Senate Bill No. 488
(By Senator Chafin)
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[Introduced February 19, 1996; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact section twenty-two, article five,
chapter fifty-eight of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
disqualification of justices of the supreme court of
appeals.
Be it enacted by the Legislature of West Virginia:
That section twenty-two, article five, chapter fifty-eight
of the code of West Virginia, one thousand nine hundred thirty-
one, as amended, be amended and reenacted to read as follows:
ARTICLE 1. RELIEF IN SUPREME COURT OF APPEALS.
§58-5-22. Recusal and disqualification of justices.
(a) Disqualification.-- In any proceeding any party may file
a written motion for disqualification of a justice. The motion shall be verified, shall state the facts and reasons for
disqualification, and shall be accompanied by a certificate of
counsel of record or unrepresented party stating it is made in
good faith and has evidence sufficient to support
disqualification. The motion shall be filed with the clerk of
the court at least twenty-one days in advance of any hearing date
set or at least seven days in advance of any date set for a
nonhearing proceeding. At the time of filing, the moving counsel
or unrepresented party shall submit directly to the justice a
written notice of the motion.
(1) Upon filing the motion, a justice who finds good cause
and agrees to recuse himself or herself shall ascertain whether
concurrence can be reached between parties as to the designation
of a circuit court judge.
(2) If concurrence can be reached within fourteen days of
notice of the justice's willingness to recuse himself or herself,
the justice shall forthwith contact the administrative director
of the court, who shall then contact the circuit court judge to
whom assignment is requested. Contact with the judge to whom
assignment is requested by either the recused judge or the
parties is prohibited. If the judge consents, all parties shall sign a written stipulation designating the new judge. The
recused justice shall forthwith transmit the motion, certificate
and stipulation to the chief justice who shall within seven days
of its receipt, in writing, approve or disapprove the recusal and
stipulation. If the chief justice approves the recusal and
stipulation, he or she shall within seven days of the approval
date enter an appropriate order assigning the designated judge to
preside in the proceeding. If the chief justice disapproves the
recusal and stipulation, he or she shall within seven days of the
disapproval date, by order, direct the recused justice to proceed
with the case. If the chief justice disapproves only the
stipulation, he or she shall within twenty-one days of the
disapproval date, by order, assign a different judge to preside
in the proceeding.
(3) If concurrence cannot be reached, if the original
justice does not agree to recuse himself or herself, or if the
judge does not consent, the justice shall:
(A) Proceed no further in the matter; and
(B) Transmit forthwith to the chief justice a copy of the
motion and certificate, a letter stating his or her response to
the motion and reasons therefor, and a completed assigned judge request form provided by the administrative office of the court,
asking that the chief justice rule on the motion or, if the
information is insufficient, direct that a hearing be held on the
matters relating to the disqualification motion. The letter
shall include such matters or considerations as the justice deems
relevant.
(i) If the chief justice determines that the evidence set
out in support of the disqualification motion is insufficient,
the chief justice shall, within seven days of receiving the
motion, by order, either deny the motion and direct the justice
to proceed with the case or direct the justice to hold a hearing
to allow the moving party to make a full record, for the purpose
of review if the case is appealed upon final judgment, and then
to proceed with the case.
(ii) If the chief justice determines that the evidence set
out in support of the disqualification motion is sufficient, the
chief justice shall within seven days of receiving the motion
direct the justice in writing not to proceed with the case and,
within fourteen days thereof, shall, by order, assign a different
justice to hear the case.
(iii) If the chief justice determines that the matters relating to the disqualification motion raise issues sufficient
to warrant a hearing before a different justice, the chief
justice shall, within fourteen days of receiving the motion, by
order, assign a judge to hear the disqualification matters as
provided by subdivisions (2) and (3), subsection (c) of this
section.
(4) In the event a disqualification motion is filed with the
clerk and written notice thereof is submitted to the justice less
than twenty-one days in advance of the date set for hearing or
less than seven days in advance of the date set for a nonhearing
proceeding, the justice shall within seven days hold a hearing on
the motion for disqualification, shall allow the moving party to
make a full record, and shall then rule forthwith on the motion
for disqualification.
(A) If the justice denies the motion for disqualification,
he or she shall proceed with the case.
(B) If the justice grants the motion, he or she shall
proceed no further in the matter and shall:
(i) Forthwith transmit the motion and reasons for the ruling
to the chief justice, who shall, within seven days of receipt, by
order, assign a judge; or
(ii) Proceed pursuant to subdivisions (1) and (2) or (3) of
this subsection.
(b) Voluntary recusal by a justice.-- In the absence of a
disqualification motion having been filed, except as provided by
subsection (d) of this section, a justice wishing to recuse
himself or herself voluntarily shall so inform the parties and
shall proceed pursuant to the applicable provisions of
subdivisions (1) and (2) or (3), subsection (a) of this section:
Provided, That:
(1) If subdivision (2), subsection (a) of this section is
applicable, the justice shall transmit to the chief justice, in
lieu of a motion and certificate, a letter stating the reasons
why the justice is requesting to recuse himself or herself, with
reference to the relevant section or sections of the West
Virginia Code of Judicial Conduct; or
(2) If subdivision (3), subsection (a) of this section
becomes applicable, the term "disqualification motion" therein
shall be replaced by the term "recusal request"; the letter shall
include reference to the relevant section or sections of the West
Virginia Code of Judicial Conduct; and the chief justice shall
rule pursuant to paragraph (i) or (ii), subparagraph (B), subdivision (3), subsection (a) of this section, but may not
direct the justice to hold a hearing.
(c) Temporary assignment of a judge.-- Upon receipt of a
copy of the motion for disqualification, certificate and assigned
judge request form from the justice, the chief justice shall,
within twenty-one days of receipt, by order:
(1) Assign a judge to hear the underlying proceeding, when
the justice has agreed to recuse himself or herself from the
proceeding and the chief justice determines that the reasons for
the recusal are sufficient; or
(2) Assign a judge to hear the matters relating to the
disqualification motion, when the justice so desires and the
chief justice agrees or the chief justice determines on his or
her own initiative that the matters merit a hearing. In that
event, the order may specify that the judge who presides in the
disqualification hearing has authority to take such action in the
underlying proceeding as the ends of justice require pending the
outcome of the hearing on disqualification.
(3) The judge who presides at the disqualification hearing
shall, within twenty-one days thereof, report his or her findings
to the chief justice.
(A) If the justice is not found to be disqualified, the
chief justice may, within twenty-one days of the date of the
findings, by order either direct the justice to preside in the
underlying proceeding or assign a judge to preside in the
underlying proceeding; or
(B) If the justice is found to be disqualified, the chief
justice shall, within twenty-one days of the date of the
findings, by order, assign a judge to preside in the underlying
proceeding.
(d) Time.-- Computation of any time period prescribed or
allowed by this section shall be governed by Rule 6 of the West
Virginia Rules of Civil Procedure for Trial Courts of Record.
(e) Challenge to disqualification rulings.-- All rulings and
orders relating to the recusal or disqualification of a justice
shall be considered interlocutory in nature and not subject to
direct or immediate appeal. This rule may not, however, prohibit
any party from seeking or using redress available by writ of
prohibition or any other appropriate extraordinary writ.
(f) Disqualification of chief justice.-- In the event that
the involved justice is the chief justice, the court shall
designate a justice to fulfill the duties required of the chief justice by this section in accordance with the provisions of
section two, article one, chapter fifty-one of this code.
NOTE: The purpose of this section is to provide a recusal
and disqualification system for justices of the supreme court of
appeals.
This section has been completely rewritten; therefore,
strike-throughs and underscoring have been omitted.