Must a judge recuse after receiving a confidential federal investigation letter about a party in a pending case?

Plain-English summary

An ATF letter seeking court records alerted a family court judge to a confidential federal investigation of a party in a pending domestic violence matter. A hearing on extending an order was approaching.

The Commission treated the direct letter as an ex parte communication under Rule 2.9 because the investigation knowledge could be viewed as affecting the extension decision, even if that perception was incorrect. The confidential investigation could not be disclosed to the parties as the rule would require. The Commission therefore concluded that recusal from the underlying matter was the judge’s only remaining option.

In practice

The opinion requires recusal on these facts because the ex parte information could not be shared with the parties.

Common questions

Q: Was the ATF letter ex parte?

A: Yes. The Commission characterized the direct communication as ex parte.

Q: Why could the judge not simply notify the parties?

A: The opinion says the federal investigation was confidential, preventing disclosure of the communication.

Q: What did the Commission require?

A: Recusal from the underlying domestic violence matter.

Background and rules framework

Rule 2.9(A) restricts ex parte communications concerning pending matters. The quoted exception for administrative or emergency communications requires prompt notice and an opportunity to respond; the Commission said confidentiality prevented the needed disclosure here.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 2.9(A)(1)-(2), ex parte communications and court staff consultation.

See also

• WV JIC Advisory Opinion 2021-02
• WV JIC Advisory Opinion 2020-10

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2020-01, redacted

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

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JUDICIAL INVESTIGATION COMMISSION
City Center East - Suite 1200 A
4700 MacCorkle Ave. , SE
Charleston, West Virginia 25304
(304) 558-0169 • FAX (304) 558-0831

January 13, 2020

Re: JIC Advisory Opinion 2020-01.

Dear Judge

Your recent request for an advisory opinion was reviewed by the Judicial Investigation Commission. The factual scenario giving rise to your request is as follows:

You were a special judge on a domestic violence ("DY") case in a county located in another Family Court jurisdiction. You issued a year-long order against the boyfriend in the case and on behalf of the girlfriend. The order is set to expire in February 2020. Meanwhile, in December 2019, you learned that the federal Bureau of Alcohol, Tobacco and Fireanns ("ATF") is conducting a criminal investigation into the boyfriend.

ATF originally sent a letter to the Circuit Clerk asking for certain records - the petition, the order and the docketing sheet. The Clerk wouldn't tum anything over to ATF even though the order and the docketing sheet are public record. The Clerk told A TF to contact you so the agency wrote you a letter asking for the documents. You contacted the Administrative Office ("AO") of the Supreme Court of Appeals of West Virginia and the lawyers there told you to send the Order and the docketing sheet to ATF. You, in turn, contacted the Circuit Clerk and told her to send the information.

Now, a hearing has been set before you for early February in the underlying DV matter on a Motion to extend the order. You want to know if the ATF letter constitutes an ex parte communication and whether you have any duty to info1m the parties of its receipt. You are concerned about revealing the communication since it involves a federal criminal investigation. You also suspect although you do not know for sure that the investigation involves the possible improper possession of firearn1s by the boyfriend since he is prohibited from having any guns by virtue of the DV.

JIC Advisory Opinion 2020-0 I
January 13, 2020
Page 2 of3

To address your questions, the Commission has reviewed Rule 2.9 of the Code of Judicial Conduct which states in pertinent part:

(A) A judge shall not initiate, permit, or consider ex parte communications or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending or impending matter except as follows:

( 1) When circumstances require it, ex parte communications for scheduling, administrative, or emergency purposes, which does not address substantive matters, is pe1mitted, provided:

(a) The judge reasonably believes that no party will gain a procedural, substantive or tactical advantage as a result of the ex parte communication and

(b) The judge makes provision promptly to notify all other parties of the substance of the ex pat1e communication and gives the parties an oppo11unity to respond.

(2) A judge may consult with court staff and cou11 officials whose functions are to aid the judge in carrying out the judge's adjudicative responsibilities .
. . . provided the judge makes reasonable efforts to avoid receiving factual information that is not part of the record, and does not abrogate the responsibility personally to decide the matter.

Based upon the foregoing, the Commission finds that the c01mnunication is ex parte since the ATF sent the letter directly to you and you now know about the criminal investigation which could be viewed, however incorrect the public perception may be, as impacting on your decision on the Motion to Extend. As the federal criminal investigation is confidential and you therefore cannot advise the patties about the communication as required by Rule 2.9, your only remaining option is to recuse yourself from the underlying DV matter.

JIC Advisory Opinion 2020-0 1
January 13, 2020
Page 3 of 3

lt 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,

Alan D. Moats, Chairperson
Judicial Investigation Commission

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