} Judge Hedric has responded in writing to the concerns raised in the 

affidavit. He admits that he successfully prosecuted the defendant for OMVI in 

2001. The judge, however, expressly denies Blauvelt’s claim that he possesses 

relevant evidence regarding defendant’s prior conviction. Rather, he states that he 

has no recollection of the defendant or the facts of his 2001 OMVI case. 

{¶ 4} For the following reasons, I find no basis for ordering the 

disqualification of Judge Hedric. First, “[a] party may be said to have waived the 

right to obtain a judge’s disqualification when the alleged basis therefor has been 

known to the party for some time, but the objection is raised in an untimely 

fashion, well after the judge has participated in the proceedings.” In re 

Disqualification of Pepple (1989), 47 Ohio St.3d 606, 607, 546 N.E.2d 1298. The 

defendant first appeared before Judge Hedric in January or February 2008, when 

he pleaded no contest to the charges in the indictment. But the matter of Judge 

Hedric’s involvement in the 2001 OMVI case was not raised at that time. Instead, 

the matter was not raised until after the court of appeals vacated defendant’s plea 

in March 2009 and remanded the case to Judge Hedric for further proceedings. 

See State v. Phillips, 12th Dist. No. CA2008-05-126, 2009-Ohio-1448. 

{¶ 5} Second, Blauvelt argues that sections (a) and (b) of Rule 

2.11(A)(7) of the Code of Judicial Conduct provide separate grounds for 

disqualifying Judge Hedric in this matter. Jud.Cond.R. 2.11(A)(7)(a) provides 

that a judge shall disqualify himself or herself if the “judge served as a lawyer in 

the matter in controversy.” Section (b) provides that a judge shall disqualify 

himself or herself if the “judge served in governmental employment, and in such 

capacity participated personally and substantially as a lawyer * * * concerning the 

particular matter.” Blauvelt contends that – as applied to the underlying action – 

the term “matter” in these rules involves a broader application than just the instant 

conduct of driving under the influence because the defendant’s prior convictions 

are essential elements of the current offense and specification. 
January Term, 2009 

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{¶ 6} Initially, it is noted that sections (a) and (b) of Jud.Cond.R. 

2.11(A)(7) distinguish between lawyers and government lawyers. Because the 

allegations here involve Judge Hedric’s prior employment as an assistant county 

prosecutor, only section (b) applies to this matter. Moreover, the plain language 

of section (b) would require Judge Hedric’s disqualification only if he had acted 

as a government lawyer in the “particular” matter before him. Because Judge 

Hedric was not involved as a prosecuting attorney in the underlying action, this 

rule does not compel his disqualification. There is no ambiguity in the language 

of the rule and thus no room to construe this section broadly, as Blauvelt requests. 

{¶ 7} Third, Blauvelt contends that the judge has personal knowledge of 

disputed facts and is arguably a material witness in the underlying case. See 

Jud.Cond.R. 2.11(A)(1) and (A)(2)(d). Blauvelt notes that the state must prove all 

necessary elements of the OMVI offense, including defendant’s identity as the 

individual convicted in the 2001 OMVI case. According to Blauvelt, Judge 

Hedric has personal knowledge of a disputed fact – defendant’s identity – that is 

relevant to defendant’s current case. 

{¶ 8} For his part, Judge Hedric disputes that he has knowledge of any 

disputed facts. The judge avers that defendant appeared before him last year 

when he pleaded no contest, yet he did not remember the defendant or his prior 

OMVI case. Moreover, the judge disputes that defendant’s identity – as it relates 

to the prior conviction – is at issue in the current OMVI case. According to Judge 

Hedric, all that is required to prove the prior conviction is a certified copy of the 

judgment entry in defendant’s 2001 OMVI case. 

{¶ 9} “I have declined to establish a rule ‘requiring disqualification of a 

judge based solely on suppositions that the judge may be called as a witness or 

allegations that the judge possesses evidence material to the case.’ ” In re 

Disqualification of Stuard, 113 Ohio St.3d 1236, 2006-Ohio-7233, 863 N.E.2d 

636, ¶ 6, quoting In re Disqualification of Gorman (1993), 74 Ohio St.3d 1251, 
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657 N.E.2d 1354. Moreover, when the evidence concerning the transaction at 

issue may be obtained from witnesses other than the trial judge, the trial judge is 

not such a material witness as to require the judge’s disqualification. In re 

Disqualification of Stuard, ¶ 6 (citing cases). 

{¶ 10} If Judge Hedric concludes that he is likely to be a material witness 

in the proceeding, he can and should disqualify himself, as Jud.Cond.R. 

2.11(A)(2)(d) directs. See id. at ¶ 7 (construing former Canon 3(E)(1)(d)(v) of the 

Code of Judicial Conduct). On the record before me, however, I cannot determine 

whether the judge possesses evidence that is material to defendant’s case, let 

alone whether such evidence is obtainable from other witnesses or documents. 

{¶ 11} As I have stated, “[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. 

{¶ 12} For the reasons stated above, the affidavit of disqualification is 

denied. The case may proceed before Judge Hedric. 

______________________