May an applicant for judicial appointment also campaign and fundraise for election to the same open seat?

Plain-English summary

A lawyer shortlisted for a circuit judge appointment also expected to run for the open seat in a public election and asked about campaigning while the appointment process remained pending.

The Commission distinguished former Canon 5B(1)’s ban on fundraising for an appointment from Canon 5C’s rules for public election. It concluded that once the lawyer declared an election candidacy, the election rules permitted campaigning and a committee soliciting reasonable election support.

In practice

The opinion permits the separately declared election campaign and committee while keeping the appointment fundraising restriction tied to the appointment process.

Common questions

Q: Does the pending appointment application bar an election campaign?

A: No. The Commission distinguished the two candidacies.

Q: When may the candidate use an election committee?

A: Once the candidate declares the public election candidacy, under former Canon 5C.

Background and rules framework

Former Canon 5B(1) prohibits soliciting funds for a judicial appointment. Canon 5C permits campaign activity and a committee for a judicial public election. The opinion applies Canon 5C to the separately declared election candidacy.

Citations and references

West Virginia Code of Judicial Conduct (former):

• Canons 5B(1), 5C(1)(b), and 5C(2), appointment and election campaign rules.

See also

• WV JIC Advisory Opinion 2014-19
• WV JIC Advisory Opinion 2014-23

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2014-04, 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

February 4, 2014

Re: JIC Advisory Opinion 2014-04.

Dear

Your recent request for an advisory opinion was reviewed by the Judicial Investigation Commission. The factual scenario giving rise to your request is as follows: You are one of the lawyers selected by the Judicial Vacancy Advisory Commission as a finalist to fill a Circuit Court Judge vacancy. The names of the finalists were submitted to West Virginia Governor Earl Ray Tomblin late last year. Presently, two senior status judges are serving as temporary replacements until the Governor fills the vacancy.

In the meantime, the Governor either has or you anticipate that he will soon declare the position officially vacant which will allow it to be placed on the 2014 election ballet. You intend to run for the position but recognize that you cannot file for candidacy until the official vacancy announcement has been made and a filing period has been declared. Once that happens, you want to know if you can campaign and your committee can solicit funding and support for your election even though you may still be a candidate for appointment.

Canon SE of the Code of Judicial Conduct states that a candidate for judicia l office is subject to judicial discipline for his or her campaign conduct whether or not an incumbent and whether or not successful. Canon SB provides that "[a) candidate for appointment to judicial office or a judge seeking other governmental office shall not solicit or accept funds, personally or through a committee or

JIC Advisory Opinion 2014-04
February 4, 2014
Page 2

otherwise, to support his or her candidacy." However, Canon SC sets forth parameters for candidates subject to public election. For example, a candidate for judicial election may speak to gatherings on his or her own behalf, appear in media advertisements supporting his or her candidacy and distribute pamphlets and other promotional campaign literature supporting his or her candidacy. See Canon SC(l)(b). Importantly, a candidate may also establish a campaign committee to conduct the campaign, solicit and accept reasonable campaign contributions, manage the expenditure of funds for the candidate's campaign and obtain public support for his or her candidacy. See Canon SC(2).

The Commission is of the opinion that the prohibitions contained in Canon SB(l) relate strictly to the judicial appointment process and in no way bar a candidate who may also be running for the open seat in a publicly held election from campaigning and organizing a committee to solicit reasonable funding and support. In other words, once a candidate for appointment declares his or her candidacy for election, Canon SC and not Canon SB(l) controls and the candidate for judicial election is able to campaign and establish a committee which can solicit funding and support for the election.

We hope this opin ion fully addresses the issue which you have raised. If there is any further question regarding this matter, please do not hesitate to contact the Commission.

;;;~~ Ronald E. Wilson, Chairperson
Judicial Investigation Commission

REW/tat