May a magistrate hear cases brought by a police department led by the magistrate’s son?
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 magistrate’s son became chief of police. The magistrate asked whether every department case required automatic recusal or whether disclosure and case-specific review were enough.
The Commission required disclosure of the relationship in all cases involving that police department. If the son participated in a case, the magistrate had to disqualify. Otherwise the magistrate had to follow Brown v. Dietrick, including disclosure, a possible hearing on the son’s role, and assessment of continued neutrality and fairness.
In practice
The opinion requires disqualification if the son has any involvement and distinguishes those cases from other department cases; the latter still require disclosure and the Brown steps.
Common questions
Q: Must the relationship be disclosed in every department case?
A: Yes.
Q: What if the son took part in the case?
A: The magistrate must disqualify.
Q: What if he did not?
A: Follow the Brown process, including possible inquiry into his involvement and judicial neutrality.
Background and rules framework
Former Canon 3E governs judicial disqualification. The Commission applies State ex rel. Brown v. Dietrick, which addressed a magistrate whose spouse was police chief.
Citations and references
West Virginia Code of Judicial Conduct (former): Canon 3E.
Case cited: State ex rel. Brown v. Dietrick, 191 W. Va. 169, 444 S.E.2d 47 (1994).
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2010-10, 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 2010-10
Dear Magistrate
Your request for an advisory opinion was reviewed by the Judicial Investigation Commission at its recent meeting. In your request you state that your son has been employed as a police officer for the past 16-years and you always disclose that information in cases before you involving any police officers. He recently accepted a position as Chief of Police for the Police Department. You asked whether you should continue to disclose this information in cases involving the police officers and if a party objects, recuse yourself, or should you recuse yourself from all cases involving | police officers.
To address the question which you have raised, the Commission has reviewed Canon 3E of the Code of Judicial Conduct and State ex rel. Brown v. Dietrick, 191 W.Va. 169, 444 S.E.2d 47 (1994). Canon 3E of the Code of Judicial Conduct deals with disqualification of judicial officers in cases and sets out various rules regarding per se disqualifications and disqualifications which may be required when certain factors are present on a case by case basis. In the Brown decision the West Virginia Supreme Court dealt with a case in which a magistrate’s spouse was the chief of police for a town. That decision set forth the criteria to be followed when a member of that town’s police force appeared before the magistrate.
After a review of Canon 3E and the Brown decision, it is the opinion of the Commission that you must disclose that your son is the Chief of Police for the ‘Police Department in all cases involving that agency. If you son has any involvement in the case brought before you by the Police Department you must disqualify yourself from that case. Otherwise, you must follow the procedures set forth in the Brown decision which would include disclosure, a possible hearing on any involvement your son may have had in the case before you and whether you may continue as a neutral and detached magistrate able to hear the case in a fair and objective manner. A copy of the Brown decision is attached for your information and review,
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. Very truly yours,
[signature]
Fred L. Fox, II, Chairperson
Judicial Investigation Commission
FLF:nb
Enclosure
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