TO:        Larry V. Starcher, Chief Justice
              Justice Elliott E. Maynard
              Justice Warren R. McGraw
              Deborah McHenry, Chief Counsel/Clerk
              Rory Perry, Deputy Clerk

FROM:    Robin Jean Davis, Justice

DATE:    September 27, 1999

SUBJECT:    John F. Rist, III v. Honorable Cecil H. Underwood, Governor of
        West Virginia, and Robert S. Kiss, No. 992497

    With due consideration for the West Virginia Code of Judicial Conduct and the integrity of the Supreme Court of Appeals of West Virginia, I feel obligated to recuse myself from the deliberation and/or decision of this matter. The reasons underlying my voluntary disqualification are two-fold. First, I believe it is important for me to abide by the rules governing my conduct as a member of the judiciary of this State.

        Our legal system is based on the principle that an independent, fair, and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all sections of this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system. The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law. . . .

W. Va. Code of Judicial Conduct, Preamble. As a “highly visible symbol,” it is imperative for a judge to “respect and comply with the law[. He/she] shall avoid impropriety and the appearance of impropriety in all of [his/her] activities, and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” W. Va. Code of Judicial Conduct, Canon 2.A. Additionally, “[a] judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. . . .” W. Va. Code of Judicial Conduct, Canon 1.A (emphasis added).

    As a Justice of the West Virginia Supreme Court, I am unequivocally bound by the Canons of Judicial Conduct and must conduct myself accordingly. In my current position as a member of this Court, and in light of my present campaign to retain this post, I am deeply concerned by the appearance of impropriety that my participation in the decision of the instant controversy would doubtless create. Because two seats for Justice of the Supreme Court of Appeals of West Virginia will be filled by the statewide elections in the year 2000, Mr. Kiss, or anyone else appointed by Governor Underwood to the remainder of retired Justice Workman's unexpired term, would quite likely be my direct opponent in the upcoming contest. It goes without saying, then, that my participation in this matter would most certainly be viewed with suspicion and create the appearance of impropriety. Whenever such a doubt arises, the Code of Judicial Conduct explicitly requires that “[a] judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned . . . .” W. Va. Code of Judicial Conduct, Canon 3.E.1. Thus, it is with the utmost respect for the tenets governing the decorum of the judiciary that I tender this notice of my voluntary disqualification from this case.

    The second reason for my decision to remove myself from this case results from the precedential outcome of a similar matter. When, in 1984, the eligibility of Supreme Court candidate William T. Brotherton, Jr., was challenged in this Court, Justice Sam R. Harshbarger, another contestant in the Supreme Court race,See footnote 1 ¹ voluntarily recused himself from the consideration and decision of the matter. State ex rel. Cohen v. Manchin, 175 W. Va. 525, 528, 336 S.E.2d 171, 175 (1984). Faced with Justice Harshbarger's recusal, this Court referred to Article VIII, Section 8 of the West Virginia Constitution, which permits the assignment of temporary justices: “[a] retired justice or judge may, with his permission and with the approval of the supreme court of appeals, be recalled by the chief justice of the supreme court of appeals for temporary assignment as a justice of the supreme court of appeals . . . .” The remaining members of this Court then duly recalled retired Justice Fred H. Caplan to sit in Justice Harshbarger's absence to ensure that the controversy would be determined by a complete panel of five justices. See 175 W. Va. at 528, 336 S.E.2d at 175. See also State ex rel. Bagley v. Blankenship, 161 W. Va. 630, 633, 246 S.E.2d 99, 102 (1978) (per curiam) (involving assignment of one retired Supreme Court justice and three retired circuit court judges following voluntary disqualification of four justices of this Court in matter charging Legislature with unconstitutional adjustment of judiciary's budget). As my recusal from the instant petition will necessitate an assignment to fill a temporary vacancy, it is imperative that I announce my voluntary disqualification at this time in order to facilitate this process.

    For these stated reasons, I recuse myself from the deliberation and/or decision of this petition. I trust that my action will promote the expedient resolution of this prominent controversy of immense constitutional magnitude.

Footnote: 1     ¹Justice Harshbarger had been defeated by Justice Richard Neely and Mr. Brotherton in the primary election held earlier that year. However, depending upon the Court's determination of the petition questioning Mr. Brotherton's eligibility, it was conceivable that Justice Harshbarger could have resumed his campaign to retain his seat on this Court.