May a judicial candidate use an endorsement from a legislator who is also on the ballot?

Plain-English summary

A sitting circuit judge seeking election posted a House delegate’s endorsement on the campaign Facebook page. The delegate was also running for reelection, and the endorsement used the delegate’s name without title.

The Commission read Rule 4.1(A)(3), which restricts a judge’s endorsement of candidates, with Rule 4.2(B)(4), which allows a judicial candidate to seek and use endorsements. It permitted the described use because the judge was not endorsing the delegate or another candidate.

In practice

The opinion permits use of the legislator’s endorsement in the stated form, with the judicial candidate giving no endorsement in return.

Common questions

Q: May the campaign use the delegate’s endorsement?

A: Yes. The Commission permitted the use described in the request.

Q: Did the Commission treat that use as an endorsement of the delegate?

A: No. It said the judicial candidate was not endorsing another candidate.

Background and rules framework

Rule 4.1(A)(3) generally bars judges and judicial candidates from publicly endorsing other candidates. Rule 4.2(B)(4) permits a candidate in a public judicial election to seek, accept and use endorsements from people or organizations.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 4.1(A)(3), endorsements of candidates.
• Rule 4.2(B)(4), use of endorsements in judicial campaigns.

See also

• WV JIC Advisory Opinion 2021-04
• WV JIC Advisory Opinion 2021-07

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2020-13, redacted

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.
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JUDICIAL INVESTIGATION COMMISSION
City Center East - Suite 1200 A
4700 MacCorkle Ave., SE
Charleston, West Virginia 25304
(304) 558-0169 • FAX (304) 558-0831

May 15, 2020

Re: JIC Advisory Opinion 2020-13.

Dear Judge

Your recent request for an advisory op1mon was reviewed by the Judicial Investigation Commission. The factual scenario giving rise to the request is as follows:

Last year, you were appointed to the position of C ircuit Judge. You are now
running to retain your seat in the June 2020 election. A member of the West Virginia House of Delegates has endorsed you for Circuit Judge. The delegate is running for re- election on the same ballot. The endorsement was posted to your campaign Facebook website under a campaign sign that says "Keep Chief Judge " The endorsement is very simple and does not use the delegate's title. It simply mentions his/her name and that he/she "suppo1ts Chief Judge " You want to know if it is permissible to use the endorsement in the manner that you describe or if it violates the Code of Judicial Conduct.

To address your question, the Commissio n has reviewed Rule 4.1 (A)(3) which provides in pertinent part that"[ e]xcept as permitted by law, or by Rules 4.2, 4.3, and 4.4, a judge or a judicial candidate shall not: .... (3) publicly endorse or oppose a candidate for any public office; ...." The Commission has also considered Rule 4.2(B)(4) which states: that "[a] judge or candidate subject to public election may, except as prohibited by law ... (4) seek, accept, or use endorsements from any person or organization; .... " There are no limitations placed on the latter rule as to who may endorse a judicial candidate.

Advisory Opinion 2020-1 J
May 15, 2020
Page 2 of2

Based upon the foregoing, the Commission is of the opinion that it is proper for you to use the endorsement from a member of House of Delegates in the manner desc1ibed and since you are clearly not yourself endorsing any candidate for any elected position. It is hoped that this opinion fully addresses the issue raised by you. If there is any further question regarding this matter do not hesitate to contact the Commission.

Sincerely,

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Judicial Investigation Commission

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