Does a lawsuit against a judge in both official and individual capacities require recusal from the suing lawyer's other cases?

Plain-English summary

The requesting judge was one of several judges named as defendants in a lawsuit challenging an administrative order. A cross-claim sought indemnification from the judges individually. The judge asked whether this litigation prevented the judge from hearing other cases involving the lawyer who pursued the claim or the lawyer's firm.

The Commission cited former Canon 3E(1)(a), which required disqualification for personal bias or prejudice concerning a party or lawyer, alongside Canon 3B(1), which required judges to hear assigned cases unless disqualified. It recalled an earlier advisory opinion concluding that a suit or threat to sue a judge did not itself require disqualification.

Applying Tennant v. Marion Health Care Foundation, Inc., the Commission extended that reasoning from suits against judges in their official capacity to the described suit in both official and individual capacities. Each judge had to assess the facts and issues for personal bias or prejudice. Absent supporting evidence of actual bias or prejudice, the Commission said disqualification was not required.

In practice

The 2002 opinion did not impose automatic recusal from the suing lawyer's or firm's other cases. It made the judge's actual bias or prejudice on the facts the deciding issue.

Common questions

Q: Did being sued individually require the judge to recuse from other cases involving the lawyer?

A: No automatic disqualification followed. The Commission said each judge had to determine whether the facts and issues showed personal bias or prejudice.

Q: Did the same rule cover a lawsuit naming the judge officially and individually?

A: Yes. The Commission said the rationale against automatic disqualification in official-capacity suits also applied to the described suit naming the judge in both capacities.

Q: What did the Commission take from Tennant?

A: It described the court's refusal to require a new trial for appearance of impropriety alone without supporting evidence of actual bias or prejudice. The court reserved whether recusal was necessary in that case.

Background and rules framework

The letter quoted former Canons 3E(1)(a) and 3B(1) of the West Virginia Code of Judicial Conduct. It also cited JIC Advisory Opinion 4/8/87 and Tennant v. Marion Health Care Foundation, Inc., 194 W. Va. 97, 459 S.E.2d 374 (1995), in discussing judicial disqualification after a judge is sued.

Citations and references

West Virginia Code of Judicial Conduct (former): Canons 3E(1)(a), 3B(1).

Cases: Tennant v. Marion Health Care Foundation, Inc., 194 W. Va. 97, 459 S.E.2d 374 (1995).

Other opinions cited: JIC Advisory Opinion 4/8/87.

See also

• WV JIC Advisory Opinion 2017-16
• WV JIC Advisory Opinion 2007-17

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2002-15, redacted

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

June 10, 2002

Re: JIC Advisory Opinion 2002-15

Dear

Your recent request for an advisory opinion addressed to Commission Counsel was reviewed by the Judicial Investigation Commission. In your letter you seek an advisory opinion as to whether you may ethically preside over cases in which a party is represented by

or by any attorney who practices at the law firm of

The inquiry arises from the fact that , an attorney with that firm represents in a civil action relating to a dispute over an administrative order that was signed by all of the Judges of the Circuit. The effect of the administrative order was to cause , to “be relieved forthwith as the

Supervisor of the Home Incarceration Program” in

You stated that subsequently instituted a Civil Action 02-C-411 by filing a “petition for writ of mandamus and complaint for damages” in the Circuit Court of County. Among others, each of the Judges of the Judicial Circuit including you, were named as a Respondent/Defendant in this action.

was also named as a Respondent/Defendant in the action. In his capacity as Counsel for , Mr. filed “Respondent response to petition for writ of mandamus and complaint for damages and cross claim.” The cross claim portion of the complaint alleges that “the Judges of the Judicial Circuit, individually and in their official capacities as judges, acted contrary to well-established law and without any semblance of due process . . . in the entry and implication of the . . . October 12, 2001 Administrative Order.”

June 10, 2002
Page Two

In his prayer for relief, requests among other things an order “requiring the Judges of the Judicial Circuit to indemnify the Sheriff all costs and expenses, including attorneys’ fees, incurred in the defense of this civil action” and an order “declaring that Judges of the Judicial Circuit must indemnify the Sheriff for any judgment rendered against the Sheriff in favor of the Plaintiff/Petitioner in this civil action.” Further, asks for an order “requiring the Judges of the Judicial Circuit to reimburse the Sheriff his costs and expenses, including attorneys fees, incurred in having the Administrative Order ruled invalid” and an order “declaring that the actions of the Judges of the’ Judicial Circuit were not judicial in nature... .”

You asked whether Sheriff efforts to pursue the judges as individuals and to obtain indemnification from them personalized this action to the extent that an individual judge would be foreclosed from sitting on other actions in which Counsel for Sheriff appeared on behalf of the party. You asked if any such disability which might exist extends to other attorneys practicing in the same firm as Counsel for Sheriff

The Code of Judicial Conduct Canon 3E(1)(a) states:

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:

(a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding; ...

The disqualification provisions of Canon 3E are balanced by the language contained in Canon 3B(1) of the Code of Judicial Conduct which states:

B. Adjudicative responsibilities. - (1) A judge shall hear and decide matters assigned to the judge except those in which disqualification is required.

The Commission has written a lengthy advisory opinion about disqualification by a judge when the judge is a named defendant in litigation in his or her official capacity. See JIC Advisory Opinion 4/8/87 a copy of which is attached hereto for your review.

June 10, 2002
Page Three

That advisory opinion discusses West Virginia cases and cases from other jurisdictions relative to the question of disqualification by a judge when the judge is a named defendant. Based on the Commission’s analysis of the case law and the Canon it concluded that judges would not be disqualified from hearing a proceeding merely because a litigant sued or threatened to sue the judge.

Since that advisory opinion, the Supreme Court of Appeals of West Virginia decided Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995). In that case a circuit judge presided over a medical malpractice jury trial which resulted in a defense verdict. The judge did not know at the time one of the defense attorneys also represented him in a federal law suit filed by a pro se litigant. When the judge received the dismissal order, he realized that he had been represented by one of the defense lawyers and voluntarily recused himself from the medical malpractice case. Another circuit judge was appointed to the case and granted the plaintiffs a new trial based on the appearance of impropriety.

The Supreme Court reversed that judge’s order that granted a new trial. In the ruling the Court refused to adopt a per se rule that a new trial should be granted when there is an appearance of impropriety and there is no additional supporting evidence that the judge was actually prejudiced or biased. In a footnote the Court noted that the original judge had voluntarily recused himself. The Court stated that the question of whether recusal was necessary was reserved. The Court stated that “if the disqualification of every judge who is sued in his or her official capacity was required it would have a substantial impact on available judicial resources.” In that case the judge was sued in his official capacity. There could be no cases found in this jurisdiction discussing the necessity for disqualification when a judge is sued in his individual capacity.

However, the rationale followed by our Court and others in determining that disqualification is not required per se when a judge is sued in his official capacity is sound as applied to the facts presented where a judge has been sued in his official and individual capacity. The question which each judge must then determine is whether given all the facts and issues present in the case, the judge has a personal bias or prejudice which would require the judge to recuse himself. Absent supporting evidence of actual bias or prejudice disqualification would not be required. See Tennant, supra.

June 10, 2002
Page Four

It is hoped that this opinion fully addresses the question which you raised. 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