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

Plain-English summary

A mental hygiene commissioner asked the Commission to reconsider JIC Opinion 2022-31, which had barred simultaneous service as an assistant prosecutor in another county. The requester disputed whether the constitutional bar on holding another public office applied to mental hygiene commissioners.

The Commission held that the West Virginia Code of Judicial Conduct independently bars the two roles regardless of county. It observed that prosecutors' offices commonly handle mental hygiene petitions and applied the Code's public-confidence, impartiality, precedence-of-judicial-duties and outside-activity rules to commissioners under Application III.

It unanimously concluded that a mental hygiene commissioner cannot concurrently serve as an assistant prosecutor anywhere in the state. The Commission cited the appearance of bias toward prosecutors in mental hygiene proceedings and interference with the priority of commissioner duties. It said those considerations would also bar other judicial officers from such assistant prosecutor service apart from any constitutional restriction.

In practice

The opinion rejects the proposed different-county arrangement under the judicial conduct rules. Its conclusion does not depend on resolving the requester's constitutional argument.

Common questions

Q: Does working as prosecutor in another county change the answer?

A: No. The Commission's bar applies regardless of which counties host the two roles.

Q: Did the Commission rely only on the state constitution?

A: No. It identified the Code of Judicial Conduct as an independent reason to prohibit the combination.

Background and rules framework

Application III of the Code identifies the rules applicable to repeatedly serving part-time judges, including mental hygiene commissioners. The opinion applies Rules 1.1, 1.2, 2.1, 2.2 and 3.1, and refers to earlier opinions on the constitutional issue and Rule 4.5.

Citations and references

West Virginia Code of Judicial Conduct:

• Application III, part-time judicial service.
• Rules 1.1, 1.2, 2.1, 2.2 and 3.1, legal compliance, impartiality, judicial duties and outside activity.
• Rule 4.5, mentioned with earlier opinions on nonjudicial candidacy.

Constitution cited:

• W. Va. Const. art. VIII, § 7, other public offices.

Other opinions cited:

• JIC Advisory Opinions 2022-31, 2009-18, 2007-21 and 2007-28, related concurrent service and candidacy.

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2023-10

Original opinion text

Reproduced from the official PDF for research purposes. The linked PDF is authoritative.

JUDICIAL INVESTIGATION COMMISSION
WV Judicial Tower - Suite 700 A
4700 MacCorkle Ave., SE
Charleston, West Virginia 25304
(304) 558-0169

April 17, 2023

The Honorable

Re: JIC Advisory Opinion 2023-10

Dear Commissioner
:

Your request for reconsideration of JIC Advisory Opinion 2022-31 was recently reviewed by the Judicial Investigation Commission. The factual scenario giving rise to your request is as follows: In JIC Advisory Opinion 2022-31, the Commission stated that a Mental Hygiene Commissioner could not concurrently serve as an assistant prosecutor in another county and cited Article VIII, § 7 of the West Virginia Constitution as the basis of the denial. It has long been the decision of the Judicial Investigation Commission. See JIC Advisory Opinions 2009-18 and 2007-21. Additionally, Mental Hygiene Commissioners have long been advised that they would have to resign from office upon announcing a run for the non-judicial office of prosecuting attorney based on Rule 4.5 of the Code of Judicial Conduct. See JIC Advisory Opinions 2007-28 and 2007- 21.

You are a Mental Hygiene Commissioner in __ County, your law practice is in __ County, and you were recently offered a position as an assistant prosecutor in ______ County handling abuse and neglect cases. You believe that the constitutional provision in question does not apply to Mental Hygiene Commissioners and therefore you can concurrently serve as a Mental Hygiene Commissioner in one county and an assistant prosecutor in another county.

In the vast majority, if not all, of the counties in West Virginia, the prosecuting attorney’s office is responsible for prosecuting mental hygiene petitions against the petitioner. Therefore, the Commission is of the opinion that provisions of the West Virginia Code of Judicial Conduct also preclude concurrent employment of mental

JIC Advisory Opinion 2023-10
April 17, 2023
Page 2 of 4

hygiene commissioners and assistant prosecuting attorney regardless of what counties they work.

Application III governs Mental Hygiene Commissioners and provides:

A judge who serves repeatedly on a part-time basis by election or under a continuing appointment, such as a mental hygiene commissioner:

(A) is not required to comply

(1) except while serving as a judge with Rules 2.10 and 4.1(A) [of the Code of Judicial Conduct]; and
(2) at any time with Rules 3.8(A), 3.9, 3.10, 3.11(B), 3.12 and 3.15 [of the Code of Judicial Conduct].

This means a Mental Hygiene Commissioner, like a Circuit Judge, a Family Court Judge or a Magistrate, is required to comply with all other provisions of the Code of Judicial Conduct including Rules 1.1, 1.2, 2.1, 2.2 and 3.1 which state in pertinent part:

Rule 1.1 Compliance With the Law

A judge shall comply with the law, including the West Virginia Code of Judicial Conduct.

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 2.1 Giving Precedence to the Duties of Judicial Office

The duties of judicial office, as prescribed by law, shall take precedence over all a judge’s personal and extrajudicial activities.

Rule 2.2 Impartiality and Fairness

A judge shall uphold and apply the law and shall perform all duties of judicial office fairly and impartially.

JIC Advisory Opinion 2023-10
April 17, 2023
Page 3 of 4

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;

The Preamble to the Code of Judicial Conduct provides:

Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to the American concepts of justice and the rule of law. Intrinsic to all sections of this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system. The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law. . . . Good judgment and adherence to high moral and personal standards are also important.

Comment [1] to Rule 1.2 states that “[p]public 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]on duct that compromises or appears to compromise the independence, integrity, and impartiality of a judge undermines public confidence in the judiciary.” Comment [4] states that “[j]urges should participate in activities that promote ethical conduct among judges and lawyers, support professionalism within the judiciary and the legal profession, and promote access to justice for all.” Comment [5] provides:

JIC Advisory Opinion 2023-10
April 17, 2023
Page 4 of 4

Actual improprieties include violations of law, court rules or provisions of this Code. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge's honesty, impartiality, temperament, or fitness to serve as a judge.

Comment [1] to Rule 2.1 states that “[t]o ensure that judges are available to fulfill their judicial duties, judges must conduct their personal and extrajudicial activities to minimize the risk of conflicts that would result in frequent disqualification.” Comment [1] to Rule 2.2 notes that “[to] ensure impartiality and fairness to all parties, a judge must be objective and open-minded.”

Based upon the foregoing, the Commission is of the opinion that no Mental Hygiene Commissioner can concurrently serve as an assistant prosecutor in any county in the state. To do so would create in the minds of members of the public, however wrong they may be, that you were biased in favor of the prosecuting attorney in mental hygiene proceedings. The Commission is also concerned about the impact your service as an assistant prosecutor could have on your service as a mental hygiene commissioner when your judicial duties are supposed to take precedence over all your other activities. These considerations would also preclude a circuit judge, family court judge or magistrate from concurrently serving as an assistant prosecutor in another county even if there were no constitutional provision barring the same. Accordingly, the Commission unanimously finds that you cannot concurrently serve as a mental hygiene commissioner and an assistant prosecutor in any county without violating the foregoing provisions of the Code.

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