Was a judge automatically disqualified from State Police criminal cases if the judge’s spouse worked as a secretary there?

Plain-English summary

A judge’s spouse might take an office-assistant job at a State Police detachment, doing typing and similar secretarial work. The judge asked about hearing criminal cases involving State Police arresting or investigating officers.

Relying on former Canon 3E(1) and Brown v. Dietrick, the Commission found no automatic disqualification merely because of the spouse’s employment. It said the judge should disclose that employment when State Police were involved so parties could raise any additional facts bearing on neutrality.

Currency note

This opinion was issued in 1995, before West Virginia adopted 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 spouse’s secretarial job automatically disqualify the judge?

A: No. The Commission found no per se disqualification on the stated facts.

Q: What did the judge have to disclose?

A: The spouse’s State Police employment when that agency was involved in a case.

Background and rules framework

Former Canon 3E(1) required recusal where impartiality might reasonably be questioned, and its commentary called for disclosure of relevant facts. The letter applied Brown v. Dietrick to the stated family relationship.

Citations and references

West Virginia Code of Judicial Conduct (former):

• Canon 3E(1) and commentary, disqualification and disclosure.

Case cited by the opinion:

• Brown v. Dietrick, 191 W. Va. 169, 444 S.E.2d 47 (1994).

See also

• WV JIC Advisory Opinion 1995-18: Daughter clerking at firm

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 1995-07, 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
212 Dickinson Street
Post Office Box 1629
Charleston, West Virginia 25326-1629
(304) 558-0169 FAX (304) 558-0831

May 16, 1995
Re: JIC Advisory Opinion 1995-07

Dear
Your recent request for an advisory opinion has been reviewed by members of the Judicial Investigation Commission . In that letter you indicated that your wife may be accepting a position of Office Assistant III with the West Virginia
State Police,
Detachment. In a subsequent
conversation you indicated that the position involved secretarial work such as typing reports and other similar duties. You asked whether it would be proper for you to preside over criminal cases in which the arresting or investigating officers were members of the West Virginia State Police.
The language in Canon 3E (1) of the Code of Judicial Conduct states generally that "a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned . . . " The langua~e is then followed by enumerated specific instances when disqualification is required. However, the enumerated instances are not considered exclusive . The commentary to Canon 3E (1) also states that a judge should disclose on the record any information that the judge believes the parties or their attorne¥s might consider relevant to the question of dis9Ualification even if the judge believes there is no real basis for disqualification .
The Supreme Court of Appeals of West Virginia recently discussed language which is virtually identical to the language cited in the Code of Judicial Conduct in Brown v. Dietrick, 191 W.Va. 169, 444 S.E . 2d 47 (1994). In this case

• 2 - May 16, 1995

the ·court considered whether the circuit court was correct in holding that a search warrant issued by a magistrate was void because the ma~istrate was married to the chief of police and one of his officers had obtained the warrant. The Court, after discussing cases from other jurisdictions, stated that those cases and the language of Canon 3C (1) and 3C (1) (d) and (i) of the Judicial Code of Ethics relating to the disqualification of a judicial official when his or her impartiality might reasonably be questioned if the official's spouse is a party to the proceeding would foreclose a magistrate from issuing a warrant sought by his or her spouse who is a police officer. However, the situation presented in the case was different.
The warrant had been issued at the request of another officer in the police department not the spouse of the magistrate. The spouse's name did not appear in the affidavit nor was there any discussion about her husband with the other officer. The Court stated that while involvement by the magistrate's spouse would preclude the magistrate from hearing any matters, the extension of a per se rule with regard to other officers in the police department was not made. Involvement by other officers in the police department would not automatically disqualify the magistrate if the magistrate were otherwise neutral and detached. The Court did say that prudence dictated that the magistrate's involvement with warrants from the police force should be severely curtailed. The case was remanded for a further hearing with regard to the warrant to enable the parties to challenge it on the basis that there were other additional facts other than the marriage of the magistrate to the police chief which demonstrated the magistrate was not neutral and detached.
Based on the language contained in the Brown decision, it would appear that you would not be disqualified per se from ~resid~ng ?Ver cr~minal cases in which the arresting ?r . . investigating officers would be members of the West Virginia State Police. However, the possibility of additional hearings in those cases exists if a party would challenge your presiding because you were not neutral and detached because of your wife's employment by the West Virginia State Police. You should disclose your wife's employment to parties and Counsel when the State Police are involved in a case. A copy of the Brown decision is enclosed for your review.

• 3 - May 16, 1995

If there is any additional question regarding your inquiry, do not hesitate to contact the Commission. yours,

Fox, II, Chairman
FLF,II/bl
Enclosure