When must a county commissioner nominated to an appellate judgeship leave the commission?
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This page answers the general question as of 2022. 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 county commissioner nominated to the new Intermediate Court of Appeals asked when to leave the county office if the Senate confirmed the nomination.
The Commission applied Article VIII, section 7 of the West Virginia Constitution, which bars a judge from holding another public office. It said the commissioner should resign just before taking the judicial oath. It also said the nominee would remain subject to most Code rules before the oath as a judge-elect and must disqualify from cases involving the county commission or its subsidiaries during the prior commission service.
In practice
The opinion places the resignation immediately before the judicial oath and separately addresses the judge-elect period and commission-related disqualification.
Common questions
Q: Must the commissioner resign upon nomination?
A: The opinion places resignation just before taking the judicial oath.
Q: What cases require disqualification after joining the court?
A: The Commission identifies cases involving the county commission or its subsidiaries during the period of prior service.
Background and rules framework
The opinion says the Code does not specify when an appointed judge-elect must leave a former nonjudicial office. It applies the constitutional prohibition on a judge holding another office.
Citations and references
Constitution cited:
- West Virginia Constitution, Article VIII, § 7, prohibition on a judge holding another public office.
Statute cited:
- W. Va. Code § 51-11-6(b)(4), Senate confirmation of an Intermediate Court nominee.
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2022-01, 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
January 4, 2022
Re: JIC Advisory Opinion 2022-01
Dear Mr. ·
Your recent request for an advisory opinion was reviewed by the Judicial Investigation Commission. The facts giving rise to your request are as follows: You are a lawyer by trade. In addition, you are a member of the County Commission. In late December 2021, Governor Justice nominated you to a seat on the newly formed Intermediate Court of Appeals. The nomination requires confirmation by the West Virginia Senate pursuant to W. Va. Code § 51-11-6(b)(4). You have indicated that following confirmation, you expect to take the oath of office sometime between May 1, and June 30, 2022. The Intermediate Court of Appeals is set to begin hearing cases on July 1, 2022. You want to know when you are required to resign your position as a county commissioner.
There is no provision in the Code of Judicial Conduct which addresses when it is appropriate for a non-judicial officer who is appointed to a judicial office to resign from his/her former office. However Article VIII § 7 states in pertinent part:
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 public office or nomination thereto, except a judicial office, and the violation of any of these provisions shall vacate his judicial office ....
It is the opinion of this Commission that the foregoing Constitutional provision requires your resignation from the County Commission just prior to taking the oath of
JIC Advisory Opinion 2022-01
January 4, 2022
Page 2 of 2
office for judge. Nonetheless, prior to taking the oath, you would still be subject to the majority of the Rules contained in the Code as would any judge-elect who was awaiting his/her seat on the bench. Lastly, you must disqualify yourself from presiding over any case involving the County Commission or any of its subsidiaries during the time you served as a commissioner.
The Commission wishes to take this opportunity to congratulate you on your nomination. We hope that this opinion fully addresses the issue which you have raised. Please do not hesitate to contact the Commission should you have any questions, comments or concerns or desire additional advice.
Sincerely,
Alan D. Moats, Chairperson
Judicial Investigation Commission
ADM/tat
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