29 or so states have decriminalized and/or legalized medical and/or recreational marijuana use since 1973. Whatever effect that may have had on judicial caseloads, that change should not have affected judges’ personal habits. As the Colorado advisory committee explained, even in a state that has decriminalized the use and possession of medicinal and small amounts of recreational marijuana, a judge who uses marijuana in private still violates the code of judicial conduct because federal law still makes the possession and use of marijuana for any purpose a crime. Colorado Advisory Opinion 2014-1.
Further, the California judicial ethics committee recently advised that, because of federal laws, a judicial officer should not have an interest in an enterprise involved in the sale or manufacture of medical or recreational marijuana. California Advisory Opinion 2017-10. The committee explained that restriction precluded a personal financial investment or private equity fund investment in such an enterprise, ownership of shares in a corporation that invests in marijuana, or an interest in property that is leased for marijuana growth or distribution and included interests owned by a spouse or registered domestic partner. The Washington advisory committee stated that a judge may not permit a court employee to own a medical marijuana business, even if the business fully complied with state laws and regulations, because federal law prohibits the possession, sale, and distribution of medical marijuana. Washington Advisory Opinion 2015-2
Judges have been disciplined for using marijuana although the cases arose when use was still a crime in the state.
The Michigan Supreme Court censured a judge and suspended him for 6 months without pay for using marijuana. In re Gilbert, 668 N.W.2d 892 (Michigan 2003). During a Rolling Stones concert, someone had passed a marijuana cigarette down the aisle in which the judge was sitting. The judge took it, puffed it, and then passed it along. When the marijuana cigarette was returned back down the aisle, the judge puffed it a second time before passing it along again. The judge’s actions were well-publicized in the press in western Michigan, received significant attention in the media around metropolitan Detroit, were referenced by national news services, and were the subject of a joke by Jay Leno on The Tonight Show. The judge took a voluntary leave of absence and reported his conduct to the Judicial Tenure Commission.
The judge acknowledged that he used marijuana approximately twice a year. He obtained a substance abuse evaluation by the State Bar of Michigan Lawyers and Judges Assistance Program, completed an in-patient substance abuse treatment program, and entered into a judicial monitoring participation agreement with the assistance program.
Pursuant to the judge’s consent, the Commission had recommended a 90-day suspension without pay. However, the Court concluded that recommendation was insufficient for a judge who had admitted that he was using marijuana while trying, convicting, and sentencing defendants charged with marijuana offenses. 1 justice dissented, arguing that, in light of the judge’s “hypocrisy,” only removal “would begin to repair the damage to the public’s trust and confidence in the judiciary caused by his criminal misconduct and sufficiently sanction him for it.”
Adopting the findings and recommended sanction of a panel of the Board of Commissioners on Grievance and Discipline based on the judge’s consent, the Ohio Supreme Court publicly reprimanded a judge for using marijuana. Disciplinary Counsel v. Bowling, 937 N.E.2d 95 (Ohio 2010). The judge had occasionally used marijuana on weekends, and, in March 2008, began using it daily as self-medication to alleviate the physical and psychological effects of a stroke. In December 2008, he was cited for possession of marijuana and drug paraphernalia. By agreement, the drug paraphernalia charge was dismissed, and the marijuana charge was resolved by forfeiture of a $168 bond. The judge did not plead guilty to and was not convicted of any crime.
After being charged, the judge had not used alcohol or marijuana or any other illegal substance. He had entered into a 5-year contract with the Ohio Lawyers Assistance Program and completed a detox program, an in-patient program at an addiction-medicine facility, and a 90-day intensive out-patient program.
See also Inquiry Concerning Peters, 715 S.E.2d 56 (Georgia 2011) (removal of judge for obtaining and consuming marijuana at least once a week for several months, in addition to unrelated misconduct); In the Matter of Pepe, 607 A.2d 988 (New Jersey 1992) (removal of a former judge for using marijuana and supplying marijuana to another individual on one occasion, in addition to unrelated misconduct); In re Sherrill, 403 S.E.2d 255 (North Carolina 1991) (removal of a former 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 24 (Pennsylvania Court of Judicial Discipline 2004) (public reprimand of a judge for using marijuana); In re Coughenour, Stipulation and Order (Washington Commission on Judicial Conduct September 6, 1991) (public admonishment of a 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; an order of deferred prosecution had been entered in the traffic matter); In the Matter of Binkoski, 515 S.E.2d 828 (West Virginia 1999) (public censure of a 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 relative to the 2 charges).