May a magistrate-elect continue as mayor or council member before taking office?
Apply this to your situation
This page answers the general question as of 2020. 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 magistrate-elect serving as a small-city mayor and council member asked whether the roles could overlap and whether city service could continue before the magistrate’s oath.
The Commission applied Article VIII, Section 7 of the West Virginia Constitution. It said the magistrate cannot concurrently hold the municipal office but may remain in it until taking the oath as magistrate. It also directed attention to Rule 2.11 for possible disclosure or disqualification in future matters involving the local police, city employees or municipality.
In practice
The opinion draws the line at the magistrate’s oath and identifies municipal cases for a later Rule 2.11 assessment.
Common questions
Q: May the person be mayor and magistrate at once?
A: No. The Commission said the state Constitution bars concurrent service.
Q: May municipal service continue before the magistrate oath?
A: Yes. The Commission found no prohibition until the person is sworn in as magistrate.
Background and rules framework
Article VIII, Section 7 of the West Virginia Constitution bars a judge or magistrate from holding another government office. The opinion also cites Rule 2.11 for disclosure and disqualification questions in future city-related cases.
Citations and references
West Virginia Code of Judicial Conduct:
- Rule 2.11, disqualification and disclosure in city-related cases.
Constitution:
- W. Va. Const. art. VIII, § 7, prohibition on other government offices.
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2020-21, 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
September 9, 2020
Re: JIC Advisory Opinion 2020-2 1
Dear Magistrate-Elect
Your recent request for an advisory op1rnon was reviewed by the Judicial Investigation Commission. The facts giving rise to your question are as follows:
You were elected to the position of Magistrate in the June 2020 election and will take office on January 1, 2021. You currently serve as Mayor of a small city in your county. You were originally elected to the city council but became mayor when the former official became sick. You want to know if you can concurrently serve as mayor/counsel and magistrate. If the answer is no, you then want to know if you can continue to serve as mayor/councilman until you are sworn in as magistrate.
To address your question, the Commission has reviewed the Constitution of West Virginia. Article Vlll, Section 7 provides m pe1tinent part:
No justice, judge or magistrate shall hold any other office, or accept any appointment or public trust, under this or any other govenunent; 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.
Based upon this constitutional prov1s1on, you cannot concurrently serve as Magistrate and Mayor/Councilman. However, there is no prohibition to you serving as Mayor/Councilman until such time as you take the oath of office for Magistrate. You
ITC Advisory Opinion 2020-21
September 9, 2020
Page 2 of2
should be mindful of Rule 2. 1 1 of the Code of Judicial Conduct with respect to disqualification/disclosure of any perceived conflict to determine whether you will be disqualified from any cases brought to Magistrate Court by the local police department in that town, involving any city employee or the municipality itself
It is hoped that this opinion fully addresses the issue raised by you. [f 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
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