Must a judge recuse from all prosecution cases after the judge’s daughter joins the prosecutor’s office?

Plain-English summary

A judge’s adult daughter joined the county prosecutor’s office. The judge asked whether disqualification extended beyond cases in which she worked to cases handled by the elected prosecutor or other assistants.

The Commission required disqualification whenever the daughter had any involvement. It rejected blanket recusal from other prosecutor cases in which she had done no work, but directed full disclosure of the relationship and Trial Court Rule 17 procedure where applicable.

In practice

The opinion requires recusal for the daughter’s cases and disclosure for cases handled only by her colleagues.

Common questions

Q: May the judge hear a case the daughter worked on?

A: No. The Commission requires disqualification for any involvement by the daughter.

Q: May the judge hear other prosecutors’ cases?

A: Yes, if the daughter did no work on the matter, with full relationship disclosure and applicable Rule 17 procedure.

Background and rules framework

Rule 2.11(A) governs disqualification for family relationships and reasonably questioned impartiality; Rule 2.11(C) addresses disclosure and waiver. The Commission applied these provisions with Brown v. Dietrick and Tennant.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 2.11(A), (C) and Comments 2 and 5, family involvement, disclosure and recusal.

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), family involvement and case-specific recusal.
• Tennant v. Marion Health Care Foundation, 194 W. Va. 97, 459 S.E.2d 374 (1995), objective recusal and disclosure.

Other opinions cited:

• JIC Advisory Opinion 2013-03 and opinions dated Oct. 28, 2011; July 19, 2010; and May 11, 2009, family employment and disclosure.

See also

• WV JIC Advisory Opinion 2017-08
• WV JIC Advisory Opinion 2017-21

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2017-06, 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

February 23, 2017

Re: JIC Advisory Opinion 2017-06

Dear

Your request for an advisory opm10n was recently reviewed by the Judicial Investigation Commission. The factual scenario giving rise to your request is as follows: Your daughter was recently hired by the County Prosecutor's Office to serve as an assistant prosecutor. She does not reside in the same household with your wife and you but resides in her own home. You understand that you are disqualified from presiding over any juvenile, criminal, or habeas matters or any magistrate appeals, etc. in which your daughter had any involvement whatsoever. You also want to know if you are disqualified from hearing any cases involving the elected prosecutor or other assistant prosecutors.

To address your question, the Commission has reviewed Rules 2.1 l(A) and (C) of the West Virginia Code of Judicial Conduct which provides in pertinent part:

(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:

(1) The judge has a personal bias or prejudice concerning a paiiy or a party's lawyer, or personal knowledge of facts that are in dispute in the proceeding.

JIC Advisory Opinion 2017-06
February 23, 2017
Page 2 of4

(2) The judge knows that the judge, the judge's spouse or domestic pminer, or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a person is (a) a pmiy 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.

(3) The judge knows that he or she, individually or as a fiduciary, or the judge's spouse, domestic partner, parent, or child, or any other member of the judge' s family residing in the judge's household, has an economic interest in the subject matter m controversy or is a pmiy to 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 comi personnel, that the judge should not be disqualified, the judge may pmiicipate in the proceeding.
The agreement shall be incorporated into the record of the proceeding.

Comment 2 to the Rule notes that "[a] judge's obligation not to hem 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 pa1iies 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 fo1mer 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 Comt 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 Comt held that in any criminal matter

JlC Advisory Opinion 2017-06
February 23, 2017
Page 3 of4

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 Cornt 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 impo1tant 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 infonnation 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 lmown 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 Cornt 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 Cornt 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 disqualified from handling cases in which your daughter has any involvement as an assistant prosecutor. However, you are not disqualified from cases involving the elected prosecutor or his assistants as long as your daughter has not done any work on the matter. The Commission is of the opinion that you should fully disclose the nature of the relationship in each and every case involving the remaining Logan County prosecutors and follow the tenets of West Virginia Trial Comt Rule 17 where applicable and when you are unable to secure a waiver on the record. This opinion is consistent with previous JIC Advisory Opinions. See JIC Advisory Opinion 2013-03 (circuit judge was disqualified from hearing cases involving his daughter and her fiance but only had to disclose the relationship in cases involving other members of the daughter's and fiance's

JI C Advisory Opinion 2017-06
February 23, 20 17
Page 4 of4

law firms); JIC Advisory Opinion 10/28/2011 (magistrate must disclose granddaughter's employment relationship with an attorney any time the lawyer appears in her court); JIC Advisory Opinion 7/19/2010 (magish·ate 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); and JIC Advisory Opinion 5/11/2009 (law finn's employment of judge's daughter does not result in per se disqualification but requires at a minimum disclosure of the relationship).

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.

~ Ronald E. Wilson Chairperson
Judicial Investigation Commission

REW: tat