Will the West Virginia JIC issue an advisory opinion about a judicial candidate's opponent or a third-party campaign statement?

Plain-English summary

A judicial candidate asked the Commission to address the conduct of an opponent, the opponent's campaign committee or an unidentified third party. The candidate also sought clarification of JIC Opinions 2018-22 and 2019-15 on a candidate's duty to disavow allegedly false statements by a third-party PAC.

The Commission quoted Rules of Judicial Disciplinary Procedure Rule 2.13(a) and (c), which govern advisory requests and give the Commission discretion to issue written opinions. It said its established practice is to address only the requester's own conduct and unanimously declined the request about others. It also unanimously declined to clarify the earlier opinions because it considered their guidance self-explanatory. The opinion reproduces Opinion 2019-15's four stated criteria concerning a candidate's knowledge of a significant false factual statement by a third party.

In practice

This opinion records two refusals to answer. It gives no new assessment of the opponent's or third party's conduct; it points to the Commission's requester-conduct practice and quotes the earlier PAC-statement guidance.

Common questions

Q: Did the Commission decide whether the opponent's campaign conduct violated the Code?

A: No. It unanimously declined because the request concerned someone other than the candidate making the request.

Q: Did it change the earlier guidance on third-party PAC statements?

A: No. It declined further clarification and quoted the criteria stated in Opinion 2019-15.

Background and rules framework

The opinion quotes Rules of Judicial Disciplinary Procedure Rule 2.13(a) and (c) on advisory opinions. It says Canon 4 makes the West Virginia Code of Judicial Conduct applicable to judicial candidates, which is why the Commission considers their requests about their own conduct.

Citations and references

Rules of Judicial Disciplinary Procedure:

• Rule 2.13(a) and (c), advisory opinion requests and Commission discretion.

West Virginia Code of Judicial Conduct:

• Canon 4, judicial candidates.

Other opinions cited:

• JIC Advisory Opinions 2018-22 and 2019-15, third-party PAC statements.

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2024-07, 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 28, 2024

Re: JIC Advisory Opinion 2024-07

Dear :

The Commission has considered your recent request for an advisory opinion.
You are running for judge in the May 2024 election. Your request asks the Commission to render an advisory opinion on your opponent, his or her campaign committee and/or some unidentified third party. You also want clarification on JIC Advisory Opinions 2018-22 and 2019-15 which address a candidate’s duty to disavow an alleged false claim made by a third-party PAC.

Rule 2.13 of the Rules of Judicial Disciplinary Procedure governs the Commission and the release of advisory opinions and states in pertinent part:

(a) The Administrative Director of the Courts or a judge may by written request of Disciplinary Counsel seek an advisory opinion as to whether certain specific actions contemplated may constitute a violation of the Code of Judicial Conduct. . . .
(c) The Commission may render in writing such advisory opinion as it may deem appropriate. . . .

As stated, the Rule does not require the Commission to render a formal opinion for every request. Although not specifically stated, it has been a long-standing rule of the Commission to consider advisory opinion requests from judicial candidates since Canon 4 makes the Code of Judicial Conduct applicable to judicial candidates as well. Likewise, the Commission also has a well-established rule that it will only render opinions on the conduct of the requestor himself/herself and not on behalf of someone

JIC Advisory Opinion 2024-07
February 2024-07
Page 2 of 2

else. Therefore, the Commission has unanimously declined to answer your request for a formal opinion since you are asking about the conduct of someone other than yourself.

The Commission also unanimously voted not to answer your question concerning JIC Advisory Opinions 2018-22 and 2019-15 pertaining to fact versus opinion since we believe it is self-explanatory. JIC Advisory Opinion 2019-15 clarified JIC Advisory opinion 2018-22 to say the following:

[T]he obligation to disavow is not triggered until the following criteria are met: (a) the statement must involve a fact and not an opinion; (b) the fact must be substantive and significant; (c) the misstatement must actually be false or a material misrepresentation; and (d) the judicial candidate has knowledge of the third-party or PAC’s factual statement and its falsity.

Id. at 2.

Thank you for your inquiry. Please do not hesitate to contact the Commission should you have any further questions, comments or concerns.

Sincerely,

Alan D. Moats, Chairperson
Judicial Investigation Commission

ADM/tat