Judge married to Kansas City Council member should recuse himself from plastics case | Opinion

A murky cloud of bias and fundamental unfairness threatens a high stakes lawsuit regarding America’s petrochemical and energy companies, and the millions of consumers who rely and depend on their products. U.S. District Judge Stephen R. Bough has refused to step aside from a lawsuit filed by Ford County, Kansas, against these companies, despite a clear conflict of interest and obvious bias against the defendants.

The class action lawsuit targets various companies including ExxonMobil, Chevron, Dow Chemical, Dupont and the American Chemistry Council, among others. Plaintiffs — whose putative class members include the states of Kansas and Missouri — allege that these companies misled the public by marketing plastic recycling as a viable large-scale solution. The plaintiffs are seeking an injunction against “further alleged deceptive practices” and damages.

Given the irrefutable damaging impact of an adverse outcome, absolute neutrality is essential and obligatory in this matter. Public trust in the judiciary hinges on the expectation that judges will act impartially. Judge Bough’s neutrality in this matter is obviously compromised by various circumstances present in this case, and he should therefore recuse himself for two primary reasons:

First, Judge Bough’s wife is Andrea Bough, an elected City Council official in Kansas City, Missouri — a proposed putative class member in the lawsuit and one which would benefit financially if the plaintiffs prevail. Because of his wife’s obvious fiduciary role regarding the city’s governance, Judge Bough’s impartiality should be seriously questioned as it presents an undeniable conflict of interest. In refusing to recuse himself, Judge Bough held, “the city of Kansas City, Missouri is only ‘a putative class member’ at this time. As such, Councilwoman Bough’s possible future connection to the case is tenuous at best until at least class certification.” This argument presents a distinction without a difference because Kansas City is a municipality in Missouri, which is already a putative class member.

In a previous case involving Kansas City, Judge Bough did actually recuse himself, wherein a real estate organization that was involved in that matter donated to his wife’s campaign. Judge Bough’s current refusal to recuse himself contradicts his own precedent and suggests a politicized decision.

Second, Judge Bough’s known political leanings further cast doubt on his neutrality and impartiality. Before joining the bench, Judge Bough publicly criticized oil companies and elected officials who accepted contributions from them. In a blog post, he attacked a Missouri congressman for taking contributions from ExxonMobil, writing, “Congressman (Sam) Graves is relying on his special interest friends … including another $5,000 this quarter from Exxon.” Bough declared that “Congressmen like Sam Graves voted with the Bush Administration almost 100% of the time and are taking donations from oil companies. No wonder we need a new $5 bill.” He also applauded political candidates such as Jeff Harris, who ran on an anti-fossil fuel, anti-petroleum platform.

These statements suggest that Judge Bough views support from energy companies as inherently corrupt. Pursuant to the federal Code of Judicial Conduct, judges must recuse themselves in cases where their impartiality might “reasonably be questioned.” Given Judge Bough’s track record, there is strong reason for concern that he has prejudged the motives and credibility of the defendants.

Judge Bough’s behavior during his legal career has also amplified the concerns stated above. He faced accusations of “judge shopping,” a practice in which a lawyer attempts to manipulate case assignments to secure a more favorable judge. United States Sen. Chuck Grassley of Iowa cited these allegations when opposing Bough’s nomination, questioning the judge’s temperament and suitability for a lifetime appointment. He said, “There are just too many red flags for me to support this nominee.” Assigning such a pivotal lawsuit as the one discussed here to a judge with such an ethically questionable background helps cement the belief that the proceedings may not be impartial.

Judge Bough’s refusal to recuse will only deepen public skepticism about the judiciary’s commitment to impartiality. The stakes in this case extend beyond near-term wins or losses. The appearance of impropriety displayed by a potentially biased judge erodes public confidence in the rule of law. A recusal would align with federal law, safeguard the court’s credibility, and spare future rulings from challenges rooted in suspicions of prejudice.

The path forward is clear. Judge Bough should remove himself to preserve the integrity of this case. If he does not, the defendants could likely mount never-ending appeals and motions contending judicial bias. A failure to recuse also leaves open the opportunity for higher courts to intervene to enforce essential judicial ethical standards.

His continued involvement undermines the existence of an impartial judiciary, endangers both parties’ fair treatment and diminishes public faith in the judicial system of the United States.