Must a senior status magistrate resign to run for another judicial office?

Plain-English summary

A senior status magistrate planned to run for magistrate in an election. An older Administrative Director memorandum had said a senior judge or magistrate could not campaign for any office while retaining senior status.

The Commission applied the current Rule 4.5(A) and concluded that the resignation rule applies to nonjudicial elective office, rather than another judicial post. Senior status judicial officers are judges under the Code. The opinion says the earlier memorandum should be rejected to the extent it conflicts with that interpretation.

In practice

Under the opinion, a senior status magistrate need not resign merely to seek another judicial office.

Common questions

Q: Does a judicial campaign require resignation from senior status?

A: No. The Commission said senior status can be retained while seeking judicial office.

Q: What if the campaign is for nonjudicial office?

A: The opinion says the senior status officer must resign in that situation.

Background and rules framework

Rule 4.5(A) requires resignation when a judge becomes a candidate for nonjudicial elective office unless law permits continued service. The Commission cites Code Applications I through V and II in explaining the position of senior status judges.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 4.5(A), candidacy for nonjudicial elective office.
• Code Applications I-V and II, judicial officers covered by the Code.

See also

• WV JIC Advisory Opinion 2021-04
• WV JIC Advisory Opinion 2020-21

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2020-02, 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 1200 A
4700 MacCorkle Ave., SE
Charleston, West Virginia 25304
(304) 558-0169 • FAX (304) 558-0831

Janua1y 29, 2020

Re: .TIC Advisory Opinion 2020-02.

Dear Mr.

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:

A senior status magistrate has decided to run for the position of magistrate in the Mav 2020 Election. In 1998, the then Administrative Director issued Memorandum No. which stated that a senior status judge or magistrate could not run for either a j udicial office or a non-judicial office in an election. The Memorandum fu11her stated that "a person attaining senior status would need to be removed from senior status if election to any post is sought." ln reaching this conclusion, the then Administrative Director relied on fonner Canon 5A(2) of the Code of Judicial Conduct which stated:

A judge shall resign from judicial office upon becoming a candidate for a non-judicial office either in a primary or in a general election, except that the judge may continue to hold judicial office while being a candidate for election to or serving as a delegate in a state constitutional convention if the judge is otherwise pennitted by law to do so.

You want to know if the senior status magistrate has to resign in order to run for judicial office in the upcoming election.

To address your question, the Commission has reviewed Rule 4.5 of the current Code which states:

JIC Advisory Opinion 2020-02
January 29, 2020
Page 2 of2

(A) Upon becoming a candidate for a nonjudicial elective office, a judge shall resign from judicial office, unless pennitted by law to continue to hold judicial office.

The Commission has long held that the resign to run rule as it is known applies only to judicial officers who run for non-judicial positions. Judges who run for other judicial positions as set forth in the Code 1 can keep their cunent positions and simultaneously seek office. A senior status judicial officer is a judge within the meaning of the Code.2 Therefore, a senior status judge who runs for judicial office may retain his or her cuITent position. The senior status judge must only resign his/her office if he/she were to run for a non-judicial office. To the extent that Memorandum
is inconsistent with this position it should be rejected.
rt 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,

Alan D. Moats, Chairperson
Judicial Investigation Commission

ADM/tat

cc: , Mag istrate Coun Services Manager

1
See Code of Judic ial Conduct Applications [ through V.
2
See Code of Judic ial Conduct Application II.