CHARLESTON – A Kanawha family court judge has asked the state Supreme Court if a local administrative order by a chief circuit judge negates a statewide trial court rule adopted by the Supreme Court itself.
Kanawha Family Court Judge Jim Douglas filed a petition for writ of prohibition February 25 with the state Supreme Court. Kanawha Chief Circuit Judge Carrie Webster is listed as the respondent. Webster is the current Kanawha Chief Circuit Judge, but the late Charles King served in that position for most of 2020.
According to Douglas’ petition, his longtime case coordinator Elizabeth Branham resigned to take a full-time administrative position with the law firm of Hardy Pence. Some members of Hardy Pence regularly appear before Douglas as attorneys in contested family law cases, the petition states.
“Believing it to be a moral, ethical and legal imperative, and in the interests of fairness, impartiality and an absence of perceived bias, as well as, avoiding the appearance of impropriety,” Douglas decided to voluntarily and temporarily recuse himself from presiding over cases in which Hardy Pence attorneys appeared before him as attorneys or as Guardians ad litem.
A few days later, one of the first cases in point was filed. The circuit clerk reassigned the case to Chief Family Court Judge Kenneth Ballard. But Ballard “took it upon” himself to notify then-state Supreme Court Chief Justice Tim Armstead that he believed Douglas had not complied with Trial Court Rules to properly disqualify himself from the case.
“Either by design or happenstance, (Douglas) did not receive the October 1, 2020, Judge Ballard correspondence (to Armstead) until the afternoon of October 5, 2020 – despite their respective offices being only approximately 40 feet apart,” Douglas wrote in his petition.
On October 6, Douglas wrote Armstead himself explaining his reasoning for seeking recusal from the Hardy Pence cases and discounting Ballard’s rationale. On October 19, Douglas received an email from state Supreme Court Recusal Administrative Assistant Shannon Green confirming his assertions.
Later that day, Douglas says Ballard emailed the five Kanawha family court judges saying the Supreme Court had drafted a policy for handling voluntary recusals.
“Attached to this cell phone email was a single, four-paragraph, typewritten page of dubious authenticity,” the petition states. “There was no Supreme Court letterhead, no correspondence or email signed by the Chief Justice or an Associate Justice, nor any indication that the same was from the Chief Counsel or from the Supreme Court Administrator.
“This document, which Judge Ballard said had originated with the Supreme Court, proposed, by the force of a local rule, to nullify TCR (Trial Court Rule) 17.03 in Kanawha County only, and to invest the Chief Family Court Judge Ballard with the exclusive power to be the sole judge and arbiter of all recusals for Kanawha County Family Court Judges.”
Douglas voiced his objection and rejection in an email reply to “this insidious, odious and nefarious proposal on multiple grounds” and asked for confirmation that the issue had indeed originated with the Supreme Court. He also told Ballard he considered the “proposal” to be nothing more than a retaliatory measure or just “sour grapes.”
The next day, Douglas says he received an Administrative Order signed by King adopting the “mysterious, referenced and supposed ‘Supreme Court sanctioned’ recusal policy circulated by Judge Ballard.”
Douglas says the October 20 King order can’t overrule a state trial court rule. He says any local rules must be consistent with state trial court rules.
He says it “visibly, even brazenly, and perniciously invades and usurps the administrative authority of this Supreme Court by neutralizing its TCRs, or the Chief Justice over the lower courts reserved to him or her.”
Thus, he says King’s order is unconstitutional. He asks the court to declare the order to be an abuse of power by a lower court.
Douglas filed the petition pro se.
West Virginia Supreme Court of Appeals case number 21-0143