Did a judge properly handle a criminal case after a defendant and family campaigned for the judge and the prosecutor?
Apply this to your situation
This page answers the general question as of 2009. 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 new circuit judge heard a criminal case involving a defendant and family who had campaigned for the judge. The judge disclosed that support at a hearing; no one objected. The judge also noted that the family had campaigned for the prosecutor.
The Commission said the judge had properly disclosed the support, giving parties an opportunity to seek disqualification. It declined to decide the prosecutor’s conflict and suggested the prosecutor seek advice from the Office of Disciplinary Counsel. It added that the former judicial Code had no waiver of an existing judicial conflict: if one existed, the judge must recuse.
In practice
The Commission approved the disclosure; it did not determine the prosecutor’s separate professional-responsibility issue.
Common questions
Q: Was disclosure of campaign support appropriate?
A: Yes. The Commission said the judge handled that part properly.
Q: Did the JIC decide whether the prosecutor was conflicted?
A: No. It said the prosecutor could seek advice from the Office of Disciplinary Counsel.
Q: Could an existing judicial conflict be waived?
A: The opinion says no under the former Code.
Background and rules framework
Former Canon 3E(1) requires disqualification when impartiality might reasonably be questioned and its comment favors disclosure of relevant facts.
Citations and references
West Virginia Code of Judicial Conduct (former): Canon 3E(1) and its comment.
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2009-05, 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
February 17, 2009
Re: -JIC Advisory Opinion 2009-05
Dear Judge
In a recent letter to the Judicial Investigation Commission you asked for an advisory opinion. You stated that you became Circuit Judge for ‘on January 1, 2009. In October 2008, was indicted for Bribery/False Claims/Conspiracy. On January 14, 2009, you conducted a hearing to review this case and set it for trial. At that time, you disclosed that and her family campaigned for you as you campaigned for Circuit Judge in 2008. There were no objections to you hearing the case. However, you pointed out to the Prosecuting Attorney that the same family campaigned for him at the same time. You asked whether a conflict exists which may be waived by the Prosecuting Attorney and whether you should continue on the case.
To address the questions which you have raised, the Commission has reviewed Canon 3E of the Code of Judicial Conduct. Canon 3 states 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 . . .
The commentary to the Canon states that “A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.”
February 17, 2009
Page Two
Based upon the language contained in the Canon and the following commentary, it is the opinion of the Commission that you properly handled the situation by disclosing the fact that and her family campaigned for you when you campaigned for Circuit Judge in 2008. This afforded the attorneys and their clients an opportunity to make a motion for your disqualification if they so desired.
The Commission cannot address the question of the Prosecuting Attorney’s disqualification. There is no provision in the Code of Judicial Conduct which provides for a waiver of an existing conflict. Ifa conflict exists then a judge must recuse himself or herself. The Prosecuting Attorney could seek additional advice from the Office of Disciplinary Counsel to address any questions which may exist concerning a conflict.
It is hoped that this opinion fully addresses the question which you have raised. If you have any further question concerning this matter do not hesitate to contact the Commission.
Véry truly yougs,
. RS
Fr . Fox, I¥, Chairperson
Judicial Investigation Commission
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