Do domestic violence protective orders against a non-incumbent judicial candidate establish an ethics violation, and must a judicial officer report it?

Plain-English summary

A magistrate asked whether emergency and final domestic violence protective orders arising from a non-incumbent judicial candidate’s conduct violated the Code, whether presiding judicial officers must file an ethics complaint, and how confidentiality affects reporting.

The Commission said the candidate’s conduct may violate the Code, but an actual violation could not be decided without a complaint, an Office of Disciplinary Counsel investigation, and Commission review of the evidence. Applying former Canon 3D(1), it told the requester to report the perceived violation to the Commission because of the serious perceived misconduct and substantial fitness question. The orders are public records that could accompany a complaint; it cited Judicial Disciplinary Procedure Rule 2.4 on complaint and investigation confidentiality.

In practice

The opinion reaches a reporting conclusion for the judicial officer who asked; it does not adjudicate the candidate’s conduct.

Common questions

Q: Did the Commission find the candidate violated the Code?

A: No. It said the conduct may violate the Code and reserved a definitive determination for the complaint process.

Q: What did it direct the requesting judicial officer to do?

A: Report the perceived violation to the Judicial Investigation Commission under former Canon 3D(1).

Q: Could a protective order accompany the complaint?

A: Yes. The opinion describes domestic violence orders as public records and says a copy could be attached.

Background and rules framework

The opinion applies former Canons 6A and 5E to judicial candidates, Canon 5A(3)(a) to candidate conduct, and Canon 3D(1) to a judicial officer’s duty to report serious perceived misconduct. It quotes Judicial Disciplinary Procedure Rule 2.4 on confidentiality.

Citations and references

West Virginia Code of Judicial Conduct (former): Canons 1, 2, 3D(1), 5A(3)(a), 5E, and 6A.

Procedure: Rules of Judicial Disciplinary Procedure, Rule 2.4 (complaint and investigation confidentiality).

See also

• WV JIC Advisory Opinion 2013-08
• WV JIC Advisory Opinion 2012-20

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2012-19, 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 1200 A
4700 MacCorkle Ave., SE
Charleston, West Virginia 25304
(304) 558-0169 * FAX (304) 558-0831

June 29, 2012

Re: JIC Advisory Opinion 2012-19,
Dear Magistrate

Your request for an advisory opinion to Counsel was recently reviewed by the Judicial investigation Commission. You want to know if a non-incumbent candidate for judicial office violates the Code of Judicial Conduct when his/her conduct results in both an emergency and final domestic violence order of protection being issued. You also want to know if the judicial officer(s) presiding over the matters have a duty to file an ethics complaint against the non-incumbent candidate. Lastly, you raise some concerns about reporting “given the confidential nature of domestic violence proceedings.”

Canon 6A of the Code of Judicial Conduct provides that “[a]ll candidates for judicial office shall comply with the applicable provisions.” Canon 5 governs the political activity of judicial officers and candidates. Canon 5E states that “Canon 5 generally applies to all incumbent judges and judicial candidates. A candidate whether or not an incumbent and whether or not successful, is subject to judicial discipline for his or her campaign conduct.”

Canon 5A(3)(a) states that “a candidate for a judicial office shall maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary, and shall act in a manner that promotes public confidence in the integrity and impartiality of the judiciary...” This provision is consistent with a judicial officer’s duty to uphold the integrity and independence of the judiciary set forth in Canon 1 and the requirement that he/she avoid impropriety and the appearance of impropriety in all activities contained in Canon 2.

_With these principles in mind, the Commission finds that a non-incumbent candidate for judicial office may violate the Code of ‘Judicial Conduct when his/her actions result in both an emergency and final domestic violence order being issued. However, the Commission cannot definitively say whether the conduct actually violates the Code without a complaint being filed, a thorough investigation being conducted by the Office of Disciplinary Counsel, and a full review of the evidence by the JIC,

JIC Advisory Opinion 2012-19
June 29, 2012
Page 2

Canon 3D(1) of the Code of Judicial Conduct requires judicial officers to file complaints in such matters and provides:

A judge who receives information indicating a substantial likelihood that another judge has committed a violation of [the] Code should take appropriate action. A judge having knowledge that another judge has committed a violation of [the] Code that raises a substantial question as to the other judge’s fitness for office shall inform the appropriate authority.

The term “appropriate authority” denotes the authority with responsibility for initiation of the disciplinary process with respect to the violation to be reported or in this case the JIC. The term “knowledge” means the actual knowledge of the fact in question. Given the knowledge you have concerning the matter and the tenets set forth in Canon 3D(1), you have a duty to report the perceived violation to JIC because of the serious nature of the perceived misconduct and the substantial question it raises concerning the individual's fitness to hold judicial office. Since domestic violence orders are matters of public record, you could attach a copy of the Order to any complaint filed. Moreover, Rule 2.4 of the Rules of Judicial Disciplinary Procedure states that “[t]he details of complaints filed or investigations conducted by the Office of Disciplinary Counsel shall be confidential. . . .” Based on this, the details of the complaint would remain confidential unless some disciplinary action was to be taken against the individual in question.

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,

[signature]
Ronald E. Wilson, Chairperson
Judicial Investigation Commission
REW/taf