Must a judge recuse when an assistant prosecutor running against the judge appears in court?
Apply this to your situation
This page answers the general question as of 2015. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
An assistant prosecutor running for circuit judge expected to keep appearing before the incumbent opponent and asked whether the judge must recuse or the prosecutor’s cases be reassigned.
Applying former Canon 3E and citing Brown and Tennant, the Commission found no automatic disqualification for either the judge’s hearing the cases or the prosecutor’s appearing during the campaign. It said the requesting prosecutor did not need to disclose the contest on these facts and both should perform their normal professional duties.
In practice
The opinion permits the judge and prosecutor to continue their respective case duties during the campaign without automatic recusal; the opinion excuses the prosecutor from disclosure on these facts.
Common questions
Q: Must the incumbent judge step aside from the prosecutor’s cases?
A: The Commission found no per se disqualification on these facts. Under the objective standard it discusses, the judge's impartiality must still be assessed in the particular case.
Q: Must the prosecutor disclose the election contest?
A: No. The opinion found no disclosure duty on these facts.
Background and rules framework
Former Canon 3E(1) requires disqualification where impartiality might reasonably be questioned. The opinion cites Brown and Tennant for an objective assessment rather than automatic recusal from this election relationship.
Citations and references
West Virginia Code of Judicial Conduct (former):
- Canon 3E(1), disqualification.
Cases 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).
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2015-11, 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
August 6, 2015
Re: JIC Advisory Opinion 2015-11
Dear
Your recent request for an advisory opinion was reviewed by the Judicial Investigation Commission. The factual scenario giving rise to your request ls as follows:
You are an assistant prosecutor in
County. You have announced your
intention to run against an incumbent for circuit judge in the 2016 election. You regl1larly appear before the judge who you plan to run against. You want to know if either the judge should disqualify himself from presiding over cases in which you appear on behalf of the State or if another assistant prosecutor should handle your caseload before the judge during the pendency of the campaign.
To address the questions which you have raised, the Commission has reviewed Canon 3E of the Code of Judicial Conduct and two opinions of the Supreme Court of Appeals of West Virginia. Canon 3E provides in pertinent 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 the proceeding in which the judge's impartiality might reasonably be questioned ....
When a question of disqualification based on a relationship arises, an analysis must be made of when that relationship rises to a level causing a reasonable
JJC Adviso1y Opinion 20 I 5" I I
October 26, 2015
Page 2
questioning of a judge's impartiality, 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 disqualified from hearing that matter. The Court declined to extend a per se rule to other members of the police force. The fact that the magistrate's spouse was the chief of police of a small agency did not automatically disqualify the magistrate who could be otherwise neutral and detached from issuing a warrant sought by another member 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 or herself from any proceeding in which his Impartiality might reasonably be questioned. The Court noted that the avoidance of the appearance of impropriety is as important in developing public confidence in the judicial system as avoiding impropriety and that the judge should take appropriate action to withdraw from a case in which the judge deems himself or herself biased or prejudiced. Tennant cited the commentary to Canon 3E(1) which states that a judge should timely disclose on the record information which he/she believes the parties or t~eir lawyers might consider relevant to the question of disqualification. Litigants and counsel 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 j(1dge which could 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 to sit where there is no valid reason for recusal. In so doing, the Court set forth a balancing test between the tl'{o cprcepts. While giving consideration to the admir:iistra,tlon of justice and the avoidance-of the appearance of unfairness, a judge must also consider whether cases may be unfairly prejudiced or delayed or discontent may be created through unfounded charges of prejudice or 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 welt0 informed, thoughtful and objective observer rather than the hypersensitive, cynical and scrupulous person.
In applying the foregoing to your factual scenario, the Commission is of the opinion that there is no per se disqualification of the judge in presiding over cases in which you represent the state or in your representation of the State before the judge
JIC Advisory Opinion 2015-11
August 6, 2015
Page 3
during the campaign. You also do not have to disclose the Issue. Both of you should continue to carry out your individual duties In your usual, customary and professional manners.
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.
Ronald E. Wilson, Chairperson
Judicial Investigation Commission
REW/tat
"
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