ENGROSSED
Senate Bill No. 658
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[Originating in the Committee on the Judiciary;
reported February 29, 2000.]
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A BILL to amend article five, chapter fifty-eight of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
eight, relating to recusal and disqualification of justices
of the supreme court of appeals; and procedure.
Be it enacted by the Legislature of West Virginia:
That article five, chapter fifty-eight of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section
eight, to read as follows:
ARTICLE 5. APPELLATE RELIEF IN SUPREME COURT OF APPEALS.
§58-5-8. 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 recusal or 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 or apparent 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 the association as a lawyer in the matter in which recusal
is sought or the justice has been a material witness concerning
said matter;
(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 publicly 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:
(A) Is a party to the proceeding, or an officer, director or
trustee of a party;
(B) Is acting as a lawyer in the proceeding;
(C) Is known by the justice to have a more than deminimis
interest that could be substantially affected by the proceeding;
or
(D) 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 recusal is sought
and the clerk of the supreme court of appeals, a written motion,
along with any supporting documentation, seeking the justice's
recusal and setting forth the grounds for recusal.
(c) When a motion to recuse a justice is filed and the
justice whose recusal is sought determines the motion to recuse
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 disqualification where a motion to
recuse has been refused by the justice in question.