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Should Ohio Supreme Court Justice have recused himself from case out of his former office?

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COLUMBUS, Ohio (Statehouse News Bureau) – Questions are being raised about why an Ohio Supreme Court Justice didn’t recuse himself from hearing a case that originated when he was the Hamilton County prosecutor. Some think Republican Justice Joe Deters violated judicial codes of ethics by hearing the case and failing to recuse himself. But Deters said he anticipated this kind of situation and that no one requested his recusal in this case.

Ohio Supreme Court hears an appeal of a case that one of the justices, Joe Deters, prosecuted when he was the Hamilton County Prosecutor in 2022. Deters is seated on the far right side of this picture.
Ohio Supreme Court hears an appeal of a case that one of the justices, Joe Deters, prosecuted when he was the Hamilton County Prosecutor in 2022. Deters is seated on the far right side of this picture. [Ohiochannel/Ohio Supreme Court
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Ohiochannel.Org]
On February 7, Deters sat on the court as it heard an appeal of a 2022 case from Hamilton County. Deters was the Hamilton County Prosecutor at that time and the case originated from his office.

In August 2023, Deters cast the tie-breaking vote for the court to take the appeal of the case.

Law professor and former Ohio Democratic Party Chair David Pepper, who was a Hamilton County commissioner during Deters’ time as prosecutor, said Deters should have recused himself.

“The whole thing is shocking. I’m amazed that he didn’t recuse,” Pepper said.

Pepper said the judicial code of ethics would ordinarily be applied to lawyers and local judges would demand they recuse themselves in situations like these.

“If a lower court judge behaved this way, they would actually be in trouble by the Ohio Supreme Court. If a lower court judge were hearing a case that that judge had been involved with previously, the Ohio Supreme Court would actually bring accountability to that judge who is doing that,” Pepper said. “Just like if a lower court judge ruled on his father’s cases, that judge would be in big trouble.”

Pepper was referring to another situation at the Ohio Supreme Court that’s come under scrutiny. Justice Pat DeWine is the son of Gov. Mike DeWine, who’s been named in several cases that have come before the court. Perhaps the most notable cases have involved House and Senate district maps that were rejected five times by the court prior to 2022, when the makeup of the panel changed. Gov. DeWine was a member of the Ohio Redistricting Commission, which drew the disputed maps. Justice DeWine sided with Republicans, which included his father, in those cases.

Jack Guttenberg, a former dean and professor at Capital University Law School, spoke generally about when judges should recuse themselves.

“If someone has been involved in a case in a lower position or represented a party, and by representing a party, I mean their firm, their agency represented the party or prosecuted the party, it seems that starts to raise this issue,” Guttenberg said.

In a written response, Deters said he worked out rules with court and ethics officials dictating when he would recuse himself. He said he’d recuse himself from any case his former office handled for his first year on the bench. Then, after that first year, he said would recuse himself from cases in which he participated in personally or had expressed an opinion about previously. He added, “In this case, no one requested my recusal. And to be clear, I did not participate personally or substantially in the matter and did not express an opinion about it.”

Deters has been on the Ohio Supreme Court since he was appointed by Gov. DeWine on Jan. 7, 2023 to fill out the term of Sharon Kennedy, who was elected chief justice in 2022.