Could a municipal judge candidate use a family campaign photograph including a spouse who was a circuit judge?

Plain-English summary

A circuit judge asked whether the judge’s spouse, a municipal judge seeking reelection, could include a family photograph in campaign material. The proposed caption would identify the circuit judge only as the candidate’s husband.

The Commission applied former Canon 5A(1) and allowed the photograph with that limitation. The PDF appends a February 25, 1994 opinion about a magistrate’s spouse running for prosecutor; that attachment is supporting precedent, not the 2002 holding.

Currency note

This opinion was issued in 2002, 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 family photo be used?

A: Yes, if the circuit judge was identified only as the candidate’s spouse.

Q: Could the caption call the spouse a circuit judge?

A: No. The Commission expressly conditioned its answer on omitting that judicial identity.

Background and rules framework

Former Canon 5A(1) restricted political endorsements and campaign activity by judges; the Commission distinguished appearing as a spouse from using judicial office in the campaign.

Citations and references

West Virginia Code of Judicial Conduct (former):

• Canon 5A(1), judicial political activity.
• Attached JIC letter dated February 25, 1994, cited as prior guidance.

See also

• WV JIC Advisory Opinion 1991-05: Family law master spouse campaign

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2002-30, 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
Post Office Box "1629
Charleston, West Virginia 25326-1629
(304) 558-0169 • FAX (304) 558-0831 .

December 30, 2002

Dear Judge

In recent correspondence to the Judicial Investigation Commission, you asked for an advisory opinion regarding whether your wife may use a family photograph in campaign materials for her upcoming reelection campaign as
Municipal Judge. You stated that you are requesting the formal opinion as a precaution and to ensure that the use of a family photograph does not become a campaign issue. You also stated that the caption under the photo would refer to you simply as your wife's husband and would not include any reference to you as circuit judge.

The Commission has reviewed your request for an advisory opinion and has looked at relevant sections of Canon 5 of the Code of Judicial Conduct as well as past opinions of the Commission relevant to the issue raised. Canon 5 state in relevant pertinent part:

Canon 5. A judge or judicial candidate shall refrain from inappropriate political activity.

A. All judges and candidates.

(l) Except as authorized in sections 5B(2), SC(l ), and 5C(3), a judge or a candidate-for election or appointment to judicial office shall not:

The Honorable
, Judge
December 30, 2002
Page Two

(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 5, it is the opinion of the Commission that you could appear in a family photograph contained in campaign materials for the upcoming reelection campaign of your wife as
Municipal Judge. You would be identified only as her spouse and not have any identity contained in the material that you are a circuit judge. This opinion is consistent with a prior advisory opinion issued by the Commission which stated that it would be permissible for a judge to attend campaign rallies of other social functions with his wife who was a candidate for public office. See JIC Advisory Opinion 2/25/94, a copy of which is attached hereto.

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

Very truly yours,

Donald H. Cookman, Chairperson
Judicial Investigation Commission

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Enclosure

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

February 25, 1994

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 ~ d a t e for the office of prosecuting a t t o r n e y ~ 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, l994
Page 2

(l) Except as authorized in Sections 5B(2), 5C(l), 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 5, 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.

(l) A judge shall disqualify himself or herself in a
proceeding in which the judge's impartiality might

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.
ery tru y yours,

nt 14J
Fed L. ox, II, Chairman

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