Could a magistrate serve as a trustee of a local cemetery corporation?

Short answer West Virginia JIC Opinion 2002-24 advised the magistrate against serving on the cemetery corporation's board because the described fiduciary, personnel, land, sales, and financial duties conflicted with the spirit of Canon 4C(3).
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JUDICIAL-WV
Issued
October 1, 2002

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This page answers the general question as of 2002. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.

Currency note: this opinion is from 2002
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A magistrate asked about serving on the board of a local cemetery corporation. The proposed trusteeship would cover personnel, land acquisitions, grave-plot sales, financial decisions, and a planned upkeep endowment. The Commission applied former Canon 4C(3) and advised against service. It said the corporation's economic purpose was unclear and the described duties conflicted with the spirit of the Canon.

In practice

The opinion addressed this particular cemetery trusteeship and its described operational and financial responsibilities.

Common questions

Q: Could the magistrate take this trustee position?

A: The Commission advised against serving on the board as described.

Q: Did the absence of known litigation involving the cemetery change the conclusion?

A: The request reported no known magistrate-court litigation, but the Commission still advised against the role based on the trustee's duties and uncertainty about the corporation's economic purpose.

Background and rules framework

The letter quoted former Canon 4C(3) of the West Virginia Code of Judicial Conduct, including its limits on service for organizations conducted for members' economic advantage, court proceedings, fundraising, and investment advice.

Citations and references

West Virginia Code of Judicial Conduct (former): Canon 4C(3).

See also

Source

Original opinion text

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

JUDICIAL INVESTIGATION COMMISSION
Post Office Box 1629
Charleston, West Virginia 25326-1629
(304) 558-0169 • FAX (304) 558-0831

October 1, 2002

Re: JIC Advisory Opinion 2002-24

Dear

In a recent letter to the Judicial Investigation Commission you inquired about whether you could serve as a member of a board of trustees for a local cemetery corporation. You stated that the position would involve fiduciary activities and appear to conflict with the Code of Judicial Conduct so you were asking for an advisory opinion. You stated that you could find no record that this corporation had been a party to any suit filed in the County Magistrate Court, nor was it likely to be such in the future. To the best of your knowledge, the trustee position would mainly involve overseeing cemetery maintenance, including handling personnel matters. A trustee would also be involved in the acquisition of land for cemetery expansion, and approving the sale of grave plots, as well as making financial decisions affecting the cemetery. In the future the board of trustees plans to establish and administer an endowment fund to provide money for cemetery upkeep.

To address the issues which you have raised, the Commission reviewed Canon 4C(3) of the Code of Judicial Conduct. That Canon states in relevant part:

Canon 4. A judge shall so conduct the judge's extra-judicial activities as to minimize the risk of conflict with judicial obligations.

October 1, 2002
Page Two

C. Governmental, civic, or charitable activities.

(3) Civic and charitable activities. - A judge may participate in civic and charitable activities that do not reflect adversely upon the judge's impartiality or interfere with the performance of the judge's judicial duties. A judge may serve as an officer, director, trustee, or non-legal adviser of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members subject to the following limitations:

(a) A judge should not serve if it is likely that the
organization will be engaged in proceedings that
would ordinarily come before the judge or will be
regularly engaged in adversary proceedings in any
court.

(b) A judge should not solicit funds for any
educational, religious, charitable, fraternal, or civic
organization, or use or permit the use of the prestige
of office for that purpose; but a judge may be listed
as an officer, director, or trustee of such an
organization, so long as the listing is not used for
fund-raising purposes. A judge should not be a
speaker or the guest of honor at any organization's
fund-raising events, but may attend such events.

(c) A judge should not give investment advice to such an
organization, but a judge may serve on the board of
directors or trustees even though it has the responsibility for approving investment decisions.

Based upon the description of the Board of Trustees as contained in your correspondence and the language contained in Canon 4C(3), it is the opinion of the Commission that you should not serve on the Board of Trustees for the local cemetery corporation. It is unclear whether the corporation is conducted for the economic advantage of its members. You would also be involved in fiduciary, personnel matters, the acquisition of land and the sale of grave plots. You would also be called upon to make financial decisions affecting the cemetery. All of these duties would conflict with the spirit of the language contained in Canon 4C(3).

October 1, 2002
Page Three

It is hoped that this opinion fully addresses the question which you have raised. If there is any further question regarding this matter do not hesitate to contact the Commission.

Very truly yours,

Donald H. Cookman, Chairperson
Judicial Investigation Commission

DHC:nb

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