What must a judge disclose in cases involving a school where the judge's spouse teaches?

Plain-English summary

A judge whose spouse taught at a local middle school asked about cases involving that school when the spouse was only tangentially involved or uninvolved. The judge presided over cases involving students across the county and recognized a direct involvement or witness role by the spouse as a disqualification issue.

The Commission applied Code of Judicial Conduct Rule 2.11 and discussed Dietrick and Tennant on relationships, objective impartiality and disclosure. It concluded that the judge should disclose the relationship in any matter involving the school, whether or not the spouse participates. If anyone objects, the judge should follow Trial Court Rule 17. The disqualification decision should be made case by case under the totality of the circumstances.

In practice

The opinion's disclosure direction covers all matters involving the school, including those in which the teacher spouse has no role. It leaves the ultimate disqualification decision to the facts of each matter.

Common questions

Q: Is disclosure needed if the spouse is not involved in the school matter?

A: Yes. The Commission calls for disclosure of the relationship in any school matter, whether or not the spouse is involved.

Q: Does the spouse's school employment alone disqualify the judge from every school matter?

A: The opinion says the disqualification decision should be made case by case, considering the totality of the circumstances.

Q: What if someone objects to the judge presiding?

A: The Commission directs the judge to follow Trial Court Rule 17.

Background and rules framework

The opinion quotes West Virginia Code of Judicial Conduct Rule 2.11(A) on disqualification when impartiality might reasonably be questioned and Rule 2.11(C) on disclosure and possible waiver. It discusses State ex rel. Brown v. Dietrick and Tennant v. Marion Health Care Foundation on relationship-based recusal and relevant disclosure.

Citations and references

West Virginia Code of Judicial Conduct and court rules:

• Code of Judicial Conduct Rule 2.11(A) and (C), disqualification, disclosure and waiver.
• Trial Court Rule 17, cited for objections.

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.

See also

• WV JIC Op. 2025-10: Relative at prosecutor's office
• WV JIC Op. 2026-03: Spouse as mediator

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2025-04, 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

March 3, 2025

Re: JIC Advisory Opinion 2025-04

Dear
:

Your request for an advisory opinion was recently reviewed by the Commission. Your spouse is a teacher at the local middle school. Four teachers rotate the same team of students for their core subjects. Your spouse and his/her colleagues teach the orange team. In your capacity, you preside over cases involving all students in the county. You acknowledge that where your spouse is directly involved in or a witness to a matter you would be automatically disqualified from presiding over any case resulting therefrom. You want to know whether you would be disqualified from any matters involving the school where your spouse is either tangentially or not at all involved.

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; . . . (c) a person who has more than a de minimis interested that could be JIC Advisory Opinion 2025-04
March 3, 2025
Page 2 of 3

substantially affected by the proceeding; or (d) likely to be a material witness 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 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 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. JIC Advisory Opinion 2025-04 March 3, 2025 Page 3 of 3

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 disclose the nature of the relationship with your spouse in any matter involving the school whether or not the spouse is involved. If anyone objects you should follow Trial Court Rule 17. The decision of whether to disqualify yourself should be made on a case by case basis given the totality of the circumstances.

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