Must a judge’s assistant resign to run for a nonpartisan school-board seat?
Apply this to your situation
This page answers the general question as of 2004. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
A judge asked whether an assistant could seek a nonpartisan Board of Education position without resigning. The Commission quoted former Canon 5A(2)’s rule requiring a judge to resign on becoming a candidate for nonjudicial office. It then cited Philyaw v. Gatson, 195 W. Va. 474, 466 S.E.2d 133 (1995), as extending that rule to judicial employees and concluded the assistant would have to resign to run.
In practice
The Commission treated the school-board office as nonjudicial and applied the resign-to-run rule despite its nonpartisan election.
Common questions
Q: Did the nonpartisan nature of the office avoid resignation?
A: No. The Commission said the assistant would have to resign if she chose to run.
Q: What authority did the Commission rely on for judicial employees?
A: It cited Philyaw v. Gatson as extending the resign-to-run rule to a judicial employee.
Background and rules framework
The letter quoted former Canon 5A(2) and relied on the opinion’s cited Philyaw v. Gatson decision for application to judicial employees.
Citations and references
West Virginia Code of Judicial Conduct (former): Canon 5; Canon 5A(2). Case cited by the opinion: Philyaw v. Gatson, 195 W. Va. 474, 466 S.E.2d 133 (1995).
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2004-08, redacted
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
March 15, 2004
Re: JIC Advisory Opinion 2004-08
Dear
You recently wrote a request for an advisory opinion. In that letter you stated that your assistant has been approached to run for a nonpartisan position on the Board of Education. You asked whether this would be permissible since the position is nonpartisan. You also asked whether your assistant would be required to resign in order to run for this non-judicial office.
To address the questions which you have raised, the Commission has reviewed Canon 5 of the Code of Judicial Conduct. Canon 5 state in relevant part:
Canon 5. A judge or judicial candidate shall refrain from inappropriate political activity.
A. All judges and candidates.
(2) A judge shall resign from judicial office upon becoming a candidate for a non- judicial office either in a primary or in a general election, except that the judge may continue to hold a judicial office while being a candidate for election to or serving as a delegate in a state constitutional convention if the judge is otherwise permitted by law to do so.
This section of Canon 5 has been extended to judicial employees by the Supreme Court of Appeals in Philyaw v. Gatson, 195 W.Va. 474, 466 S.E.2d 133 (1995). A copy of this decision is attached hereto for your review. Based on the holding in that decision which extended the “resign to run rule” to a judicial employee, it is the opinion of the Commission that your assistant would be required to resign her position if she chose to run for a non-judicial office.
March 15, 2004
Page Two
If there is any further question regarding this matter do not hesitate to contact the Commission,
Very truly yours,
ct
4 4
Fred L. Fox, II, Chairperson
Judicial Investigation Commission
FLF,II:nb
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