Must a judge step aside from a grand jury matter because a parent was a business partner of one person 26 years earlier?

Plain-English summary

A judge asked whether to preside over a grand jury while two county employees were in a dispute and one sought to present a case against the other. The prosecutor had recused because he represented the county commission. One of the judge’s parents had once been a business partner of a person involved, but that partnership ended more than 26 years earlier.

The Commission reviewed Rule 2.11 on disqualification, including its test of whether impartiality might reasonably be questioned and its comments on disclosure. It discussed Brown and Tennant on the scope of disqualification and the objective standard for recusal. On the facts presented, it concluded that the judge was neither disqualified from handling the matter nor required to disclose the relationships.

In practice

The conclusion addresses the stated grand jury matter, the prosecutor’s recusal and the decades-old parental business tie. The Commission found no disclosure obligation for those relationships.

Common questions

Q: Did the former partnership require the judge to leave the grand jury matter?

A: No. The Commission said the judge was not disqualified from handling the matter.

Q: Did the judge need to disclose the relationships?

A: No. The opinion expressly says disclosure was not required on these facts.

Background and rules framework

Rule 2.11(A) addresses proceedings in which a judge’s impartiality might reasonably be questioned; its comments address disclosure even when the judge sees no basis for disqualification. The opinion applies those provisions and discusses Brown and Tennant.

Citations and references

West Virginia Code of Judicial Conduct:

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

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 standard and disclosure.

See also

• WV JIC Advisory Opinion 2023-05
• WV JIC Advisory Opinion 2023-06

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2023-04, redacted

Original opinion text

Reproduced from the official redacted PDF for research purposes. The linked PDF is authoritative.

JUDICIAL INVESTIGATION COMMISSION
WV Judicial Tower - Suite 700 A
4700 MacCorkle Ave., SE
Charleston, West Virginia 25304
(304) 558-0169

January 27, 2023

Re: JIC Advisory Opinion 2023-04

Dear Judge :

Your request for an advisory opinion to Counsel was recently reviewed by the Judicial Investigation Commission. Two county employees – a director and a facilitator – appear to be involved in a dispute. One wants to present a case against the other before the grand jury. The prosecutor recently recused himself from the case because he represents the county commission. Additionally, one of your parents was a former business partner with one of the individuals but the partnership ended more than 26 years ago. You want to know if you are disqualified from presiding over the grand jury while the case is being presented to them.

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

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

JIC Advisory Opinion 2023-04
January 27, 2023
Page 2 of 3

knowledge of facts that are in dispute in the proceeding....

(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 JIC 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 Rule 2.11 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."

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.

JIC Advisory Opinion 2023-04
January 27, 2023
Page 3 of 3

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 you are not disqualified from handling the matter nor do you need to disclose the relationships. 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