May a circuit judge hear family court matters that the judge previously handled as family court judge?
Apply this to your situation
This page answers the general question as of 2010. 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 circuit judge asked about cases from the judge’s prior family-court service. Applying former Canon 3E, the Commission said the judge could hear cases in which the judge had taken no part in decision making. It excluded cases in which the judge had previously made findings, legal conclusions, or a ruling, including an appellate review of the judge’s own lower-court decision.
In practice
The boundary is the judge’s earlier decision making in the same matter; previous findings or rulings bar later review.
Common questions
Q: Can the judge hear a case with no prior decision-making role?
A: Yes, under this opinion.
Q: What prior role bars the judge?
A: Earlier findings, conclusions of law, or a ruling in the case.
Q: May the judge review the judge’s own family court ruling on appeal?
A: No.
Background and rules framework
Former Canon 3E requires disqualification when impartiality might reasonably be questioned; the Commission applies it to a judge’s prior lower-court decisions.
Citations and references
West Virginia Code of Judicial Conduct (former): Canon 3E.
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2010-09, 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
July 19, 2010
Re: JIC Advisory Opinion 2010-09
Dear Judge
Your request for an advisory opinion was reviewed by the Judicial Investigation Commission at its recent meeting. In that opinion you asked if you as a circuit judge should be disqualified from any cases over which you presided while your were Family Court Judge. You indicate in your correspondence that the issue has been ongoing and you wonder whether or not you can ethically hear Family Court cases in which you were involved as Family Court Judge.
To address the question which you have raised the Commission has reviewed Canon 3E of the Code of Judicial Conduct. That section of Canon 3 deals with when judges should be disqualified from hearing matters. The general rule states that a judge “shall disqualify himself/herself in a proceeding in which the judge’s impartiality might reasonably be questioned”. . .. The Commission has reviewed this Canon and the correspondence which you sent explaining your current situation and the difficulties caused by excluding you from all Family Court cases.
After reviewing the Canon and your letter, it is the opinion of the Commission that any cases in which you had no part in the decision making of the case you may hear. Any cases in which you had made any previous findings, conclusions of law or a ruling you would be excluded from hearing. The Canon does not permit a judge to hear a matter in an appellate court over which that judge has presided and/or ruled and made findings in the lower court forum.
July 19, 2010
Page Two
It is hoped that this opinion fully addresses the question which you have raised. If there is any further question regarding this matter do not hesitate to contact the Commission.
VVery truly yours,
[signature]
Fred L. Fox, II, Chairperson
Judicial Investigation Commission
FLF:nb
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