Could a magistrate’s wife take a secretarial job in the prosecutor’s office?
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This page answers the general question as of 2006. 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 magistrate asked whether the magistrate’s wife could take a support-staff job in the prosecuting attorney’s office. The proposed duties included clerical work and providing victims with information.
The Commission applied former Canons 1 and 3E and a 1992 JIC opinion. It concluded that the employment would conflict with the magistrate’s hearing any criminal case, and that recusal across those cases would impose an undue burden on the magistrate court system. It therefore advised that the wife should not take the position.
In practice
The advice addressed a magistrate’s spouse working in the prosecutor’s office, including in a secretarial role. The Commission expected disqualification in all criminal cases if the employment occurred.
Common questions
Q: Did the clerical nature of the proposed job resolve the concern?
A: No. The Commission advised against the employment despite the described support-staff duties.
Q: How broad was the expected recusal?
A: The opinion said the employment would cause a conflict in all criminal cases before the magistrate.
Q: What earlier opinion did the Commission discuss?
A: A September 23, 1992 JIC opinion on a magistrate whose wife worked for the prosecutor.
Background and rules framework
Former Canon 3E(1), quoted in the opinion, required disqualification when impartiality might reasonably be questioned. The Commission also cited former Canon 1’s integrity principle and stated that the then-current Code lacked the written-waiver provision discussed in the 1992 opinion.
Citations and references
West Virginia Code of Judicial Conduct (former): Canon 1; Canon 3; Canon 3E(1).
Other opinions cited: JIC advisory opinion dated September 23, 1992.
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2006-06, 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
April 25, 2006
Re: JIC Advisory Opinion 2006-06
Dear
In a recent request for an advisory opinion you asked if the wife of a magistrate could be employed in a support staff/secretarial position in the prosecutor’s office. The position would include filing, typing, answering phones and closing files after completion. Additionally, the position would include referring victims to other agencies and supplying victims with information.
To address the inquiry that you have made the Commission has reviewed Canon 1 and Canon 3 of the Code of Judicial Conduct. Those Canons state in relevant part:
Canon 1. A judge shall uphold the integrity and independence of the judiciary.
A. An independent and honorable judiciary is indispensable to justice in our society. 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.
The provisions of this Code are to be construed and applied to further that objective.
Canon 3. A judge shall perform the duties of judicial office impartially and diligently.
April 25, 2006
Page Two
E. Disqualification. - (1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. . .
In analyzing a similar question in an advisory opinion dated September 23, 1992, the Judicial Investigation Commission wrote an opinion which stated that based on Canon 3E, it would not be appropriate for a magistrate whose wife was employed as a secretary in the prosecuting attorney’s office to hear criminal matters. The Code of Judicial Conduct, which existed at that time, had a provision that permitted parties outside the presence of the judge to waive in writing any disqualification a judge may have. The current Code of Judicial Conduct does not contain such a provision. If a judge has a conflict, which disqualifies the judge, the only remedy is the recusal of the judge from hearing the case. (A copy of this advisory opinion is enclosed).
Based upon the language contained in Canon 1 and Canon 3E, it is the opinion of the Commission that the wife of a magistrate should not become an employee of the prosecuting attorney’s office. Such employment would cause a conflict for the magistrate in all criminal cases and recusal in such cases would cause an undo burden on the magistrate court system.
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,
Fred L. Fox, II, Chairperson
Judicial Investigation Commission
FLF,II:nb
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