W. Va. Code of Jud. Conduct R. 4.2

History

COMMENT [1] Paragraph (B) permits judicial candidates in public elections to engage in some political and campaign activities otherwise prohibited by Rule 4.1. [2] Despite paragraph (B), judicial candidates for public election remain subject to many of the provisions of Rule 4.1. For example, a candidate continues to be prohibited from soliciting funds for a political organization, knowingly making false or misleading statements during a campaign, or making certain promises, pledges, or commitments related to future adjudicative duties. See Rule 4.1(A), paragraphs (4), (9), and (11). [3] A judge or candidate may be a member of a political party, and that affiliation is and has been a matter of public record in West Virginia. A judge or candidate may be endorsed by or otherwise publicly identified or associated with a political party by a person or entity not affiliated with the judicial campaign. Therefore, a judge or candidate may maintain his or her party affiliation through a judicial election, and he or she may include political party affiliation or similar designation in campaign communications and literature. [4] Except as otherwise prohibited by law or these rules, paragraph (B) does not prohibit the use of the name or likeness of a judge or candidate by a third-party or impose a duty on the judge or candidate to have his or her name or likeness removed from a third-party’s materials. For example, unless otherwise prohibited, paragraph (B) does not prohibit a judge’s or candidate’s name or likeness from being used in the program for a sponsored event or recognition of a judge’s or candidate’s attendance by a third-party at a sponsored event. [5] Except as otherwise prohibited by law or these rules, endorsements used by a judge or candidate under paragraph (B)(4) may include the name or likeness of a third party. For example, unless otherwise prohibited, a judge or candidate may appear in a photograph with a third party and use that photograph in campaign communications and literature. Clerk's Notes on Rule 4.2 Rule 4.2 and its Comments are based on the Model Code with modification. The tiered approach in Paragraph (A) of the Model Code was simplified in light of the fact that all West Virginia judicial elections are nonpartisan as a result of the passage of House Bill 2010. Paragraphs (A)(1) through (4) are based on the Model Code. Paragraph (A)(5) is not contained in the Model Code and provides useful guidance about the need to take corrective action upon discovering misrepresentation in a judicial candidate’s campaign statements or materials. The opening clause of Paragraph (B) omits the time window set forth in Model Code. The time window in the Model Code is unnecessary because all judicial elections are not to be conducted in single- seat divisions, and state elections law already sets windows for pre-candidacy activities and formal declarations of candidacy. Paragraphs (B)(1) and (2) are based on the Model Code. However, Paragraph (B)(3) of the Model Code, which allows a judicial candidate to endorse another candidate running for the same office, is not included. This exception to the general prohibition in Rule 4.1(A)(3) has never been adopted in West Virgina. Paragraph (B)(3) is based on Paragraph (B)(4) of the Model Code. Paragraph (B)(4) is a modified version of Paragraph (B)(5) of the Model Code and does not include the Model Code’s limitation on seeking support from partisan political organizations. Paragraph (B)(5) is intended to provide guidance to candidates regarding the fact that membership in a political party may be articulated in the context of a nonpartisan election. Paragraph (B)(6) is a modified version of the Model Code. Comments [1] and [2] are modified versions of the Model Code, adjusted to take into account the changes described in this note. Comments [3] through [7] of the Model Code are omitted as unnecessary because they address distinctions between partisan and nonpartisan elections. Comments [3], [4], and [5] are not in the Model Code and are specific to West Virginia. Comments [4] and [5] provide guidance on the scope of Paragraph B.