May a prosecutor running for circuit judge use “Prosecutor for Judge” as a campaign slogan?

Plain-English summary

A prospective circuit judge candidate asked to use the slogan “Prosecutor [name] for Judge” in the 2024 election.

The Commission reviewed Rule 4.1(A)(10) and (11) on statements affecting cases and commitments inconsistent with impartial adjudication. It concluded that invoking the prosecutor role in the campaign slogan would appear to the public to favor the State in criminal and abuse-and-neglect matters. The opinion therefore rejected use of “Prosecutor” in the slogan.

In practice

The conclusion concerns the proposed slogan and the appearance of favoring the State that the Commission identified. The opinion does not address a different campaign statement.

Common questions

Q: Could the candidate use “Prosecutor” in the slogan?

A: No. The Commission called that use improper.

Q: What concern did the Commission identify?

A: It said the slogan could make the public think the candidate favored the State in criminal and abuse-and-neglect cases.

Background and rules framework

Rule 4.1(A)(10) prohibits statements reasonably expected to affect a pending or impending matter; (A)(11) prohibits commitments inconsistent with impartial adjudication on likely court issues. The Commission applied both to the proposed slogan.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 4.1(A)(10), statements affecting cases.
• Rule 4.1(A)(11), campaign commitments inconsistent with impartial judging.

See also

• WV JIC Advisory Opinion 2023-20
• WV JIC Advisory Opinion 2024-12

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2022-27, 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

September 19, 2022

Re: JIC Advisory Opinion 2022-27

Dear

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: There will be a vacancy for Circuit Judge in your jurisdiction in 2024. You plan on running for the position in the May 2024 election. You want to know if you can use the slogan "Prosecutor for Judge."

To address your question the Commission has reviewed Rules 4.1 (A)(10) and (11) of the Code of Judicial Conduct which provide:

Rule 4.1 - Political and Campaign Activities of Judges and Judicial Candidates in General.

(A). Except as permitted by law, or by Rules 4.2, 4.3, and 4.4, a judge or a judicial candidate* shall not:

(10) make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending* or impending in any court; or
(11) in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or

JIC Advisory Opinion 2022-27
September 19, 2022
Page 2 of 2

commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.

Judges and Candidates for Judge must remain neutral and detached. To invoke your status as Prosecutor in judicial campaign slogans would appear to the public, however wrong it may be, that you are biased in favor of the State in criminal cases and abuse and neglect matters. Therefore, the Commission is of the opinion that it would be improper for you to use "Prosecutor" in your campaign slogan.

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.

F. Layton Cottrill, Vice-Chairperson 1
Judicial Investigation Commission

FLC/tat

1
The Chair of the Commission recused himself from the matter.