Could a magistrate formerly active in MADD hear alcohol offense cases?

Plain-English summary

A new magistrate had been active in Mothers Against Drunk Driving before taking office, ending advocacy about a year earlier. The magistrate and supervising judge believed the magistrate could decide alcohol cases impartially.

Applying former Canon 3E(1), the Commission nevertheless required disqualification from alcohol-related offenses that occurred before the magistrate took office. It extended that result to later prosecutions using a pre-office offense as an enhancement predicate. The letter did not say all later alcohol cases required recusal.

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: Which offenses required disqualification?

A: Alcohol-related offenses that occurred before the magistrate took office.

Q: What about a later offense enhanced by an earlier one?

A: The magistrate was disqualified if the predicate alcohol offense occurred before taking office.

Background and rules framework

Former Canon 3E(1) required disqualification whenever impartiality might reasonably be questioned; its commentary also addressed disclosure of information relevant to that question.

Citations and references

West Virginia Code of Judicial Conduct (former):

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

See also

• WV JIC Advisory Opinion 1997-17: Conflict with attorney

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 1997-15, 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

June 23, 1997

Re: JIC Advisory Opinion 1997-15

Dear

Your request for an advisory opinion has been reviewed by the Judicial Investigation Commission at a recent meeting. In that correspondence you indicated that there is a new magistrate in your Circuit who was actively involved in an advocacy group prior to being elected to the bench. The magistrate was actively involved with Mothers Against Drunk Driving (MADD) and you asked whether the magistrate should preside over alcohol related offenses in light of the previous involvement. You indicated that the magistrate ceased advocacy a year prior to taking the bench and has now been sitting as a magistrate for approximately three months. The magistrate has expressed a belief that these cases could be handled fairly and impartially. You also noted that you believe the magistrate, based upon your experience as the supervising judge, could be fair and impartial; and there has been no indication calling into question the partiality of the magistrate's conduct when presiding over any type of proceeding.
Canon 3E(l) of the Code of Judicial Conduct addresses the question which you have raised. That section of the Code states in relevant part:
Canon 3. A judge shall perform the duties of judicial office impartiality and diligently.
E. Disqualification. - (1) A judge shall disqualify himself 9r herself in a proceeding in which the judge's impartiality might reasonably be questioned • • .

• 2 - June 23, 1997

The commentary to this section of the Canon states that "under this Rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of these specific rules in Section 3E(l) aJ?ply. 11 The commentary goes on to state that "a judge shall disclose on the record information that the judge believes the parties or their lawyers might consider relevant to question of disqualification, even if the judge believes there is no real basis for disqualification." Based on the magistrate's extensive involvement with this advocacy organization which ¥ou describe in your correspondence, it is the opinion of the Commission that the magistrate should be disqualified from hearing any alcohol related offense which occurred prior to the magistrate taking office. This same disqualification rule would apply to any case in which a predicate offense was being used to enhance a subsequent prosecution. For example any predicate offense which occurred before the magistrate took office would require the magistrate to be disqualified from hearing the subsequent offense which may have occurred after the magistrate took office.
If there is any further question regarding this matter, do not hesitate to contact the Commission.
Vey
-
~,\¾I, Chairman
FLF,II/bl