COLUMBUS, Ohio (WCMH) – Questions are being raised about a case argued Wednesday before the Ohio Supreme Court, and not just about the subject matter, but for who heard the case.

State v. Glover is an examination of long-term criminal sentences, and whether appellate courts should have the power to modify them if they appear to be unreasonable.

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Justice Joe Deters was one of the seven justices hearing the case Wednesday, but two years ago, he was one of the attorneys arguing the same case.

“It’s alarm bells about the overall sense of the rule of law in the state of Ohio,” law professor David Pepper said.

He said the law and rules in Ohio are clear. In the judicial code of conduct, a judge must recuse themself if they served as a lawyer in the same matter or was ever associated with a lawyer on the case that’s currently before the court.

Two years ago, then-Hamilton County prosecutor Deters represented the state in the case focused on sentencing. The state lost.

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On Wednesday morning, Deters’ former co-counsel argued the same case to the Ohio Supreme Court, where Deters now serves as a justice.

“I think almost any Ohioan would hear those situations and think, ‘You can’t do that,’ but they’re doing it in the wide open,” Pepper said.

Pepper has also been critical of Justice Pat DeWine for ruling in favor of his father, Ohio Gov. Mike DeWine, in cases before the Supreme Court. Justice DeWine said at the time there was “no basis for recusal.”

“You know, Pat DeWine upheld his dad’s gerrymandered maps, he did not recuse,” Pepper said. “We have a state where the rule of law is in question, where we had a statehouse ignore the rulings of the Supreme Court for months at a time, so this is, to me, not an isolated incident.”

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Pepper, who is the former chairman of the state’s Democratic Party, said his criticism is not rooted in politics.

“This is, I’m a lawyer, this is unethical, this violates the ethical rules,” he said. “No Democrats should do it, no Republicans should do it. This is so clear-cut. This is not politics.”

Deters said in a statement that in his first year on the bench, he did recuse himself from any case from Hamilton County. Now, he recuses from cases in which he participated in personally and substantially, and even though he is listed as lead counsel in the Glover case, he said it isn’t one of those situations.

“Following that year, I would recuse from those cases in which I participated personally and substantially or about which I expressed an opinion,” his statement reads. “I apply this policy in all cases that come before the Court, whether the parties request my recusal or not. 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.”

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“We have a justice who was watching an argument being made by someone he was co-counsel with only two years ago,” Pepper said. “And everyone knew it, including him. I mean, it’s a bizarre situation.”

No one asked Deters to recuse himself. The director of the Board of Professional Conduct, Rick Dove, said judges make recusal decisions for themselves.

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