Should Justice Pat DeWine have recused himself in cases in which the Attorney General’s office, led by his father, either appeared as a party, or as an amicus?  On November 9, 2018, a three-judge hearing panel unanimously said no, and dismissed a complaint filed January 30, 2018 by Bradley N. Frick, a Columbus attorney appointed to serve as special disciplinary counsel in the case. The gravamen of the complaint involved the issue of the appearance of impropriety. The three judges, chosen by lot to participate in the hearing, were Fairfield Municipal Court Judge Joyce A. Campbell, Mercer County Common Pleas Judge Jeffrey R. Ingraham, and Montgomery County Common Pleas Judge Michael Krumholz. Read the entire decision here.

There was one aspect of the decision which got little press coverage that the blog found interesting, and that is the question of what is required of justices who are asked to recuse themselves from cases.

“Though there is no requirement that Justice DeWine disqualify himself from cases in which the AG’s office is a party or has filed an amicus brief, the hearing panel notes that it would be instructive in future cases in which a request for disqualification is denied for Justice DeWine (or any justice) to file an entry or decision in such case which provides the reasons for denying the request.”

The panel then cites a case that I always made my students read when I taught a segment on recusal to my judicial extern class—Justice Scalia’s famous memorandum offering a heated defense of why he should not recuse himself from a case involving then-Vice President Cheney in his official capacity, even though the two had gone duck hunting together while the case was pending. The case was about the National Energy Policy Group, created by then-President Bush to establish a national energy policy, and chaired by Cheney. The panel in the DeWine case cites this memorandum as “the type of decision and analysis the hearing panel recommends for future reference.” It’s a classic, that’s for sure.

What typically gets filed in cases when justices are asked to recuse? Since April 1, 2011, pursuant to S.Ct.Pract. R. 4.04 , a party seeking the recusal of a Justice on a case must  file the request in letter form with the Clerk of the Supreme Court and include an affidavit with the specific basis and facts to support the request. The justice must then respond to the clerk in writing indicating whether the justice will recuse from the case. A justice’s reasons for the decision are not required.

An example of what this usually looks like can be found from one of the cases cited in the hearing panel decision—Johnson v. Sloan, a prisoner habeas corpus case. Justice DeWine was asked to recuse himself because an assistant AG represented Warden Sloan in the case. Here is the response filed by DeWine:

Dear Ms. Grosko: (Grosko is the Clerk of the Court)

“On April 3, 2017, appellant, Robert Johnson, filed a request seeking my recusal from Robert L. Johnson v. Brigham Sloan, Warden, 2016-1284. I have reviewed the request and accompanying affidavit. Finding the request without merit, I will continue to participate in the case.”

But Justice DeWine shouldn’t be singled out here.  The blog offers some other examples of recusal responses.  Here’s one from Justice Kennedy, when asked to recuse herself from an abortion case because of a speech she had given at a Right-to-Life breakfast a few days after the Court agreed to hear a case involving the license of an abortion clinic in Northwest Ohio. It is a memo to the Clerk of the Court:

“On August 17, 2017, appellee Capital Care Network of Toledo filed a request seeking my recusal from Capital Care Network of Toledo v. State of Ohio Department of Health, Case No. 2016-1348. Having reviewed the request, I find it to be without merit and will continue to participate in the case.”

And here’s one from now retired Justice Pfeifer who was asked to recuse from a death penalty appeal in State v. White because of remarks he had made about getting rid of the death penalty at his final swearing-in ceremony as a justice:

Dear Ms. Frost: (then-Clerk of the Court)

On March 21, 2011, the appellee, the State of Ohio, filed a motion seeking my recusal from State v. White, 2009-1661. I have reviewed the motion and accompanying affidavit. Finding the motion without merit, I will continue to participate in the case.

Ok, I think the drift is clear. Will the justices follow the recommendation of the DeWine hearing panel about responding to future recusal requests? Um, I doubt that would be practical.  They can always cite to the duck-hunting memo, though.

Also, in case this isn’t widely known, justices can and do recuse without being asked to do so.  They need not state their reasons for recusal.  Sometimes it is obvious, like when Justice O’Donnell recused in Wells Fargo Bank, N.A. v. A. Christopher M. Burd f.k.a. Christopher M. Burd et al., 2017-0279. His daughter was the trial court judge in the case. And the Chief has recused in the many appeals involving Douglas Prade, since she was the Summit County Prosecutor when Prade was indicted and tried. Many justices who were appellate judges first recuse from cases they sat on as appellate judges that reach the high court.

There is one very significant difference between recusals by U.S. Supreme Court justices and those on the state supreme court.  When a justice recuses at the U.S. Supreme Court level, no substitute takes that justice’s place, which can result in a tie in a then even-numbered Court. That means the lower appellate court decision stands. In Ohio, though, appellate judges are chosen to sit as subs when an Ohio Supreme Court justice recuses.