May a mental hygiene commissioner also serve as an assistant prosecutor in another county?

Plain-English summary

A mental hygiene commissioner in one county accepted an assistant prosecutor position in another county and asked whether the offices could be held concurrently because they were in different judicial circuits.

The Commission quoted Article VIII, section 7 of the West Virginia Constitution, which restricts a justice, judge or magistrate from holding another office or public-trust appointment. It noted that Application I(A) of the Code of Judicial Conduct defines “judge” to include mental hygiene commissioners. It concluded that the two positions cannot be held at the same time even across the county and circuit lines described.

In practice

The opinion applies the constitutional office restriction to a mental hygiene commissioner considering assistant prosecutor service in another county and circuit.

Common questions

Q: Does serving in separate circuits permit both jobs?

A: No. The Commission found concurrent service unconstitutional despite the separate counties and circuits.

Q: Why does the judicial restriction reach a mental hygiene commissioner?

A: The opinion says Application I(A) of the Code of Judicial Conduct includes mental hygiene commissioners in its definition of “judge.”

Background and rules framework

The opinion applies West Virginia Constitution Article VIII, section 7 and the Code of Judicial Conduct definition in Application I(A). It does not cite a numbered Code rule.

Citations and references

Constitution cited:

• West Virginia Constitution, Article VIII, § 7, restriction on other offices or public-trust appointments.

Code provision cited:

• Code of Judicial Conduct Application I(A), definition of judge.

See also

• WV JIC Advisory Opinion 2023-10
• WV JIC Advisory Opinion 2023-07

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2022-31, redacted

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

JUDICIAL INVESTIGATION COMMISSION
West Virginia Judicial Tower - Suite 700 A 4700 MacCorkle Avenue, SE
Charleston, West Virginia 25304
(304) 558-0169
December 6, 2022

Re: JIC Advisory Opinion 2022-31
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: You are presently a Mental Hygiene Commissioner in one County. You have accepted a position to serve as an Assistant Prosecutor in another county. You want to know if you can concurrently serve as an Assistant Prosecutor and a Mental Hygiene Commissioner since the positions are in different counties and different judicial circuits.

To address the question which you have raised, the Commission reviewed the Constitution of West Virginia, Article VIII, § 7, which provides in pertinent part:

No justice, judge or magistrate shall hold any other office, or accept any other appointment for public trust, under this or any other government; ...

Application I(A) of the Code of Judicial Conduct defines the term "judge" to include Mental Hygiene Commissioners.

Based upon the foregoing, it is the position of the Judicial Investigation Commission that you cannot concurrently serve as an Assistant Prosecutor in one county and a Mental Hygiene Commissioner in another county outside the same judicial circuit because it would violate the Constitution of West Virginia, Article VIII, § 7. 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