Must a new family judge recuse from every case involving someone the judge previously prosecuted?

Plain-English summary

A new family judge had formerly prosecuted criminal cases and began seeing former defendants as parties in family court. The judge asked whether prior prosecution alone required recusal from every such case.

The Commission found no per se disqualification. It directed full disclosure of the former prosecutorial relationship in each case and use of Trial Court Rule 17 where applicable when a waiver could not be obtained on the record.

In practice

The opinion requires case-specific disclosure rather than automatic recusal for every former prosecution defendant.

Common questions

Q: Is every former defendant’s family case automatically assigned elsewhere?

A: No. The Commission rejected per se disqualification.

Q: What must the judge do in those cases?

A: Fully disclose the prior prosecution relationship and follow Trial Court Rule 17 where applicable.

Background and rules framework

Rule 2.11(A)(1), (5) addresses bias and prior service as lawyer or public official in the matter; Rule 2.11(C) addresses disclosure and waiver. The Commission applied these provisions with Brown and Tennant.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 2.11(A)(1), (5), (C) and Comments 2 and 5, prior legal work 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), case-specific 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 2017-13
• WV JIC Advisory Opinion 2017-12

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2017-08, 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

Februa1y 24, 2017

Re: JIC Advisory Opinion 2017-08

Dear

Your request for an advis01y opinion was recently reviewed by the Judicial Investigation Commission. The factual scenario giving rise to your request is as follows: From November 1, 2012, through December 30, 2016, you served as an assistant prosecutor in
County. During that time, you handled all magistrate court cases and felony prelimina1y hearings. You also prosecuted some felony cases in circuit court. You did not work on any abuse and neglect cases or juvenile matters. You took over your current position on January 1, 2017, after having won the May 2016 election for Family Court Judge. Since taking the bench, you have had several cases involving individuals who you previously prosecuted. You want to know if you should disqualify yourself from presiding over any cases involving any individual who you previously prosecuted.

To address your question, the Commission has reviewed Rules 2.ll(A)(l), 2.1 l(A)(S) and 2.1 l(C) of the West Virginia Code of Judicial Conduct which provide in pe1tinent 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 party or a party's lawyer, or personal knowledge of facts that are in dispute in the proceeding....

(5) The judge: (a) served as a lawyer in the matter in controversy, or was associated with a lawyer who pa1ticipated substantially as a lawyer in the matter during such association; (b) served in governmental employment, and in such capacity participated

JIC Advisory Opinion 2017-08
February 24, 2017
Page 2 of3

personally and substantially as a lawyer or public official concerning the proceeding, or has publicly expressed in such capacity an opinion concerning the merits of the particular matter in controversy; (c) was a material witness concerning the matter; or (d) previously presided as a judge over the matter in another comt.

(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.

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 cou1t 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 Cou1t 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. Marfon 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 impa1tiality might reasonably be questioned. The Comt 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 commentaiy 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

JIC Advisory Opinion 2017-08
February 24, 2017
Page 3 of3

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 110 valid reason for recusal. In so doing, the Court set fo1th 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 hypersens itive, cynical and suspicious person.

Based upon the foregoing, it is the decision of the Commission that you are not per se disqualified from handling all cases involving individuals who you may have previously prosecuted as an assistant prosecutor. The Commission is of the opinion that you should fully disclose the nature of the relationship in each and eve1y case involving such individuals and follow the tenets of West Virginia Trial Court Rule 17 where applicable and when you are unable to secure a waiver 011 the record.

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

REW: tat