May a judge hear county council civil cases when the judge’s daughter is prosecutor but separate counsel handles the cases?

Plain-English summary

A judge’s daughter was about to become county prosecutor. The judge planned to avoid criminal and juvenile cases and matters involving the prosecutor’s office, but asked about civil county council matters handled by its separate in-house lawyer.

The Commission found no disqualification from the council’s civil matters because its lawyer was unaffiliated with the prosecutor. Since statute ordinarily made the prosecutor’s office counsel for the council, it directed full relationship disclosure and use of Trial Court Rule 17 where applicable.

In practice

The opinion permits the specified civil matters handled by separate counsel, with disclosure of the daughter’s prosecutor position.

Common questions

Q: May the judge hear council civil cases handled by independent counsel?

A: Yes. The Commission found no disqualification on those facts.

Q: Must the judge disclose the relationship?

A: Yes. The opinion calls for full disclosure and applicable Trial Court Rule 17 procedure.

Background and rules framework

Rule 2.11(A)(2) addresses close relatives as lawyers in a proceeding; Rule 2.11(C) addresses disclosure and waiver. The Commission applied those provisions to county litigation handled outside the daughter’s office.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 2.11(A)(2), (C) and Comments 2 and 5, family lawyer relationships and disclosure.

Court rules:

• Trial Court Rule 17, disqualification procedure.

Cases:

• State ex rel. Brown v. Dietrick, 191 W. Va. 169, 444 S.E.2d 47 (1994), case-specific family recusal.
• Tennant v. Marion Health Care Foundation, 194 W. Va. 97, 459 S.E.2d 374 (1995), objective recusal and disclosure.

See also

• WV JIC Advisory Opinion 2017-06
• WV JIC Advisory Opinion 2017-21

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2016-23, 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

October 24, 2016

Re: JIC Advisory Opinion 2016-23

Dear
Your request for an advisory opinion was reviewed by the Judicial Investigation Commission during its October 21, 2016 meeting. The factual scenario giving rise to your request is as follows: Your daughter will become the Prosecuting Attorney of County on January 1, 2017. You do not intend to preside over any criminal or juvenile cases. You also do not intend to preside over any cases involving the prosecuting attorney's office or law enforcement.
In West Virginia, there is a statute that requires the prosecutor's office to represent the County Commission or County Council. However, in some counties, including , the County Council employs an in-house attorney not affiliated with the prosecutor's office to handle most, if not all, of the county's civil litigation. Since the County Council has its own attorney, you want to know if you can preside over civil cases involving the governmental body -- such as administrative appeals, tax appeals and planning commission appeals.
To answer your question, the Commission has reviewed Rule 2.11 of the Code of Judicial Conduct which provides as follows:
Rule 2.11 Disqualification

(A) A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to the following circumstances: ...

(2) The judge knows that the judge, the judge's spouse or domestic partner, or a person within the third

JIC Advisory Opinion 2016-23
October 24, 2016
Page 2 of3

degree of relationship to either of them, or the spouse or domestic partner of such a person is (a) a party to the proceeding or an officer, director, general partner, managing member, or trustee of a party, (b) acting as a lawyer in the proceeding; (c) a person who has more than a de minimis interest that could be substantially affected by the proceeding; or (d) likely to be a material witness in the proceeding.

(C) A judge subject to disqualification under this Rule, other than for bias or prejudice under paragraph (A)(l), may disclose on the record the basis of the judge's disqualification and may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification. If, following the disclosure, the parties and lawyers agree, without participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding.
The agreement shall be incorporated into the record of the proceeding.

The Code defines "third degree of relationship" to include great-grandparents, grandparents, parents, uncles, aunts, brothers, sisters, children, grandchildren, nephew and niece.

Comment 2 to the Rule notes that "[a] judge's obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed." Comment 5 states that "[a] judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification."

When a question of disqualification arises an analysis must be made of when a current or former relationship causes 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 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.

TIC Advisory Opinion 2016-23
October 24, 2016
Page3 of3

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 former 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.

Based upon the foregoing, it is the decision of the Commission that you are not disqualified from handling civil matters involving the County Council because that governmental body has their own attorney who is not affiliated with the prosecutor's office. However, since the prosecutor's office is statutorily supposed to represent the County Council, you should fully disclose the nature of the relationship and follow the tenets of West Virginia Trial Court Rule 17 where applicable.

We hope this opinion fully addresses the issue which you 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
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