May a deputy magistrate clerk concurrently hold an elected city council seat?

Plain-English summary

A judge asked whether a part-time worthless-check clerk with the title Deputy Magistrate Clerk could also serve as an elected city council member. The clerk was paid from the magistrate clerk’s worthless-check fund.

The Commission reviewed Article VIII, section 7 of the West Virginia Constitution and Rule 2.12(A), then cited Philyaw v. Gatson on judicial employee candidacy. It concluded that a deputy magistrate clerk cannot concurrently hold the elected council office.

In practice

The opinion applies the officeholding restriction to the described deputy magistrate clerk position even though it was funded from the worthless-check fund.

Common questions

Q: Could the deputy clerk keep the council seat?

A: No. The Commission said the positions could not be held concurrently.

Q: What precedent did the Commission cite?

A: It cited Philyaw v. Gatson concerning a magistrate assistant’s candidacy for circuit clerk.

Background and rules framework

Article VIII, section 7 of the state constitution restricts other offices and candidacies for judicial officers. Rule 2.12(A) requires court staff under a judge’s direction to act consistently with Code obligations. The opinion also cites Philyaw.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 2.12(A), supervisory duties.

Constitution cited:

• West Virginia Constitution, Article VIII, § 7, other offices and candidacies.

Case cited:

• Philyaw v. Gatson, 195 W. Va. 474, 466 S.E.2d 133 (1995), magistrate assistant candidacy.

See also

• WV JIC Advisory Opinion 2022-31
• WV JIC Advisory Opinion 2023-10

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2022-08, 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 11, 2022

Re: JIC Advisory Opinion 2022-08

Dear Judge

Your recent request for an advisory opinion was reviewed by the Judicial Investigation Commission. The facts giving rise to your request are as follows: Your magistrate clerk used a portion of the worthless check fund to hire a part-time worthless check clerk in her office. The individual carries the title Deputy Magistrate Clerk. You want to know if he/she can concurrently serve as an elected city councilman/woman.

To address your question, the Commission has reviewed Article VIII, § 7 of the West Virginia Constitution which states:

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.

The Commission has also reviewed Rule 2.12 of the Code of Judicial Conduct which provides:

Rule 2.12 Supervisory Duties

(A) A judge shall require court staff, court officials and others subject to the judge's direction and control to act in a manner consistent with the judge's obligations under this Code.

JIC Advisory Opinion 2022-08
February 11, 2022
Page 2 of 2

Based upon the foregoing, the Commission is of the opinion that a Deputy Magistrate Clerk cannot concurrently serve as an elected city councilman/woman. This position is also consistent with the long standing precedent set forth in Philyaw v. Gatson, 195 W. Va. 474, 466 S.E.2d 133 (1995) (the requirement that a magistrate assistant must resign judicial office upon becoming a candidate for circuit clerk is a reasonable condition of judicial employment).

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.

F. Layton Cottrill, Jr., Esquire, Vice- Chairman1 Judicial Investigation Commission

FLC/tat

1
JIC Chairman Alan D. Moats, Judge of the 19th Judicial Circuit has been appointed as a temporary Justice of the Supreme Court of Appeals of West Virginia beginning February 7, 2022 following the February 6, 2022 resignation of former Justice Evan Jenkins. Judge Moats will serve as a Justice until such time as Governor Justice has filled the vacancy and the appointee takes the bench. Until that time, Judge Moats will serve as a non-voting ex officio member of the JIC.