Procedure for Handling Complaints
Complaints filed with the Commission are referred to counsel, who initially reviews each complaint and either refers the matter to an investigator for examination, asks the respondent judge for a response, or sends it directly to the members of the Commission for study prior to consideration at the next meeting. Those complaints which are referred directly to the Commission for consideration may be dismissed for lack of probable cause, ordered sent to the respondent judge for a reply or referred to an investigator.
Prior to any finding of probable cause by the Commission, a respondent judge shall be notified in writing of the nature of the complaint. The judge has ten (10) days after the date of the notice to file a written response to the complaint. All decisions on whether probable cause exists to refer the complaint to the Judicial Hearing Board are made by the Commission at meetings with a majority of the members in attendance. Likewise, all decisions on complaint dismissals are made by the Commission at meetings with a majority of the members in attendance. Parties are contacted about the action of the Commission after a decision has been made on a complaint.
Some complaints contain more than one allegation against a judge, and the Commission may dismiss part of a complaint and find probable cause on part of a complaint.
The Rules of Judicial Disciplinary Procedure include a provision that all information provided, documents filed or testimony given with respect to any investigation or proceeding under the Rules of Judicial Disciplinary Procedure shall be privileged in any action for defamation. All members of the Commission, the Judicial Committee on Assistance and Intervention, the Office of Disciplinary Counsel, and their employees, shall be absolutely immune from civil suit in the same manner as members of the judiciary in this State for any conduct in the course of their official duties.
All proceedings of the Commission are confidential except that when a complaint has been filed or an investigation has been initiated, the Office of Disciplinary Counsel may release information confirming or denying the existence of a complaint or investigation, explaining the procedural aspects of the complaint or investigation, or defending the right of the judge to a fair hearing. Prior to the release of information confirming or denying the existence of a complaint or investigation, reasonable notice shall be provided to the judge.
When there has been a determination by the Commission that probable cause does exist and that formal discipline is appropriate, the Commission files a formal charge with the Clerk of the Supreme Court of Appeals to be heard by the West Virginia Judicial Hearing Board. After the formal charges are filed and served, all documents filed with the Clerk of the Supreme Court and the Judicial Hearing Board are available to the public.
When a determination has been made that probable cause exists but that formal discipline is not appropriate under the circumstances, the Commission shall issue a written admonishment to the judge who has 14 days after receiving it to object. The written admonishment is available to the public. If an objection to the written admonishment is filed timely, the Commission shall file a formal charge with the Clerk of the Supreme Court of Appeals. Admonishment shall not be administered if: (1) the misconduct involved the misappropriation of funds; (2) the misconduct resulted or will likely result in substantial prejudice to a litigant or other person; (3) the respondent has been disciplined in the last three years; (4) the misconduct is of the same nature as misconduct for which the respondent has been disciplined in the last five years; (5) the misconduct involved dishonesty, deceit, fraud, or misrepresentation by the respondent; (6) the misconduct constituted a crime that adversely reflects on the respondent's honestly, trustworthiness, or fitness as a judge; or (7) the misconduct was part of a pattern of similar misconduct.
A judge or the Administrative Director of the Courts may, by written request to the Commission, seek an advisory opinion as to whether certain specific actions contemplated may constitute a violation of the Code of Judicial Conduct. The Commission may render in writing such advisory opinion as it may deem appropriate. An advisory opinion is not binding upon the Judicial Hearing Board or the Supreme Court, but shall be admissible in any subsequent disciplinary proceeding involving the judge who made the request.