May a circuit judge preside over a case previously handled by the judge’s magistrate spouse?

Plain-English summary

The Commission considered a circuit judge and magistrate who were married and served in the same circuit. It asked whether one spouse could preside over a case the other had handled.

Applying former Canons 2A and 3E and citing Brown and Tennant, the Commission barred the judge from cases previously handled by the magistrate spouse. It said colleagues on the judge’s court were not disqualified from reviewing the spouse’s decisions. The opinion overruled a conflicting November 5, 1990 JIC opinion to that extent.

In practice

The opinion requires the judge to avoid cases the magistrate spouse previously handled; another judge may review them.

Common questions

Q: May the judge hear an appeal from the spouse’s magistrate case?

A: No. The Commission barred the judge from any case previously handled by the spouse.

Q: Are the judge’s colleagues also barred?

A: No. The opinion says colleagues may review the spouse’s decisions.

Background and rules framework

Former Canon 2A addresses appearance of impropriety and Canon 3E(1)(d)(iii) concerns a spouse’s interest affecting disqualification. The opinion cites Brown and Tennant and distinguishes colleagues from the spouse of the prior judicial officer.

Citations and references

West Virginia Code of Judicial Conduct (former):

• Canons 2A and 3E(1)(d)(iii), appearance and disqualification.

Other authorities cited:

• State ex rel. Brown v. Dietrick, 191 W. Va. 169, 444 S.E.2d 47 (1994).
• Tennant v. Marion Health Care Foundation, 194 W. Va. 97, 459 S.E.2d 374 (1995).
• JIC Advisory Opinion November 5, 1990, overruled to the extent of conflict.

See also

• WV JIC Advisory Opinion 2015-17
• WV JIC Advisory Opinion 2015-24

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2014-07, redacted

Original opinion text

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

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

March 25, 2014

JIC Advisory Opinion 2014-07

Rule 2.13(c) of the Rules of Judicial Disciplinary Procedure gives the Judicial Investigation Commission the authority to promulgate advisory opinions on ethical issues pertaining to the Code of Judicial Conduct. The Rule states that " [t]h e Commission may render in writing such advisory opinion as it may deem appropriate." Id. The question presented is: Can a judicial officer preside over cases th at have previously been handled by another judicial officer when the two are married to one another and reside together in the sa me household?

The factual scenario giving rise to the instant opinion is as follows: A magistrat e is married to a circuit judge. The t wo serve in the same judicial circuit. The duti es of the ma gistrate and the circuit judge are many and va ried. In some instances, the duties of the t wo judicial officers may overlap.

Magistrates have jurisdiction over civil cases in which th e financial amount in dispute is less th an five thou sa nd dollars ($5000.00}. See W. Va. Code§§ 50-2-1 et seq. Magistrates hear misdemeanor cases and conduct preliminary hearings in fel ony cases. Id. In criminal cases, magistrat es iss ue and record affidavits, complaints, arrest warrants, and sea rch warrants. Id. They also initially set bail in all criminal cases except those in which a defendant is charged with first-degree murder pursuant to W. Va. Code§ 61-2-1 or kidnapping pursuant to W. Va . Code§ 61-2-14a(a). Id.

Magistrates also issue emergency protective orders in cases involving domestic violence. In some counties where there are no mental hygi ene commissioners, the chief judge can d esignate a magistrat e or magistrates to handle all or part of probable cause involuntary hospitalization cases. Magistrates cannot handle final commitment or guardianship cases. Lastly, magistrates have jurisdiction of all matters

JIC Advisory Opinion 2014-07
March 25, 2014
Page 2

involving unlawful entry or detainer of real property or involving wrongful occupation of residential rental property.

W. Va. Code§ 51-2-2 provides that "[t]he circuit court shall have supervision and control of all proceedings before magistrates, by mandamus, prohibition and certiorari." Circuit courts have jurisdiction over all civil cases at law over twenty-five hundred dollars ($2500.00); all civil cases in equity; and proceedings in habeas corpus, mandamus, quo warranto, prohibition, and certiorari. Id. They also have jurisdiction over all felony cases. Id. Circuit judges have concurrent jurisdiction with magistrates over misdemeanors. Id. Circuit judges also preside over civil and criminal appeals from magistrate court and make final decisions in mental hygiene cases. Id. The chief judge of the circuit also has the responsibility of filling any magistrate vacancy by appointment. See W. Va. Code§ 50-1-6.

To address the question, the Commission has reviewed Canons 2A and 3E of the Code of Judicial Conduct and two opinions of the Supreme Court of Appeals of West Virginia . The relevant Canons provide in pertinent part:

Canon 2.
A judge shall avoid impropriety and the appearance of
impropriety in all of the judge's activities.

A. A judge shall . . . avoid impropriety and the appearance of impropriety in all of the judge's activities, and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

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:

(d) the judge or the judge's spouse, or a person w ithin the third degree of relationship to either of them, or the spouse of such a person: ..

JIC Advisory Opin ion 2014-07
March 25, 2014
Page 3

(iii) is known by the judge to have a more than [a] de minimis interest that could be substantially affected by the proceeding.

The Code defines "de minimis" as "an insignificant interest that could not raise a reasonable question as to a judge's impartiality."

Whenever there is a question of disqualification, an analysis must occur of the underlying relationsh ip and w hen it rises to a level causing a reasonable question of a judge's impartia lity. In State ex rel. Brown v. Dietrick, 191 W. Va. 169, 444 S.E.2d 47 (1994), the Court considered whether the circuit court was correct in holding that a search warrant issued by a magistrate was void because the magistrate was married to the chief of police and one of his officers had obtained the warrant. The Court held that in any criminal matter where the magistrate's spouse was involved the magistrate would be disqualifi ed from hearing that case. The Court declined to extend a per se rule to other members of the police force.

In Tennant v. Marion Health Care Foundation, 194 W. Va. 97, 459 S.E.2d 374 (1995), the Court held that a judge should disqualify himself/herse lf from any proceeding in which his/her impartiality might reasonably be questioned. The Court noted that the avoidance of the appearance of impropriety is as important in developing public confid ence in the judicial system as avoiding actual impropriety itself and that the judge should take appropriate action to withdraw from a case in which the j udge deems himself/herself biased or prejudiced. Tennant cited the commentary to Canon 3E(l) which states that a judge should timely disclose on th e record information which he/she beli eves the parties or their lawyers might consider relevant t o the question of disqualification. Litigants and coun sel should be able to rely on judges complying with the Code of Judicial Conduct. There is no obligation imposed on counsel to investigate the facts known by the jud ge which co uld possibly disqualify the judge. The judge has a duty to disclose any facts even if the judge does not feel that they are grounds for disqualification sua sponte.

Tennant also addressed the rule that a judge has an equally strong duty t o sit where there is no val id reason for recusal. In so doing, th e Co urt set forth a balancing test between the t wo concepts. Whi le giving consideration t o the administration of justice and the avoi dance of the appea rance of unfairness, a judge must also consider whether cases may be unfairly prejudiced or delayed or disconte nt may be created th ro ugh unfounded charges of prejudice or

JIC Advisory Opinion 2014-07
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Page 4

unfairness made against the judge. The Court noted that the standard for recusal is an objective one. Facts should be viewed as they appear to the well-informed, thoughtful and objective observer rather than the hypersensitive, cynical and suspicious person.

In applying the foregoing to the factual scenario, the Commission is of the opinion that the judge is precluded from presiding over any cases that were previously handled by his/her spouse in magistrate co urt. The Commission notes that this decision is consistent with our prior rulings concerning the disqualification of a judicial officer when a close family member is involved in the proceeding. See JIC Advisory Opinion 2013-03 (a judicial officer, whose daughter and fiance work in different local law firm s, cannot preside over any cases directly involving them; however, the judicial officer is not disqualified from presiding over cases involving other members of the law firms but must disclose the familial relationships in every case) and JIC Advisory Opinion 7/19/2010 (magistrate must disclose that her son is chief of police in all cases involving that agency, and if he has any involvement in the case she must disqualify herself). Our decision is also consistent with JIC Advisory Opinion 2013-05 in which we held that a circuit judge would not be permitted to hear the appeal of a matter over which he/she had presided while serving as a Family Court Judge.

Lastly, our position is consistent with the decisions of other states. See Kansas Judicial Advisory Opinion JE-116 (2004) (the spouse of a district judge who is not the chief judge may serve as a district magistrate judge as long as the district judge does not consider appeals from decisions made by the spouse); Alabama Judicial Advisory Opinion 97-632 (a circuit judge whose spouse is a municipal judge may hear any appeal from the municipal court, as long as the judge's spouse did not participate in any aspect of the proceeding below); and Michigan Judicial Advisory Opinion Jl-31 {1990) (a circuit judge whose spouse is a district cou rt judge or friend of court referee should not revi ew decisions of his or her spouse, but the other judges on the court may review the spouse's decisions). As was noted in the Michigan Opinion:

Both spouses as judicial officers owe duties to the administration of justice to avoid any situation w here the impartiality of the presiding judge or the fairness of the judicial proceedings is call ed into question.
The judge's recusal avoids the appearance that the judge is allowing family relationships to influence judicial conduct, avoids th e appearance of impropriety and upholds the integrity of the judicial system.

Id. Conversely, colleagues on the same court as the judge are not disqualified from reviewing actions of the judge' s spouse.

JIC Advisory Opinion 2014-07
M arch 25, 2014
Page 5

To th e extent that this decision conflicts with JIC Advisory Opinion 11/ 5/ 1990 (a judge whose spou se is a fam ily law master in the count y may only enter final orders on uncontest ed divorces w here there is a settlement agreement between the parti es and no children are involved), the earlier decision is overruled.

~~ Judicial Investigation Co mmission

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