Must a judge recuse from a city stormwater-fee case after serving as a city official and while residing in the city?

Plain-English summary

A circuit judge was assigned a dispute over a city’s stormwater fee and its reach beyond city residents. The judge had previously served as a city council member and municipal judge, and still lived in the city. The case’s outcome could affect the judge’s own assessment.

The Commission reviewed Rule 2.11 and discussed Brown and Tennant. It found the former municipal service did not disqualify the judge or need disclosure. Residence did not create automatic disqualification, but the judge should disclose it and let parties object; if any party objected, the opinion directed the judge to follow Trial Court Rule 17.01 et seq.

In practice

The opinion treats completed city service and current residence separately. It directs disclosure and a chance to object for the residence connection.

Common questions

Q: Did past city council and municipal-judge service require recusal?

A: No. The Commission found no disqualification or disclosure duty from that prior service.

Q: What did the judge have to do about current city residence?

A: Disclose it to the parties, allow objections and follow Trial Court Rule 17.01 et seq. if a party objected.

Background and rules framework

Rule 2.11 addresses disqualification where impartiality might reasonably be questioned. The opinion applies the objective standard in Brown and Tennant and identifies the objection procedure in Trial Court Rule 17.01 et seq.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 2.11(A), (C) and Comments 2 and 5, disqualification and disclosure.

Other rule cited:

• Trial Court Rule 17.01 et seq., procedure if a party objects.

Cases cited:

• State ex rel. Brown v. Dietrick, 191 W. Va. 169, 444 S.E.2d 47 (1994), scope of automatic disqualification.
• 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 2022-28
• WV JIC Advisory Opinion 2023-04

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2022-17, 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

July 8, 2022

Re: JIC Advisory Opinion 2022-17
Dear Judge

Your request for an advisory opinion to Counsel was recently reviewed by the Judicial Investigation Commission. The factual scenario giving rise to your request is as follows: In March 2019, you were appointed to the bench by West Virginia Governor Jim Justice. You have served continuously as a circuit court judge since that time. You are a long-time resident of the City of . Prior to taking office you served as a city councilman for four years and the municipal Judge for approximately 25 years.

Recently, the County Commission has filed suit against the City of ‘involving the City’s attempt to assess a “stormwater” fee on all residents of County to combat increased stormwater improvement costs. The County contends that the City does not have the authority to assess fees to residents outside of the City and the City argues it has authority over all residents within the watershed boundaries current guidelines and regulations. At the present time there have been no proceedings and none have been scheduled. The case has been assigned to your docket. As a City of ‘resident, you believe the outcome of the case may possibly result in some form of an increase to your stormwater assessment depending on whether the City can spread the “need” only among city residents or if they spread the “need” over the increased population of the county.

You want to know if either your residency or your prior service to the City disqualifies you from presiding over the case. To address your question, the Commission has reviewed Rule 2.11 of the Code of Judicial Conduct which states: JIC Advisory Opinion 2022-17 July 8, 2022 Page 2 of 4

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....

(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 particular matter in controversy. . .

(C) A judge subject to disqualification under this Rule, other than for bias or prejudice under paragraph (A)(1), 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.” JIC Advisory Opinion 2022-17 July 8, 2022 Page 3 of 4

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 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.

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(1) 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 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 your prior service as a municipal judge and a city councilman does not preclude you from presiding over the case nor do you have to disclose such service to the parties in question. On the other hand, while your residency does not require a per se disqualification, you should JIC Advisory Opinion 2022-17 July 7, 2022 Page 4 of 4

disclose the matter to the parties and give them an opportunity to object to your presiding over the same. If any party objects you should follow West Virginia Trial Court Rule

17.01 et seq.

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

ADM/tat