Must a judicial law clerk resign to run for a nonjudicial elected office?

Plain-English summary

A circuit judge’s law clerk asked whether running for prosecutor in another circuit, about 75 miles away, would require resignation. The Commission considered Code of Judicial Conduct Rule 4.5(A), which requires a judge who becomes a candidate for nonjudicial elective office to resign from judicial office unless law permits continued service.

The Commission extended that resign-to-run conclusion to judicial employees such as law clerks who work closely with judges. It said resignation is required at the earliest of publicly announcing candidacy, filing with the election authority, or setting up a campaign committee. The conclusion applies whether the office sought is in the employee’s own circuit or a different one.

In practice

For the law clerk described in the opinion, the Commission fixed the trigger at the earliest of the three specified campaign steps. It expressly rejected a geographic distinction between offices inside and outside the employee’s judicial circuit.

Common questions

Q: Does running for prosecutor in a different circuit avoid the resignation requirement?

A: No. The Commission said the rule applies even when the nonjudicial office is outside the judge’s or employee’s jurisdiction.

Q: When must a law clerk resign?

A: The opinion says immediately upon announcing candidacy, filing the election papers, or forming a campaign committee, whichever occurs first.

Background and rules framework

The opinion quotes West Virginia Code of Judicial Conduct Rule 4.5(A) and its comments on candidacy for nonjudicial elective office. It applies the resign-to-run principle to judicial employees who work closely with judges, including law clerks.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 4.5(A), Activities of Judges Who Become Candidates for Nonjudicial Office, and Comments [1] and [2].

See also

• WV JIC Op. 2026-04: Judge seeking law firm work
• WV JIC Op. 2026-02: Senior judge’s other work

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2026-01, 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

January 27, 2026

Re: JIC Advisory Opinion 2026-01

Dear :

Your request for an advisory opinion to Counsel was reviewed by the Judicial Investigation Commission. You are a law clerk to a circuit court judge. The prosecutor position in a different circuit located 75 miles from the county you work in is up for election this primary because the current prosecutor retired before the primary cut-off date. You are contemplating filing to run for that nonjudicial position and want to know if you will be required to resign as a law clerk if you take such action.

To address your questions, the Commission has reviewed Rule 4.5(A) of the Code of Judicial Conduct which states that “[u]pon becoming a candidate for nonjudicial elective office, a judge shall resign from judicial office, unless permitted by law to continue to hold judicial office.” Comment [1] to the Rule states:

In campaigns for nonjudicial elective public office, candidates may make pledges, promises, or commitments related to positions they would take and ways they would act if elected to office. Although appropriate in nonjudicial campaigns, this manner of campaigning is inconsistent with the role of a judge, who must remain fair and impartial to all who come before him or her.
The potential for misuse of the judicial office, and the political promises that the judge would be compelled to make in the course of campaigning for nonjudicial elective office, together dictate that a judge who wishes to run for such an office must resign upon becoming a candidate.

Comment [2] notes that the “resign to run” rule ensures “that a judge cannot use the judicial office to promote his or her candidacy.”

JIC Advisory Opinion 2026-01
January 27, 2026
Page 2 of 2

Based upon the foregoing, the Commission holds that judicial employees such as law clerks who work closely with judges must also resign to run for nonjudicial office. They must take the action immediately upon announcing their candidacy, filing their paperwork with the proper election authority or setting up a campaign committee, whichever is earliest. The requirement to resign occurs whether the judge or judicial employee runs for nonjudicial office in their circuit or in some other circuit outside their jurisdiction.

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