May a judge accept a governor’s appointment to a prison-overcrowding commission?
Apply this to your situation
This page answers the general question as of 2009. 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 was appointed by the Governor to an unpaid prison-overcrowding commission created by executive order after a justice-system symposium. The judge asked whether service violated West Virginia Constitution art. VIII, § 7.
The Commission concluded that the judge could not accept the appointment because the constitutional provision barred a judge from accepting another appointment under government.
In practice
The conclusion concerns a governor-created, executive-order commission and the constitutional appointment restriction.
Common questions
Q: Can the judge accept the appointment?
A: No. The Commission found the appointment constitutionally barred.
Q: Was the role paid?
A: No. The request described unpaid service, which did not change the answer.
Q: Which provision governed?
A: West Virginia Constitution art. VIII, § 7.
Background and rules framework
The opinion applies West Virginia Constitution art. VIII, § 7 to a judge’s acceptance of a government appointment; it does not cite a numbered Code Canon.
Citations and references
Constitution cited: W. Va. Const. art. VIII, § 7.
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2009-07, 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 6, 2009
Re: JIC Advisory Opinion 2009-07
Dear Judge
In a recent letter to the Judicial Investigation Commission you asked for an advisory opinion. You stated that Governor has recently appointed you to the “Governor’s Commission on Prison Overcrowding.” You indicate the Governor, the Speaker of the West Virginia House of Delegates, the President of the West Virginia Senate and the Chief Justice of the West Virginia Supreme Court of Appeals appointed various individuals to attend the “West Virginia Symposium on the Effective Administration of Justice” on November 12-14, 2008, at the Stonewall Jackson Resort. You, along with Judges and attended the symposium at the request of Chief Justice This symposium specifically addressed the overcrowding of West Virginia prisons. This symposium recommended that the Governor appoint a followup commission to address this important issue. By executive order the Governor has created such a commission and has appointed you as a member of it. Such membership is a nonpaying position to serve at the will and pleasure of the Governor. You asked that the Judicial Investigation Commission issue an opinion as to whether or not you serving on the commission is proper or if such service violates Article VIII, Section 7 of the West Virginia Constitution.
To address the question which you have raised, the Commission has reviewed Article VIII. Section 7 of the Constitution of West Virginia. That section of the Constitution states in
relevant part:
No justice, judge or magistrate shal] hold any other office, or accept any appointment or public trust, under this or any other government; nor shall he become a candidate for any elective public office or nomination thereto, except as judicial office; and the violation of any of these provisions shall vacate his
judicial office...
March 6, 2009
Page Two
Based upon the language contained in the Constitution, it is the opinion of the Commission that you could not accept the appointment to the Commission which the Governor has created by executive order. In the opinion of the Commission to do so would violate the prohibition set forth in the Constitution against accepting any appointment under the
government.
It is hoped that this opinion fully addresses the question which you have raised. If there is any further question concerning this matter do not hesitate to contact the Commission.
Very truly yours,
Len i
Fred L. Fox, I Chairperson
Judicial Investigation Commission
FLF:nb
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