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Judges Can’t Hear Cases When There’s a Conflict of Interest? Some Do.

Ethics rules require judges to recuse themselves from cases involving relatives or their own partisan or political interests. But it doesn't always work out that way.

Ohio Supreme Court Justice Pat DeWine has refused to to sit out redistricting lawsuits filed against his father, the governor of Ohio. (Joshua A. Bickel/Dispatch)
Many judges across the country seem confused about when conflicts of interest require them to sit out cases. More than 130 federal judges, for example, were recently exposed by The Wall Street Journal as having improperly ruled on cases involving companies in which they had a financial interest, prompting the judiciary to re-examine its process for handling these issues.

Potential conflicts of interest can take another form in state courts, where campaign finance issues can come into play or where judges are related to powerful politicians whose decisions are challenged in their courts. Arizona Supreme Court Justice Clint Bolick, for example, is married to a Republican legislator who’s running for secretary of state. Florida’s chief justice, Charles T. Canady, is also married to a political candidate. Legislators in South Carolina and Virginia, the only states where lawmakers pick judges, have sometimes put their relatives on the bench, leading to charges of nepotism or corruption.

Two Republican justices, one in Ohio and the other in North Carolina, were recently asked to sit out lawsuits filed against their fathers: the governor of Ohio and the leader of the North Carolina Senate. Both refused, but the North Carolina justice’s colleagues could soon take him off the case.

Ohio Supreme Court Justice Pat DeWine has sat out some lawsuits against his father, Republican Gov. Mike DeWine. In August, for example, the justice recused himself from a case involving unemployment benefits “to avoid any appearance of impropriety that might result from my father’s public involvement in this matter.” The Ohio Code of Judicial Conduct specifically lists cases involving relatives as an example of those requiring recusal, and that includes nieces and cousins, not just immediate family.

So observers were surprised a month later when Justice DeWine announced that he wouldn’t recuse himself from redistricting lawsuits filed against his father, who had recently signed off on new election districts that favor Republican candidates; Gov. DeWine is even expected to testify as a witness.

Justice DeWine is part of the court’s 4-3 GOP majority, so his vote could be crucial. The districts at issue were drawn by the Republican-led Legislature after the state’s new redistricting commission failed to produce a map with bipartisan support. Under the new process, the Legislature’s districts can remain in place for only four years, at which point the process starts over. Next year, Democrats could win a majority on the high court, which could again play a key role.

Democratic Justice Jennifer Brunner also refused to recuse herself from the current redistricting case. The defendants cited her campaigning on opposition to gerrymandering, as well as a campaign fundraiser hosted by former U.S. Attorney General Eric Holder, who heads the organization that filed the lawsuit. The chair of the Ohio GOP, Bob Paduchik, argued that Brunner’s “decision on redistricting litigation is predetermined” and that she is “incapable of providing a fair opinion.”

Political and Familial Ties

In North Carolina, Republicans have also called on a Democratic justice to recuse herself. Conservatives noted that Justice Anita Earls raised money in 2019 for the North Carolina NAACP, which has a lawsuit pending at the high court. Lawmakers also requested her disqualification two years ago, as the courts were hearing a partisan gerrymandering lawsuit. They cited large campaign contributions from the state Democratic Party, a plaintiff in the case, and Earls’ experience litigating against the Legislature in voting-rights cases. But the court decided that Earls would stay on the case, and when Republican Chief Justice Paul Newby faced similar requests in a racial-gerrymandering lawsuit, he also remained on the case.

The high court is now taking a look at how it handles conflicts of interest. That’s because Justice Phil Berger Jr., a Republican and the son of a GOP legislative leader, isn’t recusing himself from a pending lawsuit filed against his father and another Republican leader. North Carolina’s judicial ethics rules mirror Ohio’s in barring judges from deciding lawsuits against their relatives, and last year Berger did recuse himself from a lawsuit filed against his father.

The North Carolina NAACP’s pending lawsuit challenges two constitutional amendments placed on the ballot in 2018 by a state legislature that federal courts had ruled was racially gerrymandered. A judge ruled against legislators in 2019, but the state Court of Appeals overruled that decision last year.

After Justice Berger didn’t recuse himself from reviewing the decision, the plaintiffs asked the court to “disqualify” him. The court was also asked to disqualify Justice Tamara Barringer, a former GOP legislator who had voted for the amendments, a voter-ID mandate and a lowering of the cap on state income taxes.

Who Should Have the Final Say?

Conservative media expressed shock and outrage at the idea that the North Carolina Supreme Court might enforce its judicial ethics rules by disqualifying the justices. But courts in other states have routinely done so, and the North Carolina court received several amicus briefs from law professors and former judges arguing that individual justices shouldn’t have the final say on recusal. Conservative organizations filed briefs comparing the disqualification of justices for conflicts of interest to undermining the voters’ decision to elect the justices.

Conflicts of interest are likely to continue arising, and every vote is crucial on the closely divided North Carolina Supreme Court, which now has a 4-3 Democratic majority. Justice Sam Ervin, a Democrat, recently recused himself from reviewing a judgment entered by his brother, a lower-court judge.

Good-government advocates in Ohio and North Carolina, including myself, have recommended reforming judicial ethics rules. North Carolina judges aren’t required to tell the public why they decided to recuse themselves or not, and they’re in one of the few states that allow judicial candidates to personally solicit campaign cash.

Only a few states require judges to recuse themselves in cases involving campaign donors above a certain threshold. The Ohio Supreme Court actually went the other direction in 2017 by increasing the limit on contributions that judges can raise. In many states, judicial ethics rules haven’t been updated to account for the expensive, politicized elections that judges increasingly face. Policymakers should take a fresh look at those rules, as well as the processes for keeping judges from deciding cases involving their relatives.

Governing's opinion columns reflect the views of their authors and not necessarily those of Governing's editors or management.
Billy Corriher is the state courts manager for the People's Parity Project and a writer whose work focuses on democracy and the courts.
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