Can parties waive a judge’s disqualification from an appeal in a matter the judge previously heard as a family judge?

Plain-English summary

A circuit judge faced an appeal in a matter the judge had handled as a family court judge in 2005. The current appeal concerned a later judge’s decision rather than the earlier issues, and both parties were willing to waive the conflict.

The Commission applied its earlier July 19, 2010 opinion and former Canon 3E. It said the judge could hear a matter in which the judge had taken no part in lower-court decision making, but not an appeal involving a matter over which the judge had previously presided and ruled. It found the parties’ proposed waiver insufficient.

In practice

The opinion rejects the proposed waiver despite the appeal’s focus on a later decision in the same matter; the prior lower-court role controls its result.

Common questions

Q: Does party consent cure the judge’s prior lower-court role?

A: No. The Commission found waiver insufficient for an appeal involving a matter the judge had previously presided over.

Q: What did the earlier opinion permit?

A: It allowed the judge to hear cases in which the judge had no part in decision making as a family court judge.

Background and rules framework

The opinion applies former Canon 3E and the Commission’s July 19, 2010 advisory opinion, which distinguishes matters with no prior lower-court decision making from matters the judge previously presided over or ruled in.

Citations and references

West Virginia Code of Judicial Conduct (former):

• Canon 3E, judicial disqualification.

Other opinion cited:

• JIC Advisory Opinion 7/19/2010, prior lower-court involvement.

See also

• WV JIC Advisory Opinion 2013-08
• WV JIC Advisory Opinion 2013-12

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2013-05, redacted

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

JUDICIAL INVESTIGATION COMMISSION
City Center East - Suite 1200 A
4700 MacCorkle Ave., SE
Charleston, West Virginia 25304
(304) 558-0169 © FAX (304) 558-0831

May 17, 2013

Re: — JIC Advisory Opinion 2013-05.

Dear Judge

Your recent request for an advisory opinion was reviewed by the Judicial Investigation Commission at its May 3, 2013 meeting. The factual scenario giving rise to your request is as follows: An appeal has recently come before you which involves a matter that you presided over as a Family Court Judge in 2005. According to you, the instant appeal does not concern issues over which [you] personally presided but deals with a more recent decision of the current family court judge. You indicate that the parties are willing to waive any conflict so that

you may hear the most recent appeal. You want to know if the conflict can be waived so that you may hear the appeal.

Your query is similar to one submitted by you in 2010, although in that scenario you did not ask whether such a conflict could be waived by the parties. At the time, you were advised that as a Circuit Court Judge you may hear any case in which you had no part in the decision- making process as a Family Court Judge (See July 19, 2010 Advisory Opinion attached hereto JIC Advisory Opinion 2013-05 May 17, 2013 Page 2

and made a part hereof). However, “[a]ny cases in which you had made any previous findings, conclusions of law or a ruling you would be excluded from hearing.” /d. Additionally, the Commission informed you that Canon 3E of the Code of Judicial Conduct “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.” /d. Consistent with this ruling, the Commission now finds that a waiver is not sufficient to overcome your disqualification from appeals involving matters that you previously presided over as a Family Court Judge.

It is hoped that this opinion fully addresses the issues which you have raised. If there is any further question regarding this matter do not hesitate to contact the Commission.

Sincerely,

20 flM. —
Cr

Ronald E. Wilson, Chairperson
Judicial Investigation Commission

REW/tat