According to governing.com, 31 states and D.C. have legalized marijuana to some degree, with Alaska, California, Colorado, D.C., Maine, Massachusetts, Nevada, Oregon, Vermont, and Washington having the most expansive laws for recreational use.  Although that certainly changes the criminal caseloads of judges in those states, it makes no difference in their personal conduct, as a recent judicial ethics opinion from Alaska advises.

The advisory opinion concludes that:  “As long as federal law criminalizes marijuana use, Alaska judges who choose to use marijuana violate the Alaska Code of Judicial Conduct.”  Alaska Advisory Opinion 2018-1.  The opinion relies on the provision in Canon 2A of the Alaska code that states that, “[i]n all activities, a judge shall exhibit respect for the rule of law, comply with the law, and avoid impropriety and the appearance of impropriety, and act in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”  The opinion notes that the “requirement that a judge shall comply with the law includes federal law as well as state law and local laws.”

The opinion states that Alaska law on marijuana use is unique because it is based on a 1975 decision by the Alaska Supreme Court that the right to privacy in the state constitution protects the personal use of marijuana in the home.  See Ravin v. State, 537 P.2d 494 (Alaska 1975).  However, the opinion emphasizes that judges’ personal rights are limited by the code, for example, with respect to “speech, financial endeavors, and political activity to preserve their impartiality and ability to hear cases.”

Further, the opinion explains:

Marijuana use violates federal law and its use by a judge would reflect a lack of respect for the law by showing a selective attitude towards the law suggesting that some are appropriate to follow but others are not.  Public use of marijuana by a judge would further create an appearance of impropriety.

The opinion also states that judges are restricted “even in their personal use in the home” as a “reasonable and necessary” measure to preserve public confidence in the judiciary, noting that, “[o]ne never knows when an iPhone is out and ready to take a picture of a momentary indiscretion.”

Colorado is the only other state that has a judicial ethics advisory opinion on the subject, issued in 2014 in response to a judge who asked “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.  Colorado Advisory Opinion 2014-1.

In Rule 1.1(B), the Colorado code states that “[c]onduct by a judge that violates a criminal law may . . . constitute a violation of the requirement that a judge must comply with the law” — “unless the violation is minor,” an exception unique to Colorado.  The advisory committee notes that the Committee to Consider Revisions to the Colorado Code of Judicial Conduct had been concerned that the requirement that a judge comply with the law was “vague and confusing” and “could subject judges to discipline for what typically are regarded as minor infractions, such as receiving a parking ticket or permitting the judge’s dog to run at large.”  Thus, the “minor” violation language was added in 2010.

However, the advisory committee stated that the exemption only applied to “violations of relatively insignificant traffic offenses and local ordinances, not state or federal drug laws.”  The committee recognized that, under federal law, simple possession of marijuana is a misdemeanor or even an infraction punishable only by a civil penalty under some circumstances.  Nevertheless, it concluded that, “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 . . . .”

The committee emphasized that it is only authorized to provide an opinion on whether “intended, future conduct” complies with the code of judicial conduct, not on whether such conduct is censurable and, therefore, it was not opining on whether a judge who uses marijuana consistent with Colorado law should be disciplined.