May a judge-elect speak publicly about a civil trial win while the appeal period remains open?

Plain-English summary

A circuit-judge candidate had won a federal civil trial for a client. The West Virginia Association of Justice invited the candidate to present the case at a summer meeting after the election. The candidate asked whether, if elected, they could give that presentation as a judge-elect.

The Commission reviewed West Virginia Code of Judicial Conduct Rule 2.10(A) on judicial statements about pending or impending matters and the Code's definition of a pending matter as continuing through appeal until final disposition. It said Rule 2.10 binds a judge-elect. The judge-elect could not discuss the case while the appeal period was running unless the opposing party had waived its appeal right in writing and paid the judgment.

In practice

The opinion turns on the case's appeal status: the proposed presentation by a judge-elect was barred while the appeal period ran, with the written-waiver-and-payment condition stated by the Commission.

Common questions

Q: Does Rule 2.10 apply before the judge-elect takes the bench?

A: The Commission said a judge-elect is bound by Rule 2.10.

Q: What would the Commission require for discussion during the appeal period?

A: It identified a written waiver of the other side's appeal right and payment of the judgment.

Background and rules framework

The opinion quotes West Virginia Code of Judicial Conduct Rule 2.10(A), which restricts public statements that could affect a pending or impending matter's outcome or fairness, and its comment concerning judicial independence, integrity and impartiality.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 2.10(A) and Comment [1], judicial statements on pending or impending cases.

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2024-09, 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

March 27, 2024

Re: JIC Advisory Opinion 2024-09

Dear
:

The Commission has considered your recent request for an advisory opinion.
You are running for a contested circuit judge seat in the May 2024 election. Recently, you won a civil trial in federal court for your client. The West Virginia Association of Justice has asked you to put on a presentation about the case at its summer meeting which will be after the election in June 2024. You want to know if you win the election whether you can do the presentation as you would be considered a judge-elect.

To address your question, the Commission has reviewed Rule 2.10 of the Code of Judicial Conduct which states in pertinent part:

(A) A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court or make any nonpublic statement that might substantially interfere with a fair trial or hearing.

Comment [1] to the Rule provides that the “restrictions on judicial speech are essential to the maintenance of the independence, integrity and impartiality of the judiciary.” The Code defines “pending matter” as one “that has commenced. A matter continues to be pending through any appellate process until final disposition.”

JIC Advisory Opinion 2024-09
March 27, 2024
Page 2 of 2

Based upon the foregoing the Commission is of the opinion that if you are a judge-elect you are bound by Rule 2.10. Therefore, you could not discuss the case as long as the appeal period is running or unless the other side has waived its right to appeal in writing and paid the judgment.

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