In a recent advisory opinion, the Colorado Judicial Ethics Advisory Opinion stated that, although the state has decriminalized the use and possession of medical and small amounts of recreational marijuana, a judge who engages in recreational or medical use of marijuana violates the code of judicial conduct because the possession and use of marijuana for any purpose is still a crime under federal law. (The board did note that, because it was authorized only to provide opinions “concerning the compliance of intended, future conduct with the Colorado Code of Judicial Conduct, . . . we do not address whether a judge who uses marijuana consistent with Colorado law should be disciplined . . . .”)
As part of its analysis, the board looked at a provision in the Colorado code of judicial conduct (Rule 1.1(C)) that states:
Every judge subject to the Code of Judicial Conduct, upon being convicted of a crime, except misdemeanor traffic offenses or traffic ordinance violations not including the use of alcohol or drugs, shall notify the appropriate authority in writing of such conviction within ten days after the date of the conviction. In addition, the clerk of any court in this state in which the conviction was entered shall transmit to the appropriate authority within ten days after the date of the conviction a certificate thereof.
The American Bar Association Model Code of Judicial Conduct does not have a similar rule, nor do most other states. But at least two other states have also concluded that such reporting is a necessary component of a judge’s ethical obligations.
Canon 3D(3) of the California Code of Judicial Ethics is broader than the Colorado rule as it applies at charging, not conviction. It states:
A judge shall promptly report in writing to the Commission on Judicial Performance when he or she is charged in court by misdemeanor citation, prosecutorial complaint, information, or indictment, with any crime in the United States as specified below. Crimes that must be reported are: (1) all crimes, other 33 than those that would be considered misdemeanors not involving moral turpitude or infractions under California law; and (2) all misdemeanors involving violence (including assaults), the use or possession of controlled substances, the misuse of prescriptions, or the personal use or furnishing of alcohol. A judge also shall promptly report in writing upon conviction of such crimes.
New Jersey has an even broader provision, covering civil and criminal cases. It is in an administrative directive, not the code, and requires reporting to the administrative office of the courts, not the discipline authority. The directive states in part: “All judges must immediately report their involvement in any type of litigation in any court.” The directive came up in a recent discipline case when the New Jersey Supreme Court censured a part-time former judge and permanently barred him from serving in judicial office for, in addition to other misconduct, failing to report his involvement in 43 lawsuits filed against him when his real estate business failed, being consistently uncooperative with opposing counsel, fraudulently transferring real property, breaching his fiduciary duties to an investor, and having his judicial salary garnished.