A sampling of recent judicial ethics advisory opinions

  • A judge is disqualified from any cases in which his wife appears as a guardian ad litem. West Virginia Opinion 2017-1.
  • A family court judge may send a sympathy card to the family of a decedent who was formerly the subject of juvenile delinquency proceedings before the judge. New York Opinion 2017-15.  
  • A judge must self-report a violation of the Rules of Professional Conduct that raises a question as to the judge’s own honesty, trustworthiness, or fitness as a lawyer. A judge should report misconduct by a lawyer or another judge within a reasonable time after becoming aware of the violation.  A judge who reports a lawyer’s misconduct is not presumptively disqualified from cases in which that lawyer appears.  A judge does not have a duty to report misconduct by those who are not judges or lawyers, but a judge should expose obvious and egregious illegal activity when the failure to do so could undermine confidence in the integrity of the judiciary.  Ohio Opinion 2017-2
  • A judge may accept an appointment to the Florida Impaired Driving Coalition, an advisory body to the state department of transportation, as long as it does not engage in matters that could reasonably be perceived as favoring the state in DUI prosecutions. Florida Opinion 2017-2.
  • A judge may not be a member of a “Justice Council” comprised of representatives of government agencies that is addressing the use of community-based programs and considering ways to reduce jail population. Nebraska Opinion 2017-1.  
  • A circuit’s chief judge may accept a copier donated by a group of professional guardians to be used in the probate and guardianship courtrooms only by probate and guardianship attorneys to make copies or certified copies of orders immediately following hearings. Florida Opinion 2017-6.
  • A judge may allow a personal injury firm, a legal aid group, a women lawyers association, and an African-American lawyers association to jointly host a free reception at the courthouse after a free diversity training seminar for judges and attorneys and may accept food/drink provided by the hosts at the event. Florida Opinion 2017-4.
  • To encourage others to pursue a legal career, a judge may speak to not-for-profit organizations affiliated with a certain religion, including domestic and foreign parochial schools and places of worship, about her background and experience in becoming a judge and accept standard speaking fees and reasonable travel expenses. New York Opinion 2017-12.
  • A judge may serve on the admissions committee of a country club if the club is non-profit, does not regularly engage in litigation, and does not invidiously discriminate. New York Opinion 2016-161.  
  • A judge is obligated to determine before joining a lay organization for men of a particular ethnicity and religion whether that organization engages in invidious discrimination. New York Opinion 2017-11.  
  • A judge may submit a letter to a municipality supporting the dedication of a little league baseball field in the name of her deceased former bailiff. Florida Advisory 2017-9.
  • A magistrate may participate in a dunk tank for a non-profit organization run by the judge’s spouse as long as he does not personally solicit funds and the prestige of judicial office is not used in advertising the fund-raiser. South Carolina Opinion 5-2017.
  • A judge may not give a videotaped interview that will be shown at a re-entry agency’s fund-raising event. New York Opinion 2016-152.
  • A judge may serve as a “judge” for preliminary Miss America pageant competitions. Florida Opinion 2017-8
  • A judge may run for a seat on a church parish council and serve on the finance committee. West Virginia Opinion 2017-7
  • A judge who presides over domestic violence cases may write a thesis for his master’s degree in social work on community response to domestic violence as long as he does not express any opinions on what he would do with any specific set of facts or on any pending or impending issues. West Virginia Opinion 2017-3.  
  • A judicial officer should not have an interest in an enterprise involved in the sale or manufacture of medical or recreational marijuana including a personal financial investment or private equity fund investment, shares in a corporation that invests in marijuana, an interest in property that is leased for marijuana growth or distribution, or an interest owned by a spouse or registered domestic partner. California Opinion 2017-10.  
  • A full-time magistrate who is a certified paramedic may work part-time for a service that transports non-emergency patients, for example, from hospital to hospital. South Carolina Opinion 4-2017.
  • A judge may serve as a referee at soccer games and accept reasonable compensation ($40-$80 per game). New York Opinion 2017-1.  
  • A judge may perform with a non-profit orchestra and other musical groups that are not business entities and accept reasonable compensation for her performances. A judge may publish her own musical compositions and receive royalties and performance rights fees for them.  New York Opinion 2017-11.  
  • A new judge may continue to serve as a receiver in a foreclosure provided his duties are ministerial and completed within 1 year, if possible. New York Opinion 2016-164.  
  • A new judge may complete her service as executor of a former client’s will by signing a deed necessary to transfer title to an heir. New York Opinion 2017-33.

 

A sampling of recent judicial ethics advisory opinions

  • In an order for protection proceeding, a judge may, without advance notice to the parties, access electronic court records to determine whether there are orders in other cases involving the petitioner or respondent that could affect the decision, but, after issuing the ex parte order, the judge should give the parties an opportunity to be heard on the propriety of taking judicial notice of a previous order. Minnesota Advisory Opinion 2016-2.
  • If only pro se parties are involved, a judge may question a witness regarding the statutory factors in an uncontested divorce or question a witness in a child custody matter regarding the factors necessary to the determination of the best interests of the child. North Carolina Advisory Opinion 2016-1.
  • A supreme court justice is not disqualified from an appeal of a district court decision because a relative within the third degree presided over an interim review by the court of appeals, but disclosure of the relationship on the record is prudent and appropriate. Nevada Advisory Opinion JE2016-4.
  • Except when a user transmits video or audio or a link to videotaped testimony, the use of Twitter, microblogging, or other electronic means of instant communication is not broadcasting for purposes of the rule regarding broadcasting from the courtroom, but a judge may impose reasonable restrictions on how and when electronic communication tools may be used during courtroom proceedings. Indiana Advisory Opinion 1-2017.
  • A court should not place artwork for sale in the courthouse or post advertisements for local restaurants or other vendors. South Carolina Advisory Opinion 2-2017.
  • A judge may not attend a free training seminar on landlord/tenant law that is sponsored and taught by attorneys who almost exclusively represent landlords in eviction cases and that is designed for judges who regularly hear eviction cases. Arizona Advisory Opinion 2016-4.
  • A judge who sometimes presides in criminal cases involving Native American defendants may not attend a seminar on “Human Trafficking in Indian Country” co-sponsored by the Department of Justice and the FBI that will focus on effective prosecution. New York Advisory Opinion 2017-4.
  • A judge may apply to the governor for a seat on the constitution revision commission and, if appointed, serve as a gubernatorial appointee. Florida Advisory Opinion 2016-19.
  • A judicial officer may administer the oath of office at a ceremony to swear in a public official, including a newly elected district attorney. California Oral Advice Summary 2016-18.
  • A judicial officer may serve on the board of a non-profit entity that is building an integrated network of services and advocating for policies that improve the lives of children and their families even if the organization monitors legislation and engages in child-related advocacy and legislative efforts. Colorado Advisory Opinion 2016-2.
  • A circuit court judge may not be a member of a domestic violence council that discusses and engages in legislative reform efforts related to the prevention, treatment, and punishment of domestic violence and stalking. Wyoming Advisory Opinion 2016-4.
  • A judge may publicly advocate for a change in the penal law that would create a new standard in a particular class of criminal cases and write to executive and legislative bodies and/or officials and other potentially interested parties; the judge need not inform local prosecutors or defense counsel of these activities. New York Advisory Opinion 2016-135.
  • A county magistrates’ association may, as requested by the bar association and the county executive, comment on the bar association’s proposed assigned counsel plan before it is implemented by the county. New York Advisory Opinion 2016-145.
  • A judge may circulate a petition to force a referendum on a proposed sale of a parcel of land owned by the local school district. New York Advisory Opinion 2016-169.
  • A judge may establish a mentoring program to promote diversity in the judiciary that will pair sitting or retired judges with attorneys who wish to seek judicial office. The mentor judge may comment on an attorney-protégé’s application to a judicial screening panel and may share her experience in the elective or appointive process.  The mentor judge may not contact political party leaders or others on the protégé’s behalf, must avoid any perception of involvement in impermissible political activity both before and after the protégé publicly declares his candidacy for election, and must not advise her protégé on campaign strategy, campaign literature, or other outreach to voters or political leaders.  New York Advisory Opinion 2016-151.
  • A judge may not serve on a bar association committee hosting a golf tournament that is raising funds for the Guardian Ad Litem Foundation, which is a litigant in every dependency case that comes before the judge, but may attend the event and assist with organizational, non-fund-raising tasks such as setting up sponsor signs and the silent auction, serving food and beverages, and taking pictures. Florida Advisory Opinion 2016-20.
  • A judge whose minor child is participating in a charitable fund-raiser may personally solicit funds from family members and fellow judges not subject to his supervision, provided he does not use or invoke his judicial title or status in doing so, but may not personally solicit funds from friends or neighbors. A judge may, in his capacity as a parent, accompany his minor child as the child solicits funds from friends or neighbors, but may not otherwise assist or participate in the solicitation.  New York Advisory Opinion 2016-153.
  • A judge may participate as a player in a “Casino Night” fund-raiser at her child’s pre-school if the event is lawful. New York Advisory Opinion 2016-158.
  • A judge may be a member of an all-female volunteer emergency medical technician service that responds to calls from women in a particular faith community and provides limited free health care services in the community but may not serve as director if that role requires her to personally engage in fund-raising and/or recruitment. New York Advisory Opinion 2016-179.
  • A judge may not testify as a character witness in a disbarred attorney’s reinstatement proceeding. Massachusetts Advisory Letter Opinion 2016-13.
  • A judge may teach a fitness class for a not-for-profit educational, charitable, or civic organization and accept the standard per-session compensation. New York Advisory Opinion 2016-117.
  • A judge may attend a free, non-partisan “meet the candidates” event, organized by a non-political community residents’ association when all candidates for a particular office will attend, speak, and answer questions. New York Advisory Opinion 2016-149.

 

Public outreach on the rule of law and judicial independence

The Massachusetts Supreme Judicial Court Committee on Judicial Ethics issued a letter opinion on public outreach in support of the rule of law and judicial independence in response to an inquiry from a judge who wishes to speak to community groups under the auspices of a court-sponsored public outreach program.   Massachusetts Advisory Opinion 2017-1.  The judge had asked “(1) whether judges may reassure the public, including groups composed of immigrants or religious minorities, that the courts of Massachusetts are and will remain committed to the rule of law, including the protection of the rights of all persons to due process, equal protection of the laws, equal access to the courts, and fair and respectful treatment; and (2) whether judges may respond to statements made by public officials and others that appear to reflect misconceptions about the role of an independent judiciary in our system of government or manifest disrespect for the rule of law.”

The committee noted that the code “places parameters around judges’ remarks, even on permitted subjects such as defending the rule of law or speaking about the administration of justice” and that, “[i]n deciding whether it is appropriate to accept any particular speaking engagement, judges must consider the overall context in which the remarks would be made.”  The committee also emphasized that “[a]n underlying premise of the Code is that a judge’s fair and impartial decisions are the most important defense against threats to judicial independence and the rule of law.”

The committee advised that, subject to the parameters of the code:

[J]udges may reach out to individuals, and associations of individuals, who may feel vulnerable due to their race, religion, national origin, citizenship status, or other attribute(s), and remind them that the Massachusetts courts are and will remain committed to upholding the right of every person to obtain equal justice before an independent and impartial judge.

The opinion also stated that, “in prepared or extemporaneous remarks,” subject to the parameters of the code, judges may respond to comments by public officials or others that appear to reflect misconceptions about the role of an independent judiciary or manifest disrespect for the rule of law.  The committee explained:

It is proper for a judge to dispel misconceptions about the role of an independent judiciary and to emphasize the importance of respect for the rule of law, so long as the judge’s remarks preserve the dignity of judicial office, would not lead a reasonable person to question the judge’s ability to impartially administer the law, and avoid the implication the judge is influenced by, or appears to be influenced by, partisan or political interests.

 

Permitting others to convey

The Florida Judicial Ethics Advisory Committee recently stated that a judge “must adamantly and genuinely encourage” a law firm “not to publicly acknowledge, promote, or market” the fact that an attorney with the firm is the judge’s child.  Florida Advisory Opinion 2016-2.  The occasion for the advice was the desire of a law firm to identify an attorney with the firm as the child of a specific judge and explain that the attorney had decided to “follow in the judge’s footsteps” by practicing law in a particular area of Florida.  The firm intended to use the information in press releases regarding its hiring of the judge’s child and in the child’s law firm biography.

The judge’s approval of or acquiescence in that plan would obviously violate Canon 2B of the Florida code of judicial conduct:  “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.”  (The comparable rule in the ABA Model Code of Judicial Conduct is Rule 1.3.)  As the Florida committee explained:

The public may be inclined to use this particular law firm because of the specific advertisement of this familial relationship between the judge and attorney child.  Furthermore, it gives the public the impression that because the Inquiring Judge’s child is an attorney in the firm, that law firm has a special relationship with the Inquiring Judge or the Inquiring Judge’s colleagues

Recognizing that the law firm might reject the judge’s request not to promote or advertise the parent-child relationship, the committee stated that the judge “is not ethically responsible for the actions of the law firm or any third party once the Inquiring Judge has apprised the third party not to take this action.”

A similar issue has arisen when an attorney whose name has been part of a firm’s name becomes a judge.  Advisory committees agree that, as an essential step in the transition to the bench, a new judge must ensure that her name is deleted from her former firm’s name.  The name change is required not only by both the code of judicial conduct, but by the requirement of Rule 7.5(C) of the Model Rules of Professional Responsibility that the “name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm.”  See Kentucky Advisory Opinion JE-41 (1982) (a new judge has a duty to see that his name is removed from a firm name, and the firm has a “like duty”); Louisiana Advisory Opinion 155 (1999) (a judge may not permit his former law firm to use his name in the firm name); Michigan Advisory Opinion JI-89 (1994) (a judge may not allow his name to remain in the name of his former law firm); New York Advisory Opinion 1989-136 (prior to assuming judicial office, a judge must remove his name from a firm’s masthead).  According to its recently released annual report, the Arizona Commission on Judicial Conduct  privately warned a justice of the peace in 2015 that he needed to ensure that his former law firm’s web-site did not give the appearance or leave the impression that he still practiced law with the firm, including, but not limited to, eliminating any reference to the judge as a member of the firm and removing his name from the firm name.

2 committees have addressed a new judge’s responsibility if a former firm refuses to stop using the judge’s name despite the firm’s duty and the judge’s requests.

The New York Advisory Committee on Judicial Ethics received an inquiry from a judge who had learned that his former law firm may still be using his name in some of its printed materials, including letterhead.  The judge had called the firm and “forwarded a ‘cease and desist’ letter” alerting it to the ethics issue and asking it to take all necessary measures to remove his “name from the building signage and from any and all printed or displayed materials that the firm may generate.”  The committee advised that the judge did not need to take further action, noting the judge cannot control what the firm does and the committee cannot “advise or direct” the firm to take any action.  New York Advisory Opinion 2015-19.

Similarly, the Massachusetts Supreme Court Committee on Judicial Ethics received an inquiry from a judge who, in the 2 years since she became a judge, had repeatedly requested her former firm to remove her name from the firm title.  Although the firm had removed her name from the listing of attorneys on its letterhead, it asserted that the firm’s name, which still included the judge’s surname, was the property of the legal corporation and that complying with her request would significantly reduce the “goodwill” associated with the firm’s trade name, to its financial detriment.

The committee noted that “it is difficult to envision what other affirmative steps” the judge could take “other than filing a formal complaint with the Board of Bar Overseers or initiating legal action.”  The committee concluded that, although it was within the judge’s discretion to file a complaint, she was not required to do so because, even if the firm’s continued use of her name violated the professional responsibility rules, “it would not appear to be the type of violation for which disbarment, or some other type of severe sanction, is likely to result . . . ,” and, therefore, did not trigger the duty to file a complaint.  The committee noted that the fact that the judge’s “surname is fairly common is of some relevance, as third parties might not automatically associate” her with the firm, alleviating, to some degree, the concern that the firm was using her name and title for financial gain.  Massachusetts Advisory Opinion 2003-9.

These opinions again illustrate the importance to judges (and particularly new judges) of an active judicial ethics advisory committee that can answer an individual judge’s questions and then post the advice on-line to provide easily available guidance for all judges.  See the list of committee on the Center for Judicial Ethics web-site here.

Judges and the Boy Scouts: Top stories of 2015

47 states, D.C., and the federal judiciary have provisions in their codes of judicial conduct prohibiting judges from being members of organizations that practice invidious or unlawful discrimination.  (The 3 states without any such provision are Alabama, Illinois, and Louisiana.)  In approximately 28 jurisdictions (27 states and D.C.), sexual orientation is specifically included in the list of grounds for discrimination to which the rule applies.  In other words, those jurisdictions have adopted a version of Rule 3.6A of the American Bar Association Model Code of Judicial Conduct:

A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation. (emphasis added).

Since 1996, California, one of those 28 jurisdictions, has had an exception for non-profit youth organizations to accommodate judges who were members of or active in the Boy Scouts of America, according to the California Supreme Court Advisory Committee on the Code of Judicial Ethics.  In January 2015, the California Supreme Court eliminated that exception effective January 1, 2016.  Thus, after January 1, California judges would no longer have been able to be members of the Boy Scouts – except the organization changed.

In July 2015, Boy Scouts of American amended its adult leadership policy to remove “the national restriction on openly gay adult leaders and employees” although local religious chartered organizations “may continue to use religious beliefs as criteria for selecting adult leaders, including matters of sexuality.”

Thus, the California Supreme Court Committee on Judicial Ethics Opinions recently advised that, even after elimination of the youth group exception, “judicial membership in a BSA-sponsored eagle scout alumni organization is not prohibited because, due to recent changes, current Boy Scouts of American policy precludes invidious discrimination on the basis of sexual orientation for non-unit-serving volunteers such as the eagle scout alumni members.”  California Oral Advice Summary 2015-13.

Similarly, as a result of that recent change in Boy Scout policy, the Connecticut Committee on Judicial Ethics recently advised that a judicial official may participate in the Boy Scouts by teaching ethics courses as a regional or high level volunteer (Connecticut Informal Advisory Opinion 2014-15Aand by serving as a board member of a regional council (Connecticut Informal Advisory Opinion 2014-15B).  Prior to the policy change, the Connecticut committee had issued an advisory opinion stating that a judicial officer may not hold adult volunteer leadership positions with the Boy Scouts that gay persons are barred from holding.  Connecticut Informal Advisory Opinion 2014-1.

Both the California and Connecticut codes, like the model code, contain exceptions for religious organizations, which, even after the Boy Scouts policy change, can still discriminate based on sexual orientation as a matter of religious belief.  Thus, the California committee said that a judge may be a scoutmaster for his church-sponsored Boy Scouts troop if he is satisfied that the troop does not exclude members based on sexual orientation or is dedicated to the preservation of religious values of legitimate common interest to the troop members.  California Oral Advice Summary 2015-14.  The Connecticut committee advised that a judge may, as the lawful exercise of his religious freedom, be a member of a Catholic archdiocese committee on Scouting.  Connecticut Informal Advisory Opinion 2014-15B.

These developments will be one of the topics discussed in the free webinar on the “Top Judicial Ethics Stories of 2015” presented on Friday January 15, 2016, from 12:00 p.m. to 1:00 p.m. central time by the National Center for State Courts Center for Judicial Ethics.  The webinar will review the 2015 cases and developments in judicial ethics and discipline that grabbed the headlines and illuminated current and recurring issues in judicial conduct, including Facebook and e-mail, campaign fund-raising, gay marriage, and appropriate sanctions.  SpeakersColin Winchester, Executive Director, Utah Judicial Conduct Commission * Cynthia Gray, Director, Center for Judicial Ethics, National Center or State Courts.  The webinar is free, but you must sign up ahead of time.  Click this link to sign up: https://attendee.gotowebinar.com/register/1087418470610271489.

 

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.

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.’”