State ex rel. Hash v. McGraw, 17953
| Decision Date | 21 December 1988 |
| Docket Number | No. 17953,17953 |
| Citation | 180 W.Va. 428,376 S.E.2d 634 |
| Parties | STATE of West Virginia ex rel. Joseph C. HASH, Jr., President, Jackson County Bar Ass'n.; Kennad L. Skeen, and the Jackson County Bar Ass'n. v. Hon. Darrell V. McGRAW, Jr., Chief Justice, Supreme Court of Appeals. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. "Where a motion is made to disqualify or recuse an individual justice of this Court, that question is to be decided by the challenged justice and not by the other members of this Court." Syl.pt. 1, State ex rel. Cohen v. Manchin, 175 W.Va. 525 , 336 S.E.2d 171 (1984).
2. The administrative actions of the Chief Justice of the Supreme Court of Appeals of West Virginia in a particular case do not necessarily represent a pecuniary or personal interest that would affect the Chief Justice's impartiality, nor render the Chief Justice incapable of hearing the same case in a judicial capacity.
3. "The administrative rule promulgated by the Supreme Court of Appeals of West Virginia, setting out a procedure for the temporary assignment of a circuit judge in the event of a disqualification of a particular circuit judge, operates to supersede the existing statutory provisions found in W.Va.Code, 51-2-9 and -10 and W.Va.Code, 56-9-2, insofar as such provisions relate to the selection of special judges and to the assignment of a case to another circuit judge when a particular circuit judge is disqualified." Syl. pt. 2, Stern Bros., Inc. v. McClure, 160 W.Va. 567, 236 S.E.2d 222 (1977).
John D. Hoffman, PA, Ripley, for petitioners.
This case is before the Court based upon the motion of Joseph C. Hash, President, Jackson County Bar Association, Kennad L. Skeen, and the Jackson County Bar Association, to recuse Justice Darrell V. McGraw, Jr. from the case of State ex rel. Crabtree v. Hash, 180 W.Va. 425, 376 S.E.2d 631 (1988). The motion was considered and treated as a writ of prohibition against then Chief Justice McGraw, requiring him to show cause why a writ of prohibition should not be awarded against his participation in State ex rel. Crabtree v. Hash. The petitioners contend that a chief justice whose administrative actions later result in litigation before this Court must disqualify himself from deciding the case, as it creates the appearance of impropriety. We disagree and deny the writ.
The petitioners seek to disqualify then Chief Justice McGraw from deciding the case of State ex rel. Crabtree v. Hash, 180 W.Va. 425, 376 S.E.2d 631 (1988). 1 The pertinent facts of the underlying case which led to the motion to disqualify are necessary to understand the type of bias alleged by the petitioners.
The circuit judge of the Fifth Judicial Circuit (consisting of Calhoun, Jackson, and Roane counties) retired from office. The then Chief Justice of the West Virginia Supreme Court of Appeals, respondent McGraw, as the "administrative head of all the courts," issued an order appointing a judge for temporary service to the circuit. W.Va. Const. art. VIII, § 3. The petitioners believed that the order had lapsed. They also believed that they had authority under an old statute, W.Va.Code, 51-2-10 [1931], to elect a judge from among themselves. They elected petitioner Skeen who served as judge and conducted court for one day. The day Mr. Skeen presided as judge, the administrative director of this Court filed a writ of prohibition against him and the other petitioners. The writ alleged that Code, 51-2-10 [1931] had been superseded by current W.Va. Const. art. VIII, § 3, and therefore all respondents were acting without authority.
W.Va. Const. art. VIII, § 3 states in pertinent part:
The [supreme] court [of appeals] shall have general supervisory control over all intermediate appellate courts, circuit courts and magistrate courts. The chief justice shall be the administrative head of all the courts. He may assign a judge from one intermediate appellate court to another, from one circuit court to another, or from one magistrate court to another, for temporary service.
The petitioners allege that the then Chief Justice prompted the administrative director of this Court to file the writ of prohibition against them. Therefore, they allege that by his administrative actions, the then Chief Justice has predetermined that the attorneys acted contrary to law. 2
At the outset, we note that: "Where a motion is made to disqualify or recuse an individual justice of this Court, that question is to be decided by the challenged justice and not by the other members of this Court." Syl. pt. 1, State ex rel. Cohen v. Manchin, 175 W.Va. 525, 336 S.E.2d 171 (1984). See also State ex rel. Bagley v. Blankenship, 161 W.Va. 630, 642-43, 246 S.E.2d 99, 106 (1978). Then Chief Justice McGraw has not disqualified himself from deciding the underlying action.
Judges are ethically bound to impartially decide cases, as well as diligently discharge their administrative duties. 3 West Virginia, like other jurisdictions, discussed below, places both adjudicative and administrative duties on the Chief Justice of the Supreme Court of Appeals. This Court has never decided whether the administrative actions of the Chief Justice reasonably place into question his ability to impartially decide a subsequent case resulting from his actions. However, other jurisdictions, in similar situations, have found that the dual responsibilities of diligent administration and impartial adjudication do not create a conflict requiring disqualification.
In Cameron v. Greenhill, 582 S.W.2d 775 (Tex.), cert. denied, 444 U.S. 868, 100 S.Ct. 142, 62 L.Ed.2d 92 (1979), and Palmer v. Jackson, 617 F.2d 424 (5th Cir.1980), the issue was discussed in relation to the Texas Supreme Court's administrative control over the State Bar Association. The state bar decided to construct a facility for its members. The bar's executive committee assured its members that they would not be assessed greater fees if they supported a bar referendum for the facility. The referendum passed and the facility was constructed. However, the state bar did not receive enough donations to cover the construction cost of the facility. At the behest of the state bar's executive committee, the state supreme court, in its administrative capacity, ordered the bar to conduct a referendum on the issue of increasing membership fees to pay for the facility. The referendum passed and a member of the bar challenged, among other things, the qualifications of the entire court to impartially decide the case, since it had issued the order.
The Texas Supreme Court pointed out that its interest was "no greater than that of any other member of the State Bar of Texas or even of the public in general." Cameron, 582 S.W.2d at 776. Rather than apply the rule of necessity, the court instead found that an administrative action does not represent a pecuniary or personal interest that would reasonably affect the impartiality of the court in hearing a case which challenged the order. It relied on two cases, factually identical to Cameron, where the courts determined that an administrative action does not intimate the type of personal interest which reasonably affects impartiality. Ables v. Fones, 587 F.2d 850 (6th Cir.1978), and an unpublished Ohio case which was affirmed on appeal by the United States Supreme Court under the name of Cuyahoga County Bar Association v. Supreme Court, 430 U.S. 901, 97 S.Ct. 1167, 51 L.Ed.2d 577 (1977).
The same facts surrounding the Texas court's administrative order resurfaced in Palmer v. Jackson, 617 F.2d 424 (5th Cir.1980), a class action suit against named defendants, the state bar and the state supreme court. The Fifth Circuit affirmed the district court's application of the Pullman abstention doctrine. 4
The appellants argued that while the facts of the case met the Pullman elements (undecided issue of state law that could moot the constitutional grounds raised in federal court), the federal abstention was improper because the state supreme court would not impartially decide the issues. In their brief, the attorneys alleged circumstances identical to those alleged by the petitioners:
First, the fact that the Court is involved in the actions and circumstances that are in controversy renders it a suspect forum to resolve state law questions. Second, the Court has already determined the issue administratively because it issued the May 3, 1978 Order. Presumably, the Supreme Court of Texas would not have acted in any manner it thought was illegal. This lawsuit alleges that the May 3, 1978 Order for payment of the fee-assessment was illegal and invalid. To require these Plaintiffs to seek resolution of this issue in state court would require that they ask the Texas Supreme Court to declare that its acts were illegal, that its administrative determination was in error, and to enjoin itself from enforcing its illegal acts and determinations.
Reprint of appellant's brief, Palmer v. Jackson, 617 F.2d 424, 429 (5th Cir.1980).
The Fifth Circuit responded: Id. The Court noted that " 'it is not contrary to due process to allow judges and administrators who have had their initial decisions reversed on appeal to confront and decide the same questions a second time around.' " Id., quoting Withrow v. Larkin, 421 U.S. 35, 57, 95 S.Ct. 1456, 1469, 43 L.Ed.2d 712, 729 (1975). The court concluded that "the state court's prior administrative involvement in the activities of the state bar is insufficient justification for depriving the state court of an opportunity to judicially decide the issues of state law presented." Palmer, 617 F.2d at 430.
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