Must a state delegate resign to run for magistrate or after winning before taking the oath?
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This page answers the general question as of 2019. 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 state delegate asked whether running for magistrate required resignation from the legislature, and whether election would end the legislative term before the magistrate’s oath.
The Commission said West Virginia had no resign-to-run law for legislators seeking judicial office. It permitted continued legislative service during the campaign and, if elected, until the magistrate’s oath. It reminded the candidate to follow Rules 4.1 through 4.5 during the campaign and said the other Code provisions would apply immediately upon election.
In practice
The opinion permits legislative service during candidacy and until the magistrate oath, while separately identifying Code obligations triggered by candidacy and election.
Common questions
Q: Must the delegate resign merely to run?
A: No. The Commission found no such resignation requirement.
Q: May the delegate finish the term after winning?
A: The opinion permits legislative service until taking the magistrate’s oath.
Q: When do judicial campaign rules apply?
A: Rules 4.1 through 4.5 apply during candidacy, according to the opinion.
Background and rules framework
The Commission cited JIC Opinion 2018-20 and said no statute, rule or provision imposed a resign-to-run requirement on legislators. It identified Rules 4.1-4.5 as governing judicial candidacy.
Citations and references
West Virginia Code of Judicial Conduct:
- Rules 4.1-4.5, judicial candidate conduct.
Other opinions cited:
- JIC Advisory Opinion 2018-20, legislator candidacy for judicial office.
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2019-06, 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 [a'll · Suite 1200 A
4 700 MacCorl<le Ave SE
Cilarleston, West Virginia 25304
(304) 558 0 169 • FAX (304) 558-0831
March 26, 201 9
Re: JIC Advisory Opinion 201 9-06.
Dear Delegate
Your recent request for an advisory op1n1on was reviewed by the Judicial Investigation Commission at its March 22, 20 19 meeting. The factual scenario giving ri se to your request is as foll ows:
You have been a member o r the .West Virginia House of Delegates since 2006.
Your cun-ent term of o ffi ce ends on December 3 1, 2020. You are contemplating running for Magistrate of County in the May 2020 election. If you win, you would li kely nol take a seat on the bench until January l , 202 1. You want to know if you would be required to resign your seat in the House of Delegates to run for j udicial offi ce. You also want to know whether you could complete your legislative term if you are e lected Magistrate or would you be required to resign once the results were ce1t ifi ecl in late May or early June 2020.
Unlike some other states, West Virginia docs not have a resign to ru n law covering legislators who wa nt to run for judi cial o ffi ce. In JIC AdvisOJy Opinion 2018- 20, the Commission stated that it would be improper fo r this body "to cra lt such a rule given the complex ity o f the question as legislators make the laws that judges must interpret." Si nce there is no statut e, rule or provision that requires you to resign yo ur legislative seat, th e Commi ssion is of the opinion that you can concurrently serve as a Delegate while simultaneously running for judicial o ffi ce. Furthermore, the Commission is of the opinion that if elected, you may retain yo ur legislati ve seat until such time as you take the oath of office fo r Magistrate. Importantly, the Commission wishes to remind you that while you are a candidate fo r j udicial offi ce you must fo llow Rules 4. 1 through 4.5; and if yo u arc
.IIC Ad\·isorv Opi11iu11 20 I ll-0(,
i'vlarch 26, 20 I9
Pagc:2o f 2
elected, you wi ll be immecliaiely subject to the other provisions of the Code of Judicial Conduct.
It is hoped thal this opi nion full y addresses the issues which you have raised.
Pl ease <lo not hesitate to contact the Commission if you have any other questions regarding this matter.
Sincerely,
{:lh-;;J,13Jto
The l lonornble Alan D. Moats, Chai rperson Judi cial ln vt!sliga tion Comm ission
/\DM itat
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