Must a family judge recuse from future matters when another judge’s assistant is related to and a witness for a party?

Plain-English summary

A family court judge had twice sought release from a post-divorce case after another judge’s assistant was identified as a relative, landlady and later witness for one party. The Chief Justice declined both requests. A family member’s later Facebook posts also prompted a police report.

The Commission concluded that the judge was not disqualified from future matters on those facts. It directed full disclosure of the relationship with the parties and compliance with Rule 58 of the Rules of Practice and Procedure for Family Court and Trial Court Rule 17 where applicable.

In practice

The opinion calls for disclosure and the identified procedures in any future proceedings, while finding no current disqualification on the stated facts.

Common questions

Q: Did the Commission require recusal from future matters?

A: No. It concluded that the judge was not disqualified on the described facts.

Q: What procedures did the Commission identify?

A: The opinion called for full disclosure and Rule 58 of the Family Court rules and Trial Court Rule 17 where applicable.

Background and rules framework

Rules 1.2 and 2.11 address public confidence, impartiality and disclosure. The Commission also cited Brown and Tennant on relationship-based and objective recusal and directed use of family and trial court procedures.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 1.2 and Comment 5, appearance of impropriety.
• Rule 2.11(A), (C) and Comments 2 and 5, disqualification and disclosure.

Court rules:

• Rule 58 of the Rules of Practice and Procedure for Family Court.
• Trial Court Rule 17, applicable disqualification procedure.

Cases:

• State ex rel. Brown v. Dietrick, 191 W. Va. 169, 444 S.E.2d 47 (1994), relationship-based 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 2020-22
• WV JIC Advisory Opinion 2020-24

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2020-10, 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

March 13, 2020

Re: JIC Advisory Opinion 2020-10.

Dear Judge

Your recent request for an advisory op1ruon was reviewed by the Judicial Investigation Commission. The factual scenario giving rise to the request is as follows:

You have an ongoing post-divorce case involving ex-husband, ex-wife and children. You have twice unsuccessfully asked the Chief Justice of the Supreme Court of Appeals of West Virginia to let you out of the case. The basis for the first request was that another family Court judge's assistant in your circuit is related to the ex-wife. Based upon your understanding the assistant and the ex-wife's mother are first cousins - which makes the secretary and the wife either first cousins once removed or second cousins. The assistant also very recently became the ex-wife's landlady. The second request came when the ex-wife listed the assistant as a witness in a hearing.

There are no current matters pending before you at this time although there may be some coming. After the last hearing, another family member of the wife posted some stuff on Facebook that you believed was derogatory and threatening. You contacted the State Police and asked them to investigate.

You now want to know if you should recuse yourself from any further proceedings involving the family. To address your question, the Commission has reviewed Rules 1.2 and 2.11 of the Code of Judicial Conduct which provide:

JIC Advisory Opinion 2020-10
March 13, 2020
Page 2 of5

Rule 1.2 - Confidence in the Judiciary

A judge shall shall avoid impropriety and the appearance of impropriety.

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:

(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.
(2) The judge knows that the judge, the judge's spouse or domestic pa1tner, 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 party to the proceeding, or an officer, director, general paitner, 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 paitner, 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 in controversy or is a party to the proceeding.
(4) The judge, while a judge or a judicial candidate, has made a public statement, other than in a court proceeding, judicial decision or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.
(5) The judge: (a) served as a lawyer in the matter in controversy, or was associated with a lawyer who participated substantially as a lawyer in the matter during such association; (b) served in governmental employment, and in such capacity participated 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 paiticular matter in

JIC Advisory Opinion 2020-10
March 13, 2020
Page 3 of 5

controversy; (C) was a matetial witness concerning the matter; or (d) previously presided as a judge over the matter in another court.

(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 theiJ 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.

(emphasis added).

Thus, pursuant to Rule 2.11 (C), the only time a judicial officer should voluntarily disqualify himself or herself is when the judge has an actual or perceived personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of facts that are in dispute in the proceeding. Comment 5 to Rule 1.2 notes:

Actual improptieties include violations of law, court rules or provisions of this Code. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge's honesty, impartiality, temperament, or fitness to serve as a judge.

Meanwhile, Comment 2 to Rule 2.11 states 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 provides that "[a] judge should disclose on the record infonnation 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 cunent or fonner 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 cotTect in holding that a search wanant 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 Cou11 declined to extend a per se rule to other members of the police force. The fact that

JIC Advisory Opinion 2020-10
March 13, 2020
Page 4 of 5

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 waITant sought by another member of the police force.

Tennant v. Marion Health Care Foundation, 194 W. Va. 97, 459 S.E.2d 374 ( 1995) is also instructive. In Tennant, plaintiff brought a medical malpractice suit against defendant doctors and hospital. In January 1994, the medical malpractice case went to trial. Following the presentation of evidence, the jury found in favor of the defendant. Meanwhile, in March 1993, the law finn representing defendant was retained by the liability carrier for the state to defend the Judge and others in a civil rights claim in federal court. In February 1994, summary judgment was granted in the federal case. When the judge received a copy of the federal order, he realized he had a potential conflict and immediately disclosed the nature of the relationship with defense counsel to the parties in the medical malpractice action. The Chief Justice of the Supreme Court of Appeals of West Virginia permitted the judge to recuse himself in the ma!practice action and appointed another judge to hear post-trial motions. Following entry of the judgment order, plaintiff filed a motion to set aside the verdict or grant a new trial on the basis that he was prejudiced by the Judge's relationship with defense counsel in the civil rights case. The new judge in the medical malpractice action granted a new trial based on the appearance of impropriety. The defendant appealed the ruling to the Supreme Court which reversed the decision of the trial court.

The Court held that a judge should disqualify himself/herself from any proceeding in which his/her impartiality might reasonably be questioned. T he 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 itself and that the judge should take appropriate action to withdraw from a case in which the judge deems himself/herself biased or prejudiced. Tennant cited the commentary to Canon 3E(l) which states that a judge should timely disclose on the record infonnation which he/she believes the patties 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 there 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 Cou1t 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,

.TIC Advisory Opinion 2020-10
March 13, 2020
Page 5 of 5

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 any future matters. However, the C01mnission is of the opinion that you should fully disclose the nature of the relationship with the parties and fo llow the tenets of Rule 58 of the Rules of Practice and Procedure for Family Comt and West Virginia Trial Court Rule 17 where applicable.

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,

t/~~'fa-
Alan D. Moats, Chairperson
Judicial fnvestigation Co1mnission

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