Analyzing the same-sex marriage advice

So far, judicial ethics committees or conduct commissions in 7 states have issued opinions, orders, or articles advising that a judge cannot refuse to perform same-sex marriages if the judge performs opposite-sex marriages even if the refusal is based on sincerely held religious or personal beliefs.  These opinions were prompted by voter-passed referendum approving same-sex marriage, then by federal district court decisions overturning state bans on same-sex marriage, and finally by the U.S. Supreme Court’s June decision in Obergefell v. Hodges that “the Constitution . . . does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.”  In alphabetical order:

Cf., New York Advisory Opinion 11-87 (whether a judge may adopt a policy that distinguishes between same-sex and opposite-sex couples is primarily a legal question, not a question of ethics).

These opinions treat performing a marriage ceremony as a judicial duty (Arizona, Ohio) or an extra-judicial activity (Nebraska, Washington) or as either or both (Pennsylvania, Wisconsin).  However, regardless how they characterize a judge’s role at a wedding, the opinions agree that refusing to perform same-sex marriages, while continuing to perform other marriages, is an indication of bias prohibited by the code of judicial conduct.  Canon 2.2(B), which applies to judicial duties, states that “a judge shall not . . .  by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation . . . .”  Similarly, Canon 3.1(C) provides that a judge shall not participate in extra-judicial activities “that would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.”  The Washington Commission notes that a judge’s obligations to avoid bias and the appearance of bias go “beyond those imposed on others who serve the general public, reflecting the unique and integral role judicial officers play in our constitutional scheme of justice honoring the rule of law. “

Emphasizing that judges take an oath when they take office, the opinions also rely on the Rule 1.1 requirement that “a judge shall comply with the law.”  For example, the Ohio opinion explains:

A judge’s oath to support the constitutions of the United States and the State of Ohio requires the judge to recognize and adhere to binding court interpretations of the same.  A judge’s unilateral decision to refuse to perform same-sex marriages based on his or her own personal, religious, or moral beliefs ignores the holding in Obergefell and thus, directly contravenes the oath of office. . . .

A judge is always required to comply with the law and has a higher duty than ordinary citizens to comply. . . .  The definition of “law” encompasses court rules, the Code of Judicial Conduct, the Rules of Professional Conduct, statutes, constitutional provisions, and decisional law. . . .  Consequently, a judge is required to comply with the U.S. Constitution and binding decisional law interpreting its provisions.  A judge’s refusal to marry same-sex couples, while continuing to marry opposite-sex couples, is contrary to the holding in Obergefell, and thus not in accord with the judge’s obligation to comply with the law.

Similarly, the Wisconsin opinion states:  “That the 14th Amendment to the U.S. Constitution requires states to license same-sex marriages . . . is now the law of the land which judicial officers in Wisconsin under their oath have sworn to support.”  The Arizona opinion advises that, “refusing to perform a marriage because participants are of the same sex is a refusal to follow the law and thus a violation of the Code.”

The Arizona, Nebraska, and Ohio committees also cite the provision (in Rule 2.2) that “a judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.”  Those opinions note the acknowledgement in comment 2 “that while each judge comes to the bench with a unique background and personal philosophy, a judge must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question.”

Several opinions (Nebraska, Ohio, Pennsylvania, Washington, and Wisconsin) also rely on the code requirement (Rule 1.2) that a judge “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary.”  For example, the Ohio committee explains that “public confidence in the independence of the judiciary is undermined when a judge allows his or her beliefs concerning the societal or religious acceptance or validity of same-sex marriage to affect the performance of a judicial function or duty.”  Several agencies (Nebraska, Ohio, Pennsylvania, and Washington) also cite the requirement that a judge “avoid impropriety and the appearance of impropriety.”

The Ohio committee notes that Rule 2.4 requires a judge to avoid being swayed “by public clamor or fear of criticism” and to avoid permitting outside interests and relationships to influence the judge’s conduct or judgment, regardless, as a comment explains, whether the law is “popular or unpopular with the public, the media, government officials, or the judge’s friends or family.”  The committee concludes that “a judge who permits these external factors to influence his or her execution of a judicial function erodes public confidence in the judiciary.”

A judge cannot refuse to perform a same-sex ceremony even if the judge refers the couple to another court or individual who is willing to do so (see the Arizona and Nebraska opinions) and even if the judge only conducts opposite-sex ceremonies at locations other than court facilities (see the Arizona opinion).  The Arizona and Nebraska committees do allow a judge to choose to conduct marriage ceremonies only for friends and relatives as long as the judge does not refuse to conduct a same-sex ceremony for a friend or a relative.  The Pennsylvania article, however, questioned whether that exception was appropriate.

Because performing marriages is discretionary, the Arizona, Nebraska, and Wisconsin committees allow a judge to choose not to conduct any marriages to avoid personal or religious conflicts.  Other agencies, however, disapprove that option.  For example, the Ohio opinion states that a “judge may not decline to perform all marriages in order to avoid marrying same-sex couples based on his or her personal, moral, or religious beliefs” because doing so “may reflect adversely on perceptions regarding the judge’s performance of other judicial functions and duties.”

A judge may reasonably be perceived as having a personal bias or prejudice based on sexual orientation if he or she elects to perform opposite-sex marriages, but declines to perform same-sex marriages.  Even if a judge decides not to perform any marriages, but does so only after Obergefell, the judge may face the prospect of disqualification in matters where the sexual orientation of the parties is at issue.

For example, if a judge who has declined to perform same-sex marriages is later assigned to hear a misdemeanor domestic violence charge involving a same-sex couple, the judge’s ability to follow the law and impartially apply the domestic violence laws could reasonably be questioned.  This same result obtains if a judge has maintained a position that he or she will perform only opposite-sex marriages.  Under either scenario, if the judge’s refusal to marry same-sex couples equates to the judge possessing or appearing to possess a personal bias or prejudice toward persons based on sexual orientation, he or she is required under [Rule 2.11] to disqualify himself or herself from the proceeding. . . .

Finally, a judge should be cognizant of the impact a decision to decline to perform all civil marriage ceremonies has on the public’s perception of the judiciary.  Regardless of whether the statutes authorizing the performance of civil marriages are deemed mandatory or permissive, the statutes reflect the legislative intent to grant citizens the opportunity to obtain a civil marriage from designated public officials.  When all judges in a jurisdiction decline to perform civil marriages, regardless of the reason for their decisions, the public’s access to a fundamental right may be foreclosed or significantly limited.  These decisions may reflect adversely on the judiciary as a whole.

The Pennsylvania Board article states:

A gay or lesbian litigant may suspect that a judge is acting out of bias and prejudice against homosexuals, based on their sexual orientation, if s/he is aware that the judge previously performed wedding ceremonies for heterosexual couples but stopped officiating at all wedding ceremonies after [the federal court decision].  This suspicion may cause that same litigant to question the ability of the judge to decide impartially the litigant’s substantive case because of perceived bias or prejudice against gays and lesbians generally.  As a result, the gay or lesbian litigant or his or her counsel may decide to make a motion for the judge’s recusal or for a change in venue.

In the alternative, if a judge, who announced publicly that s/he will not perform wedding ceremonies for same-sex couples, knows for a fact that a litigant is gay or lesbian, then the judge should disclose from the bench his or her decision not to officiate at all weddings.  For instance, when a judge knows that the landlord appearing before him in a landlord and tenant matter is gay or lesbian, and the judge publicly declared his views about solemnizing weddings, the judge has an affirmative duty to disclose his change in position about performing wedding ceremonies because it may be perceived as relevant to the judge’s ability to rule impartially on those cases.  The burden then shifts to the gay or lesbian litigant, or his or her counsel, to seek clarification about the judge’s ability to adjudicate the case without bias or prejudice.

The judge should then explain to the gay or lesbian party and his or her attorney that the judge’s discomfort about solemnizing same-sex marriages arises solely from religious beliefs, not out of animus based on sexual orientation.  If the judge believes that s/he can decide the landlord and tenant matter impartially, free of personal bias and prejudice, then the judge should make a statement to that effect.  Still, the litigant may proceed to make a motion for disqualification or recusal.  At that point, the judge must decide whether the requested disqualification or recusal is necessary.

Similarly, the Louisiana committee advises that “judges should be mindful of the fact that if they once performed marriages and now choose not to, they could then receive motions to recuse from gay or lesbian individuals who perceive such refusal as indicative of animus.”

New advisory opinion on performing same-sex marriages

The Wisconsin Judicial Conduct Advisory Committee has issued an opinion stating that a judicial officer may not, because of his or her own religious or personal beliefs, decline to be the “officiating person” at the marriage of two persons of the same sex.

Throwback Thursday

5 years ago this month

  • The Kentucky Supreme Court affirmed 2 decisions of the Judicial Conduct Commission (1) reprimanding a judge and suspending her for 45 days without pay for (a) summarily holding a husband in contempt of court for actions outside her perception and (b) entering an order changing custody that denied the father due process and (2) reprimanding the judge for a “standing order” that prohibited child support modifications for Toyota employees. Gormley v. Judicial Conduct Commission, 332 S.W.3d 717 (Kentucky 2010).
  • The North Carolina Judicial Standards Commission publicly reprimanded a judge for a 2-year delay in entering an order; the judge accepted the reprimand. Public Reprimand of Black (North Carolina Judicial Standards Commission August 13, 2010) (aoc.state.nc.us/www/public/coa/jsc/publicreprimands/jsc10-013.pdf).
  • The Washington Supreme Court suspended a judge for 5 days without pay for deriding the intelligence of pro se litigants who appeared before her and rudely and impatiently interrupting them. In the Matter of Eiler, 236 P.3d 873 (Washington 2010).
  • Granting the recommendation of the State Commission on Judicial Conduct, the Washington Supreme Court disqualified a former judge from future judicial office based on his conviction on 1 misdemeanor count of patronizing a prostitute and 1 count of felony harassment. In re Hecht, Order (Washington Supreme Court August 5, 2010) (cjc.state.wa.us/CJC_Activity/public_actions_2010.htm#5863).
  • Based on stipulations and the findings and recommendation of a Judicial Conduct Panel, the Wisconsin Supreme Court publicly reprimanded a former judge for a substantial backlog of unadjudicated citations and refusing to adjudicate any parking ticket stipulation cases. In the Matter of Zodrow, 787 N.W.2d 815 (Wisconsin 2010).

Criminal consequences

8 of the 12 cases initiated by the Pennsylvania Judicial Conduct Board so far in 2015 have been either formal complaints based on the judge’s conviction of a crime or petitions for the interim suspension of a judge pending the outcome of criminal charges.  For example, in June, the Board filed a complaint based on a judge’s guilty plea to state charges related to his dismissal of a criminal complaint against the nephew of the assistant district attorney assigned to his courtroom.  Most recently, the Board filed a petition for the interim suspension with or without pay of a judge charged by state prosecutors with bribery, official oppression, indecent assault, and harassment for non-consensual contact with the victim in a criminal matter over which he had presided and soliciting a female defendant to model lingerie for him in return for his vacating the costs and fines he had imposed on her.

In some states, litigating whether a judge should be suspended or removed based on criminal charges or convictions is unnecessary because suspension with pay is required with the filing of a serious criminal charge, suspension without pay is required following conviction, and removal is required when the conviction becomes final.

For example, the Arizona constitution provides that “a judge is disqualified from acting as a judge, without loss of salary, while there is pending an indictment or an information charging him in the United States with a crime punishable as a felony under Arizona or federal law . . . .”  A Connecticut statute provides:

A judge, compensation commissioner, or family support magistrate is disqualified from acting as a judge, compensation commissioner, or a family support magistrate, as the case may be, while there is pending (1) a charge against him for a crime punishable as a felony under the laws of this state or federal law, or a charge against him in another jurisdiction which would be punishable as a felony under Connecticut or federal law, or (2) a charge against him for a crime under the law of any jurisdiction which involves moral turpitude under Connecticut law . . . .

In Indiana, by rule, “a judicial officer shall be suspended with pay by the Supreme Court without the necessity of action by the Commission [on Judicial Qualifications] upon the filing of an indictment or information charging the judicial officer in any court in the United States with a crime punishable as a felony under the laws of Indiana or the United States.”

Further, a judge’s conviction triggers mandatory suspension without pay in some states, followed by removal if the conviction becomes final.  For example, the Georgia constitution states:

Upon initial conviction of any judge for any felony in a trial court of this state or the United States . . . , such judge shall be immediately and without further action suspended from office.  While a judge is suspended from office under this subparagraph, he shall not be entitled to receive the compensation from his office.  If the conviction is later overturned as a result of any direct appeal or application for a writ of certiorari, the judge shall be immediately reinstated to the office from which he was suspended and shall be entitled to receive any compensation withheld under the provisions of this subparagraph.  For the duration of any suspension under this subparagraph, the Governor shall appoint a replacement judge.  Upon a final conviction with no appeal or review pending, the office shall be declared vacant and a successor to that office shall be chosen as provided in this Constitution or the laws enacted in pursuance thereof.

In Texas, pursuant to the government code, “a judge is automatically removed from the judge’s office if the judge is convicted of or is granted deferred adjudication for:  (1) a felony; or (2) a misdemeanor involving official misconduct.”

In some states, an affirmative act by the supreme court or conduct commission is necessary to suspend or remove a judge convicted of a crime, but the action is mandatory.  For example, the Colorado constitution provides:

Whenever a justice or judge of any court of this state has been convicted in any court of this state or of the United States or of any state, of a felony or other offense involving moral turpitude, the supreme court shall, of its own motion or upon petition filed by any person, and upon finding that such a conviction was had, enter its order suspending said justice or judge from office until such time as said judgment of conviction becomes final, and the payment of salary of said justice or judge shall also be suspended from the date of such order.  If said judgment of conviction becomes final, the supreme court shall enter its order removing said justice or judge from office and declaring his office vacant and his right to salary shall cease from the date of the order of suspension.

The California constitution states:

The Commission on Judicial Performance shall suspend a judge from office without salary when in the United States the judge pleads guilty or no contest or is found guilty of a crime punishable as a felony under California or federal law or of any other crime that involves moral turpitude under that law.  If the conviction is reversed, suspension terminates, and the judge shall be paid the salary for the judicial office held by the judge for the period of suspension.  If the judge is suspended and the conviction becomes final, the Commission on Judicial Performance shall remove the judge from office.

Throwback Thursday

10 years ago this month

  • The New York State Commission on Judicial Conduct removed a judge who had abandoned his judicial position to pursue other employment. In the Matter of Fiore, Determination (New York State Commission on Conduct August 17, 2005) (http://www.cjc.ny.gov/Determinations/all_decisions.htm).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct censured a part-time judge who had (1) entered into an agreement to sell property owned by the family of a youthful defendant whom he had recently sentenced to a conditional discharge in a highly publicized case and (2) entered into a brokerage agreement to sell a house 7 months after he had presided over a proceeding involving the property. In the Matter of Voetsch, Determination (New York State Commission on Judicial Conduct August 17, 2005) (http://www.cjc.ny.gov/Determinations/all_decisions.htm).
  • The New York State Commission on Judicial Conduct admonished a judge who, while visiting a store to discuss procedures in a bad check case involving the store, said that his daughter was looking for a job and picked up an application for her; later, he personally delivered the completed application to the store. In the Matter of Pastrick, Determination (New York State Commission on Judicial Conduct August 17, 2005) (http://www.cjc.ny.gov/Determinations/all_decisions.htm).
  • Based on an agreed statement of fact and joint recommendation, the New York State Commission on Judicial Conduct censured a non-lawyer judge who (1) telephoned the judge who was handling his wife’s traffic case, identified himself as a judge, and identified the defendant as his spouse and (2) requested special consideration for a long-time acquaintance. In the Matter of LaClair, Determination (New York State Commission on Judicial Conduct August 31, 2005) (http://www.cjc.ny.gov/Determinations/all_decisions.htm).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct censured a non-lawyer judge who, in numerous cases, dismissed or reduced the charges or granted an adjournment in contemplation of dismissal without notice to or the consent of the prosecution as required by law and after soliciting or receiving ex parte information. In the Matter of Cook, Determination (New York State Commission on Judicial Conduct August 31, 2005) (http://www.cjc.ny.gov/Determinations/all_decisions.htm).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former magistrate who had been found guilty of loitering to engage in criminal activity, a misdemeanor. In the Matter of Rutland, 618 S.E.2d 897 (South Carolina 2005).

Complying with the law

The recent legalization of marijuana in several states has apparently not yet prompted many inquiries to advisory committees, but two opinions have been issued on the possible judicial ethics repercussions of that change.

Most recently, the Washington State Ethics Advisory Committee stated that a judge may not permit a court employee to own a medical marijuana business even if the business fully complies with Washington state laws and regulations because federal law prohibits the possession, sale, and distribution of medical marijuana.  Washington Advisory Opinion 2015-2.

The committee concluded that, “even if owning a medical marijuana business may comply with the state statutory scheme, possessing, growing, and distributing marijuana remains illegal under federal law for both recreational and medical use. . . .  Although the Code does not generally prohibit a court employee from engaging in outside businesses or employment, operating a business in knowing violation of law undermines the public’s confidence in the integrity of the judiciary . . . , and is contrary to acting with fidelity and in a diligent manner consistent with the judge’s obligations under the Code.”

Last year, after Colorado decriminalized the use and possession of medicinal and small amounts of recreational marijuana, a judge asked the Judicial Ethics Advisory Board “whether a judge who engages in the personal recreational or medical use of marijuana (as opposed to commercial use) in private and in a manner compliant with the Colorado Constitution and all related state and local laws and regulations” violates the code of judicial conduct.  The board responded:  “Because the use of marijuana is a federal crime, a judge’s use of marijuana for any purpose is not a ‘minor’ violation of criminal law and therefore violates Rule 1.1 of the Code of Judicial Conduct.”  Colorado Advisory Opinion 14-1.

The board considered whether a judge’s personal marijuana use is a “minor” violation of the law because the Colorado code states in Rule 1.1(B) that “conduct by a judge that violates a criminal law may, unless the violation is minor, constitute a violation of the requirement that a judge must comply with the law.”  (This provision is not in the model code or codes in other states, although the model code notes in the preamble that “it is not contemplated that every transgression will result in disciplinary action.”)  Based on the minutes of the Committee to Consider Revisions to the Colorado Code of Judicial Conduct, the advisory board concluded that Rule 1.1(B) exempted “as ‘minor’ only violations of relatively insignificant traffic offenses and local ordinances,” such as receiving a parking ticket or permitting a dog to run at large, “not state or federal drug laws.”  The board rejected the judge’s argument that the determination whether an offense is “minor” should be based on a “moral turpitude” test.

The board concluded:

We recognize that simple possession of marijuana is a misdemeanor under federal law and that, in some circumstances, marijuana use is an infraction punishable only by a civil penalty.  . . .   It is nevertheless a violation of federal criminal law and, in our view, while not necessarily a “serious” offense, it is not a “minor” offense within the meaning of Rule 1.1(B).  It is significantly more serious than the parking ticket and dog at large violation referred to in the Committee minutes, and is no less serious than the unlawful conduct of the judges involved in Sawyer and Vandelinde.

See In re Sawyer, 594 P.2d 805 (Oregon 1979) (temporary suspension of a judge as long as he was employed part-time as a teacher at a state-funded college in violation of a state constitutional prohibition); Matter of Vandelinde, 366 S.E.2d 631 (West Virginia 1988) (reprimand of a judge who had made excessive contributions to a political organization that supported his candidacy, a misdemeanor under the applicable statute, even though he had not been criminally charged).

The Colorado board did note that “even parking tickets can give rise to judicial discipline,” citing In re Harrington, 877 A.2d 570 (Pennsylvania Court of Judicial Discipline 2005), in which a former magistrate who repeatedly parked at expired meters and displayed parking tickets issued to others was banned from judicial office for 5 years.  See also In the Matter of Williams, 701 A.2d 825 (Delaware 1997) (censure and 3-month suspension without pay for a part-time judge who had 29 unpaid parking tickets, in addition to other misconduct); In the Matter of LaPorta, Findings of Fact, Conclusions of Law, and Imposition of Discipline (Nevada Commission on Judicial Discipline July 13, 2004) (removal of pro tempore judge who had accrued over $8,000 in parking tickets, in addition to other misconduct); In re Ballentine, Opinion and order (Pennsylvania Court of Judicial Discipline August 4, 2015) (removal for pleading guilty to 3 misdemeanors for dismissing several of her own parking tickets, not filing state and federal tax returns for 5 years, failing to remit approximately $130 in sales taxes owed by a shoe store she owed, and opening the shoe store without a license).

Dog violations have also led to judicial discipline.  See In the Matter of Post, Determination (New York State Commission on Judicial Conduct October 12, 2010) (admonition for failing to appear for sentencing on dog-running-at-large violation and failing for 7 months to pay the fine imposed, in addition to other misconduct); In the Matter of Van Woeart, Determination (New York State Commission on Judicial Conduct August 20, 2012) (censure for failing to expeditiously transfer tickets issued to herself and her sons for violations of dog-control ordinance, sending messages to the judges of the transferee court, and failing to maintain proper records of the tickets).

The Colorado board noted that other states have disciplined judges for using and possessing marijuana, although it acknowledged marijuana use had been illegal under those states’ laws at the time.  It cited Matter of Marquardt, 778 P.2d 241 (Arizona 1989) (1-year suspension without pay for judge convicted of possession of a small quantity of marijuana); In re Peters, 715 S.E.2d 56 (Georgia 2011) (removal for obtaining and consuming marijuana at least once a week from March to May of 2010, in addition to other misconduct); In re Whitaker, 463 So. 2d 1291 (Louisiana 1985) (1-year suspension without pay for smoking marijuana on 2 occasions, in addition to other misconduct); In re Gilbert, 668 N.W.2d 892 (Michigan 2003) (censure and 6-month suspension for using marijuana at a Rolling Stones concert); In re Sherrill, 403 S.E.2d 255 (North Carolina 1991) (removal of judge who had been arrested for possessing marijuana, cocaine, and drug paraphernalia and had pled guilty to 3 felony charges); In re Toczydlowski, 853 A.2d 20 (Pennsylvania Court of Judicial Discipline 2004) (public reprimand for using marijuana); In re Binkoski, 515 S.E.2d 828 (West Virginia 1999) (public censure of former judge who had pled guilty to driving under the influence of alcohol and possession of less than 15 grams of marijuana and who had attempted to encourage a witness to be less than candid).  There are additional cases as well.  See also In the Matter of Pepe, 607 A.2d 988 (New Jersey 1992) (removal for using marijuana, in addition to other misconduct); Disciplinary Counsel v. Bowling, 937 N.E.2d 95 (Ohio 2010) (publicly reprimand for using marijuana); In re Coughenour, Stipulation and Order (Washington State Commission on Judicial Conduct September 6, 1991) (public admonishment for judge who had been charged with driving while under the influence of intoxicating liquor and/or drugs and unlawful possession of marijuana under 40 grams).

Noting it was only authorized to provide “opinions ‘concerning the compliance of intended, future conduct with the Colorado Code of Judicial Conduct,’ not regarding whether such conduct is censurable,” the Colorado board emphasized it was not addressing whether a judge who uses marijuana consistent with Colorado law should be disciplined.  Finally, the board stated, “having concluded that a judge’s use of marijuana violates Rule 1.1, we need not address whether it also violates the requirement in Rule 1.2 that judges ‘act at all times in a manner that promotes public confidence in the . . . integrity . . . of the judiciary’ and ‘avoid impropriety and the appearance of impropriety.’”

New advisory opinion on same-sex marriage

The Ohio Board of Professional Conduct has issued a new advisory opinion stating that a judge who exercises the authority to perform civil marriages may not refuse to perform same-sex marriages while continuing to perform opposite-sex marriages and a judge may not decline to perform all marriages to avoid marrying same-sex couples based on his or her personal, moral, or religious beliefs.  Ohio Advisory Opinion 2015-1.