Many Judges Don’t Recuse in Cases Involving Their Families’ Interests — ProPublica

Soon after longtime New Orleans attorney Wendy Vitter became a federal judge in the Eastern District of Louisiana, she heard a lawsuit against the local government in Plaquemines Parish, a peninsular province encompassing the final 70 miles of the Mississippi River, between New Orleans and the Gulf of Mexico.

A group of paramedics had sued the parish, seeking compensation for unpaid overtime. Vitter oversaw a pair of jury trials in 2019 and 2021, both resulting in wins for the parish. But an appeals court later ruled Vitter had erred in judgment and overturned her final order. That paved the way for the paramedics to be awarded more than $500,000 in compensation, plus hundreds of thousands more for their attorneys.

Throughout those proceedings, Plaquemines Parish leaders had a paid ally on their side: the judge’s husband, U.S. Sen.-turned-lobbyist David Vitter.

But there was no way for the parties in the case to easily know this. Wendy Vitter never told the EMTs’ attorneys. And they couldn’t have looked it up in any court records. While the law requires federal judges to report their spouses’ income on annual financial disclosures, Vitter listed her husband as a “self employed attorney” with the name of the payroll company, TriNet HR III, that cut his checks. In fact, he is a partner and lobbyist for powerhouse Washington firm Mercury Public Affairs.

ProPublica didn’t uncover evidence that David Vitter’s business relationships played a role in his wife’s rulings. But the American Bar Association recommends judges disclose such relationships to let the parties decide for themselves if they are significant enough to contest. Since it’s not required by federal code, however, judges seldom do it, ethics experts say.

In the Plaquemines case, Wendy Vitter should have voluntarily told paramedics’ attorneys about the potential conflict, five legal ethics experts told ProPublica. That would have allowed them to consider making motions for disqualification if she did not recuse herself.

Vitter wrote in a statement to ProPublica that she relied on guidance from the Judicial Conference Committee on Codes of Conduct that says recusal may not be necessary if a spouse’s client is not a direct party to the case.

Vitter said her husband was not working for the parish at the time of the trials. Public records show his contract with the parish expired in late 2018. But federal disclosures show he continued to work into 2024 for the Plaquemines Port, a political agency that is controlled by the parish’s nine council members and has identical borders to Plaquemines Parish.

David Vitter did not respond to ProPublica’s requests for comment but told news partners at ABC News he had “absolutely nothing to do with the lawsuit” before his wife and that the Plaquemines Port “is a different entity with a different governance structure than Plaquemines Parish.”

Wendy Vitter told ProPublica her husband’s income was “properly disclosed” on her financial reports, but she will start including details of his lobbying work in her disclosures moving forward.

Concerns that judges on the nation’s highest courts have not properly disclosed personal conflicts — and have failed to recuse when such issues arose — have been at the center of a recent national debate. Supreme Court Justices Clarence Thomas and Samuel Alito have faced calls to recuse themselves from cases due to their wives’ political activities. Chief Justice John Roberts’ wife has a high-powered job as a headhunter for law firms with Supreme Court practices.

Last year, ProPublica exposed how Thomas and Alito took trips funded by billionaires but failed to properly disclose them. In 2021, The Wall Street Journal found at least 131 judges broke the law by hearing cases in which they had a financial interest. And in 2020, Reuters identified thousands of judges who broke the law but remained on the bench.

A ProPublica analysis found a lack of transparency regarding conflicts plagues federal and state courts where loose rules, inconsistent enforcement and creative interpretations of guidelines routinely allow judges to withhold potential conflicts from the parties before them.

In an examination of more than 1,200 federal judges and state supreme court justices, ProPublica, in partnership with student journalists at Boston University, found dozens of judges, including both Republican and Democratic appointees, who chose not to recuse when facing potential appearances of impropriety involving familial financial connections. Ethics experts say that the judges’ interpretation of the rules may often lie within the letter of the law, but at the expense of its spirit.

In Florida, a state Supreme Court justice presided over a gambling case in which a Native American tribe sought to protect billions in betting revenue. During the proceedings, the tribe made an unusually large campaign contribution to the justice’s wife, a state legislator. The judge later helped form a court majority that struck down the constitutional challenge, protecting the tribe’s business.

In Minnesota, a federal judge heard an antitrust case against a corporation that was a major client of the public relations firm owned by his wife. He went on to dismiss the case, in the corporation’s favor.

And in both Ohio and North Carolina, state supreme court justices rejected calls from ethics watchdogs to recuse themselves from multiple cases involving a parent who is a powerful state politician.

Amid cratering confidence in the impartiality of both the federal and state judicial systems, experts worry that such failures to police conflicts of interest only further erode public confidence.

“We ignore it at our own peril,” said Robert Westley, professor of legal ethics and professional responsibility at Tulane University. “I really believe the entire system is at stake if we don’t get this right.”

The Duty to Disclose

Federal law requires judges to recuse themselves from any case in which a close relative has an interest in the result, or when the judge’s “impartiality might reasonably be questioned.”

While some judges go to great lengths to disclose potential conflicts and recuse scrupulously from those cases, the guidelines are ambiguous and the adherence is haphazard, according to experts.

In most cases, judges oversee their own decisions to recuse, raising concerns about the lack of checks and balances on judges’ judgment. The challenges posed by familial conflicts could be mitigated with more judicial transparency, experts say.

The American Bar Association guides judges to disclose any information potentially relevant to attorneys who might consider a motion for disqualification. But the guidance has not been codified by all states — or the federal judiciary. Without it, judges are under no obligation to inform a party appearing before them when a judge’s family member may be working on behalf of the party’s opposition.

Federal laws do require judges to report their spouses’ assets and income each year, but they generally don’t require judges to disclose their spouses’ clients. Calls from watchdogs in 2022 to close the client loophole failed to get traction in Congress.Making matters worse, U.S. courts have failed to comply with federal law in promptly posting disclosures online.

More than a dozen states don’t require judges to post any details at all about their family members’ income, and a majority of states don’t make disclosures easily available online, according to Fix the Court, a nonprofit advocating for more transparency and accountability in U.S. courts.

“People are as honest as their circumstances permit,” Westley said. “When circumstances allow them to be dishonest without being discovered, many people will choose to do that.

“The system is not working. But I think it can work when there is oversight.”

The Conundrum of Successful Couples

Familial conflict-of-interest decisions get more complicated when the spouse of a judge is a high-ranking state official, as is the case with Florida Supreme Court Justice Charles Canady and his wife, Republican state Rep. Jennifer Canady. Charles Canady was appointed to the state’s top court in 2008 by former Republican Gov. Charlie Crist; Jennifer Canady won her first legislative race in 2022.

In December, Charles Canady’s court received a legal brief from the Seminole Tribe of Florida, asking the seven-member body to reject a constitutional challenge to its exclusive sports betting deal with the state, worth billions. The tribe was not a party to the case but stood to benefit.

Five days later, the tribe then cut a $10,000 campaign check to Jennifer Canady’s political action committee. Of the more than 100 donations the Seminoles made to Florida legislators in 2023, a handful matched the size of but none were larger than Canady’s.

Charles Canady did not publicly disclose his wife’s connection to the tribe, and in early 2024, he voted to uphold the Seminoles’ deal.

“It’s a huge concern,” said Bob Jarvis, professor of law at Nova Southeastern University in Fort Lauderdale. “It’s the same social circles, particularly if you’re talking about a town like Tallahassee. It’s a very small town — everyone knows everyone else.”

Florida’s Supreme Court — unlike the federal judiciary — has adopted the ABA’s guidance regarding possible conflicts, requiring justices to disclose information that “the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.”

While the Seminole connection went unreported, Charles Canady faced a barrage of public calls for recusal last winter when another case closely connected to his wife reached Florida’s Supreme Court: a constitutional challenge to the state’s new law banning abortions after six weeks.

His wife was one of two co-sponsors of the controversial bill.

Charles Canady elected to stay on the case, making no public comments about his wife’s connection to it, and then helped the court form a majority in April that ruled his wife’s legislation constitutional. The law went into effect May 1.

“Justice Canady owes it to the public to be more transparent and more deferential to perception of bias,” Jarvis said.

Anthony Alfieri, professor of law and director of the University of Miami Center for Ethics and Public Service, said the justice “should err on the side of disqualification, whether or not there is a real basis for disqualification.”

ProPublica found no evidence the Seminole donation played a role in Charles Canady’s ruling. The justice declined multiple requests for comment. Representatives for Jennifer Canady did not respond to requests for comment, either, but the lawmaker — prior to winning office — told the News Service of Florida in 2021 that “around the dinner table, if something comes up about a pending or impending case, we don’t discuss it ever.”

A spokesperson for the Florida Supreme Court said “considerations of recusal are complex and nuanced — each justice gives careful deliberation to their responsibilities” in accordance with Florida Supreme Court rules and the Code of Judicial Conduct.

When asked for a list of cases Charles Canady has recused on, the spokesperson said no such list was available.

In a written statement, the Seminole Tribe of Florida said it “supports numerous candidates with diverse perspectives. It is also involved in multiple legal cases at various levels. Any connection here is purely coincidental.”

Experts caution the perception of bias is likely to be a recurring problem in Florida, with Jennifer Canady now in line to become House speaker in 2028. That would provide her a large role in crafting every major piece of legislation passing through the Florida House from now through the end of the decade — including controversial laws that will ultimately end up in her husband’s court.

She’s also expected to solicit sizable campaign contributions from the state’s largest corporations, some of which might have cases before the highest court in the state.

Charles Canady was among the dozens of federal and state supreme court judges ProPublica identified who were married to politicians, creating new challenges the country’s generations-old ethics rules haven’t yet caught up with.

“Decades ago, it wasn’t a problem because women didn’t work,” Jarvis said.

He added that “it comes down to the good faith of the couple” to “be aware, disclose and possibly recuse from cases.” The politicians could reject or return campaign checks from companies with business before the court.

“Grading Their Own Homework”

Senior Judge John Tunheim, serving the federal district of Minnesota, did not disclose when one of his wife’s biggest clients appeared on his docket in 2019.

Kathy Tunheim is the co-founder and CEO of a large Twin Cities public relations firm, Tunheim, which performed public relations work for the Cargill corporation for several years. During this time, a group of cattle ranchers brought a federal antitrust case against Cargill and other meat producers, alleging a scheme to fix beef prices.

The case was assigned to John Tunheim, who did not recuse.

His annual financial disclosures, obtained through the Free Law Project archive, also did not disclose his wife’s role as CEO of the Tunheim firm, instead describing her since 2006 as a “self-employed public relations consultant.” It’s a distinction the judge said was prescribed by the U.S. Courts’ Committee on Financial Disclosure, which says “self employed” is sufficient if the spouse’s income is from “a partnership of which the spouse is a member.” Experts say Tunheim’s interpretation of disclosure rules makes identifying possible conflicts challenging.

The judge threw out the cattle ranchers’ claims several times over the course of the litigation, which has continued into 2024. One former attorney on the case said a disclosure from Tunheim about his wife’s Cargill connection might not have resulted in a request for recusal, but it would have been welcomed, since attorneys cannot weigh those decisions without the information.

Tunheim also heard two Cargill cases in 2018.

Appointed to the federal bench by then-President Bill Clinton in 1995, Tunheim told ProPublica he considered recusing in Cargill cases but concluded it was not necessary based on the same 2009 advisory opinion cited by Wendy Vitter.

“I did a thorough evaluation of all the facts and applied the guidance from the Committee on Codes of Conduct in the advisory opinion concerning the business relationships of a judge’s spouse,” Tunheim said in an email statement.

The advisory opinion guides judges to consider factors such as the closeness of the spouse-client relationship and how involved the spouse is in the client work.

The Tunheim agency publicly touted its Cargill relationship for years and boasts online about Kathy Tunheim’s “active role in many of the agency’s client relationships.”

Kathy Tunheim declined to comment, but her firm scrubbed most references to Cargill from its website soon after ProPropublica reached out.

The advisory opinion Vitter and Tunheim cited instructs judges to recuse themselves from any case in which an objective observer might reasonably question their impartiality. But in almost every example examined, the objective observer test was performed by that same judge.

Charles Gardner Geyh, distinguished professor of law at Indiana University, said federal law grants judges a “presumption of impartiality.” But even with case law suggesting judges should err “in favor of recusal,” some still cite conflicting case law to justify a decision to stay on a case.

Experts explain that some judges don’t care for the stigma that comes from a recusal. Judges can also fail to perceive either that they are biased or that they appear biased.

For as little oversight as there is regarding potential conflicts of interest on the federal bench, there’s even less for state supreme courts. Since they are the court of last resort at the state level, there’s
no opportunity to review the recusal decisions of most states’ justices, short of the U.S. Supreme Court. But it almost never hears those cases.

Geyh said the lack of oversight compounds the “self-policing” problem since lawyers are typically wary of antagonizing judges by challenging their potential biases. When they do, he said appellate courts often defer back to the judges’ decision anyway.

Without the threat of discipline, Geyh said the “buck stops with the judge.”

“If you put those people in the position of grading their own homework — ruling on their own biases — then you have a problem.”

The Parent Trap

It’s not just spousal conflicts. In at least two states, the sons of powerful state politicians sit on the supreme court. In both cases, they’ve refused to recuse on consequential cases involving their parents.

In North Carolina, Supreme Court Justice Phil Berger Jr. has repeatedly heard cases in which his father, Senate President Pro Tem Phil Berger Sr., not only publicly lobbied for a specific result but also was a named party in the case.

The justice repeatedly sided with his father’s interests, including cases in which Phil Berger Sr. was a named defendant: a challenge to the constitutionality of a partisan redistricting plan and a challenge to a voter ID law spearheaded by Phil Berger Sr.

The justice had recused himself from the voter ID case while serving on the Court of Appeals but said he did not need to as Supreme Court justice because his father was a defendant only in his “official capacity.”

Watchdogs also criticized Ohio Supreme Court Justice Pat DeWine for what they say were hypocritical promises in 2018 to recuse from cases in which his father, Mike DeWine — then the state’s attorney general and now its governor — was “personally involved.”

But the younger DeWine chose to hear several high-profile cases in which his father was active in the litigation, including a series of impactful redistricting cases in which Pat DeWine helped cast a swing vote in a 4-3 decision that dismissed challenges to the controversial maps drawn by a Republican-led committee. Mike DeWine sat on that committee and publicly advocated for the constitutionality of its work.

Geyh, who filed an amicus brief in one of the Berger cases, said ethics laws are “pretty bloody explicit” when it comes to recusing from a case in which a parent is a named party.

Neither justice returned requests for comment.

The Fix Is Really Hard

Amid calls to bring conflict-of-interest laws into the 21st century, a bevy of Band-Aids have been proposed, but no comprehensive solutions.

Experts hesitate at the suggestion of tougher recusal rules, fearing mass disqualification could shut down the judiciary. Most also reject the idea of limiting judicial spouses’ careers or speech.

“As soon as you reform the system, you’re penalizing one spouse,” Jarvis said.

The Brennan Center for Justice at NYU School of Law proposed a series of reforms in 2016, including independent review of all motions for disqualification — at both the U.S. and state supreme courts — so judges don’t effectively serve as the final arbiters of their own biases. Brennan also advocated ending the common practice of judges keeping their reasons for recusal — or non-recusal — secret, which can stymie the appeals process and create a void in case law.

Critics have argued the reforms could slow the wheels of justice and allow political actors to weaponize recusal. Many advocates for reform see transparency measures as an achievable next step.

“The fix is really hard,” said Amanda Frost, professor of law at the University of Virginia. But “transparency would improve the process for everyone.”