Did a third cousin’s prosecutor office employment disqualify a judge from criminal cases?

Plain-English summary

A judge asked whether criminal case assignments were affected after the county prosecutor hired the judge’s third cousin as a paralegal and office manager.

The Commission reviewed former Canon 3E(1)(d), covering specified roles and interests of close relatives. The Code defined relatives within the third degree; a third cousin was outside the listed relationships. The Commission concluded that the employment did not affect the judge’s handling of criminal matters.

Currency note

This opinion was issued in 1997, 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 third cousin’s employment change the judge’s criminal docket?

A: No. The Commission found no effect under the cited Canon.

Q: What relationship rule did the Commission apply?

A: The Code’s terminology defined relatives within the third degree; Canon 3E(1)(d) applied that definition.

Background and rules framework

Former Canon 3E(1)(d)(i)-(iv) addressed disqualification when a judge or close relative had defined roles or interests in a proceeding. The Code’s terminology specified which relatives were within the third degree.

Citations and references

West Virginia Code of Judicial Conduct (former):

• Canon 3E(1)(d)(i)-(iv) and terminology definition of third-degree relatives.

See also

• WV JIC Advisory Opinion 1997-21: Judge’s granddaughter as probation officer

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 1997-09, 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

February 7 1 1997

Re: JIC Advisory Opinion 1997-09

Dear
Your request for an advisory opinion sent to Counsel was reviewed by the Judicial Investigation Commission at its recent meeting. In that letter you state that the County Prosecuting Attorney recently hired your third cousin in a position styled paralegal/office manager. You asked whether this causes a problem for you with respect to the criminal cases assigned to you.
To address your inquiry the Commission reviewed Canon·3E (1) (d) (i) (ii) (iii) (iv). That section of the Code of Judicial Conduct states in pertinent part:
Canon 3. A judge shall perform the duties of judicial office impartially and diligently.
E. Disqualification. - (l) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, included but not limited to instances where:
(d) the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) is a party to the proceeding, or an officer, director of trustee, of a party;
(ii) is acting as a lawyer in the proceeding:

• 2 - February 7, 1997

(iii) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding; (iv) is to the judge's knowledge likely to be a material witness in the proceeding.
The term "the third degree of relationship" is defined in the terminology section of the Code of Judicial Conduct. That section states that "the following persons are relatives within the third degree of relationship: great grand~arent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, 9reat 9randchild, nephew, or niece." Based on the information which you have provided the Commission and the language set forth in the Code of Judicial Conduct, the employment of your third cousin by the Prosecuting Attorney's office would not have any effect on your handling of criminal matters.
If there is any further question concerning this matter do not hesitate to contact the Co ission.

Chairman
FLF,II/bl