Must a mental hygiene commissioner resign to run for judicial or prosecutor office, or to accept an assistant prosecutor job?
Apply this to your situation
This page answers the general question as of 2007. 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 mental hygiene commissioner asked about running for circuit judge, family court judge, or prosecuting attorney, and about accepting an assistant prosecuting attorney position.
The Commission said judicial candidacy did not require resignation. A prosecutor candidacy did, under former Canon 5A(2), and the Commission also required resignation before accepting an assistant prosecutor role because a judicial officer could not simultaneously hold a position in that office.
In practice
The answer distinguishes judicial campaigns from nonjudicial candidacy and prosecutor employment; it concerns the same person holding the positions.
Common questions
Q: Could the commissioner run for circuit or family judge without resigning?
A: Yes.
Q: Could the commissioner run for prosecuting attorney without resigning?
A: No. The Commission applied former Canon 5A(2).
Q: Could the commissioner also be an assistant prosecutor?
A: No. The Commission required resignation before accepting that job.
Background and rules framework
Former Canon 5A(2) required a judge to resign judicial office upon becoming a candidate for nonjudicial office, subject to a constitutional-convention exception.
Citations and references
West Virginia Code of Judicial Conduct (former): Canon 5A(2).
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2007-21, 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
August 27, 2007
Re: JIC Advisory Opinion 2007-21
Dear |
In a recent letter to the Judicial Investigation Commission you asked for an advisory opinion regarding two issues: (1) If you run for Circuit Court Judge, Family Court Judge or Prosecuting Attorney, will you need to resign your position as Mental Hygiene Commissioner; (2) if you accept an Assistant Prosecuting Attorney position will you have to resign as Mental Hygiene Commissioner?
To address the issues which you have raised, the Commission has reviewed Canon 5 of the Code of Judicial Conduct. Canon 5 states in relevant part:
Canon 5. A judge or judicial candidate shall refrain from inappropriate political activity.
(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 a judge may continue to hold 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.
Based upon the language contained in this Section of Canon 5, if you were to run for Circuit Court Judge or Family Court Judge you would not need to resign your position as Mental Hygiene Commissioner. If you were to run for Prosecuting Attorney you would need to resign your position as Mental Hygiene Commissioner.
August 27, 2007
Page Two
It is the opinion of the Commission that you would also need to resign your position as Mental Hygiene Commissioner if you were to accept an Assistant Prosecuting Attorney position. As a judicial officer you would not be allowed to simultaneously hold a position in the prosecuting attorney’s office.
It is hoped that this opinion fully addresses the questions which you have raised. If there is any further question regarding this matter do not hesitate to contact this office.
Very truly yours,
[signature]
Fred L. Fox, II, Chairperson
Judicial Investigation Commission
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