What disclosure or recusal did a judge owe when a spouse worked for an agency appearing in court?
Apply this to your situation
This page answers the general question as of 2001. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
A judge's wife, a counseling graduate student, expected to complete a practicum and internship at an agency potentially connected with the judge's work. The judge asked about the appearance of impropriety if the agency came before the court.
The Commission said the judge must disclose the wife's employment if her employing agency was involved in a case before the court. It drew a further line where the wife herself was involved: the judge would have to recuse from that case.
The opinion cited former Canon 3E and Brown v. Detrick and Tennant v. Marion County Health Care Foundation, Inc. It described a distinction between disqualification and cases requiring disclosure that might prompt a recusal motion.
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 wife's employing agency appeared before the judge?
A: The Commission said the judge must disclose the wife's employment.
Q: When did the Commission require recusal?
A: It required recusal in cases in which the wife was involved in any fashion.
Background and rules framework
The letter applied former Canon 3E(1), which addressed proceedings where a judge's impartiality might reasonably be questioned. It cited Brown for a possible hearing on recusal grounds after disclosure when a spouse was not directly involved.
Citations and references
West Virginia Code of Judicial Conduct (former): Canon 3E(1).
Cases: Brown v. Detrick, 191 W.Va. 169, 444 S.E.2d 47 (1994); Tennant v. Marion County Health Care Foundation, Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995).
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2001-20, 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
November 16, 2001
Re: JIC Advisory Opinion 2001-20
Dear
In a recent letter to the Commission you asked for an advisory opinion. You stated that your wife who is a part-time graduate student in counseling at West Virginia University will be required to commence a “practicum” (two full work days per week, for sixteen weeks) in or about September 2002, and to follow with an “internship” (four full work days per week, again for sixteen weeks) starting in or around January 2003. You stated that she has been provided a list of possible agencies for these experiences and many of them are agencies closely related to your office in various ways. You stated that in light of the possible close connection between your work and her “practicum” and/or “internship” you were concerned about public perception and the appearance of impropriety. You asked for an advisory opinion concerning this matter:
The Commission reviewed Canon 3 of the Code of Judicial Conduct to address the question which you have raised. That Canon says in relevant part:
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 . . .
That section of Canon 3 goes on to state certain times when a judge is disqualified per se from hearing a case and other times when a judge must only make a disclosure which may result in a motion for the judge's disqualification but which is not a per se disqualification.
November 16, 2001
Page Two
Our Court had addressed disqualification and the distinction between per se disqualification and those cases in which a disclosure is required but which may not result in disqualification. See Brown v. Detrick, 191 W.Va. 169, 444 S.E.2d 47 (1994); Tennant v. Marion County Health Care Foundation, Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995). In the Brown decision the Court stated that if a spouse was not directly involved in a case, after a disclosure was made, a hearing could be held to determine whether there were any grounds for recusing the judicial officer.
Based upon the language contained in Canon 3E and the Court's holdings in Brown and Tennant, it is the opinion of the Commission that you must disclose your wife's employment if the employing agency is involved in any case before your court. You would be required to recuse yourself in those cases in which your wife was involved in any fashion.
If there is any further question regarding this matter do not hesitate to contact the Commission.
Very truly yours,
Donald H. Cookman, Chairperson
Judicial Investigation Commission
DHC:nb
What do the rules say today, for your facts?
This opinion is from 2001. Ezel checks the current rules of professional conduct in your state against your situation and cites the rules it relies on.
Opens in Ezel Pro.
- Checks the law as it stands today, not only this page
- Cites every source it relies on, so you can verify it
- Chat, drafting and research in one workspace