May a sitting judge apply to become U.S. Attorney, and when must the judge resign?

Plain-English summary

A sitting judge asked whether submitting an application for U.S. Attorney would require resignation before Senate confirmation. The judge described a private selection process and said the judge would avoid positions inconsistent with judicial duties.

The Commission read Rule 4.5(B), Rule 1.2 and Article VIII, Section 7 of the West Virginia Constitution together. It permitted the application without resignation, but unanimously concluded that the judge must resign immediately upon nomination. The opinion treated nomination as acceptance of the position if confirmed and also cited the appearance of prosecution bias while continuing to sit as judge.

In practice

Under the opinion, application and nomination have different consequences: the judge may apply while serving, but must resign upon nomination.

Common questions

Q: Must the judge resign when applying?

A: No. The Commission permitted the application without resignation.

Q: Must the judge wait for confirmation before resigning?

A: No. The Commission required immediate resignation upon nomination.

Background and rules framework

Rule 4.5(B) allows candidacy for nonjudicial appointive office without resignation if the judge complies with the Code. Rule 1.2 addresses public confidence and appearance of impropriety. The Commission also relied on Article VIII, Section 7 of the West Virginia Constitution concerning other government offices and appointments.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 1.2 and Comments 1-5, public confidence and appearance of impropriety.
• Rule 4.5(B), candidacy for nonjudicial appointive office.

Constitution:

• W. Va. Const. art. VIII, § 7, other offices and appointments.

See also

• WV JIC Advisory Opinion 2023-14
• WV JIC Advisory Opinion 2024-06

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2021-04, 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

February 19, 2021

Re: JIC Advisory Opinion 2021-04.

Dear Judge

Your recent request for an advisory op1mon was reviewed by the Judicial Investigation Commission. The factual scenario giving 1ise to your request is as follows :

You want to know if it would be improper for you to submit your name for a U.S.
Attorney while you are a sitting judge. You correctly point out that Rule 4.5 of the Code of Judicial Conduct pennits you to become a candidate for nonjudicial appointive office provided that you comply with the other provisions of the Code. You also want to know if you receive the appointment would you have to resign as Judge before confirmation.

You state that your seeking the appointment would not be public infonnation, and you absolutely would not answer questions or take positions on issues that would be inconsistent with your role as judge. You don't know much about the selection process but you believe it would involve some interviews. You say that you are confident that you could navigate the process in accordance with the Code and would remove your name if the process conflicted with your role as Judge.

In addition to Rule 4.5, the Commission has reviewed the West Virginia Constitution and Rules 1.2 and 3.4 of the Code of Judicial Conduct to address your question. Importantly, Article VIII, Section 7 of the West Virginia Constitution states:

JIC Advisory Opinion 202 1-04
February 19, 202 l
Page 2 of 3

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 publi c 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.

( emphasis added) The relevant provisions of the Code of Judicial Conduct state in pertinent part:

Rule 1.2 Confidence in the Judiciary

A judge shall act at all times in a manner that promotes public confidence in the independence, integrity and impaiiiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

Rule 4.5 Activities of Judges Who Become Candidates for Nonjudicial Office

B. Upon becoming a candidate for a nonjudicial appointive office, a judge is not required to resign from judicial office, provided that the judge complies with the other provisions of this Code.

Comment [1] to Rule 1.2 states that "[p]ublic confidence in the judiciary is eroded by improper conduct and conduct that creates the appearance of impropriety. This principle applies to both the professional and personal conduct of a judge." Comment [2] provides that "[a] judge should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens and must accept the restrictions imposed by the Code." Comment [3] notes that "[c]onduct that compromises or appears to compromise the independence, integrity, and impariiality of a judge undermines public confidence in the judiciary." Comment [4] states that " Li]udges should pati icipate in activities that promote ethical conduct among judges and lawyers, support professionalism within the judiciary and the legal profession, and promote access to justice for all." Comment [5] provides:

Actual improprieties include violations of law, court rules or provisions of this Code. The test for appearance of improp1iety is whether the conduct would create in reasonable minds a perception that the judge violated this

JIC Advisory O pinion 202 1-04
February 19, 202 1
Page 3 of 3

Code or engaged in other conduct that reflects adversely on the judge's honesty, impartiality, temperament, or fitness to serve as a judge.

Based upon this, the Conunission finds that you may apply for the position of U.S. Attorney without having to resign your position. However, you will have to immediately resign your judgeship if you are nominated for the position. Nomination indicates acceptance to the position by you if confirmed and the state Constitution is clear that you cannot accept any other non-judicial government position. Furthe1more, the U.S. Attorney is the prosecutor for federal crimes. Your nomination to that position while simultaneously serving as a judge could leave the public with the impression however wrong it may be, that you are pro prosecution and therefore biased against defendant in state criminal cases. Therefore, it is the unanimous consensus of the Commission that you must resign your judgeship upon being nominated for the position of U.S. Attorney.

Thank you for your inquiry. If you have any further questions regarding this matter please do not hesitate to contact the Commission.

Sincerely,

Al( /bj~\~~
Judicial Investigation Commission

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