Must family court judges recuse when the attorney for their association’s pay-period writ appears in other cases?
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
A Family Judicial Association officer expected to bring a writ against a state pay-period change and asked whether family court judges must recuse from other cases involving the association’s attorney.
Applying former Canon 3E(1), the Commission rejected automatic recusal. It required disclosure of the association relationship whenever the attorney appeared during the writ’s pendency. If a party objected, the judge had to take steps under Family Court Rule 58 and Trial Court Rule 17.01 et seq.
In practice
The opinion requires disclosure during the writ and the specified objection procedure if a party challenges the judge’s participation.
Common questions
Q: Is the attorney’s representation of the association itself a ground for automatic recusal?
A: No. The Commission rejected automatic recusal.
Q: What happens if a party objects after disclosure?
A: The judge must follow Family Court Rule 58 and Trial Court Rule 17.01 et seq.
Background and rules framework
Former Canon 3E(1) governs disqualification when impartiality might reasonably be questioned. The opinion discusses Brown and Tennant on the objective standard, disclosure, and the duty to sit without valid grounds for recusal.
Citations and references
West Virginia Code of Judicial Conduct (former):
- Canon 3E(1), 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).
- Family Court Rule 58 and Trial Court Rule 17.01 et seq., objection procedures.
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2015-18, redacted
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.
JUDICIAL INVESTIGATION COMMISSION
Clty Center East - Suite 1200 A
4700 MacCorkle Ave., SE
Charleston, West Virginia 25304
(304) 558-0i 69 • FAX (304) 558-0831
October 28, 2015
Re: JIC Advisory Opinion 2015-18.
Dear
Your recent request for an advisory op1n1on was reviewed by the Judicial Investigation Commission. The factual scenario giving rise to your request is as follows:
You are the elected
of the Family Judicial Association. You have been directed
by the Association to bring a writ against the West Virginia Auditor over the change in pay periods from 24 to 26 a year projected to begin for all Judges in December 2015. Should the Association prevail in the writ, it would inure to the benefit of all judicial officers and their staff in the State. You have been in contact with an attorney who is willing to represent the Association in the matter. You want to know whether the attorney's representation would require disqualification of the Family Court Judges from presiding over any cases in which he/she represents a party in a proceeding before them.
To address the question which you have raised, the Commission has reviewed Canon 3E(l) of the Code of Judicial Conduct. Canon 3E(l) states:
A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned ....
When a question of disqualification arises an analysis must be made of when the relationship rises to a level causing a reasonable 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
JIC Advisory Opinion 2015-18
October 28, 2015
Page 2 of 3
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 actual 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(l) which states that a judge should timely disclose on the record information which he/she believes the parties or their 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 judge 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 two concepts. While giving consideration to the administration 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 well-informed, thoughtful and objective observer rather than the hypersensitive, cynical and suspicious person.
In applying the foregoing to your factual scenario, the Commission is of the opinion that the Family Court Judges do not have to recuse themselves from presiding over cases involving an attorney who is representing the Association in the writ. However, the Family Court Judges must disclose the relationship in every case in which the attorney represents a party to a proceeding before them during the pendency of the
JIC Advisory Opinion 2015-18
October 28, 2015
Page 3 of3
writ. If there is an objection to a Family Court Judge presiding because of the relationship, he/she must then take the appropriate steps pursuant to Rule 58 of the Rules of Practice and Procedure for Family Court and West Virginia Trial Court Rules 17.01, et seq.
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,
.,,--~~~
Ronald E. Wilson, Chairperson
Judicial Investigation Commission
REW/tat
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