Judicial ethics and marijuana

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 2017-10The 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 partnerThe 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).

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.

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.’”

What a difference a year makes

In January 2014, Michael Maggio was a circuit court judge running for the Arkansas Court of Appeals.  In March, he was exposed as “geauxjudge,” the writer of posts on Tiger Droppings, an LSU fan-site; his posts included comments regarding the closed adoption of a famous actress; inappropriate statements about official duties, pending cases, and independent investigations; and inappropriate gender, race, and sexually related statements.  He dropped out of the race and was removed from office by the Arkansas Supreme Court on September 11, based on the posts and other misconduct.  Today, January 9, 2015, he pled guilty to taking bribes — in the form of campaign contributions — to reduce a $5.2 million jury verdict in favor of a nursing home.

 

Top judicial ethics stories of 2014: Part 4

Since December 2, this blog has been summarizing the top judicial ethics stories of 2014.  Previous posts are Commit the oldest sins the newest kind of ways,” sex in chambers, and inappropriate relationships.

The other side of the bench

Every year, there are judges or former judges convicted of and/or disciplined for criminal conduct, both the types of crimes anyone can commit and the types of crimes unique to judges.  See, e.g., Inquiry Concerning Sheehan (Florida 2014) (reprimand of a judge for driving under the influence); Ohio State Bar Association v. McCafferty (Ohio 2014) (indefinite suspension of a former judge’s law license based on her conviction on charges of lying to the FBI during an investigation of corruption among public officials and public employees); Office of Disciplinary Counsel v. Ballentine (Pennsylvania 2014) (one-year suspension of a judge’s law license following her guilty plea to three misdemeanor charges of tampering with public records for dismissing her own parking tickets); In re Carney (Pennsylvania 2014) ) (reprimand of a judge for a road rage incident; the judge had pled guilty to disorderly conduct); In the Matter of Ferguson, 762 S.E.2d 385 (South Carolina 2014) (reprimand of a former judge convicted on charges that, in return for sexual contact, he gave two women money and/or other benefits for the handling and disposition of matters involving them).

But 2014 was the first year a former judge was convicted for murder and sentenced to death.  The murder was committed while he was still a judge, albeit suspended following his indictment on other charges.

May – July 2011:  Kaufman County, Texas Justice of the Peace Eric Williams is arrested and indicted on one count of burglary and one count of theft by a public servant for taking computer monitors from a county facility.  The case is prosecuted by Chief Assistant District Attorney Mark Hasse.  The Texas State Commission on Judicial Conduct suspends Williams without pay.

March 2012:  A jury convicts Williams.  He is sentenced to probation and the loss of his office and law license.  He appeals, and the sentence is stayed.

January 31, 2013:  Hasse is shot and killed while walking from his car to the courthouse.

March 30, 2013:  Kaufman County Criminal District Attorney Michael McClelland and his wife Cynthia are shot and killed in their home.

April – June 2013:  Williams and his wife Kim are charged then indicted for capital murder in the deaths of Hasse and the McLellands.  Kim Williams tells investigators that her husband shot the victims while she sat in the get-away car.  The apparent motive is revenge for the theft and burglary prosecution of Williams by Hasse and McLelland.

July – October, 2013:  An appellate court upholds Williams’ theft and burglary convictions, and the sentencing court permanently removes him from office.

December 2014:  Williams is tried for the murder of Cynthia McLelland, convicted by a jury, and sentenced to death.

* * *
Another major crime story involving judges continued in 2014 when a federal jury acquitted five former judges and one magisterial district judge of charges related to ticket-fixing on the Philadelphia Traffic Court.

November 2012:  A report commissioned by the Chief Justice of the Pennsylvania Supreme (and leaked to the Philadelphia Inquirer) finds that ticket-fixing on the Philadelphia Traffic Court is routine, with “two tracks of justice — one for the connected and another for the unwitting general public” (http://media.philly.com/documents/trafficcourtstudy.pdf).  The report notes federal authorities had been investigating since at least 2011.

January 31, 2013:  Six judges, a traffic court administrator, and two businessmen are indicted on federal wire fraud and mail fraud charges for ticket fixing and favoritism.  Three other judges are charged separately by information and plead guilty in early 2013.

June 2013:  Legislation is passed and signed transferring the duties of the traffic court to a new division of the Philadelphia Municipal Court, although a constitutional amendment is still required to eliminate the traffic court because it is created by the state constitution.

May 27-July 23, 2014:  During their jury trial, the defendants do not deny fixing tickets but claim the practice was not a crime because no money changed hands.  The jury apparently agrees and on July 23 acquits all defendants of the wire fraud and mail fraud charges, although it convicts most of them of perjury before the grand jury or lying to federal investigators.

December 2014:  The first defendant to be sentenced, former judge Robert Mulgrew, is sentenced to 18 years in prison.  During sentencing, U.S. District Judge Lawrence Stengel states, “This case is about more than one lie before the grand jury,” and called it the “capstone on a . . . career marked by regular and willing participation in a pervasive system of corruption.”  The second to be sentenced, former judge Thomasine Tynes, is sentenced to 24 months in prison and fined $5,000.

December 22, 2014:  The Judicial Conduct Board files a complaint against Judge Michael Sullivan, one of the defendants in the federal criminal case, alleging that, based on ex parte communications, he gave special consideration in traffic court cases to defendants who were politically connected, family members and friends of traffic court judges, and family members and friends of court employees.