May a judge join a governor-elect’s volunteer brainstorming forum on substance abuse?
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This page answers the general question as of 2016. 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 invited to join a volunteer brainstorming event on substance abuse, with possible further meetings after the governor-elect took office.
The Commission permitted participation. It read Rule 3.4, its Comment 3 and West Virginia Constitution Article VIII, § 7 as allowing incidental government committee service that is not a separate office or employment in conflict with judicial duties.
In practice
The opinion permits the described volunteer forum participation as incidental service rather than a conflicting governmental office.
Common questions
Q: May the judge accept the invitation?
A: Yes. The Commission permitted the brainstorming participation.
Q: Does the constitutional office-holding bar prohibit this incidental forum?
A: The Commission said it does not apply to the described incidental service, under Rule 3.4 and its commentary.
Background and rules framework
Rule 3.4 governs appointments to governmental positions concerning law, the legal system or administration of justice. The opinion reads Comment 3 and Clerk’s Notes with West Virginia Constitution Article VIII, § 7 on other offices and public-trust appointments.
Citations and references
West Virginia Code of Judicial Conduct:
- Rule 3.4 and Comment 3, governmental appointments.
Constitution:
- W. Va. Const. art. VIII, § 7, other offices and public-trust appointments.
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2016-33, 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
December 15, 2016
Re: JIC Advisory Opinion 2016-33.
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:
has asked you to participate in a brainstorming event concerning substance abuse. Participation in the group is on a volunteer basis. staff has informed you that there might be additional meetings after the takes office. You would like to know if you can accept the Governor-elect’s invitation to participate in the forum.
The Commission has reviewed Article VIII, §7 of the West Virginia Constitution, Rule 3.4 and Comment [3] to Rule 3.4 of the Code of Judicial Conduct to address the question which you have raised. Article VIII, §7 of the West Virginia Constitution provides in pertinent part:
No 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. No justice of the supreme court of appeals or judge of an intermediate appellate court or of a circuit court shall practice the profession of law during the term of his office, but magistrates who are licensed to practice this profession may practice law except to the extent prohibited by the Legislature.
Rule 3.4 of the Code of Judicial Conduct provides in pertinent part:
JIC Advisory Opinion 2016-33
December 15, 2016
Page 2 of 2
Rule 3.4 Appointments to Governmental Positions
A judge shall not accept appointment to a governmental
committee, board, commission, or other governmental
position, unless it is one that concerns the law, the legal system, or the administration of justice.
Comment [3] to the Rule notes that “[a] judge's appointment to a government board or commission relating to the law, the legal system, or the administration of justice is generally not the kind of incompatible or time-consuming position prohibited under the dual office-holding provision of West Virginia Constitution, Article VIII, § 7.”
Based upon the foregoing, the Commission believes that you can accept the invitation to participate in the brainstorming event. The Commission is mindful that Comment [3] to Rule 3.4 was drafted to address any ambiguity in Article VIII, §7 of the West Virginia Constitution. Together the Rule and the Comment make clear that the “other office or appointment’ language of West Virginia Constitution, Article VIII, § 7 has no application to a judge’s incidental service on a government board or committee that is not a separate office or employment in conflict with judicial duties and obligations.” Clerk’s Notes on Rule 3.4.
The Commission believes the group may benefit from the wisdom of a judge who deals daily with the drug epidemic in West Virginia. We hope this opinion fully addresses the issue which you 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/bjl
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