RULES OF JUDICIAL DISCIPLINARY PROCEDURE
Section I: Rules 1-2.14
1. Judicial Investigation Commission.
1.1. Membership.
1.2. Terms.
1.3 Appointment.
1.4 Eligibility.
1.5. Vacancies.
1.6. Reappointment.
1.7. Election of officers.
1.8. Quorum.
1.9. Compensation and expenses.
1.10. Disqualification.
1.11. Authority.
2. Judicial disciplinary complaints.
2.1. Form of complaints.
2.2. Investigation of complaints.
2.3. Response to complaints.
2.4. Confidentiality.
2.5. Privilege and immunity.
2.6. Report on complaints.
2.7. Review of complaints.
2.8. Filing of formal charges.
2.9. Service of formal charges.
2.10. Response to formal charges.
2.11. Failure to file response.
2.12. Limitation of complaints.
2.13. Advisory opinions.
2.14. Extraordinary proceedings.
Rule 1. Judicial Investigation Commission.
The ethical conduct of judges is of the highest importance to the people of the State of West Virginia and to the legal profession. Every judge shall observe the highest standards of judicial conduct. In furtherance of this goal, the Supreme Court of Appeals does hereby establish a Judicial Investigation Commission [Commission] to determine whether probable cause exists to formally charge a judge with a violation of the Code of Judicial Conduct promulgated by the Supreme Court of Appeals to govern the ethical conduct of judges or that a judge, because of advancing years and attendant physical and mental incapacity, should not continue to serve.
Rule 1.1. Membership.
The Commission shall consist of nine members: five members of the judiciary, including three circuit judges, one magistrate, one family court judge, provided that any members of the judicary may be senior status; one from the following categories - mental hygiene commissioner, juvenile referee, special commissioner, special master, or former state or federal judge or justice and three members of the public. Initially, the membership of the Commission shall consist of the current members of the Judicial Investigation Commission, except for the addition of one circuit judge and one mental hygiene commissioner, juvenile referee, special commissioner, or special master, and the deletion of two lawyers.
Rule 1.2. Terms.
The members of the Commission shall serve staggered terms of three years. The appointment date of the terms shall be filed with the Clerk of the Supreme Court. All members of the Commission currently serving as members of the Judicial Investigation Commission, other than the lawyer members, shall serve the remainder of their terms. The term and authority of any member of the Commission shall be extended to allow such member to participate in any matter in which the member has participated prior to expiration of the member's term.
Rule 1.3. Appointment.
The members of the Commission, other than the Chairperson, shall be appointed by the Supreme Court of Appeals. Members of the Commission shall attend an orientation program conducted by the Office of Disciplinary Counsel within six months of appointment.
[As amended by order entered December 6, 1994, effective January 1, 1995.]
Rule 1.4. Eligibility.
When a circuit judge, magistrate, family court judge, mental hygiene commissioner, juvenile referee, special commissioner, or special master ceases to be a circuit judge, magistrate, family court judge, mental hygiene commissioner, juvenile referee, special commissioner, or special master, or whenever any member becomes otherwise ineligible to hold office, their membership on the Commission shall terminate. A member of the Commission may be removed by the concurrence of a majority of the Commission for an unreasonable failure to perform the member's duties.
Rule 1.5. Vacancies.
Whenever a vacancy is to occur due to the expiration of the term of a member of the Commission, the Chairperson shall notify the Supreme Court of Appeals sixty days prior to the expiration of the term. Whenever a vacancy occurs on the Commission for any other reason, the Chairperson shall notify the Supreme Court of Appeals within thirty days of the vacancy. A vacancy on the Commission shall be filled for the unexpired portion of the term for which the original appointment was made. All persons appointed shall continue to serve until their successors are appointed and qualified. History: [As amended by order entered December 6, 1994, effective January 1, 1995.]
Rule 1.6. Reappointment.
A member of the Commission, other than the Chairperson, who has completed one full term of service shall twice be eligible for reappointment after completion of the member's term. Any member appointed to fill a vacancy who has served less than one year shall be eligible for three reappointments. The Chairperson of the Commission is not subject to the term limits.
[Amended by order entered April 14, 2010, effective immediately.]
Rule 1.7. Election of officers.
The members of the Commission shall annually elect a Chairperson and a Vice-Chairperson. The Chairperson, and in the Chairperson's absence the Vice-Chairperson, shall perform the duties normally associated with that office and shall preside over all meetings of the full Commission. The appointment of the Chairperson and Vice-Chairperson shall be filed with the Clerk of the Supreme Court.
[Amended by order entered April 14, 2010, effective immediately.]
Rule 1.8. Quorum.
Five members of the Commission shall constitute a quorum. The Commission shall act only with the concurrence of a majority of those present and voting.
Rule 1.9. Compensation and expenses.
All members of the Commission shall be eligible for reimbursement for travel and other expenses incidental to the performance of their duties. Members of the Commission who are not judicial officers shall be considered temporary employees of the Supreme Court of Appeals only for the limited purpose of payment and shall receive W-2 compensation. The limited nature of the classification shall not subject the non-judicial members to any of the rules or requirements set forth in the West Virginia Judicial Personnel System Manual or the Code of Judicial Conduct. Any lawyer member shall not be conflicted off any case or controversy before any court in West Virginia by virtue of his or her affiliation with and service on the Commission.Rule 1.10. Disqualification.
A member of the Commission may not participate as such in any proceeding involving a charge against such member, such member's spouse, or a person within the third degree of relationship to either the member or the member's spouse. The Chief Justice of the Supreme Court of Appeals may make temporary appointments to fill a disqualified member's position in a given proceeding. A member of the Commission may not participate as such in any proceeding involving a charge against a judge over whom the member exercises supervisory authority. Commission members shall disqualify themselves in any proceeding in which a judge, similarly situated, would be required to disqualify himself or herself.
Rule 1.11. Authority.
The Commission shall have the authority to (1) determine whether probable cause exists to formally charge a judge with a violation of the Code of Judicial Conduct or that a judge, because of advancing years and attendant physical and mental incapacity, should not continue to serve; (2) propose rules of procedure for judicial disciplinary proceedings for promulgation by the Supreme Court of Appeals; (3) file an annual report with the Supreme Court of Appeals on the operation of the Commission; (4) inform the public about the existence and operation of the judicial disciplinary system, the filing of formal charges, and the discipline imposed or recommended on formal charges; (5) delegate, in its discretion, to the Chairperson or Vice-Chairperson, the authority to act for the Commission on administrative and procedural matters; (6) nominate, for selection by the Supreme Court of Appeals, candidates for the position of Judicial Disciplinary Counsel; and (7) engage in such other activities related to judicial discipline as it deems appropriate.
Rule 2. Judicial disciplinary complaints.
Any person may file a complaint against a "judge" with the Office of Disciplinary Counsel regarding a violation of the Code of Judicial Conduct. The term "judge" is defined in the Code of Judicial Conduct as "Anyone, whether or not a lawyer, who is an officer of a judicial system and who performs judicial functions, including but not limited to Justices of the Supreme Court of Appeals, Circuit Judges, family court judges, Magistrates, Mental Hygiene Commissioners, Juvenile Referees, Special Commissioners and Special Masters."
Rule 2.1. Form of complaints.
The form of complaints shall be determined by the Commission. It may require that complaints other than those initiated by the Office of Disciplinary Counsel or the Commission shall be in writing and verified by the complainant. History: [As amended by order entered December 6, 1994, effective January 1, 1995.]
Rule 2.2. Investigation of complaints.
The Office of Disciplinary Counsel shall investigate all complaints of violation of the Code of Judicial Conduct made against judges. The resignation of a judge shall not relieve the obligation of the Office of Disciplinary Counsel to investigate a complaint that the judge violated the Code of Judicial Conduct and to fully proceed in accordance with these rules. The Office of Disciplinary Counsel shall also conduct such investigations as may be directed by the Commission. The Office of Disciplinary Counsel may initiate investigations on its own. The Office of Disciplinary Counsel may obtain from a Chairperson of the Commission or the Clerk of the Supreme Court of Appeals a subpoena for evidence and the testimony of witnesses and the production of documents. The Chairperson of the Commission or the Clerk of the Supreme Court of Appeals shall issue a subpoena requiring such person to appear before the Office of Disciplinary Counsel to produce all documents and give evidence on the matters in question. Any failure to obey such subpoena, may be punished by contempt.
Rule 2.3. Response to complaints.
Prior to filing a report with the Commission, the Office of Disciplinary Counsel shall notify the judge involved in writing of the nature of the complaint. The judge shall have ten days after the date of the written notice to file a written response to the complaint. The judge shall not be entitled to reasonable attorney fees incurred prior to the filing of a formal charge by the Commission except in extraordinary circumstances where prior approval is granted by the Administrative Director of the Courts.
Rule 2.4. Confidentiality.
The details of complaints filed or investigations conducted by the Office of Disciplinary Counsel shall be 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.
Rule 2.5. Privilege and immunity.
All information provided, documents filed or testimony given with respect to any investigation or proceeding under these rules 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.
Rule 2.6. Report on complaints.
As to each complaint received and investigation conducted by the Office of Disciplinary Counsel, a written report shall be filed with the Commission. The report shall recommend whether the Office of Disciplinary Counsel believes there is probable cause to formally charge the judge with a violation of the Code of Judicial Conduct or that the judge, because of advancing years and attendant physical and mental incapacity, should not continue to serve. The report shall include a copy of any written response by the judge, together with a list of documents, affidavits, or other material that has been collected or submitted in connection with the complaint or investigation.
Rule 2.7. Review of complaints.
(a) Within sixty days after the date of a report by the Office of Disciplinary Counsel, the Commission shall file a written decision regarding whether it believes there is probable cause to formally charge the judge with a violation of the Code of Judicial Conduct or that the judge, because of advancing years and attendant physical or mental incapacity, should not continue to serve, or whether the matter should be investigated further by the Office of Disciplinary Counsel.
(b) When it has been determined that probable cause does not exist, the Commission shall issue a brief explanatory statement in support of its decision to close the complaint.
(c) When it has been determined that probable cause does exist, but that formal discipline is not appropriate under the circumstances, the Commission shall issue a written admonishment to the respondent, who has fourteen days after its receipt to object. The written admonishment shall be available to the public. If the Office of Disciplinary Counsel or the respondent files a timely objection to the written admonishment, 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 involves 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 involves dishonesty, deceit, fraud, or misrepresentation by the respondent; (6) the misconduct constitutes a crime that adversely reflects on the respondent's honesty, trustworthiness, or fitness as a judge; or (7) the misconduct is part of a pattern of similar misconduct.
(d) When it has been determined that probable cause does exist, and that formal discipline is appropriate, the Commission shall file a formal charge with the Clerk of the Supreme Court of Appeals. After the filing and service of formal charges, all documents filed with the Clerk of the Supreme Court of Appeals and the Judicial Hearing Board shall be available to the public.
Rule 2.8. Filing of formal charges.
After reasonable notice to the Office of Disciplinary Counsel and the judge, the formal charge shall be filed by the Commission with the Clerk of the Supreme Court of Appeals. The formal charge shall inform the judge of the right to file a written response within thirty days of the date of the charge.
Rule 2.9. Service of formal charges.
Service of a formal charge shall be made by the Clerk of the Supreme Court by certified mail, return receipt requested, to the judge at the judge’s chambers, or at the judge’s last known address or, in the alternative, service may be made in a manner consistent with the rules for service of process under the West Virginia Rules of Civil Procedure. Return of Service shall be directed to the Clerk of the Supreme Court of Appeals.
Rule 2.10. Response to formal charges.
The judge may file responsive pleadings as provided in the West Virginia Rules of Civil Procedure. Any such pleadings shall be filed by the judge with the Clerk of the Supreme Court of Appeals and the Office of Disciplinary Counsel not more than thirty days after the date of the formal charges. For good cause shown, the Office of Disciplinary Counsel may extend the time for filing such pleadings.
Rule 2.11. Failure to file response.
Notwithstanding the failure of the judge to file a responsive pleading, the Judicial Hearing Board may proceed with a hearing, provided that all evidence in support of the charge shall be heard by the Hearing Board in a public hearing or filed in the course of a public hearing. The failure to file a response to the complaint shall be deemed an admission of the factual allegations contained therein.
History: [As amended by order entered December 6, 1994, effective January 1, 1995.]
Rule 2.12. Limitation of complaints.
Any complaint filed more than two years after the complainant knew, or in the exercise of reasonable diligence should have known, of the existence of a violation of the Code of Judicial Conduct, shall be dismissed by the Commission.
Rule 2.13. Advisory opinions.
(a) The Administrative Director of the Courts or a judge may by written request of Disciplinary Counsel seek an advisory opinion as to whether certain specific actions contemplated may constitute a violation of the Code of Judicial Conduct.
(b) Disciplinary Counsel shall file a report on each request for an advisory opinion with the Commission.
(c) The Commission may render in writing such advisory opinion as it may deem appropriate or may return the report to Disciplinary Counsel for further review. The Commission shall forward a copy of every advisory opinion to the Chairperson of the Judicial Hearing Board, the Office of Disciplinary Counsel, the Administrative Director of the Courts, and the requesting judge.
(d) An advisory opinion is not binding on the Judicial Hearing Board or the Court, but shall be admissible in any subsequent disciplinary proceeding involving the requesting judge.
(e) No member of the Commission rendering an advisory opinion may serve on the Judicial Hearing Board in a proceeding involving a complaint or charge arising from conduct which was the subject of the advisory opinion.
Rule 2.14. Extraordinary proceedings.
(a) When the Administrative Director of the Courts has received information that a judge (1) has been convicted of a serious offense, (2) has been indicted or otherwise charged with a serious offense, (3) has engaged or is currently engaging in a serious violation of the Code of Judicial Conduct, or (4) has become unable or unwilling to perform official duties, the Administrative Director may file a complaint with Disciplinary Counsel.
(b) Upon receipt of such complaint, Disciplinary Counsel shall conduct an immediate investigation and shall within ten days present to the Chief Justice of the Supreme Court a report indicating whether, in the opinion of Disciplinary Counsel, the integrity of the legal system has been placed into question by virtue of a judge's (1) having been convicted of a serious offense; (2) having been indicted or otherwise charged with a serious offense; (3) having engaged in or currently engaging in a serious violation of the Code of Judicial Conduct; or (4) inability or unwillingness to perform official duties. The Office of Disciplinary Counsel shall attempt to provide reasonable notice to the judge prior to the filing of this report.
(c) Upon receipt of the report, from the Chief Justice, the Supreme Court shall determine whether probable cause exists. A finding of probable cause hereunder shall be in lieu of a probable cause finding made pursuant to Rule 2.7(c). If it is determined that probable cause exists, the Court may:
(1) direct the Disciplinary Counsel to file formal charges with the Clerk of the Supreme Court; and,
(2) provide notice to the judge of a right to a hearing on the issue of temporary suspension, said hearing to be in not less than 30 days; with the judge provided notice of the hearing in not less than 20 days before the proceeding; or
(3) in the alternative, remand the complaint for proceedings pursuant to Rules 2.7(d) and Rule 4.
(d) (1) If the judge has been convicted of a serious offense or has been indicted or otherwise charged with a serious offense, the Chief Justice may order that the judge not hear any further civil or criminal matters or perform other judicial functions while the matter is pending, with or without pay.
(2) If the Court finds probable cause pursuant to Rule 2.14(c) to believe that a judge has engaged or is currently engaging in a serious violation of the Code of Judicial Conduct or has become unable or unwilling to perform official duties, the Court may direct that the judge not hear any further civil or criminal matters or perform other judicial functions while the matter is pending, with or without pay.
(3) The provisions set forth in paragraph (d)(1) shall be construed as separate and in addition to the provisions of paragraph (c), above. Further, the provisions of paragraph (d)(1) shall be applicable only where a judge has been convicted of a serious offense or indicted or otherwise charged with a serious offense.
(e) After the hearing on the issue of suspension, the Court may temporarily suspend the judge with or without pay while the matter is pending before the Judicial Hearing Board and until the Court has disposed of the formal charges.
(f) Both the details of the complaint filed by the Administrative Director of the Courts and the investigation conducted by the Office of Disciplinary Counsel under this rule shall be confidential, except that when a formal charge has been filed with the Clerk of the Supreme Court, all documents filed with the Clerk and the Judicial Hearing Board shall be made available to the public.
However, 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.
