What must a judge disclose when oil and gas cases may affect the judge’s holdings?

Plain-English summary

A circuit judge and spouse owned land and the judge served as trustee of a local educational trust funded partly by oil and gas royalties. After a disqualification motion in a royalties case, the judge asked how to handle future oil and gas cases.

The Commission interpreted Rule 2.11 and cited State ex rel. Brown v. Dietrick and Tennant v. Marion Health Care Foundation. It said these matters require a case-by-case assessment. The judge should disclose oil and gas interests in all future oil and gas cases and follow Trial Court Rule 17.01 et seq. when applicable. The opinion says disqualification is unlikely if the judge is not doing business with the parties or the case cannot affect the holdings, but the Chief Justice has the ultimate say.

In practice

The opinion calls for disclosure in every future oil and gas case and a case-specific disqualification determination under the identified rules.

Common questions

Q: Is the judge automatically disqualified from all future oil and gas cases?

A: The Commission called for case-by-case review, disclosure of the judge’s interests and applicable Trial Court Rule 17.01 procedures.

Q: Who makes the final disqualification decision?

A: The opinion says the Chief Justice has the ultimate say.

Background and rules framework

Rule 2.11 addresses proceedings in which a judge’s impartiality might reasonably be questioned, including specified interests of the judge and family. The opinion also discusses disclosure and possible waiver under Rule 2.11(C), and directs use of Trial Court Rule 17.01 et seq. when applicable.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 2.11(A), (C) and Comments 2 and 5, disqualification 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), a magistrate’s relationship to a police chief.
• Tennant v. Marion Health Care Foundation, 194 W. Va. 97, 459 S.E.2d 374 (1995), objective recusal standard and disclosure.

See also

• WV JIC Advisory Opinion 2022-28
• WV JIC Advisory Opinion 2023-19

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2021-12, 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

April 12, 2021

Re: JIC Advisory Opinion 2021-12

Dear Judge

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

On January 15, 2021,
filed a motion to disqualify you in a civil case
involving royalties paid by the gas company to property owners who lease their mineral rights to the company. The basis of the motion was that you and your wife own hundreds of acres land in counties within and surrounding the Circuit in which you preside. You are also a trustee of a non-profit local educational trust and the organization's funding is based in part on the revenue it receives from oil and gas royalties. The company stated that some of the royalties you or the trust received come from . You declined to disqualify yourself saying that you never received any such royalties. The matter went to the Chief Justice who ultimately ruled you disqualified from presiding over any cases. In light of the Court's ruling, you want to know what action you should take in future oil and gas related cases that may come before you.

To address your questions, the Commission has reviewed Rule 2.11 of the Code of Judicial Conduct which provides:

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: ...

JIC Advisory Opinion 202 1- 12
April 27, 2021
Page 2 of4

(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 paitner, 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 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 in the subject matter in controversy or is a party 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 pmties 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 info1mation 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."

JIC Advisory Opinion 2021-12
April 27, 2021
Page 3 of4

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 couti 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.

In 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 commentary to former Canon 3E(l) which states that a judge should timely disclose on the record infom1ation 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 Comi 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, thoughtful and objective observer rather than the hypersensitive, cynical and suspicious person.

Based upon the foregoing, the Commission is of the opinion that these matters must be considered on a case by case basis. Therefore, you should disclose your oil and gas interests in all future oil and gas cases and follow Trial Court Rule 17.01 et seq. whenever applicable. If you are not doing business with any of the parties to the proceeding or the matter in controversy would not impact in any way with your oil and

JIC Advisory Opinion 2021-12
April 27, 2021
Page 4 of 4

gas holdings then it is unlikely that you will be disqualified. However, the Chief Justice has the ultimate say.

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,

a~a
Alan D. Moats, Chairperson
Judicial Investigation Commission

ADM/tat