Stern Bros., Inc. v. McClure

• Decision Date: 12 July 1977
• Docket Number: No. 13902,13902
• Citation: 236 S.E.2d 222,160 W.Va. 567
• Parties: STERN BROS., INC., a Delaware Corporation, Harold W. Wilson, as Trustee, and Wood County Bank, a West Virginia Banking Corporation v. The Honorable James G. McCLURE, Judge.
• Court: West Virginia Supreme Court

Page 222

236 S.E.2d 222

160 W.Va. 567

STERN BROS., INC., a Delaware Corporation, Harold W. Wilson as Trustee, and Wood County Bank, a West Virginia Banking Corporation v. The Honorable James G. McCLURE, Judge.

No. 13902.

Supreme Court of Appeals of West Virginia.

July 12, 1977.

Syllabus by the Court

1. Under Article VIII, Section 8 of the Constitution of West Virginia (commonly known as the Judicial Reorganization Amendment), administrative rules promulgated by the Supreme Court of Appeals of West Virginia have the force and effect of statutory law and operate to supersede any law that is in conflict with them.

2. 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.

3. The failure to follow the procedures contained in the administrative rule relating to the temporary assignment of a circuit judge to a case, where the existing circuit judge is disqualified, will render the appointment of such temporary judge void, and a writ of prohibition will lie to prevent his exercising jurisdiction over the case.

James M. Sprouse, Charleston, Julian H. Singman, Landis, Cohen, Singman & Rauh, Washington, D. C., for relators.

Furbee, Amos, Webb & Critchfield, John D. Amos, Alfred J. Lemley, Fairmont, Rose, Schmidt, Dixon, Hasley & Whyte, Harold R. Schmidt, Karl Alexander, Pittsburgh, Pa., for Consolidation Coal Co. (real party in interest).

MILLER, Justice:

In this original prohibition action, we consider questions as to the disqualification of judges, the scope of the Judicial Reorganization Amendment, and this Court's administrative powers as they relate to the disqualification of judges.

The prohibition sought by relators, Stern Bros., Inc., Harold W. Wilson as Trustee and Wood County Bank (herein relators), is based on the theory that the respondent, Judge James G. McClure, lacks jurisdiction to hear the underlying civil case to which relators are party defendants. The claim of lack of jurisdiction does not rest on any A history of the procedural background will serve to illuminate the problem. In 1971, relators were sued in the Circuit Court of Marion County by the Consolidation Coal Company. The object of the suit was to obtain partition of the undivided interest that the parties held in the Pittsburgh seam of coal.

impropriety on the part of the respondent judge, but is centered solely on the manner in which he was selected to hear the case.

Judge J. Harper Meredith of the Sixteenth Judicial Circuit presided over the litigation, which had moved through the Commissioner stage by June 1, 1976. On this date, relators through their attorneys filed a written motion before Judge Meredith that he disqualify himself. The basis of the motion rested on a number of factual allegations involving real property transactions between Judge Meredith, his brother, and Consolidation Coal Company.

Judge Meredith heard the matter of disqualification on July 8. Counsel for the parties were present and at the conclusion of the hearing, which consisted mainly of the Judge interrogating the relators' attorneys as to their investigation that produced the motion for disqualification, the Judge decided to recuse himself. Since there was another Circuit Judge in the Sixteenth Judicial Circuit, Judge Fred L. Fox, II, Judge Meredith directed that the case be taken to him.

At this point, Consolidation Coal Company's attorneys reminded Judge Meredith that Judge Fox was a former associate in their firm. This point was dismissed by Judge Meredith, who directed the case to Judge Fox and concluded the hearing.

Counsel for both parties then proceeded across the hall to Judge Fox's chambers and, on discovering he was absent, agreed that the attorneys for Consolidation Coal would contact Judge Fox as to a date for further hearing, since the Consolidation Coal attorneys were local and relators' attorneys were from Charleston.

Thereafter, the two groups of counsel exchanged correspondence in connection with a draft of a proposed order covering the matters involved at the hearing on the disqualification of Judge Meredith. On July 28, 1976, one of the attorneys for Consolidation Coal called relators' attorneys in Charleston and advised that Judge Fox was no longer in the case and that it had been assigned by Chief Justice Berry of this Court to Judge McClure. Counsel for relators by letter to Judge Fox made an immediate and detailed protest of the manner in which the transfer proceedings had been handled, with copies to Chief Justice Berry, Judges McClure and Meredith, and opposing counsel.

Thereafter, relators' counsel took the deposition of Judge Meredith to determine his role in the initiation of the transfer of the partition suit to respondent. From the deposition, it appears that the attorneys for Consolidation Coal Company met with Judge Meredith without any prior notification to relators' attorneys. ¹ At this meeting, Consolidation Coal Company's attorneys again advised Judge Meredith of Judge Fox's former association with their firm and that the genesis of the partition suit had occurred during his period of association.

At this point, Judge Meredith, according to his deposition, called the office of the Chief Justice of this Court in the presence of the Consolidation Coal Company attorneys. Contact was not made with the Chief Justice but with one of the employees of the Court, a Miss Ellen Warder. Judge Meredith advised Miss Warder that both he and Judge Fox were disqualified from participating in the partition case and requested that a judge from another county be assigned to the case.

In his deposition, Judge Meredith indicated that a short time after his initial call Miss Warder called back and gave him the names of three available judges, one of Subsequently, on July 30, 1976, Judge Fox wrote Chief Justice Berry advising that he believed himself disqualified from handling the partition suit because of his prior association with the law firm representing Consolidation Coal Company.

whom was the respondent judge. Judge Meredith indicated to her that respondent would be acceptable. The substance of Judge Meredith's recollection of the selection is confirmed by Miss Warder's affidavit attached to relators' petition. Miss Warder further stated that Chief Justice Berry was out of town on the day she accepted the call from Judge Meredith, but upon the return of the Chief Justice the following day she advised him of the matter, and an order was then entered by this Court appointing respondent.

The foregoing facts are not controverted by the respondent, nor by Consolidation Coal Company, which joined in the response as a real party in interest.

Relators' first claim is that once Judge Meredith decided to recuse himself, he had no further authority over the case. Consequently, his latter action on July 28 in determining that Judge Fox was disqualified and in calling this Court and assisting in the selection of a replacement judge were void acts, rendering the selection of the respondent, Judge McClure, invalid. The second contention is that this Court's administrative rule relating to the appointment of temporary judges was not followed and this also renders respondent's assignment invalid.

The first point goes to several aspects of the law regarding disqualification of judges, which in our State has not been fully developed. Under W.Va.Code, 51-2-8, there are set forth certain substantive grounds that are sufficient for disqualification of a judge. ² This statute does not set out any procedural guidelines surrounding disqualification of judges.

As noted in 46 Am.Jur.2d Judges § 217, some states have statutes governing the procedure in disqualifying a judge. Of particular concern is whether, upon the filing of a motion to disqualify, the involved judge should undertake to hear the merits of the motion. We do not find any decision by this Court that is directly in point, although Fahey v. Brennan, 137 W.Va. 37, 70 S.E.2d 438 (1952), suggests that a judge should not pass upon the merits of a motion for disqualification filed against him.

Fahey involved a situation where the circuit judge initiated disciplinary proceedings alleging malpractice against two attorneys. In turn, the attorneys sought a writ of prohibition in this Court to prohibit the judge from presiding over the disciplinary cases. It was the attorneys' theory that the judge ". . . was disqualified by reason of the alleged hostility and hatred exhibited toward petitioners." This Court granted the prohibition preventing the judge from presiding over the cases.

It appears to be the general rule that a judge before whom a disqualification motion is filed should not hear the merits of the motion. See, e. g., State ex rel. McNary v. Jones, 472 S.W.2d 637 (Mo.App.1971); Peters v. Jamieson, 48 Hawaii 247, 397 P.2d 575 (1964); State v. Kent, 4 N.D. 577, 62 N.W. 631 (1895).

The reason for this rule is rather obvious. Without it, the judge is placed in the difficult position of attempting to judge a matter which involves him directly and personally. No man can be a judge in his own cause. Findley v. Smith, 42 W.Va. 299, 26 S.E. 370 (1896).

Procedures for appointment of a substitute judge were promulgated by this Court on May 29, 1975, in an administrative rule dealing with the temporary assignment of circuit court judges where a particular judge is disqualified from handling a case. ³

This rule was promulgated [160 W.Va. 573] pursuant to the provisions of Article VIII, Section 3 of the West Virginia Constitution,...