ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 488
(By Senator Chafin)
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[Originating in the Committee on the Judiciary;
reported February 23, 1996.]
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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; and procedure.
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 5. APPELLATE RELIEF IN SUPREME COURT OF APPEALS.
§58-5-22. Recusal and disqualification of justices.
(a) The Legislature's purpose in enacting the provisions of
this section is to provide, consistent with an understanding and
respect for the separation of powers doctrine and the provisions of article VIII of the Constitution of West Virginia, a procedure
for seeking disqualification of justices of the supreme court of
appeals in the rare instances, consistent with the code of
judicial conduct, where a person's right to an impartial tribunal
might be jeopardized or appear to be jeopardized by a justice's
involvement in a particular appellate matter.
(b) Whenever any attorney on behalf of a client or a
litigant acting on his or her own behalf with a matter pending
before the supreme court of appeals has reasonable cause to
believe that a justice of the supreme court of appeals:
(1) Has a personal bias or prejudice concerning a party or
a party's lawyer, or personal knowledge of disputed evidentiary
facts concerning the proceeding;
(2) Has served as a lawyer in the matter in controversy, or
a lawyer with whom the justice previously practiced law served
during such association as a lawyer concerning the matter, or the
justice has been a material witness concerning it;
(3) Knows that he or she, individually or as fiduciary, or
the justice's spouse, parent or child wherever residing, or any
other member of the justice's family residing in the justice's
household, has an economic interest in the subject matter in
controversy or in a party to the proceeding or has any other more than deminimis interest that could be substantially affected by
the proceeding;
(4) Has been made aware of facts or circumstances involving
the case which are not public record or contained within the
pleadings;
(5) Has publically expressed his or her personal opinion
regarding a matter or matters peculiar to the matter in which
disqualification is sought;
(6) The justice's spouse, or a person within the third
degree of relationship to either of them, or the spouse of such
a person:
(i) Is a party to the proceeding, or an officer, director or
trustee, of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the justice to have a more than deminimis
interest that could be substantially affected by the proceeding;
or
(iv) Is to the justice's knowledge likely to be a material
witness in the proceeding.
The attorney or the person acting on his or her own behalf
may file, under seal, with the justice whose disqualification is
sought and the clerk of the supreme court of appeals, a written motion, along with any supporting documentation, seeking the
justice's disqualification and setting forth the grounds for
disqualification.
(c) When a motion to disqualify a justice is filed and the
justice whose disqualification is sought deems the motion to
disqualify to be without merit the matter shall be referred to
the other justices for a decision on the motion. A retired
justice or present or retired circuit judge may be named where
necessary to reach a majority decision on a motion to disqualify.