Judicial Disqualification Resource Center

West Virginia

Judicial Disqualification & Recusal in West Virginia

black bearWest Virginia law on this subject is controlled by Canon 3(E) of the state’s Code of Judicial Conduct, the provisions of which are implemented through a series of court rules, Trial Court Rule 17.01 et seq. In West Virginia, disqualification questions are matters of discretion reposed solely in the discretion of the presiding judge and the Chief Justice of the Supreme Court of Appeals.

The United States Supreme Court’s most recent case dealing with questions of judicial recusal and disqualification is Caperton v. A. T. Massey Coal Co., 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (2009), which arose when Justice Benjamin of the West Virginia Supreme Court of Appeals declined to recuse himself from hearing the case despite the fact that a person closely affiliated with one of the parties had recently denoted a significant sum to Justice Benjamin’s election campaing. See Caperton, supra at 2263-2265 (“absent recusal, Justice Benjamin would review a judgment that cost his biggest donor’s company $50 million. Although there is no allegation of a quid pro quo agreement, the fact remains that Blankenship’s extraordinary contributions were made at a time when he had a vested stake in the outcome. Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when – without the consent of the other parties – a man chooses the judge in his own cause. And applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required” recusal).

References:

1. Many reports and articles have been devoted to a discussion of the facts of the Caperton case. For a West Virginia Record article discussing the progress of that case click here

2. For Opinions of the West Virginia Judicial Investigation Committee on the subject of judicial disqualification click here

3. For a 2009 example of a motion to disqualify a West Virginia Circuit Court judge (and lengthy attachments) click here

4. For an overview of recusal and disqualification law in West Virginia which is updated annually see Flamm, R., Judicial Disqualification: Recusal and Disqualification of Judges, § 28.50 (“West Virginia”). To review the amicus brief that was filed in the Caperton case on behalf of state Supreme Court Justices can be viewed here , citing R. Flamm, Judicial Disqualification. For an article discussing “Judicial Disqualification in America” which focuses on the Caperton case click here, citing R. Flamm, Judicial Disqualification. To locate West Virginia libraries that have the current edition of Judicial Disqualification click here