Must a family law master recuse when a prosecutor spouse appears in a domestic violence proceeding?

Plain-English summary

The request concerned domestic violence petitions that family law masters would hear after a change in West Virginia magistrate court jurisdiction. Some masters were married to prosecutors or assistant prosecutors in the same county. The requester asked about proceedings in which a prosecutor spouse might appear.

The Commission said former Canon 3E(1)(d)(ii) required disqualification when the prosecutor spouse appeared as a lawyer. If the spouse had no direct involvement, it said State ex rel. Brown v. Detrick governed the recusal inquiry and that a hearing might be needed to determine the spouse's involvement and insulation from the case. The Commission directed a separate question about prosecutors' own ethical duties to the Office of Lawyer Disciplinary Counsel.

Currency note

This opinion was issued in 2001, 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: What if the prosecutor spouse appeared in the proceeding?

A: The Commission said former Canon 3E(1)(d)(ii) imposed per se disqualification.

Q: What if the prosecutor spouse had no direct involvement?

A: The Commission called for a recusal determination under Brown v. Detrick, potentially after a hearing on involvement and insulation from the case, file and witnesses.

Q: Did the Commission answer the question about a prosecutor's own ethical duties?

A: No. It directed that question to the Office of Lawyer Disciplinary Counsel.

Background and rules framework

The letter applied former Canon 3E(1)(d)(ii) of the West Virginia Code of Judicial Conduct and cited State ex rel. Brown v. Detrick for situations where the prosecutor spouse did not directly participate.

Citations and references

West Virginia Code of Judicial Conduct (former): Canon 3E(1)(d)(ii).

Statutes: W. Va. Code § 48-2A-3a.

Cases: State ex rel. Brown v. Detrick, 191 W. Va. 169, 444 S.E.2d 47 (1994), prosecutor-spouse involvement and recusal.

See also

• WV JIC Advisory Opinion 2001-05

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2001-03, 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
Post Office Box 1629
Charleston, West Virginia 25326-1629
(304) 558-0169 • FAX (304) 558-0831

February 16, 2001

JIC Advisory Opinion 2001-03

Dear Ms.

Your recent letter requesting an advisory opinion was reviewed by the Judicial Investigation Commission at its meeting. In your correspondence you stated that during the 2000 Legislative Session, W.Va. Code § 48-2A-3a was changed and as of April 1, 2001, “magistrate court jurisdiction shall be limited, and therefore, full hearings wherein a protective order is sought shall be heard before a circuit judge or a family law master.” You wrote asking for an opinion in the matter raised by the impending assumption of domestic violence jurisdiction. You stated that a few of the state's family law masters are married to prosecutors or assistant prosecutors who practice within the same county. You asked if there was a conflict of interest when a family law master heard a domestic violence petition which may be prosecuted by the prosecutor/spouse. You also asked if there were a conflict of interest if a prosecutor or assistant prosecutor prosecuted a respondent for alleged contempt of an order previously entered by the prosecutor's office. To address the second inquiry you were advised to contact the Office of Lawyer Disciplinary Counsel since the matters raised concerned ethical issues facing attorneys and would be more properly handled by that office.

To address the first inquiry which you have made, the Commission has reviewed Canon 3E of the Code of Judicial Conduct. Canon 3E states in relevant part as follows:

Canon 3. A judge shall perform the duties of judicial office impartially and diligently.

E. Disqualification. - (1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:

February 16, 2001
Page Two

(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:
(ii) is acting as a lawyer in the proceeding.

In those cases where the prosecutor/spouse is appearing there is a per se disqualification requirement under the terms of Canon 3E(1)(d)(ii). In those cases where the prosecutor/spouse had no direct involvement the case, a finding under the language contained in State ex rel. Brown v. Detrick, 191 W.Va. 169, 444 S.E.2d 47, (1994) must be made as to whether a recusal is required. Under the holding of the court in this case a hearing may be necessary to determine the extent of any involvement of the prosecutor/spouse with the case and what efforts were made to insulate that individual from the case, file, witnesses etc., before a determination of recusal could be made.

It is hoped that this opinion fully addresses the questions which you have raised. If there is any further question regarding this matter do not hesitate to contact the Commission.

Very truly yours,

Donald H. Cookman, Chairperson

DHC:nb