Must a newly elected judge recuse from every juvenile case pending while the judge was county prosecutor?

Plain-English summary

A sitting judge asked about a prosecutor elected to the other seat in a two-judge circuit. The judge-elect had assigned civil abuse and neglect, juvenile delinquency and status-offender cases to assistants, with only occasional fill-in court appearances. The question was whether assuming the bench would disqualify the former prosecutor from every such pending case.

The Commission applied Code of Judicial Conduct Rule 2.11 and its earlier Opinions 2014-10 and 2016-20. It said the former prosecutor need not disqualify from every civil abuse and neglect case pending at the transition, but should disqualify from any case with any level of personal participation and from an abuse and neglect matter with a corresponding criminal case. In the other pending abuse and neglect matters, the judge should disclose former employment and disqualify if there is an objection. The Commission applied the same approach to juvenile delinquency and status-offender cases.

In practice

The opinion turns on the judge-elect's actual participation as prosecutor and disclosure of that former role. Its conclusion covers civil abuse and neglect, juvenile delinquency and status-offender matters that were pending when the judge took office.

Common questions

Q: Does former supervision of assistant prosecutors require recusal from every pending case?

A: The Commission's adopted guidance says no blanket disqualification is required where the judge had no actual involvement in most matters.

Q: What if the former prosecutor participated in a case?

A: The adopted guidance calls for disqualification if the judge had any level of participation.

Q: What should happen in the remaining pending cases?

A: The opinion calls for disclosure of the judge's former prosecutorial employment and disqualification if someone objects.

Background and rules framework

The opinion quotes West Virginia Code of Judicial Conduct Rule 2.11(A) on disqualification for questioned impartiality and prior substantial government participation, and Rule 2.11(C) on disclosure and waiver. It discusses Dietrick and Tennant and expressly carries forward JIC Opinions 2014-10 and 2016-20.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 2.11(A) and (C), impartiality, prior government work and disclosure.

Cases:

• State ex rel. Brown v. Dietrick, 191 W. Va. 169, 444 S.E.2d 47 (1994), relationship-based disqualification.
• Tennant v. Marion Health Care Foundation, 194 W. Va. 97, 459 S.E.2d 374 (1995), objective recusal and disclosure.

Other opinions cited:

• JIC Advisory Opinions 2014-10 and 2016-20, recusal by a former prosecutor in pending abuse and neglect cases.

See also

• WV JIC Op. 2025-06: Hiring defender clerk
• WV JIC Op. 2025-10: Relative at prosecutor's office

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2024-23, 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

December 2, 2024

Re: JIC Advisory Opinion 2024-23

Dear
:

Your request for an advisory opinion was recently reviewed by the Commission and the facts giving rise to it are as follows:

You are a judge in a two-judge circuit. The prosecuting attorney of a county in your circuit was elected judge and takes office on January 1, 2025. According to you for the past several years, the judge-elect has assigned the handling of all civil abuse and neglect, juvenile delinquency and status offender cases to designated assistant prosecuting attorneys. You stated that “[e]xcept for an occasional court appearance in such matters where necessary to fill in for the designated assistant prosecuting attorneys due to their illness, vacation or other absence from work, [the judge-elect] has not been involved in these matters.” You want to know if the judge-elect will be disqualified from handling all such cases when he/she assumes the bench.

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

(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 2024-23
December 2, 2024
Page 2 of 4

(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.”

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 JIC Advisory Opinion 2024-23 December 2, 2024 Page 3 of 4

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.

In JIC Advisory Opinion 2014-10 wherein we were asked the same question concerning just abuse and neglect matters, we stated:

[T]he Commission is of the opinion that [the judge] does not have to disqualify [himself/herself] from presiding over every civil abuse and neglect proceeding that was pending at the time [he/she] became judge since [he] she had no actual involvement in the majority of those matters.
However, [the] judge should disqualify [himself/herself] from any case in which [he/she] had any level of participation. [The judge] should also disqualify [himself/herself] from any abuse and neglect matter in which there is a corresponding criminal case. [The judge] should disclose JIC Advisory Opinion 2024-23
December 2, 2024
Page 4 of 4

[his/her] prior employment in all other abuse and neglect matters pending at the time [he/she] became judge; and if there is an objection . . . [the judge should then disqualify [himself/herself}.

We again reiterated this same position in JIC Advisory Opinion 2016-20.

The Commission sees no reason to deviate from this decision in the instant matter with respect to civil abuse and neglect matters. The Commission also finds that the judge- elect should also follow the same tenets in juvenile delinquency and status offense cases. 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