Will Ohio Supreme Court Justice Pat DeWine's refusal to stay out of gerrymandering cases cost him, Gov. Mike DeWine at the ballot box?

COLUMBUS — Much has been written in the heat of redistricting fight between Republicans and the Ohio Supreme Court over whether Justice Pat DeWine's refusal to recuse himself from a decision-making process involving his father flew in the face of judicial ethics. Justice DeWine took part in writing the minority opinion that would have upheld an unconstitutional gerrymander approved by his father, Gov. Mike DeWine. Now that the high court tossed the state legislative and congressional maps — and the legal battle persists — a question remains whether either father or son will pay the price at the polls. Gov. DeWine has momentum in his Republican primary coming off the announcement that Intel plans to build one of the largest semiconductor facilities in the country in Ohio. Still, judicial ethicists and court watchers waver on whether Justice DeWine's refusal to recuse himself from the case will move the needle in his bid to remain on the bench. "I think we're at a low point in terms of trust and confidence in the courts these days because I think it reflects a lot of polarization of politics," Jeremy Fogel, a retired federal judge who's now executive director of the Berkeley Judicial Institute in California, said, noting that Ohio Supreme Court justices are elected in partisan races. "I think it's a good idea for judges to be very mindful of this particular principle of the appearance of impropriety or the appearance of favoritism." Earlier this month, the younger DeWine not only ruled in favor of upholding the congressional maps signed by his father, but he helped two other Republican justices write the minority opinion in the case, in which his father was the lead defendant. In both the legislative and congressional redistricting cases, Republican Chief Justice Maureen O'Connor joined the court's three Democrats to throw out the GOP maps, ruling they were illegally gerrymandered. The congressional ruling, written by Democratic Justice Michael Donnelly, stated that the decision by DeWine and the rest of the minority to issue a joint dissent without naming an author "is unusual and inexplicable" and "has never been used by this court." However, the Republicans' dissent noted the U.S. Supreme Court had allowed unsigned dissents. Ohio's judicial code of ethics requires state judges to recuse themselves on cases where their parents are parties, but that rule doesn't apply to Ohio Supreme Court justices. History provides little guidance: a cleveland.com investigation last fall could not find a single time that the Ohio Supreme Court was asked to decide whether a judge — at any level — could pass judgment on a case in which a close family member was a participant. The state's high court must now decide whether to approve a revised legislative district map passed last weekend by the Ohio Redistricting Commission without Democratic support. The justices will also rule on the constitutionality of yet-to-be-determined revisions to the GOP's congressional redistricting plan in the coming weeks. Pat DeWine's rationale Pat DeWine said in a statement that before his father was sworn in as governor, he obtained and has since followed "independent ethics advice on the circumstances which recusal would be appropriate" from Jonathan Coughlan, the state's disciplinary attorney from 1996 to 2016 who's now in private practice. Pat DeWine declined to share Coughlan's advice, which was provided in writing, with cleveland.com on the grounds that he wasn't comfortable sharing attorney-client information. However, in an emailed response to questions, Justice DeWine outlined several reasons for not recusing himself. First, he noted that his father is a defendant in the redistricting lawsuits in his official capacity as governor, not as an individual. He also cited two federal lawsuits in which members of the judiciary did not have to recuse themselves based on their relationship with government officials who sued in their official capacity. In the more famous of those two cases, then- U.S. Supreme Court Justice Antonin Scalia declined to recuse himself from a 2004 case involving then-Vice President Dick Cheney, even though the two recently went on a hunting trip together. "Most importantly, ( Gov. DeWine) has no personal interest in the litigation," Pat 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." Justice DeWine also added that as one of seven members of the Ohio Redistricting Commission, the governor "has considerably less influence over the commission than he would have over a department of state government." Pat DeWine concluded: "Because there is no reasonable basis for me to recuse myself in this case, it would be inappropriate for me to do so. 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." Since Mike DeWine was elected governor in 2018, Justice DeWine has recused himself from some cases involving his father. Last May, he didn't participate in a lawsuit challenging Gov. DeWine's coronavirus rules, citing his father's "extensive personal involvement" with the issue. In August, he refrained from hearing a case challenging his father's decision to stop accepting enhanced federal unemployment benefits because he wanted to "avoid the appearance of impropriety." Pat DeWine has been challenged on this issue several times during his judicial career, which started on the Hamilton County Common Pleas Court and continued on the First District Court of Appeals. He sought multiple legal opinions on handling cases involving his father's office and was generally told he didn't have to recuse himself unless his father was personally involved in a case. Three days before Mike DeWine was elected governor in 2018, a three-judge panel dismissed a disciplinary complaint against the younger DeWine for not recusing himself from cases involving his father's office, as there was no evidence the elder DeWine had a financial interest in the cases or was personally involved with preparing or arguing them. Gov. DeWine, for his part, has refrained from saying much about his son's participation in this month's redistricting decisions. Speaking with The Plain Dealer/cleveland.com editorial board earlier this month, the governor insisted that he never discusses pending cases with his son. While the governor has not publicly expressed an interest in favor of a particular outcome, he voted to approve both sets of maps. And when the Ohio Redistricting Commission passed its initial legislative redistricting plan, Gov. DeWine said publicly that the on which his son sits would decide the matter. "We know that this map will be in court," the governor said. "I'm not judging the bill one way or another — that's up for a court to do." What judicial ethics experts say Jonathan Coughlan, whom Pat DeWine relied on for recusal advice, wrote in a 2016 evaluation for the Ohio Democratic Party that Justice DeWine "must recuse himself" from any case in which his father, who was Ohio attorney general at the time, was a party. "I hold this opinion to a reasonable degree of legal certainty," Coughlan wrote, citing the Ohio Code of Judicial Conduct. Other experts in judicial ethics have varying views on Pat DeWine's participation in Ohio's redistricting cases. Amanda Frost, a law professor at American University in Washington, D.C., said the issue of Mike DeWine being involved with the redistricting cases only in his official capacity makes the ethical questions "murkier" for his son. However, she said, even if nothing forbids Pat DeWine from ruling on cases involving his father, that doesn't make it proper for him to get involved. "I just do think the appearance of impropriety matters, and if there's another judge who can hear it, it shouldn't be him," Frost said. Fogel, the retired federal judge, said it would be "more problematic" for Justice DeWine if he were ruling on, for example, whether his father was exercising power in a constitutional manner. Fogel said that while Justice DeWine "is going to have a hard time" with the appearance that his father will influence him, he might be able to explain himself if the case doesn't involve something the governor did beyond simply signing or voting for the redistricting plans. "There's a lot of nuances to this question," Fogel said. "You can't just say, 'Well, OK, the governor is involved in the creation of this redistricting plan, and his son is making a judgment on it.' It's what exactly did the governor do? What was his role?" Paul Beck, a political scientist at Ohio State University, said he wasn't surprised that Pat DeWine made the decision he did. "I think he's probably under enormous pressure — self-perceived or real pressure — from his own party to try to protect their interests in redistricting," Beck said. It remains to be seen whether Pat DeWine's decision not to recuse himself will affect both his and his father's chances for re-election. But Tom Sutton, a political science professor at Baldwin Wallace University, said that Democrats could use this issue to mobilize liberal voters into turning out against Justice DeWine — but only if Democrats work to bring the matter to voters' attention. "I think this is handing a (Democratic) candidate a really potent issue that they could use effectively," Sutton said. But, he added, "If this doesn't get made into a campaign issue that ( Democrats) run hard on with literature, ads, et cetera, then it won't resonate with voters, and they won't be thinking about it or remember it." ©2022 Advance Local Media LLC. Visit cleveland.com. Distributed by Tribune Content Agency, LLC.