Did an attorney’s federal official-capacity lawsuit against all justices require their recusal from another case in which the attorney appeared?

Plain-English summary

Counsel in a pending Supreme Court case sought to disqualify the justices because the lawyer had brought a separate federal lawsuit against them in their official capacities. The federal action sought declaratory and injunctive relief, not personal damages.

The Commission assumed the motion’s allegations for analysis but found no grounds for disqualification under former Canon 3C(1)(a). It distinguished a substantial reason to question impartiality from the mere filing of a lawsuit and emphasized the duty to sit when not disqualified. It also noted that an individual justice decides that justice’s recusal.

Currency note

This opinion was issued in 1987 under the earlier Judicial Code of Ethics, before West Virginia adopted its 1993 Code and its 2015 Code of Judicial Conduct, effective December 1, 2015. Subsequent rule changes or later opinions may have changed the analysis. Treat this page as historical context and verify the current Code before relying on the letter's conclusion.

Common questions

Q: Did the federal lawsuit alone require recusal?

A: No. The Commission found no disqualification grounds on those facts.

Q: Was the federal action personal-capacity litigation?

A: No. The letter described it as official-capacity litigation seeking declaratory and injunctive relief.

Background and rules framework

Former Canon 3C(1) and (a) addressed reasonably questioned impartiality and personal bias. The Commission applied case law requiring substantial reasons for disqualification.

Citations and references

West Virginia Judicial Code of Ethics (former):

• Canon 3C(1) and (a), disqualification and bias.
• State v. Hodges, 305 S.E.2d 278 (W. Va. 1983); Graley v. Workman, 341 S.E.2d 850 (W. Va. 1986), discussed in the opinion.

See also

• WV JIC Advisory Opinion 1987-03: Retirement interest recusal

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 1987-02, redacted
• Code adoption date: West Virginia JIC 2015 Annual Report

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

JUDICIAL INVESTIGATION COMMISSION

Room E-400, State Capitol

Charleston 25305

April 8, 1987

Re: JIC Advisory Opinion 1987-02

IN RE: State of West Virginia ex rel. James Shaw and Russell Stonestreet, et al. v. The Board of Education of the County of Braxton, et al., Supreme Court of Appeals of West Virginia No. 17208

·near

In an Order entered on March 11, 1987, you requested an advisory opinion from the Judicial Investigation Commission on a motion seeking your disqualification which has been filed in the above-stated matter. The Board of Education of Braxton County,
by its attorney
Prosecuting Attorney of
County, presented to the Court a motion seeking the ·disqualification of the justices from hearing the abov~-sta ted case .•

In hi~ motion,
states that he and the five
justices are adverse parties in li tiqa tion currently pending· in
the U.S. District Court for the
District of West
Virginia, at Charleston, styled
, et al., Civil
Action No .. 2:87-0049. He said that the nattire·--of that action is such that "an average person might reasonably question the impartiality of the justices of the West Virginia Supreme Court in proceedings wherein the co-mdvant prosecuting attorney would appear ~s counsel, either in person or of record .. " (Citing Canon 3C(l)). He also alleges that the -11 mere existence of [the] federal suit, could legitimately invite inquiry concerning personal bias or prejudice of the justices toward the co-movant prosecutor in cases where the latter would _serve as an advocate." (Citing Canon 3C(l)(a)).

-
April 8, 1987
Page Two

Taking the motion as legally sufficient and the all~gations as true, the Commission will address the question of whether the justices of the Supreme Court should disqualify themselves in the above-stated action for the reasons set forth in the motion.*

The Judicial Code of Ethics, Canon 3C(l)(a) states:

.C. Disqualification.

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited t6, incidences where:

(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; ••.

These provisions in Canon 3 require a- judge to disqualify himself in a proceeding in which his impartiality might reasonably be questioned or he has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary fa.eta concerning the proceeding.

This Court addressed the question of recusal when a
challenge to a judge's impar tia 1 i ty has been made in State v. Hodges, 305 S.8. 2d 278 (W.Va. 1983). In that case, the defendant in a criminal case had sought to have the trial judge recused, stating that the trial judge had recused himself in two prior civil actions in which the defendant was a party. In that
decision, ·the Court stated: ·

*The motion fails to specifically allege the grounds set forth and fails to support the allegations by affidavit or other verified papers. See Rule 17, Rules of Appellate Procedure, West Virginia Supreme Court of Appeals. See e.g. Rule XVII, Trial Court Rules for Trial Courts of Record.

April 8, 1987
Page Three

11In Syllabus Point 14 of Louk v. Haynes, W.Va. 223 S.E. 2d 780 (1976) we stated, in part, -'[w]here
challenge to a judge's impartiality is made for
substantial reasons which indicate that the circumstances offer a possible temptation as to the average man as a judge not to hold the balance nice, clear and true be tween the state and the accused, a judge should recuse himself.' Finding no · _subs ta ntia 1 reasons tending to impair the trial judge's impartiality, we affirm his decision not to recuse himself. (Emphasis Supplied). 305 S.E. 2d at 282--283.

The Hodges decision indicates that when a challenge to a judge's impartiality is made, there must be substantial reasons set forth which demonstrate a lack of impartiality. Furthermore, in the context of the Hodges decision, the fact that a judge had recused himself in two prior actions in which the individual seeking his disqualification was a party would not in itself be a ground for the judge's recusal.

In Graley v. Workman, 341 S.E. 2d 850 (W.Va. 1986), this Court discussed judicial qualifications under Canon 3C(l) of the West Virginia Judicial Code of Ethics. In that decision, the Court stated:

This court emphatically stated in Stern Brothers,
Inc. v. McClure, 160 w.va. 567, 578--79 n.8, 236 S.E. 2d 222, 229 n.8 (.1977):

We are
-1 in firm accord with the rule followed particularly in the federal courts, the judge 'has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified', Laird v. Tatum, 409 U.S. 824, 837, 93 S. Ct. 7, 15, 34 L. Ed. 2d 50 ( 19 7 2) ; and the cases cited therein. We would also point -out the par ties
may, by express written agreement,
waive a

April 8, 1987
Page Four

particular disqualification of a judge so long as the disqualification does not involve a matter of public policy. 46 Arn. Jur. 2d, Judges, § 224; annot. 73 A.L.R. 2d 1238 at 1272 (1960); see West Virginia Code, § 51-2-8.

The language in Graley imposes a duty on a judge to sit on a case where hl=l is not otherwise disqualified that is equal to the requirement to recuse himself where required. These dual responsi- bilities must be weighed in each case where disqualification is sought.

The motion filed in the above-stated matter by the attorney for the County Board of Education alleges that the Court would be biased against the Braxton County Board of Education because the attorney for that party has filed an action in the Federal District Court against the justices of the Supreme Court of Appeals. It alleges an appearance of impropriety would be forthcoming if the justices were to hear the above-stated action and render judgment in that matter. A review of the pleadings filed in the Federal District Court action dernonstra tes that the suit is brought against the justices of the Supreme Court of Appeals in their official capacity as justices of the court. The action seeks declaratory and injunctive relief against the justices in their official capacity. No money damages are sought nor are attorney's fees and costs prayed for in the complaint.

The form and substance of the action filed in the Federal District Court is analogous to an extraordinary remedy being sought in the Supreme Court of Appeals against a circuit judge. In those actions, the circuit judge is named in his official capacity as a party in the suit. Seeking a disqual if ica tion of a named judge in such a suit in all subsequent or pending actions in which the attorney served as counsel for a party would not be justified.*

• See e.g. Dankmer v. City Ice and Fuel Company, 121 W.Va.
  752, 6 s.K:-2a 771 (1940).

April 8, 1987
Page Five

· The question raised in the motion filed for the attorney for the County Board of Education is whether his suit against the justices of the Supreme Court creates either a bias or prejudice against his client or the appearance of partiality in the instant matter. The Supreme Court of Appeals of West Virginia has not addressed that question. Courts in other jurisdictions have. There are a number of cases which hold that the mere filing of a suit against a judge does not per se disqualify that judge from hearing a case involving the person filing the suit. See Ely Valley Mines, Inc. v. Lee, 385 Fed. 2d 188, 191 (9th Cir. 1967); U.S. v. Corrigan, 401 Fed. Supp. 795, 798 (D. Wyo. 1975), rev'd on other grounds, 548 Fed. 2d 879 (10th Cir. 1977); State v. Meyer, 31 Or. App. 775, 571 P. 2d 550 (1977); Smith v. Smith, 115 Ariz. 299; 564 .P. 2d 1266 (Ariz. App. 1977): Eismann v. Miller, 619 P. 2d 1145 (Id. 1980); State ex rel. Mitchell v. Sage Stores Co., 157 Kan. 622, 143 P. 2d 652 (1943).

These cases differ from the above-stated matter since they all deal with individuals who appeared as parties before a judge and, who subsequently and while that action was pending, filed an independent suit against the judge. In the above-stated matter, the attorney for a party seeks the disqualification of the justices of the Supreme Court, based upon the attorney's suit against the justices in their official capacity and the federal district court. The above-cited cases state that the mere filing of an independent action against a judge who is presiding over a pending action against a defendant does not in itself require that judge's disqualification.

In U.S. v. Corrigan, supra, the Court stated "tha t the mere
filing of a complaint against a judge [by a party] is not s_uff ic ien t to re quire di squal if ica tion of that judge from another case [involving the same party]. To rule otherwise would allow a defendant to thwart the judicial process by simply filing an action against any judge assigned to hear a trial whom he did not wish to hear the matter." 401 Fed. Supp. at 798. In Smith v. Smith, supra, the Court stated that "if we were to hold as a matter of law that a party can obtain a disqualification of a sitting judge merely by filing suit against him, the orderly administration of judicial proceedings would be severly hampered and thwarted. 564 P. 2d at 1270. In State v. Meyer, supra, the

April 8, 1987
Page Six

Court said that the "conternnor points to his lawsuit in federal court against the judge as a conclusive basis of bias by the judge against him~ but to accept such a contention would be to allow litigious persons to choose their judges by filing lawsuits against those, however impartial, who are not to their liking." 571 P. 2d at 553.*

Based upon the foregoing, the Judicial Investigation Commission, in response to the request for advisory opi~ion filed by the Court, would state that no grounds exist for the disqualification of the justices of the Supreme Court based upon the motion filed, the litigation pending in federal court and the existing case law.** If the Court desires the Commission to address. any aspect of this opinion or to further address any question raised, please do not hesitate to contact me.

Very truly yours,

JUDICIAL INVESTIGATION COMMISSION
OF WEST VIRGINIA

By: J~~u~
DANIEL C. ROBINSON, Chairman

DCR:lb

*See u~s. v. Grismore, 564 Fed. 2d 929 (10th Cir. 1977), wherein the Court, interpreting 28 u.s.c. § 144 and § 455, held that the .defendant failed to show any ground for disqualification under those sections of the statute and stated that a 11 judge is not disqualified merely because a litigant sues or threatens to sue him. 11 Id. at 933.

**See State ex rel. Cohen v. Manchin, 336 S.E. 2d 171 (W.va. l984)and State ex rel. Matko v. Ziegler, 154 w.va. 872, 179 S.E. 2d 735 (1971), which hold that where a motion is made to disqualify or recuse an individual justice pf the Supreme Court of Appeals, that question is to be decided by the challenged justice and not by the other m.embers of the court.