Photo: Courtesy of the Ohio Supreme Court
Ohio Supreme Court Justice Pat DeWine has said he doesn’t have a conflict sitting in judgment of a case involving a redistricting commission on which his father sits. That’s because the father, according to his son, is acting in only an official capacity.
It’s a claim that some ethics experts have bluntly rejected.
The claim seemed to take a direct hit last week when Supreme Court Justice Maureen O’Connor ordered DeWine’s father, Gov. Mike DeWine, and his colleagues on the Ohio Redistricting Commission to explain why they shouldn’t each be held in contempt of court because of their inaction in the case. It appeared to be a stark illustration that regardless of what his son claimed, the governor had individual interests in the process by which Ohio’s legislative districts are carved up.
But for Pat DeWine, his dad only has a personal stake in the case in contempt proceedings. On all other redistricting matters, he said he’s going to keep judging.
Ohio is one of the most gerrymandered states, with Republicans controlling almost 80% of seats in the Ohio Senate, while they’ve won recent statewide elections by margins of only about eight or nine percentage points. To stop such extreme partisan gerrymanders, more than 70% of Ohioans voted in 2015 to amend the Constitution to limit them.
As part of a process that is in use for the first time, Gov. Mike DeWine, sits on a seven-member redistricting commission. Gov. DeWine and his four fellow Republicans have twice drawn maps that the Ohio Supreme Court has rejected because they overwhelmingly favored Republicans and thus don’t reflect the partisan makeup of the state as required by the Constitution.
The rulings came even though the court has a 4-3 Republican majority. Chief Justice Maureen O’Connor voted with the three Democrats, while Pat DeWine voted to uphold the maps that his father and the redistricting commission’s other Republicans produced.
Those maps, incidentally, got a grade of “F” from the Princeton Gerrymandering Project.
Many asked at the time about the propriety of Justice DeWine’s involvement in a case that includes his father. As a general matter, judges are required to step aside in cases involving close relatives to show the public that the courts are impartial.
To justify his insistence on judging the case, Pat DeWine claimed that his father was acting in his official — as opposed to personal — capacity and that Mike DeWine stood to gain nothing from the outcome of the map-drawing exercise.
“Most importantly, (Gov. DeWine) has no personal interest in the litigation,” Justice DeWine said. “A decision by the court one way or another will not provide any personal benefit to him. He is not a member of the legislature and is, thus, personally unaffected by any particular district lines. I also note that to my knowledge the Governor has not publicly expressed an interest in favor of a particular outcome in this case.”
The Ohio Code of Judicial Conduct makes no such distinction, said Sarah O’Brien, a retired Dane County, Wisconsin, circuit court judge who has advocated stronger ethics rules for those who sit on the bench. The code looks only at whether the two DeWines are related “within the third degree of relationship” in determining whether recusal is necessary, she said.
Another expert added that it’s false to say that Gov. DeWine doesn’t have a personal interest in how Ohio’s legislative and congressional districts are drawn, given that they could have a huge impact on the success of his agenda.
“There’s no way that the son of the governor can sit in a case that will determine the legitimacy of the redistricting where the governor has an interest in maximizing Republican victories,” Stephen Gillers, a legal ethics expert at New York University, told NBC News on Monday.
And now Justice DeWine’s explanation for not stepping aside seems even more tenuous.
The Republican majority on the Redistricting Commission declared that it was unable to draw maps that complied with the partisan-fairness requirements of the Supreme Court. With deadlines for primary elections rapidly approaching, that’s thrown the state into a constitutional crisis as voters and candidates don’t know what their districts will be.
On Friday, Chief Justice O’Connor signed an order for members of the commission to explain by noon Wednesday why they shouldn’t be held in contempt for refusing to fulfill their duty and submit maps that comply with the requirements of the Ohio Constitution.
Ohio Attorney General Dave Yost is a Republican, but he’s not a member of the redistricting commission. His office has provided legal services and hired outside counsel for the commission.
In the wake of the chief justice’s contempt threat, Yost on Saturday tweeted that he had hired separate lawyers to represent the commission’s two Democrats in the matter. And he hinted that at least with regard to contempt, Gov. Mike DeWine wasn’t acting simply in an official capacity as part of a seven-member commission.
“Contempt has individual consequences, and I notified the minority caucus members (within) hours of the show-cause order that they would be assigned outside counsel,” Yost said in the tweet.
Don’t know who you’re talking to, but the Court speaks through its entry—absent a nunc pro tunc entry, they all respond
Contempt has individual consequences, and I notified the minority caucus members with hours of the show cause order that they would be assigned outside counsel https://t.co/tqTHspW2jF
— Attorney General Dave Yost (@DaveYostOH) February 20, 2022
The tweet prompted a response by Kevin C. O’Neil, a retired corporate lawyer, asking whether Yost would tell Justice DeWine that he now has to step aside from the case because his father’s individual interests are more clearly at stake. O’Neil noted that Pat DeWine has recused in lesser cases.
Pat DeWine on Monday was asked, through a spokeswoman for the Supreme Court, whether the contempt threat has changed his thinking about recusal.
“Regarding the pending redistricting cases before the Court, I’ve answered this question several times and nothing has changed,” Justice DeWine responded in an email Tuesday evening. “In the event that a contempt proceeding is instituted pursuant to R.C. 2705.02 to impose sanctions on the individual members of the redistricting commission, I would recuse myself from that separate proceeding.”
Justice DeWine didn’t address the fact that the mere chance that his father could be held in contempt arose from Gov. DeWine’s personal involvement in the redistricting process.
Spokesmen for DeWine and Yost said they had no comment on the matter.
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