Must a judge recuse when a stepdaughter working at a child advocacy center is involved in a case?

Plain-English summary

A circuit judge’s stepdaughter conducted forensic interviews for a child advocacy center and could be a witness in abuse and neglect cases. The judge asked whether cases involving her could be heard.

The Commission applied Rule 2.11(A)(2), which includes a family member within the third degree who is likely to be a material witness. It concluded that the judge is disqualified from any matter involving the stepdaughter. In other cases involving the center, the judge must disclose the family relationship on the record under Rule 2.11(C) and follow Trial Court Rule 17.01 et seq. where appropriate.

In practice

The opinion differentiates matters involving the stepdaughter, which require recusal, from other center matters, which require on-record disclosure and applicable disqualification procedures.

Common questions

Q: May the judge hear a matter involving the stepdaughter?

A: No. The Commission described the judge as disqualified from any such matter.

Q: What about other cases involving the child advocacy center?

A: The judge must disclose the relationship on the record and follow Trial Court Rule 17.01 et seq. where appropriate.

Background and rules framework

Rule 2.11(A)(2)(d) addresses a judge’s family member likely to be a material witness, and the opinion states that stepchildren fall within the third degree. Rule 2.11(C) addresses disclosure; the Commission also directs applicable Trial Court Rule 17.01 procedures.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 2.11(A)(2)(d), (C) and Comments 2 and 5, family witness and disclosure.

Court rules:

• Trial Court Rule 17.01 et seq., 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 2021-12
• WV JIC Advisory Opinion 2021-08

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2020-27, 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

November 16, 2020

Re: JIC Advisory Opinion 2020-27

Dear Judge

Your recent request for an advisory op1mon was reviewed by the Judicial Investigation Commission. The factual scenario giving rise to your request is as follows:

Your stepdaughter works for the local child advocacy center ("CAC") conducting forens ic interviews. She is a potential witness in a large volume of abuse and neglect cases. As a circuit judge, one of your duties is to preside over abuse and neglect cases in your jmisdiction. You want to know if you are disqualified from handling any cases that involve your stepdaughter.

To address your question the Commission has reviewed Rule 2. 11 (A)(2) of the Code of Judicial Conduct which states

(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 fo llowing circumstances:

(2) The judge knows that the judge, the judge's spouse or domestic partner, or a person within the third degree of relationship to either of them or the spouse or domestic partner of such person is: ...
(d) likely to be a material witness in the proceeding.

Third degree of relationship includes children or stepchildren.

JIC Advisory Opinion 2020-27
November 16, 2020
Page 2 of3

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 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 cmTent or former relationship causes a reasonable questioning of a judge's impatiiality. In State ex rel. Brown v. Dietrick, 191 W. Va. 169, 444 S.E.2d 47 (1994), the Coutt 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.

[n 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 c01mnentary 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

ITC Advisory Opinion 2020-27
November 16, 2020
Page 3 of3

well-informed, thoughtful and objective observer rather than the hypersensitive, cynical and suspicious person.

Based upon the foregoing, the Commission is of the opinion that you are per se disqualified from any matter involving your stepdaughter. The Commission also believes that you must disclose the nature of your relationship with your stepdaughter in all other cases involving the CAC on the record pursuant to Rule 2.11 (C) of the Code and follow T1ial Court Rule 17.01 , et seq. wherever appropriate.

The Commission hopes that this opinion fully addresses the issues which you have raised. Please do not hesitate to contact the Commission should you have any questions, comments or concerns.

Sincerely,

Alan D. Moats, Chairperson
Judicial Investigation Commission

ADMJtat