In Massachusetts, Gov. Maura Healey recently appointed her former romantic partner to the state’s highest court, which is likely to hear numerous lawsuits involving Healey’s administration. Justices in two other states have thrown out lawsuits against their fathers, who are both powerful politicians. And another justice recently tossed out a lawsuit against her former client, Bank of America.
Some judges have a direct financial conflict. Two members of the North Carolina Supreme Court own or are married to people who own thousands of dollars worth of stock in Duke Energy, a massive electric power company that has long wielded influence at the state Capitol. Chief Justice Paul Newby reported that he and his wife own more than $10,000 worth of Duke stock. Justice Tamara Barringer reported the same ownership stake for her husband.
North Carolina’s ethics rules say that judges should recuse themselves any time hearing a case would raise an appearance of bias, including when they have a financial interest at stake. But Newby heard six cases against Duke Energy, ruling in the company’s favor each time. And he’s not the only high court justice ruling on cases involving companies in which they own substantial amounts of stock: Justices in California and Louisiana have done so as well.
If Barringer, the other North Carolina justice, is asked to recuse herself from a case involving Duke Energy, she can decide for herself or refer the question to the other justices. The court established this process two years ago, after a bitter fight over whether Justice Phil Berger Jr. could hear lawsuits against his father.
When Berger, a Republican, joined the high court in 2021, its Democratic majority was prepared to disqualify him from cases involving his father. But Republican lawmakers threatened to impeach any justice who voted to keep Berger from hearing those cases. The court backed down and allowed Berger to decide the recusal question for himself. He remained on the case and, as he did in two subsequent cases, ruled in his father’s favor.
This year, under a Republican majority on the court, Berger referred the question of whether he should sit out a long-running school funding lawsuit to the full court. And he warned that his “unilateral action in this matter could undermine public confidence.” But as Democratic Justice Allison Riggs’ dissent noted, he had already taken unilateral action by ruling for his father in the three previous cases.
The GOP majority ruled to keep Berger on the case, relying on the fact that his father is being sued in his “official capacity” as the state Senate leader. Democratic Justice Anita Earls was also asked to recuse herself, due to her work on an issue related to the case decades before she became a judge. Earls, who recently faced an ethics investigation for discussing bias and discrimination within the judiciary, decided for herself to remain on the case.
In her dissent, Riggs noted that “few bonds are closer” than a child and parent. She argued that the court’s ruling in the case could impact “Sen. Berger’s ability to deliver on his policy objectives. ... Put bluntly, a son’s vote to deliver his father a campaign ‘win’ in an election year substantially affects the latter’s personal and financial interests.”
Recusal Refusal
There was a similar conflict of interest in Ohio, where Justice Pat DeWine ruled on a 2022 redistricting lawsuit against his father, Republican Gov. Mike DeWine. The justice had stepped off the case temporarily, when his father faced contempt of court charges for violating a court order over the drawing of election districts. But like Berger, Justice DeWine ultimately voted to uphold the gerrymandered legislative and congressional districts that his father signed off on — districts that could keep his father’s party in power even when the other party gets more statewide votes.
Justice DeWine isn’t the only Ohio high court jurist to face conflict-of-interest questions. Republican Justice Joe Deters, a former Hamilton County prosecutor appointed to the court in January 2023, recently heard arguments in a criminal case his office had prosecuted. But the state’s ethics rules require judges’ recusal in any cases “in which the judge’s impartiality might reasonably be questioned,” specifically those in which a judge “participated personally and substantially as a lawyer or public official.”
David Pepper, a law professor at the University of Cincinnati and a former state Democratic Party chair and Hamilton County official, called Deters’ decision to hear the case “shocking.” As he told Statehouse News, “I’m amazed that he didn’t recuse.”
Deters said that he would recuse himself from all cases that his office had prosecuted for his first year on the bench. After that, he said he would recuse himself only if he had personally participated in or expressed an opinion about a case. He pointed out that neither party requested his recusal in the Hamilton County criminal case.
Banking on a Ruling
In Maine, a judicial conflict of interest has led to an ethics investigation. Justice Catherine Connors recently joined a landmark ruling in favor of Bank of America. Connors had represented organizations that filed amicus briefs in the case at hand and had represented Bank of America itself in 2017 in one of the cases that was overturned. The ruling in favor of Connors’ former client overturned a decades-old precedent that protected customers who defaulted on their loans.
An attorney then filed an ethics complaint, but Connors’ colleagues on the Maine Supreme Judicial Court could have the final say on whether she faces sanctions. A former legislator told The Maine Monitor that Connors had testified at her confirmation hearing that she would sit out cases involving former clients. “So when she didn’t, that’s a breach of trust,” he said.
In Massachusetts, Gov. Healey’s nomination of her former romantic partner, Court of Appeals Judge Gabrielle Wolohojian, to the state’s highest court provoked critics’ concerns about the potential conflict of interest and the insular process for picking judges.
Wolohojian had recused herself from cases involving Healey when the governor was attorney general, but the judge hasn’t sat out cases involving Healey in her role as governor. When Healey announced the nomination of her ex-girlfriend, she said there would be no problem with Wolohojian hearing cases in which she was a party and that recusal wouldn’t be necessary.
Tara Jacobs, who serves on a council advising the governor, raised concerns about the conflict of interest and called Healey’s nominating commission a “very small and insular, like-minded group.” (Healey, like previous governors, has established a nominating commission and chosen its members.) Jacobs was the only member of the Governor’s Council who voted not to confirm Wolohojian.
In addition to raising questions about impartiality, the appointment of a governor’s former romantic partner raises questions about the selection process and whether it’s truly open to lawyers who aren’t well connected. All of the state’s current justices are either former prosecutors or, like Wolohojian, ex-corporate lawyers.
Reform in One State
Polling has shown that the American public is growing less confident in the U.S. Supreme Court. The public has learned about billionaires lavishing gifts on Justice Clarence Thomas, among other potential conflicts of interest on the highest court in the land.
Given the plummeting faith in the judiciary, it is inexcusable that judges would hear cases involving their fathers, ex-girlfriends or former clients. Judicial ethics rules instruct judges to avoid not only bias, but the appearance of bias. These justices might not be biased, at least not consciously, but it certainly doesn’t look good.
There is hope for reform in one state. After years of ethics scandals and debates, there is now a majority of justices on the Wisconsin Supreme Court who support reforming ethics rules to keep judges from hearing cases involving campaign donors.
This could help assure Wisconsin voters that judges care about how they’re perceived. In Maine, Justice Connors could face consequences for ruling for her former client as a result of the ethics investigation. And while the justices in North Carolina and Ohio may continue to hear lawsuits against their fathers, the voters in 2028 will decide whether to keep them in power.
Judges should think hard about potential conflicts of interest and the way the public will perceive them. Americans are scrutinizing their state courts in a way they haven’t before.
Governing’s opinion columns reflect the views of their authors and not necessarily those of Governing’s editors or management.
