Must a city council member resign from council to run for magistrate?
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This page answers the general question as of 2012. 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 Fairmont City Council member asked whether running for magistrate required immediate council resignation. The Commission distinguished former Canon 5A(2), which addresses a sitting judge becoming a nonjudicial candidate, from a council member seeking judicial office. It found no Code requirement to leave council during the magistrate campaign.
It said West Virginia Constitution art. VIII, § 7 would require resignation from the council position if elected magistrate.
In practice
The opinion distinguishes the campaign period from holding the judicial office after election.
Common questions
Q: Must the council member resign to start the campaign?
A: No. The Commission found no such Code requirement.
Q: What if the candidate wins?
A: The council position must be relinquished before serving as magistrate.
Q: Which constitutional provision is cited?
A: West Virginia Constitution art. VIII, § 7.
Background and rules framework
Former Canon 5A(2) addresses a judge running for nonjudicial office, while the cited constitutional provision limits other offices held by a judge or magistrate.
Citations and references
West Virginia Code of Judicial Conduct (former): Canon 5A(2).
Constitution cited: W. Va. Const. art. VIII, § 7.
Other opinions cited: JIC Opinions 12/14/2009, 07/03/2007, and 6/14/2007.
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2012-02, redacted
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.
JUDICIAL INVESTIGATION COMMISSION
City Center East = Suite 1200A ~
4700 MacCorkle Ave., SE
Charleston, West Virginia 25304
(304) 558-0169 * FAX (304) 558-0831
January 27, 2012
Re: JIC Advisory Opinion 2012-02.
Dear Ms.
Your recent request for an advisory opinion to Counsel was reviewed by the Judicial Investigation Commission. The factual scenario giving rise to your request is as follows: You are presently a member of the You are considering a run for the judicial office of Magistrate of /. You want to know if you have to resign your Council position in order to run for Magistrate.
Canon 5A(2) of the Code of Judicial Conduct is the only provision to address resignation/running for office. This provision states in pertinent part that “a judge shall resign from judicial office upon becoming a candidate for a non-judicial office either in a primary or general election. ...“ Conversely, there is no Canon that requires a non-judicial candidate to give up his/her employment in order to run for a judicial office or during the pendency of the campaign. Therefore, the Commission finds that you do not have to resign your position on Fairmont City Council in order to run for Magistrate.
However, if you are elected to the judicial office of magistrate you will be required to resign your Council position. Article VIll, Section 7 of the West Virginia Constitution states that “InJo justice, judge or magistrate shall 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 a judicial office; and the violation of any of these provisions shall vacate his judicial office.” See also JIC Advisory Opinion 12/14/2009 (Mental Hygiene Commissioner, as a judicial officer, may not, at the same time, hold the position of part-time assistant prosecutor); JIC Advisory Opinion 07/03/2007 (Mental Hygiene Commissioner cannot concurrently serve as a Municipal Judge); and JIC Advisory Opinion
6/14/2007 (Mental Hygiene Commissioner cannot concurrently sit as an elected member of city council).
JIC Advisory Opinion 2012-02
January 27, 2012
Page 2
aa = === It is hoped that this opinion fully addresses the issues which you have raised. If there is ~
any further question regarding this matter do not hesitate to contact the Commission.
Sincerely,
Ronald E. Wilson, Chairperson
Judicial Investigation Commission
REW/tat
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