May a judge hear city cases when the judge's child is the mayor?
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This page answers the general question as of 2025. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
A judge whose child had become mayor of a municipality in the judge's circuit asked about cases naming the city and crimes primarily investigated by the municipality. The Commission applied Code of Judicial Conduct Rule 2.11 and discussed Dietrick and Tennant on relationships and impartiality.
The opinion says the judge should disqualify from any proceeding in which the city is a named party. If the municipality primarily investigated the charged crime, the judge should disclose the parent-child relationship and follow Trial Court Rule 17 wherever possible. For municipal appeals, the judge should disqualify if the mayor presided below; in other municipal appeals the judge should disclose and follow Rule 17 when appropriate.
In practice
The opinion gives different directions for city-party cases, city-investigated criminal cases and municipal appeals. Whether the mayor presided over the case below determines its separate municipal-appeal direction.
Common questions
Q: May the judge hear a case naming the city as a party?
A: The Commission says the judge should disqualify from any such case.
Q: What if the municipality primarily investigated the charged crime?
A: The opinion calls for disclosure of the relationship and following Trial Court Rule 17 wherever possible.
Q: May the judge hear an appeal from a municipal case over which the mayor-child presided?
A: The opinion calls for disqualification if the mayor presided below. For other municipal appeals, it calls for disclosure and Rule 17 when appropriate.
Background and rules framework
The opinion quotes West Virginia Code of Judicial Conduct Rule 2.11(A) on circumstances requiring disqualification and Rule 2.11(C) on disclosure and possible waiver. It cites State ex rel. Brown v. Dietrick and Tennant v. Marion Health Care Foundation in discussing an objective assessment of impartiality and disclosure.
Citations and references
West Virginia Code of Judicial Conduct and court rules:
- Code of Judicial Conduct Rule 2.11(A) and (C), disqualification and disclosure.
- Trial Court Rule 17, cited for the described disclosure procedures.
Cases:
- State ex rel. Brown v. Dietrick, 191 W. Va. 169, 444 S.E.2d 47 (1994), family relationship and disqualification.
- Tennant v. Marion Health Care Foundation, 194 W. Va. 97, 459 S.E.2d 374 (1995), objective recusal and disclosure.
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2025-01, 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 13, 2025
Re: JIC Advisory Opinion 2025-01
Dear :
Your request for an advisory opinion was recently reviewed by the Commission. Your child was recently elected mayor of a municipality within your Circuit. You want to know if you can preside over cases where the city is a named party. You also want to know if you can preside over cases where the municipality “primarily investigates” the crime charged. To address your questions, the Commission has reviewed Rule 2.11 of the Code of Judicial Conduct which states in pertinent 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: . . .
(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 partner, 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; . . . [or] (c) a person who has more than a de minimis interest that could be substantially affected by the proceeding. . . .
JIC Advisory Opinion 2025-01
January 13, 2025
Page 2 of 3
...
(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.”
The Code defines “de minimis” as “in the context of interests pertaining to disqualification of a judge means an insignificant interest that could not raise a reasonable question regarding the judge’s impartiality.” “Third degree of relationship” includes . . . child. . .
.”
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 JIC Advisory Opinion 2025-01 January 13, 2025 Page 3 of 3
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 you should disqualify yourself from any case where the city is named as a party to a proceeding. Where the municipality “primarily investigates” the crime charged, you should disclose the relationship and follow Trial Court Rule 17 wherever possible. With respect to municipal appeals, you should disqualify if the mayor presided over the case below and disclose in all other matters and again follow Trial Court Rule 17 when 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
ADM/tat
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