May a prosecutor running for judge post criminal case outcomes on a prosecutor website during the campaign?

Plain-English summary

A prosecutor running for circuit judge asked whether the prosecutor's website could post factual accounts of criminal case outcomes. The proposed example named the sentencing judge, who was the prosecutor's opponent in the election, and compared the possible sentence with the sentence imposed.

The Commission reviewed West Virginia Code of Judicial Conduct Rule 4.1(A)(10), which restricts statements reasonably expected to affect or impair a pending or impending matter, and Rule 4.1(A)(11), which addresses pledges, promises and commitments inconsistent with impartial adjudication. It also referred to its earlier Opinion 2023-23 on comments about pending or impending cases.

A majority concluded that the candidate should not post about cases while running. The Commission reasoned that even a factual example could be perceived as criticism of the opponent's sentence, while the opponent could not answer that perceived criticism without violating the rule. It allowed posting the actual sentencing order without further comment.

In practice

The opinion addresses the proposed case-result posts on this prosecutor candidate's website. Its stated distinction permits the sentencing order itself without added commentary, while rejecting posts about cases during the campaign.

Common questions

Q: Did limiting the post to case facts change the Commission's answer?

A: No. The candidate proposed factual posts, but the Commission said the example could be perceived as criticism of the opposing judge's sentence and concluded that the candidate should not post about cases while running.

Q: Could the candidate publish the sentencing order?

A: Yes. The Commission said posting the actual sentencing order without further comment would be acceptable.

Background and rules framework

The opinion quotes Rules 4.1(A)(10) and (11) of the West Virginia Code of Judicial Conduct and comments concerning accurate candidate statements, pending proceedings, and judicial campaigns. It also cites JIC Opinion 2023-23, which addressed Rule 2.10(A) as the counterpart to Rule 4.1(A)(10).

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 4.1(A)(10)-(11), statements about pending matters and campaign commitments.
• Rule 2.10(A), discussed through the earlier opinion.

Other opinions cited:

• JIC Advisory Opinion 2023-23, comments about pending or impending cases.

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2024-05, redacted

Original opinion text

Reproduced from the official redacted 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

February 13, 2024

Re: JIC Advisory Opinion 2024-05

Dear Mr. :

Your request for an advisory opinion to Counsel was reviewed by the Judicial Investigation Commission. You are candidate for circuit judge. You want to know if can post about the outcome of criminal cases on your prosecutor website as long as what is written is limited to the facts of the case. You provided the Commission with an example which listed the presiding judge by name. You are running against the Judge in the 2024 election. You correctly noted that the defendant in the case could have received a maximum sentence of 5-35 years in the penitentiary but that the judge sentenced him to 4-25 years in prison.

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

(A) Except as permitted by law or 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 commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.

JIC Advisory Opinion 2024-05
February 13, 2024
Page 2 of 3

The Comments to the Rules are instructive:

[7] Judicial candidates must be scrupulously fair and accurate in all statements in all statements made by them and by their campaign committees. . . .

[10] Paragraph (A)(10) prohibits judicial candidates from making comments that might impair the fairness of pending or impending judicial proceedings. This provision does not restrict arguments or statements to the court or jury by a lawyer who is a judicial candidate, or rulings, statements, or instructions by a judge that may appropriately affect the outcome of a matter.

[11] The role of a judge is different from that of a legislator or executive branch official, even when the judge is subject to public election. Campaigns for judicial office must be conducted differently from campaigns for other offices. The narrowly drafted restrictions upon political and campaign activities of judicial candidates provided in Canon 4 allow candidates to conduct campaigns that provide voters with sufficient information to permit them to distinguish between candidates and make informed electoral choices. . . .

[14] A judicial candidate may make campaign promises related to judicial organization, administration, and court management, such as a promise to dispose of a backlog of cases, start court sessions on time, or avoid favoritism in appointments and hiring. A candidate may also pledge to take action outside the courtroom such as working toward an improved jury selection system or advocating for more funds to improve the physical plant and amenities of the courthouse.

In JIC Advisory Opinion 2023-23, the Commission addressed Rule 2.10(A) which is the mirror of Rule 4.1(A)(10). The Commission stated that “a judge cannot . . . comment when the topic involves a pending or impending case before any Court. A judge may . . . address Court procedures if the subject . . . is about general court procedures and not tied to any specific pending or impending matters.”

The Rule is clear that judges and judicial candidates cannot comment on pending or impending cases. Your example could be misconstrued, however wrong it may be, as criticism of your opponent’s sentence in the case. Your opponent would have no means

JIC Advisory Opinion 2024-05
February 13, 2024
Page 3 of 3

to counter the perceived criticism without violating the rule. Therefore, a majority of the Commission finds that you should not post about cases while running for office. However, it would be acceptable for you to place the actual sentencing order itself without further comment.

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