Ohio Justice Pat DeWine won't recuse himself from gerrymandering cases involving his dad

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Republican Gov. Mike DeWine is a defendant in three lawsuits challenging Ohio's district maps.

Ohio Supreme Court Justice Pat DeWine, who is running for reelection, has recused himself from presiding in cases where he has had a conflict of interest dozens of times. But when it comes to cases directly involving his father, Ohio Republican Gov. Mike DeWine, his record isn't so great.

Most notably, Justice DeWine has refused to recuse himself in three cases that challenge Ohio's district maps that unconstitutionally favor a Republican supermajority in Ohio's general assembly. The three lawsuits target the Ohio Redistricting Committee, which drew the maps in September of 2021. Gov. DeWine is one of the members of the seven-person committee.

While judges generally have broad discretion to determine their own recusals, their decisions can be appealed. In Ohio, if the issue comes up in a lower court, a recusal decision can be appealed to the state Supreme Court by one of the parties to the lawsuit. One of the plaintiffs in the three redistricting lawsuits could appeal Justice DeWine's decision not to recuse himself to the United States Supreme Court.

Although Justice DeWine has faced scrutiny over his decision to not recuse himself from the redistricting lawsuits involving his father, he defended his decision in an emailed statement to the Ohio Capital Journal, saying it was based on advice he received from an unnamed counsel on when recusal is appropriate.

"While this case may be higher profile and engender stronger passions than other cases, I am compelled to apply the same set of standards," DeWine said in the statement.

He also said that his father is only one of seven members of the redistricting commission and, as such, has only a small influence on the commission's decisions. "A decision by the court one way or another will not provide any personal benefit to [my father]," Justice DeWine said. "He is not a member of the legislature and is, thus, personally unaffected by any particular district lines."

It's not the first time justice DeWine has come under scrutiny for not recusing himself in a case involving his father.

In 2018, he heard oral arguments for a case involving Ohio's largest online charter school. The case involved the Electronic Classroom of Tomorrow, which had overstated the number of students it was serving in order to receive more state funding. The Ohio Department of Education said that the school needs to pay back at least $80 million in funding it received, and the school fought the decision. At the time, the elder DeWine was serving as Ohio's attorney general, whose office was handling the case on the state's behalf, though he appointed an outside counsel to work the case.

Five months after hearing oral arguments, justice DeWine formally recused himself without giving a reason. A formal complaint was filed months earlier over the younger DeWine not recusing himself from cases involving his father, but the three-panel judge nonetheless dismissed it.

Despite that ruling, there's still much reason to believe that Justice DeWine's decision to not recuse himself from cases involving his father may, in fact, violate Ohio's judicial conduct. According to the Ohio Supreme Court's code of judicial conduct, "a judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge's judicial conduct or judgment."

Legal experts are skeptical of Justice DeWine's argument that he should not have to recuse himself from the redistricting lawsuits against his father.

"My reading of the code of judicial conduct is that it is not discretionary to recuse oneself when a close family member is a party to a lawsuit," Cassandra Burke Robertson, director of the Center for Professional Ethics at Case Western Reserve University's School of Law, told The American Independent Foundation.

Robertson added that she's unsure why none of the plaintiffs have filed an appeal against DeWine's decision to not recuse himself since she believes they would have a valid argument if it were to go to a higher court. Of course, one reason the plaintiffs of these lawsuits, which includes the nonprofit public policy and voting rights organization the Brennan Center, could be the recent sharp conservative partisan shift of the United States Supreme Court, which has shown a high proclivity to rule in favor of conservative causes.

"Ultimately, I think it would be a really interesting issue to get to the United States Supreme Court because the interpretation of the code of judicial conduct is one question, and I tend to think that the code of judicial conduct is very clear when recusal is required," Robertson said.

Published with permission of The American Independent Foundation.