May a circuit judge’s administrative assistant help a legislator draft a new criminal offense?

Plain-English summary

A circuit judge’s administrative assistant wanted to work with a legislator on a proposed criminal offense concerning prenatal drug use and a child’s death. The assistant related the interest to matters encountered in the circuit.

The Commission reviewed Rules 1.2, 2.12(A) and 3.1(A)-(C). It said a judge’s help drafting or lobbying for a new criminal offense could appear to favor prosecution and could cause disqualification in cases brought under the proposed law. Because the judge could not take that role, the Commission concluded the judge’s administrative assistant could not either.

In practice

The opinion addresses assistance with the specific criminal bill and applies the Code’s restrictions on the judge to the judge’s immediate staff member.

Common questions

Q: Could the assistant work with the legislator on the bill?

A: No. The Commission said the assistant was precluded because the judge could not do the same.

Q: What concern did the Commission identify?

A: It cited an appearance of favoring prosecution and potential disqualification if cases under the proposed offense arose.

Background and rules framework

Rule 1.2 addresses public confidence and appearances; Rule 2.12(A) requires judges to supervise staff consistently with Code obligations; and Rule 3.1(A)-(C) limits extrajudicial activity that impairs duties or impartiality.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 1.2 and Comments 1-3, public confidence and appearances.
• Rule 2.12(A), court staff supervision.
• Rule 3.1(A)-(C) and Comment 4, limits on outside activity.

See also

• WV JIC Advisory Opinion 2023-16
• WV JIC Advisory Opinion 2023-26

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2022-15, 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

April 28, 2022

Re: JIC Advisory Opinion 2022-15

Dear

The Commission considered your recent request for a formal advisory opinion. An administrative assistant for a circuit court judge would like to work with a state legislator on a proposal that would allow "a mother to be charged criminally if she uses drugs while pregnant and the baby is born but shortly dies from said drug use." The administrative assistant stated that this was of particular interest to him/her "because of some things my circuit has been dealing with."

To address your question, the Commission has reviewed Rules 1.2, 2.12(A) and 3.1(A), (B) and (C) of the Code of Judicial Conduct which state:

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 impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

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 2022-15
April 28, 2022
Page 2 of 2

Rule 3.1 - Extrajudicial Activities in General

A judge may engage in extrajudicial activities, except as prohibited by law or this Code. However, when engaging in extrajudicial activities, a judge shall not:

(A) participate in activities that will interfere with the proper performance of the judge's judicial duties;
(B) participate in activities that will lead to frequent disqualification of the judge;
(C) participate in activities that would appear to a reasonable person to undermine the judge's independence, integrity, or impartiality;

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 impartiality of a judge undermines public confidence in the judiciary." Comment [4] to Rule 3.1 states that "[d]iscriminatory actions and expressions of bias or prejudice by a judge, even outside the judge's official or judicial actions, are likely to appear to a reasonable person to call into question the judge's integrity and impartiality."

The United States and West Virginia Constitutions establish three separate but equal branches of federal and state government. Legislators create the law, the executive branch enforces the law, and judges enforce the law. Therefore, it would be inappropriate for a judge to help draft a bill and/or lobby for the passage of legislation calling for the creation of a criminal offense and penalties. To do so, could create in the minds of members of the public, however wrong they may be, that the judge is pro prosecution. It could also cause the potential disqualification of the judge in any cases where someone would be charged with that crime. Because a judge is unable to participate in such activities, his/her administrative assistant is also precluded from engaging in the same. 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,

Judicial Investigation Commission

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