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Justice DeWine defends redistricting recusal decision despite murky track record

Posted at 6:23 AM, Oct 27, 2021

The following article was originally published in the Ohio Capital Journal and published on under a content-sharing agreement.

COLUMBUS, Ohio—Since taking his seat on the Ohio Supreme Court bench, Justice Pat DeWine has recused himself from 37 cases. Perhaps most colorfully, he’s bowed out of eight tied to a doctor accused of performing medically unnecessary spinal surgeries, who then fled to his native Pakistan to avoid prosecution. In court filings, DeWine explained he was the appellate judge in the cases.

But the justice is now facing scrutiny for a case in which he has chosen not to recuse himself. DeWine says he’ll hear arguments in a trio of lawsuits against the Ohio Redistricting Commission. His father, Gov. Mike DeWine, is a member.

That was then

This isn’t the first time questions have been raised about Justice DeWine hearing cases involving his dad. In 2018, a formal complaint was filed with the board of professional conduct over cases tied to then Attorney General Mike DeWine.

Columbus attorney Bradley Frick prosecuted the grievance, and he’s unequivocal on whether Justice DeWine should rule on Gov. DeWine.

“It was my belief, and it remains my belief, and by the way remains the belief of everybody I’ve ever talked to except the three judge panel that ruled on this case, that a son should not hear his father’s cases,” Frick said.

Frick emphasized that judicial rules demand judges recuse themselves even if their impartiality could be reasonably questioned. Instead, Frick said, the justice argued he would only need to recuse himself if his father argued the case in front of the bench personally.

“If my dad had initiated the case in the AG’s office, if he wrote the complaint, if he did the discovery, if he did all of the motions, if he prepared the case for trial, that would be okay,” Frick explained, summing up Justice DeWine’s position. “He can stand outside the door and he can do the entire case. If he takes one step inside the door, it’s not okay. Why does that make any sense to anybody?”

Justice DeWine’s other argument at the time was that he would recuse himself if his father commented about a case in the media. During the deposition, Frick quickly noted DeWine had not recused himself from a case involving ECOT, which his father had spoken about regularly in news reports.

A few days later, Justice DeWine sent a letter to the clerk recusing himself from the case, despite sitting for oral arguments.

This is now

In an emailed statement, Justice DeWine says when he joined the high court, he received advice on when recusal is appropriate and he’s sticking by that counsel.

“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 argued.

Parties to a case can file a motion to request a justice recuse him or herself. Asked about that possibility, Justice DeWine responded through a spokesperson that he has yet to receive such a request, but if he does, he will file a response in accordance with court rules.

Still, despite Justice DeWine’s explanation, his justifications have shifted somewhat in this case. He argues that as one of seven members, Gov. DeWine has minimal influence over the redistricting commission’s decisions. He also says that because Gov. DeWine is a statewide office holder, he has no “personal interest” in the outcome.

“A decision by the court one way or another will not provide any personal benefit to him,” Justice DeWine said. “He is not member of the legislature and is, thus, personally unaffected by any particular district lines.”

The governor has spoken publicly about redistricting — notably voicing disappointment with the final product despite voting to approve it. But now his son appears to be taking a narrower view of public comments — drawing a distinction between comments about redistricting broadly and the court case specifically.

“To my knowledge the Governor has not publicly expressed an interest in favor of a particular outcome in this case,” Justice DeWine explained.

But the justice does return to a version of his argument that recusal is tied to a family member showing up in person. Justice DeWine argued the case before the court has to do with the office of the governor, rather than his father personally.

“Here, the Governor is a member of the redistricting commission in his official capacity,” DeWine said. “Official capacity lawsuits traditionally have not been considered to present a basis for recusal based solely upon a judge’s relationship with a government official.”

DeWine quoted two cases that support his thinking and went on to argue that, in fact, it’s his duty to hear the case.

“Because there is no reasonable basis for me to recuse myself in this case, it would be inappropriate for me to do so,” DeWine stated. “The voters elected me to do a job, and unless there is a specific reason that I cannot do that job, I intend to do so.”

Notably, in May of this year, Justice DeWine recused himself from a case challenging Ohio’s Vax-a-Million lottery in which Gov. DeWine was named as a defendant. In his letter to the clerk, Justice DeWine noted his recusal was based on his father being one of the defendants, having “extensive” personal involvement in the matter and making “numerous” public comments about it.

In August, Justice DeWine recused himself again in a case over Gov. DeWine’s decision to cut of enhanced unemployment benefits. In that letter to the clerk, Justice DeWine explained his decision as attempting to, “avoid any appears of impropriety that might result from my father’s public involvement in this matter.”

As to Justice DeWine’s reliance now on a perceived distinction between Mike DeWine the father and Mike DeWine the governor, Frick offered a blunt assessment.

“Nonsense,” he barked. “It’s utter nonsense.”