In order for our law to work, we need a strong judicial code of ethics. This involves rules surrounding judicial recusal and establishing disqualification standards. Judges have an important role in making fair decisions and using their power to follow the law, regardless of outside interests and influence.

Recusal is an important way that judges are able to remain impartial before the law. Recusal means stepping away from a decision where there might either be the appearance or the actual reality of a conflict of interest. When it comes to actual or perceived conflicts of interest, judges have the responsibility to recuse themselves from hearing the case.

However, in Ohio, judges are not required to recuse themselves, even in cases that concern their own campaign contributors or family members. The topic of dark money and campaign contributions is particularly relevant in Ohio after the FirstEnergy bribery scandal that unfolded in 2020. 

These current issues surrounding judicial ethics in Ohio makes this forum even more timely and important. Our panelists dive into the issue of judicial recusal in Ohio by exploring how special interests influence the judicial selection process and decisions making and how we can enforce higher ethical standards in our courts.

Billy Corriher, writer, consultant, and advocate for fair courts

• Rules surrounding judicial recusal are pretty vague. Only a handful of states have specific guidelines that say judges can’t hear cases involving campaign contributors above a certain level. In most states, judges just have a vague standard that says they can’t hear cases where they might risk appearing biased. 
• In Ohio, it’s left up to the individual judge to decide when hearing a case might make them appear biased.

Judge Jeremy Fogel (Retired), Executive Director of Berkeley Judicial Institute 

• The four main sources of ethical standards are:
  • Legislation
  • Codes of Conducts
  • Case Law
  • Tradition & Social Context
• You can enforce ethical standards through higher courts, disciplinary bodies, and judicial councils.
• In jurisdictions that elect judges, voters can enforce these ethical standards. Judicial elections cause a lot of problems when it comes to propriety/impropriety and effective campaign contributions, but voters can get involved and organize to push back and elect a judge that follows the ethics rules.

Douglas Keith, Counsel in the Brennan Center for Justice’s Democracy Program

• The court’s power comes from public confidence.
• Polling shows a steep decline in public confidence in the judiciary
  • 2021 Gallup poll: only 54% of Americans have a great deal or fair amount of trust in the judiciary (down from average of 68% over the previous 25 years)
  • 2019 National Center for State Courts poll: only 65% of respondents had confidence in state court systems (11% decrease from 2018)
  • New polling: only 32% of the public thinks that the U.S. Supreme Court makes decisions based on law rather than politics
• The reality of modern judicial elections doesn’t help increase public confidence in the judiciary. Most states that hold elections have had a justice run in a million-dollar race since 2014. When judicial candidates run attack ads on their opponents, this further distorts the public’s view of the justice system.

Judge Sarah O’Brien, Retired WI Circuit Court Judge

• In Wisconsin, two large business lobbying groups drafted an ethics rule that was adopted in 2010. The ethics rule stated that a judge is not required to recuse themself in a proceeding based solely on the receipt of a lawful campaign contribution.
• 60 retired judges filed a petition with the Supreme Court to change the ethics rule to a proposed recusal rule with a set dollar amount for each level of judge. The petition was denied without a public hearing in 2017.

Our panelists highlighted precisely why we need strong judicial ethics rules. In 2022, we have really important judicial elections coming up, with two seats on the Ohio Supreme Court and the Ohio Chief Justice up for grabs. The Ohio Chief Justice is particularly important, since they have the ability to set the standards for when justices need to recuse themselves. 

As Ohio is electing judges, we have the power as voters to hold them accountable. Pay attention to the upcoming judicial elections and attend judicial forums and debates. Talk to candidates about their philosophy on recusal to ensure we’re electing judges that believe they need to avoid the appearance of impropriety. You can learn about the candidates running in the 2022 judicial elections at judicialvotescount.com so you can make an educated vote at the ballot box.