Justice Pat DeWine’s refusal to recuse from suit involving father may be unprecedented
Ohio Supreme CLEVELAND —
Court Justice Patrick DeWine’s refusal to recuse himself from a trio of redistricting lawsuits, in which his father Gov. Mike DeWine —
is a defendant who will — testify as a witness, might be unprecedented.
Cleveland.com and The Plain Dealer set out to find a case where the Ohio Supreme Court’s chief justice considered whether a judge, at any court level, should be allowed to preside over a case in which his or her parent or child was a participant. The outlet searched through dozens of cases where the chief justice was asked to force a judge off of a case. Cleveland. com also spoke with multiple attorneys, all of whom declined to comment for this story.
Neither avenue turned up a single example where the state’s high court was asked to decide whether a judge can pass judgment on a close family member.
One of the attorneys cleveland.com contacted was Jonathan Coughlan, who was the state’s disciplinary attorney from 1996 to 2016. After returning to private practice, Coughlan wrote an opinion on behalf of the Ohio Democratic Party in which he argued that Justice DeWine would have to recuse from every case involving the Ohio Attorney General’s Office, because the elder DeWine was attorney general at the time.
Coughlan’s opinion did not cite or refer to any other previous cases where the court removed a judge from a case involving a parent or guardian. He was also unable to point cleveland.com to any such case.
Cleveland.com also asked an Ohio Supreme Court spokesman if he could identify a similar case. The spokesman did not provide any such case, and suggested the news outlet use a legal subscription service to search for published opinions.
The issue stems from three lawsuits challenging the state House and Senate redistricting maps that Gov. DeWine and other Republicans on the Ohio Redistricting Commission approved last month.
The suits, filed by the ACLU of Ohio and other voting rights groups, argue that Republicans violated the state constitution by drawing maps likely to award the GOP a disproportionately large share of legislative districts.
The Ohio Judicial Code of Conduct requires state judges to recuse themselves from hearing cases involving close family members, but that law does not apply Ohio Supreme Court justices.
Unlike in every other court, the Supreme Court chief justice does not have the power to unilaterally remove a judge for a conflict. Under the court’s internal rules, recusal is essentially up to the judge himself, so there likely is no way for groups suing over the Republican-drawn districts to stop Pat DeWine from ruling on maps approved in part by his father.
Justice DeWine has vowed not to recuse himself.
The younger DeWine told cleveland.com in a text message late last month that he had no obligation to step down. He said his father had a limited influence on the maps, since the governor was one of five Republicans who approved them.
Chief justices have often been asked to remove judges from cases due to their relationships with other elected officials, including in Cuyahoga County.
The filing to do so is called an affidavit of disqualification.
In 1989, then-Chief Justice Thomas Moyer declined to disqualify Cuyahoga County Common Pleas Court Judge Michael Corrigan from hearing a case where two local defense attorneys were charged with bribery. The attorneys’ own lawyers argued in part that Corrigan was the son of then-Prosecutor John T. Corrigan, and the relationship created the potential for the judge to favor the prosecutors who worked for the judge’s father.
Judge Corrigan argued that his father would not be personally appearing in court and had not told him any details about the case, so there was no conflict of interest. Moyer agreed, writing that “disqualification is not warranted solely because Judge Corrigan is the son of the duly-elected prosecuting attorney of this large metropolitan county.”
However, Moyer did remove Judge Corrigan and all other Cuyahoga County Common Pleas judges, because defense attorneys said Corrigan and the other judges may be called to testify at trial as witnesses.
Justice DeWine found himself the subject of similar complaints when he was an appellate court judge in Cincinnati and his father was elected Ohio Attorney General, the state’s top prosecuting attorney. Then-Judge DeWine vowed to recuse himself from hearing cases involving his father’s office on which his father was “personally involved,” or if the elder DeWine ever appeared in his court on behalf of the Attorney General’s Office.
The closest of any readily available example of the court opining on a judge presiding over a case involving a close relative came in 2009. Moyer received a request to order Cuyahoga County Domestic Relations Court Judge Leslie Ann Celebrezze from a divorce case. The attorney who filed the request cited a number of reasons that Celebrezze should not continue to preside over the case, including that her father, the late Judge James Celebrezze, had previously presided over the same case and made several rulings that the younger Celebrezze would have to revisit.
Ohio’s judicial rule specifically bars a judge from presiding over a case if a person “within the third degree of relationship to the judge” — such as a parent, grandparent, great-grandparent, child, grandchild or spouse — previously served as a judge on the same case.
Moyer cited the rule in ordering the younger Celebrezze off the case, writing that “there remains a concern that the judge will be unable to preside over the case with total impartiality in view of her father’s past participation, particularly when she is called upon to revisit prior rulings rendered by her father.”
Moyer also wrote that a reasonable observer could believe Judge Celebrezze was biased in favor of her father if she upheld his prior rulings, or went out of her way to overturn them to prove that she harbored no bias.
In his opinion, Moyer quoted a line he used in a previous case where he declined to remove a judge from presiding over a case involving the judge’s distant cousin.
“Generally, the more intimate the relationship between a judge and a person who is involved in a pending proceeding, the more acute the concern that the judge may be tempted to depart from the expected judicial detachment or to reasonably appear to have done so,” Moyer wrote.
That quote is taken from national judicial ethics expert Richard Flamm’s 1996 book, “Judicial Disqualification,” a nearly 1,200-page treatise on when judges should step aside from cases. The Ohio Supreme Court has cited passages from the book more than a dozen times, Flamm’s website says.
However, Case Western Reserve University law
school professor Cassandra Burke Robertson previously told cleveland.com that there is no way to challenge an Ohio Supreme Court justice’s decision not to follow the code of conduct that applies to all other judges in the state.
Robertson, who is also the director of the Center for Professional Ethics at Case Western’s law school, said that means that “it is essentially up to the judge to determine whether disqualification is required.”