The ABA/BNA Lawyers’ Manual on Professional Conduct, reported that an ethics complaint is currently pending against Ohio Supreme Court Justice Patrick DeWine for failing to recuse himself on all cases in which the Ohio Attorney General’s office is involved. Ohio Attorney General Michael DeWine is Justice DeWine’s father.
Prior to becoming Justice in 2017, Patrick DeWine served on both the Hamilton County Common Pleas Court and the 1st District Court of Appeals. Justice DeWine has heard many cases in which the AG’s office has represented a party. As Supreme Court Justice, he has heard 4 cases in which the Attorney General is named as a party. He has never, however, remained on a case in which the Attorney General has personally appeared before him.
While on the Common Pleas Court in 2010, then Judge DeWine sought an ethics opinion from the Supreme Court of Ohio Board of Commissioners on Grievances and Discipline (now the Board of Professional Conduct) as to whether he could preside over cases in which the AG’s office was representing a party. Although the Board never issued a written opinion, Justice DeWine states that its Secretary, Jonathan Marshall, orally told him that he must recuse only where his father personally appears before him.
In 2016, as a Court of Appeals judge, Justice DeWine again sought an ethics opinion as to when he must recuse himself when the AG’s Office is either a party or is representing a party. This time he sought the opinion from private attorney Michael Close. Mr. Close, agreeing with Mr. Marshall, opined that the Judge need only recuse when AG DeWine personally appears in the case.
In 2016, the Ohio Democratic Party sought its own ethics opinion from former Disciplinary Counsel Jonathan Coughlan, also a former member of the task force that drafted the current Code of Judicial Conduct. Mr. Coughlan opined that Justice DeWine should recuse himself from all cases in which the AG’s office appears as counsel of record or files an Amicus brief.
In response, Justice DeWine again sought Mr. Close’s opinion. Mr. Close reiterated that Justice DeWine need recuse only when his father personally appears before him.
Shortly after being sworn in as Justice, two separate litigants requested that Justice DeWine recuse himself from their cases because of the AG office’s involvement. Justice DeWine declined.
Thereafter, Ohio’s Office of Disciplinary Counsel received grievances against Justice DeWine for his failure to recuse himself from the cases. Pursuant to the Supreme Court Rules for the Government of the Judiciary, the matter was referred to the Chief Judge of the Court of Appeals, who appointed a three-member panel to review grievances. All three judges found that further investigation of the grievances was warranted.
Pursuant to Rule, the Chief Judge of the Court of Appeals appointed Bradley N. Frick as Special Disciplinary Counsel to investigate and/or prosecute the ethics matters against Justice DeWine. On February 14, 2018, Mr. Frick filed an Amended Complaint against him alleging violations of several Canons of the Code of Judicial Conduct.
The Amended Complaint alleged that Justice DeWine violated Canons 1, 2 and 4 of the Code of Judicial Conduct when he failed to recuse himself on cases in which the AG’s office was a party or represented a party. He also violated the Canons when he appeared with his father in photos on his father’s gubernatorial campaign thereby conveying the impression that AG DeWine could influence Justice DeWine. It states that concluding a father-son relationship has no impact on public perception of the judiciary ignores basic human nature.
The Amended Complaint further alleges that Justice DeWine violated Canons 1, 2 and 3 when he asked Hamilton County Prosecutor Joe Deters to find an internship position in the County Prosecutor’s office for his son, a freshman at Miami University. Prosecutor Deters did so even though Justice DeWine’s son was not a law student.
The Amended Complaint alleges that Justice DeWine failed to promote the independence, integrity, and impartiality of the judiciary, engaged in the appearance of impropriety, engaged in prohibited campaign activity, and employed the authority of his office to secure authorization of a public contract for a family member.
The parties filed motions for summary judgment. The hearing panel heard oral arguments in September 2018 and will rule on the motions in the near future.
Interestingly, the Supreme Court of Ohio recently denied a defendant’s Motion for Reconsideration due to Justice DeWine’s failure to recuse in State ex rel Beasley, 2018-Ohio-493. In a concurring opinion, Justice Fischer wrote that the defendant waived his argument when he failed to request such recusal. Citing a long line of cases in which chief justices have allowed judges to remain on cases notwithstanding familial relationships with government employees whose offices appear before them, Justice Fischer opined that defendant’s argument was without merit.
Whether Justice Fischer’s concurrence is a preview of precedent to be set in Justice DeWine’s ethics case remains to be seen.
At the very least, Justice DeWine’s ethics case points out the inherent difficulty in navigating conflicts of interest in situations where two public officials appear before one another. Even the experts disagree. Both sides’ arguments are plausible. The state Attorney General’s office is involved in so many cases, it may not be feasible to require recusal where the AG is not actually appearing before the court. On the other hand, a party could reasonably conclude that impartiality cannot occur where a Justice must rule upon a case in which his father’s office is a party or is representing a party.
The Attorney General is Ohio’s top cop. In this situation, reasoning that “[s]alaried government attorneys simply ‘ “do[ ] not have the financial interest in the success of the departmental representation that is inherent in private practice” seems not to apply. State ex rel Beasley, 2018-Ohio-493, par. 7. Although it may not be financial, the AG certainly has an interest in the success of his office. And that interest is every bit as important to him as is a private practitioner’s financial interest in his business.
Certainly, Justice DeWine knows that his decisions will impact the success of Attorney General DeWine’s office. And, perhaps, the Attorney General’s re-election campaign. Or in this case, his gubernatorial campaign. Of course, Justice DeWine will want his father to do well in public office. Such considerations simply cannot be ignored. And citations to situations where the public employee’s position is of less consequence just do not seem to correlate.
Notwithstanding the long precedent that jurists are presumed to be impartial and public officials are presumed to have less interest in the outcome of a public case, it certainly seems to raise an eyebrow to allow a Justice of a state’s top court to preside over cases in which his father, the state’s top cop, stands to gain, even if indirectly.
No doubt this very serious and thorny issue must be addressed and decided. Whether it should lead to ethics sanctions, possibly impacting the Justice’s law license, however, is another matter. Given the high stakes and the fact that the citizens of Ohio elected both officials, it seems that, at the very least, some semblance of citizen input is called for.