May a newly elected magistrate take office while a spouse remains the same county’s magistrate court clerk?
Apply this to your situation
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 prospective magistrate candidate asked whether his wife, recently appointed the county magistrate court clerk, could remain in that role if he won the 2024 election.
The Commission noted that W. Va. Code § 50-1-9a bars immediate family members from serving as deputy clerks in specified same-county relationships, while § 50-1-8 does not include an equivalent clerk restriction. It nevertheless applied Rule 2.13(A)(2) on nepotism and favoritism, identifying a perception of bias and potential employment conflicts. It concluded that the spouse must resign as magistrate clerk before the requester takes office.
In practice
The opinion addresses the spouse’s continued clerk service after the requester’s election. Its final instruction is resignation from the clerk post before the magistrate’s term begins.
Common questions
Q: Can the spouse remain magistrate clerk after the candidate takes office?
A: No. The opinion requires resignation from the clerk position before the magistrate takes office.
Q: Does the absence of an express clerk restriction in § 50-1-8 change the answer?
A: No. The Commission applied the Code’s nepotism and favoritism rule despite that statutory difference.
Background and rules framework
W. Va. Code § 50-1-9a addresses immediate family limits for deputy clerks, and § 50-1-8 lacks the same restriction for magistrate court clerks. The Commission applied Rule 2.13(A)(2) on nepotism and favoritism to the proposed spouse relationship.
Citations and references
West Virginia Code of Judicial Conduct:
- Rule 2.13(A)(2), nepotism and favoritism in administrative appointments.
Statutes cited:
- W. Va. Code § 50-1-9a, immediate family restriction for deputy clerks.
- W. Va. Code § 50-1-8, cited as lacking a comparable magistrate clerk restriction.
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2022-19, 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
July 26, 2022
Re: JIC Advisory Opinion 2022-19
Dear Mr.
Your request for an advisory opinion to Counsel was recently reviewed by the Judicial Investigation Commission. The factual scenario giving rise to your request is as follows: Your wife was recently appointed County Magistrate Court Clerk. You are contemplating a run for Magistrate of County in the 2024 election. You want to know whether your wife can continue to serve as Magistrate Court Clerk should you be elected magistrate.
To address your question, the Commission has reviewed W. Va. Code § 50-1-9a which states that a magistrate court deputy clerk “may not be an immediate family member of any magistrate, magistrate court clerk, magistrate assistant or judge of the circuit court within the same county... .” As you correctly point out, W. Va. Code § 50- 1-8 does not have a similar limitation for the Magistrate Court Clerk.
Rule 2.13(A)(2) of the Code of Judicial Conduct states that “In making administrative appointments, a judge shall avoid nepotism [or] favoritism. . . .” The Code defines nepotism as “the appointment or hiring of any relative within the third-degree of relationship of either the judge or the judge’s spouse or domestic partner, or the spouse or domestic partner of such relative.” If you were already a magistrate your wife would have been precluded from serving as a magistrate clerk. The Commission is of the opinion that the converse is true in that if you were elected, your wife would have to resign as magistrate. Both the West Virginia Code and the Code of Judicial Conduct frown on a spouse working for an elected official in a subordinate position. Moreover, such a relationship would create the perception however wrong it may be that an elected magistrate is biased in favor of his/her spouse in employment matters. It also has the potential to create employment conflicts between the two parties. JIC Advisory Opinion 2022-19 July 26, 2022 Page 2 of 2
Therefore, the Commission is of the opinion that if you are elected magistrate, your spouse must resign as magistrate clerk before you take office. The Commission hopes that this opinion fully addresses the issues which you have raised. Please do not hesitate to contact the Commission should you have any questions, comments or concerns.
Sincerely,
Alan D. Moats, Chairperson
Judicial Investigation Commission
ADM/tat
What do the rules say today, for your facts?
This opinion is from 2022. Ezel checks the current rules of professional conduct in your state against your situation and cites the rules it relies on.
Opens in Ezel Pro.
- Checks the law as it stands today, not only this page
- Cites every source it relies on, so you can verify it
- Chat, drafting and research in one workspace