What could a magistrate do during a spouse’s prosecutor campaign, and what if the spouse won?

Plain-English summary

A magistrate’s spouse was running for county prosecuting attorney. The magistrate asked about campaign activities and judicial work if the spouse won.

The Commission allowed attendance at rallies and social functions with the spouse but barred fundraising, campaign manual labor, driving the spouse’s campaign-stickered car, distributing signs, or handling campaign printing. If the spouse became prosecutor, the Commission said former Canon 3E required disqualification from all criminal cases, including those handled only by assistants. It also barred search warrants, domestic violence petitions, initial appearances, and arraignments on criminal warrants, and said the Code provided no waiver by party consent.

Currency note

This opinion was issued in 1994, before West Virginia adopted its 2015 Code of Judicial Conduct, effective December 1, 2015. Subsequent rule changes or later opinions may have changed the analysis. Treat this page as historical context and verify the current Code before relying on the letter's conclusion.

Common questions

Q: Could the magistrate attend campaign rallies with the spouse?

A: Yes, but the Commission barred the described active campaign work.

Q: Would recusal apply only when the spouse personally handled a criminal case?

A: No. The Commission said it extended to cases handled by assistant prosecutors as well.

Q: Could the parties waive the conflict?

A: The Commission said the then Code had no provision for waiver by disclosure and consent.

Background and rules framework

Former Canon 5A(1) restricted judicial political activity. Former Canon 3E(1)(d)(ii)-(iii) addressed disqualification where a spouse acted as lawyer or held a substantially affected interest.

Citations and references

West Virginia Code of Judicial Conduct (former):

• Canon 5A(1), political activity.
• Canon 3E(1)(d)(ii)-(iii), spouse involvement and disqualification.

See also

• WV JIC Advisory Opinion 1995-24: Spouse’s home fundraiser

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 1994-04, redacted
• Code adoption date: West Virginia JIC 2015 Annual Report

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

JUDICIAL INVESTIGATION COMMISSION
Building 1, Room E400
1900 Kanawha Boulevard, East
Charleston, WV 25305-0834

February 25, 1994

Re: JIC Advisory Opinion 1994-04

Dear
Your recent letter to the Judicial Investigation Commission seeking an advisory opinion was reviewed by the Commission at its recent meeting. In that correspondence you state that your wife is currentlv a candidate for the office of prosecuting attorney in _ County. You state that you are currently a Magistrate. Your inquiry addresses two areas:
First, you want to ascertain what activities you may engage in during your wife's campaign;
Second, you ask how your duties as a Magistrate would be affected if your wife were elected to the office of prosecuting attorney.
In addressing the first five questions which you have raised regarding which activities you may engage in during your wife's campaign, the Commission has looked to Canon 5 of the Code of Judicial Conduct. That Canon states in pertinent part:
CANON 5
A JUDGE OR JUDICIAL CANDIDATE SHALL REFRAIN FROM INAPPROPRIATE POLITICAL ACTIVITY
A. All Judges and Candidates.

February 25, 1994
Page 2

(1) Except as authorized in Sections 5B(2), 5C(1), and 5C(3), a judge or a candidate for election or appointment to judicial office shall not:
(a) act as a leader or hold an office in a political organization;
(b) publicly endorse or publicly oppose another candidate for public office;
(c) make speeches on behalf of a political organization;
(d) publicly display any campaign paraphernalia in any area where judicial-activities are conducted or knowingly permit any such display;
(e) solicit funds for a political organization or candidate.
Based upon the relevant language contained in Canon·s, it would be permissible for you to attend campaign rallies or other social functions with your wife. However, you could not engage in any fund raising activities. It would not be permissible for you to perform volunteer manual labor connected with her campaign. It would not be permissible for you to drive a vehicle normally driven by your wife when that vehicle had her campaign stickers displayed. It would not be permissible for you to assist in handing out campaign signs or posters that had been previously requested by individuals. Nor would it be permissible for you to deliver and pickup items from the printers or commercial advertisers at the request of your wife or a member of her campaign committee.
The language in Canon 3E of the Code of Judicial Conduct addresses the second area of your inquiry. That language of Canon 3 states in pertinent part:
CANON 3

A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY AND DILIGENTLY
E. Disqualification.
(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might

February 25, 1994
Page 3

reasonably be questioned, including but not limited to instances where:

(d) the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(ii) is acting as an attorney in the proceeding;
(iii) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding.
Based upon the language contained in this section of Canon 3, it is the opinion of the Commission that if your wife were elected to the office of prosecuting attorney you would be disqualified from handling all criminal cases even those handled solely by one of the assistant prosecuting attorneys. You would not be able to issue search warrants, domestic violence petitions, or conduct initial appearances or arraignments on criminal warrants. The Code of Judicial Conduct does not have a provision which allows a disclosure of any conflict of interest and permit the parties to enter into a waiver of such conflict.
It is hoped that this opinion addresses those concerns which you have raised. If there is any additional question concerning any of these matters, do not hesitate to contact the Commission. y yours,

Chairman
FLF,II/bl