Category Archives: Off-bench conduct

Reviews, blurbs, and prefaces

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Advisory opinions on the issue allow a judge to write a book review but prohibit a judge from allowing excerpts from a positive review to be used to promote the book and from writing a blurb solely for marketing purposes.

For example, the California Supreme Court Committee on Judicial Ethics Opinions recently advised that, when the primary purpose “is to engage in educational discourse related to the law, the legal system, or the administration of justice,” a judicial officer “may review, critique, or comment on legal education books in a legal publication” and include their title in the review.  California Supreme Court Committee Advisory Opinion 2022-48. The opinion noted that the code “generally permits and encourages judges to engage in educational activities, particularly those concerning the law, the legal system, and the administration of justice” but also prohibits using judicial prestige to advance others’ interests.  To “harmoniz[e]” those provisions, it explained:

Discussions regarding legal education books or writings in legal publications, such as legal periodicals or newsletters, have important educational value and contribute to the improvement of the law and legal system. . . .  While the committee agrees that judges may not promote others’ written works, review or critique of legal works is an educational exercise and consistent with the canons.  Although a positive review or discussion may incidentally lead to increased sales, the primary purpose of such discussions is educational rather than promotional.

The opinion cautioned that the substance of the review “must otherwise comply with the canons; for example, the judicial officer must not engage in improper political commentary or undermine the integrity or impartiality of the judiciary.”

Moreover, the committee advised that a judicial officer who has not contributed to a book may not provide a written endorsement that includes their title to be used on the book cover because the primary purpose of such an endorsement is to allow the publisher to “leverage” the judicial title to market the publication.  It explained:

Authors and publishers typically seek written endorsements from high-profile or prestigious individuals, sometimes called “book blurbs,” for the placement on a book cover to market and promote the book for sale.  An endorsement from a well-known judge, for example, might suggest to would-be readers that a law-related book is particularly interesting or useful, leading to increased sales.  When a judicial officer has not authored, co-authored, or contributed to the book, the primary purpose of such an endorsement is not to identify a contributor by judicial title or engage in an educational exercise, but rather to use the endorsing judicial officer’s title to promote sales.

Other opinions reflect a similar distinction.

  • A judge may write a review of a book about an historical event for a legal periodical as an academic exercise and not for commercial purposes but may not for marketing purposes write a testimonial regarding the value of a bar publication or write commentary to be included on a book jacket.  California Judges Association Advisory Opinion 65 (2012).
  • A judge may not write a testimonial/endorsement for a legal practice guide published by a non-profit, bar-related legal organization.  Connecticut Informal Advisory Opinion 2010-35.
  • A judge may not write comments about how an expert witness’s book would contribute to the legal profession from a judge’s perspective to be included in the book and potentially used in advertisements.  Florida Advisory Opinion 2021-17.
  • A judge may not write an appraisal intended to promote the sales of a book but may write a book review in a journal or newspaper intended “to inform the legal community or the general public of a new contribution to the legal or general literature,” even if the publisher uses excerpts from the review to promote sales and even if the newspaper or journal compensates the judge for the review.  Illinois Advisory Opinion 1994-15.
  • A judge may write book reviews for compensation for an out-of-state newspaper when they were asked because of their prior journalism experience, not because they are currently a judge, and they would not be identified as a judge in the reviews.  Kansas Advisory Opinion 186 (2020).
  • A judge may write a review of several books on methamphetamine addiction.  Nevada Advisory Opinion JE2008-8.
  • A judge may review a legal textbook and retain the reviewed book in their personal library.  New York Advisory Opinion 2021-117.
  • A judge may write and post a review of a friend’s novel online without mentioning their judicial position provided the purpose is not to promote the book’s sale and the judge does authorize use of the review on the book jacket or elsewhere to promote sales.  New York Advisory Opinion 2020-85.
  • A judge may not provide an endorsement of a friend’s non-fiction book that would appear on the cover and identify them as a New York judge even if their name is not used.  New York Advisory Opinion 2012-26.
  • A judge may not provide a quote to be included on the inside leaf of a book a friend has written about auditing fraud even if their title will not be mentioned and the only compensation is a complimentary copy of the book.  New York Advisory Opinion 2011-54.
  • A judge may submit to the New York Law Journal a review of a book authored by a clergy member at their house of worship but should not permit the author or publisher to use any portion of the review to promote the book’s sale.  New York Advisory Opinion 2006-114.
  • A judge may write a review of a novel for a local legal newspaper but should not permit the author or publisher to use part of the review to promote the book’s sale and should inform the newspaper, in writing, that the review is being provided on the understanding that no portion can be used for promotions.  New York Advisory Opinion 2005-28.
  • A judge may review a legal publication but should not prepare a testimonial that would be included in a marketing brochure or provide a quote about a book for the book jacket.  New York Advisory Opinion 1997-133.
  • A judge may not author a quote about a book involving legal issues solely for use on the book jacket but may write a book review for publication in the New York Law Journal or elsewhere.  New York Advisory Opinion 1993-14.
  • A judge may not write a review of a book on a legal subject when the publisher has stated that it will use some of the judge’s comments to promote sales.  Pennsylvania Informal Advisory Opinion 11/4/03.
  • A judge may write a letter on judicial letterhead at the request of a for-profit publisher to be included in a booklet about substance abuse as long as it cannot be interpreted as an endorsement of the booklet and does not impact the appearance of the judge’s impartiality in the trial of related matters.  Texas Advisory Opinion 192 (1996).
  • A judge may write book reviews that are “bona fide contributions addressing the substance” of the book and that do not “exploit or detract from the dignity of the office” but “should undertake reasonable efforts to guard against the subsequent use” of a review in promotional materials that may exploit the prestige of the office.  U.S. Advisory Opinion 114 (2014).

Prefaces

With some caveats, judicial ethics advisory committees allow judges to write forewords, prologues, or prefaces for books if they will not receive compensation.

In giving that permission, several committees remind judges to retain editorial control over the content of what they write and the right to review any biographical information used.  See Connecticut Advisory Opinion 2010-15; Florida Advisory Opinion 2020-11. For example, the Maryland committee advised that a judge who is writing an introduction to a book should take reasonable steps to ensure that the publisher does not exploit the prestige of their judicial office in marketing of the book, explaining that, in the context of a book published by a non-profit entity such as a bar association, the judge should ask “the publisher to consult with the [judge] before mentioning [their] name or position in any marketing efforts.”  Maryland Advisory Opinion Request 1980-7.

Some of the opinions warn the judge that a foreword they write should not identify them as a judge.  See Florida Advisory Opinion 2020-11.  Some note that the judge did not plan to identify their judicial status in the foreword, suggesting the answer may be different if the preface refers to their office.  See Connecticut Advisory Opinion 2010-15; Florida Advisory Opinion 2020-11.  Other opinions do not address the issue.

Some opinions remind the judge to review the entire book and determine whether authoring a foreword will cast doubt on their impartiality or reflect a predisposition regarding particular cases, issues, parties, or witnesses.  Connecticut Advisory Opinion 2010-15; Florida Advisory Opinion 2020-11.  See also Ohio Advisory Opinion 1987-8.  Similarly, the Massachusetts committee advised that a judge should be careful to ensure that nothing they write in the foreword or any way they associate themself with anything the author writes casts doubts on their capacity to make impartial decisions.  Massachusetts Advisory Opinion 1993-2.

The opinions state:

  • A judge may author a foreword to a book written by a police officer on child safety and the Internet but, if the author appears as a party or witness before the judge or the judge presides over a case about the subject of the book, the judge should disclose the connection and consider recusal at a party’s request based on “the nature of the proceeding or docket, whether reference to or reliance upon the book is foreseeable, whether the Judicial Official is the sole decision maker (i.e. whether the matter is to the court or a jury) and whether self-represented parties or lawyers are involved.”  Connecticut Advisory Opinion 2010-15.
  • A judge may write the foreword to a self-published memoir written by a family member.  Florida Advisory Opinion 2020-11.
  • A judge may write the preface to a book about the history of the county.  Florida Advisory Opinion 1977-5.
  • A judge may provide an introduction to a book on a specific area of state law published by the Maryland State Bar Association as part of its continuing legal education program, but different considerations may apply to works published by for-profit entities.  Maryland Advisory Opinion Request 2013-26.
  • A judge may write an introduction recommending a book about the prevention and treatment of alcoholism to judges and other professionals.  Maryland Advisory Opinion Request 1980-7.
  • A probate and family court judge may write a foreword for a book on divorce.  Massachusetts Advisory Opinion 1993-2.
  • A judge may write a foreword for a book on the bicentennial of the U.S. Constitution.  Ohio Advisory Opinion 1987–8.
  • A judge may write forewords for books that are “bona fide contributions addressing the substance of the book” but should make reasonable efforts to prohibit its use in promotional materials.  U.S. Advisory Opinion 114 (2014).

The only outlier is a New York advisory opinion stating that a judge should not write a foreword to a law book dealing with the court over which the judge presides when the book is a commercial publication intended to earn a profit for the publisher and author.  New York Advisory Opinion 1997-1.  The committee reasoned:

[T]here is a clear and overt nexus between the writing that is sought and the private interests of the publisher and author.  For, in writing such a Foreword, the judge could readily be perceived as endorsing the publication and providing it with a judicial stamp of approval.  Indeed, that perception of a judicial imprimatur is heightened considerably in this instance, since the subject matter of the book is the workings of the very court over which the judge presides and about which the judge has special knowledge and expertise.

Thus, it is not only the prestige of judicial office that is involved in this instance but the prestige of the particular judicial office held by the inquirer.

Pride

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2 recent judicial ethics advisory opinions addressed judges’ participation in Pride month events.  As noted by the New York Judicial Ethics Advisory Committee, “Pride month typically celebrates a wide range of sexual and gender identities and gender expressions, often including lesbian, gay, bisexual, transgender, queer, intersex, and asexual identities (LGBTQIA+).”  New York Advisory Opinion 2022-75.

The New York committee stated that a judge may speak at a free community celebration of Pride month when the event is not a fund-raiser and subject to generally applicable limitations on speech and conduct.  A non-profit organization had invited the inquiring judge to speak about the judge’s experience as a member of a minority group.  The committee explained that, “in general, judges may publicly discuss their professional and personal background and experience.”  The committee cited previous opinions allowing a judge to speak at a foreign consulate about becoming the first judge of a particular gender and ethnicity in a specific judicial district (New York Advisory Opinion 2015-133) and to speak about their background and experience in becoming a judge at schools and places of worship affiliated with a certain religion (New York Advisory Opinion 2017-12).  The opinion reiterated that sharing “their experiences as a judge and as a member of a particular minority group at a non-fund-raising community event hosted by a not-for-profit organization . . . ‘is clearly compatible with judicial office, and unlikely to cast reasonable doubt on the judge’s impartiality, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties.’”  The committee also noted that “’a judge need not conceal his/her judicial status when engaging in permissible extra-judicial activities’” and added that the judge may allow the organization to use their photo and title in social media promotions for the event.

The Colorado Judicial Ethics Advisory Board stated that a judge, subject to several conditions, may attend and watch the Denver PrideFest festival and parade and may march in the parade with a bar association such as the Colorado LGBT Bar Association.  Colorado Advisory Opinion 2022-1.  The committee noted its advice also applied to similar events such as Cinco de Mayo, the Marade, and Juneteenth.  

“Denver PrideFest is promoted as a ‘celebration of community and culture that is welcoming, inclusive and fun to all attendees, regardless of sexual orientation or gender identity.’  The two-day festival celebrates ‘the heritage and culture of the LGBTQ+ community in Colorado’ and draws more than 450,000 participants.”

The committee concluded:  “Because PrideFest is a community festival intended to promote inclusivity, equal rights, and equal application of the law, there is no concern that a judge’s participation in the event would undermine the public’s confidence in the judiciary or give the appearance of impropriety or bias.”  In support of its conclusion, the committee cited advisory opinions from other states allowing judges to participate in community parades in general (Ohio Advisory Opinion 2017-8), to serve as the grand marshal of a city’s ethnic day parade (Connecticut Informal Opinion 2015-18), to serve as the grand marshal of a St. Patrick’s Day parade (New York Advisory Opinion 2004-144), and to participate in and attend events sponsored by Gay and Lesbian Activist Defenders (Massachusetts Advisory Opinion 1995-8).

As it has for other public events, the committee reminded the judge to continue “to evaluate whether participation is appropriate leading up to and during the event” and not to identify as a judge while participating.  Noting that “although PrideFest is intended to be non-partisan, political candidates tend to participate to show their support for the LGBTQ+ community,” the committee cautioned the judge to “take care not to appear with any political candidates or give the impression that the judge is endorsing a candidate or political organization.”

The committee also advised that a judge “may march in the parade with the LGBT Bar Association as long as the judge’s participation is not construed as an endorsement of a particular political organization but rather as a general celebration of PrideFest’s promotion of diversity, inclusion, and community.”  Although the inquiring judge did not intend to identify as a judge during the parade, the committee noted that, “given its small membership, it is likely that the LGBT Bar Association will know the requesting judge is a judicial official,” and, therefore, the judge should be careful not to abuse the prestige of judicial official or allow the LGBT Bar Association to do so.

The committee reiterated its prior advice that, in evaluating whether to participate in public events such as parades, festivals, and other celebrations, a judge should consider whether:

  1. Participation will cause or likely cause a violation of the law, for example, by violating a curfew;
  2. Participation will undermine the confidence of the judiciary or give the appearance of impartiality or impropriety;
  3. Participation would create the appearance the judge is abusing the prestige of judicial office or allowing others to;
  4. Participation will interfere with the performance of judicial duties;
  5. The event relates to a case pending or impending before the judge, or the event relates to an issue likely to come before the courts;
  6. Participation will result in or is likely to result in judicial disqualification;
  7. The event is sponsored or endorsed by an organization that discriminates on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation; or
  8. Participation creates the appearance the judge is endorsing a political candidate or political organization.

Truancy

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In a recent advisory opinion, the North Carolina Judicial Standards Commission provided guidance about judges being involved in school-sponsored truancy intervention programs.  North Carolina Advisory Opinion 2020-1.

The opinion stated that judges should not “meet individually with parents, school counselors, prosecutors and others to evaluate the facts and develop strategies to address” a specific family’s truancy issues.  The opinion also advised that judges should not “’presid[e]’ over informal truancy dockets in schools or courtrooms or otherwise appear[] as a ‘judge’ when meeting with families outside of official court proceedings.”  The Commission explained that “such personal involvement with a particular case would require disqualification” if that case “eventually resulted in a juvenile, criminal or other proceeding involving those family members.”

The Commission also cautioned that “judges should not create the appearance that they are acting with official authority in participating in truancy intervention programs established in local school districts.”  That concern prohibited judges, the opinion stated, from “‘presiding’ over school-sponsored truancy meetings while wearing a judicial robe” and from “issuing a ‘summons’ or other notice on behalf of the program to direct families to appear at truancy mediations, hearings or meetings.”

Emphasizing that it was not suggesting that truancy intervention programs did not benefit the community, the opinion noted that judges could volunteer “to educate parents and students in group settings about court processes and procedures involved in truancy matters” and could serve as an advisor for such programs generally.

Similarly, the New Mexico Advisory Committee on the Code of Judicial Conduct stated that a judge could be an advisor to the school district about its truancy court and could “speak to groups at a location such as a school to provide general information about the compulsory school attendance laws and the manner in which the cases are addressed when they come before the court.”  New Mexico Advisory Opinion 2013-5. However, the opinion advised that a judge may not participate as a judge in a school district’s truancy court program, either in the courtroom in robes or outside the courthouse without a robe.  The opinion described the program at issue.

A group of students, their parents, and the school principals appear before a judge.  The judge advises the parents about the compulsory school attendance laws, including the potential for the school district to file a criminal complaint, and tells the students about the importance of education.  Then, each school principal comes forward with individual students and the student’s parents and reports to the judge the facts concerning the student’s truancy.  Based upon the principal’s recommendation, the judge will inform the student and parents whether the principal will continue to monitor the student’s attendance and whether the student and parents will need to return to the truancy court.

The committee noted that, although there would be no actual court filings, the courtroom setting and judicial robes were designed to establish the judge’s authority.  It emphasized that “actual behavior and consequences” were involved and the program was “not a mock trial or moot court proceeding conducted for educational purpose.”  Further, even if the program were held outside of courthouse and the judge did not appear in a robe, the committee considered the judge’s participation to be coercive given the judge’s position in the community.  Accord New Mexico Advisory Opinion 2018-5 (a judge may not participate in a school’s truancy intervention court in his courtroom even if the judge does not wear a robe and is not the only person making determinations).

See also New York Advisory Opinion 2012-18 (a family court judge may not, as an extra-judicial activity, request Department of Social Services case files for truant children, meet with caseworkers, educators, attorneys, and parents to advise them about rights and services that may be available, and collaborate with them on ways to improve the children’s school attendance even if the judge will not preside in any of the selected cases); New York Advisory Opinion 2013-13 (a judge may participate in a focus group of key leaders in the community convened by a school district’s consultant as part of an analysis of local truancy and possible solutions); Pennsylvania Informal Advisory Opinion 5/4b/10 (a judge cannot appear in a photograph as part of a truancy poster project); West Virginia Advisory Opinion 2018-19 (a judge may participate in a state agency video to explain the importance of successful truancy measures for juveniles and be identified as a judge and wear a robe during filming).

Intoxicated altercation

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Based on agreements, the Indiana Supreme Court suspended 3 judges for injudicious conduct that culminated in a verbal altercation, a physical altercation, and gunfire outside a White Castle restaurant.  In the Matter of Adams, Jacobs, and Bell (Indiana Supreme Court November 12, 2019).

On the evening of April 30, 2019, Judge Andrew Adams, Judge Bradley Jacobs, and Judge Sabrina Bell traveled to Indianapolis to attend the Spring Judicial College the next day.  After checking into their hotel rooms, they spent the evening socializing with other judicial officers and drinking alcoholic beverages.

Around 12:30 a.m. on May 1, the judges and a magistrate met at a bar, where they continued to drink.  Around 3:00 a.m., the group walked to a strip club and tried to enter, but found that it was closed.

The group then walked to a White Castle.  While the magistrate went inside, the judges stood outside.  Around 3:17 a.m., Alfredo Vazquez and Brandon Kaiser drove past and shouted something out the window.  Judge Bell extended her middle finger to Vazquez and Kaiser.

Vazquez and Kaiser pulled into the White Castle parking lot and exited the vehicle.  There was a “heated verbal altercation . . . , with all participants yelling, using profanity, and making dismissive, mocking, or insolent gestures toward the other group.”  The judges did not “de-escalate the conflict” or avoid a confrontation by moving to another location in the parking lot,

After a verbal exchange between Judge Bell and Vazquez, there was a physical confrontation.  At one point, Judge Jacobs had Kaiser on the ground, raised his fist raised back, and said, “Okay, okay, we’re done, we’re done,” or “This is over.  Tell me this is over,” or words to that effect.  At another point, Judge Adams kicked Kaiser in the back.  Judge Bell made several attempts to stop the fighting, including seeking help by pounding on the door of the White Castle.  The confrontation ended when Kaiser pulled out a gun, shot Judge Adams once in the abdomen and shot Judge Jacobs twice in the chest.  Judge Bell immediately called 911.

Judge Adams and Judge Jacobs were transported to local hospitals.  Judge Adams had 2 emergency surgeries, including a colon re-sectioning.  Judge Jacobs had 2 emergency surgeries and was hospitalized for 14 days.

Upon admission to the hospital, Judge Adams’s serum blood alcohol level was 0.213 (or approximately 0.157 using whole blood), and Judge Jacobs’s was 0.177 (or approximately 0.13 using whole blood).  Judge Bell’s blood alcohol level was not tested, but she was intoxicated enough that she does not remember the incident.

In her statements at the police station, Judge Bell said that she does not remember what she said to Vazquez or Kaiser or what started the physical altercations.  After being informed that police had video of the incident, Judge Bell remarked that

  • “I’m afraid that I said something to them first, I don’t know.”
  • “[W]e’re all very good friends and they’re very protective of me. And I don’t know, and I’m afraid that I said something to those two strange men at first, and then they said something back to me.  And then I said something and then [Judge Adams and Judge Jacobs] went to defend me.”
  • “I’m not denying that I said something or egged it on … because I drink … I mean I fully acknowledge that I drink and get mouthy, and I’m fiery and I’m feisty, but if I would have ever thought for a second that they were gonna fight or that that guy had a gun on him, I would never, never …”

A grand jury indicted Judge Adams on 7 counts of battery and disorderly conduct.  The grand jury also investigated Judge Jacobs, but no criminal charges were filed against him.  The Court suspended Judge Adams from the bench.  On September 9, Judge Adams pleaded guilty to misdemeanor battery resulting in bodily injury.  All other charges were dismissed, and Judge Adams was sentenced to 365 days in jail, with 363 days suspended.

The Court held that the judges’ “actions were not merely embarrassing on a personal level; they discredited the entire Indiana judiciary.”  The Court concluded:

While in town to attend a statewide educational conference for judicial officers, 10 hours before the program convened, Respondents walked the streets of downtown Indianapolis in a heavily intoxicated state.  When Judge Bell extended her middle finger to a passing vehicle, neither Judge Adams nor Judge Jacobs discouraged the provocation or removed themselves from the situation.  Instead, all three Respondents joined in a profane verbal altercation that quickly turned into physical violence and ended in gunfire, and in doing so, gravely undermined public trust in the dignity and decency of Indiana’s judiciary.

The Court suspended Judge Adams for 60 days without pay and Judge Jacobs and Judge Bell for 30 days without pay.

Deteriorating relationship

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Accepting her resignation, the Colorado Supreme Court publicly censured a former court of appeals judge for (1) disclosing to an intimate, non-spousal partner the vote of a court of appeals division on a case prior to the issuance of the decision and (2) using inappropriate racial epithets in communications with her intimate partner.  In the Matter of Booras (Colorado Supreme Court March 11, 2019).  In March 2018, the Court had granted the request of the Commission on Judicial Discipline to suspend the judge with pay pending the disciplinary proceedings.  The judge resigned after the Commission recommended her removal.

In 2007, the judge began a 10-year relationship with a man whom she met online (“J.S.”).  J.S. told the judge that he was divorced and living in Denver, although the judge later learned that he was married and living in California.  They did not see each other frequently, but they communicated often, and the judge described their relationship as “intimate” and believed it would lead to marriage.

By early 2017, however, “the relationship was deteriorating, and Judge Booras had good reason to distrust J.S.”

On February 21, 2017, the judge and other judges in a division of the court of appeals heard oral argument in a case about the extent to which a state commission was required to consider public health and the environment in deciding whether to grant permits for oil and gas development.

The next morning, the judge sent an e-mail to J.S. that said:

We had an oral argument yesterday re: fracking ban where there was standing room only and a hundred people in our overflow video room.  The little Mexican is going to write in favor of the Plaintiffs and it looks like I am dissenting in favor of the Oil and Gas Commission.  You and Sid [a colleague of J.S.] will be so disappointed.

“The little Mexican” was a reference to one of Judge Booras’s colleagues, “a Latina who would ultimately write the opinion for the majority in that case.”  Judge Booras wrote the dissent.

At some point in 2018, J.S.’s wife contacted the judge, and the judge told her about the affair. Shortly thereafter, J.S. provided The Denver Post, the chief judge of the Court of Appeals, the governor, the Commission on Judicial Discipline, and counsel for the plaintiffs in the case several communications from the judge.

The Court found that the judge had disclosed confidential information — the court’s vote in the case — to a third party.  The Court also found that the judge “had used an inappropriate racial epithet in communicating with J.S.,” noting that it was not the first time as she had referred to her ex-husband’s new wife, a woman of Navajo descent, as “the squaw” in an e-mail to J.S a year earlier.

The Court held that the judge’s “use of an inappropriate racial epithet directed at one of her colleagues” and her disclosure of confidential information “obviously impaired harmony and trust among her co-workers . . . .”   The Court emphasized that the judge’s “relationship with the colleague at whom her ‘little Mexican’ comment was directed” was particularly affected, noting that the other judge had been “justifiably shocked and deeply hurt by Judge Booras’s comments” and that a close working relationships with other judges is “integral to a collaborative decision-making body” like the court of appeals.  The Court also explained that “knowledge of Judge Booras’s racially inappropriate comments could understandably have caused concern among parties of diverse backgrounds, and particularly those of Latino and Native American ancestry, who inevitably would have appeared before Judge Booras were she to have returned to the court of appeals.  The judicial system cannot function properly if public confidence in a court is eroded in this way.”

The judge argued that “a judge’s communications with an intimate partner should be given First Amendment protection unless the speech ‘violates a specific narrowly-tailored rule of judicial conduct or falls within an ordinary exception to the First Amendment.’”  Rejecting that argument, the Court held that “inappropriate racial epithets and derogatory remarks are not matters of legitimate public concern warranting First Amendment protection.”  The Court also concluded that any First Amendment interests “are outweighed by the state’s countervailing interests.”

 

Abusing, lending, or exploiting the prestige of office

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In Canon 2B, the 1990 American Bar Association Model Code of Judicial Conduct provided:  “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others . . . .”  In the 2007 revisions to the model code, “lend” was changed to “abuse;” thus, Rule 1.3 provides:  “A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.”

According to the ABA reporter’s explanation of the 2007 changes, “the term ‘lend’ created unnecessary confusion,” causing some judges to decline to write letters of recommendation for their clerks and suggesting judges should not identify themselves as judges on the covers of their books to bolster credibility and increase sales.  The ABA did not consider either of those uses to be problematic and concluded “abuse” rather than “lend” more accurately characterized the conduct being prohibited.   (The confusion reported by the ABA is puzzling as a comment to the old canon explicitly stated that “a judge may, based on the judge’s personal knowledge, serve as a reference or provide a letter of recommendation” as long as the judge remains “sensitive to possible abuse of the prestige of office.”  And advisory opinions have consistently allowed judges to use their titles on books they author, particularly if the judicial title is relevant because the book is law-related.)

As illustrated by an article in the summer 2018 Judicial Conduct Reporter, different advisory opinions have interpreted the term “abuse” differently in the context of promotional campaigns for alma maters and other organizations.

Emphasizing that Rule 1.3 prohibits “abuse,” not simply “use,” the Arizona judicial ethics committee advised, with some caveats, that a judge may participate in a recorded interview about the role his college played in his professional development and career achievements.  Arizona Advisory Opinion 2018-1.  The opinion identified several contexts in which the code permits judges to “use” the prestige of judicial office in extra-judicial activities:  writing letters of recommendation on judicial letterhead in certain circumstances; using judicial titles at fund-raising events concerning the law, the legal system, and the administration of justice; endorsing projects and programs related to the law, the legal system, and the administration of justice; and including a judge’s title and judicial office on letterhead for educational, religious, charitable, fraternal, or civic organizations “if comparable designations are used for other persons.”  Concluding that the code “implicitly deems such extra-judicial activities proper ‘uses’ of the prestige of judicial office, as opposed to ‘abuses,’” the Arizona committee advised that, similarly, allowing judges to participate in recorded interviews to promote the not-for-profit educational institutions they attended interprets “Rule 1.3 as a ‘rule of reason,’ focusing on ‘abuse” of the prestige of judicial office, and giving meaning to the Code’s encouragement of community involvement . . . .”

In contrast, based on its analysis of the meaning of “abuse,” the Massachusetts judicial ethics committee advised that a judge may not participate in a university’s video profile series featuring prominent alumni discussing how their undergraduate education helped them identify goals, aspire to a career, and achieve success.  Massachusetts Advisory Opinion 2017-2.  The opinion stated that “abuse” does not require “a bad purpose or bad effect” but only that the use be in any way “incompatible with the judicial role,” emphasizing that any collateral misuse of the judicial office to advance personal or economic interests undermines public confidence in the integrity and impartiality of the judiciary.  The committee concluded that the university’s clear wish “to benefit from [the judge’s] esteemed position in the legal profession” constituted an abuse of the prestige of judicial office.

Committees interpreting the term “lend” have also advised judges not to participate in university promotional campaigns.  See California Judges Association Advisory Opinion 72 ( 2016) (a judge may not participate in a university’s video entitled “Our Successful Graduates” that would be posted on the university’s web-page to be viewed by potential students); Kansas Advisory Opinion JE 159 (2007) (a judge may not allow the university the judge attended to use a picture of the judge in a newspaper advertisement); Wisconsin Advisory Opinion 2005-1 (a judge’s image, name, and title may not be featured on a billboard as part of an advertising campaign by one of the University of Wisconsin System campuses).


* * *
The Illinois code of judicial conduct still has the lend version of the rule, and the Courts Commission recently reprimanded an appellate judge for soliciting paid speaking engagements using his judicial position, finding he not only lent the prestige of office to advance his private interests, but exploited his judicial office in financial and business dealings, engaged in financial and business dealings with persons likely to come before his court, and had an active role in managing a business.  In re Steigman (Illinois Courts Commission August 13, 2018).

The judge testified that he had been writing and speaking on legal topics for decades to share his love of the law and educate the public.  He began soliciting paid speaking opportunities after an organizer of continuing legal education seminars for prosecutors offered to pay him $1,250 for a 2-day presentation.  The judge’s income was $32,000 to $34,000 for over 24 presentations over 2 years.

The judge made over 120 solicitations.  The judge used judicial letterhead for most of his solicitations to law enforcement groups.  The judge initially sent solicitations to medical societies and hospitals by his work e-mail but switched to judicial letterhead because the response to the e-mail solicitation was “tepid.”  If he did not receive a response with either method, he sometimes followed up by telephone.  He had his secretary assist him with the letters and e-mail solicitations by dictating them for her to transcribe as he would any other correspondence.  He paid all the postage for the letters himself.

Noting that the code prohibits judges from soliciting donations for charitable organizations, the Commission stated that, “[t]he same principles apply with even greater force when the ‘cause’ for which the judge is soliciting is a business or commercial activity that serves the judge’s own financial benefit.”  The Commission found that the judge’s use of stationery and other judicial resources to advance his “burgeoning speaking business was an exploitation of his judicial office . . . .”  It explained:

Respondent pursued the opportunity to give paid presentations on the law with energy, using judicial letterhead stationery to increase the likelihood of a positive response to his solicitations and making follow-up calls to recipients who had not responded.  Respondent’s zeal in this pursuit arose primarily from his genuine belief that he was providing a public benefit by explaining legal concepts to non-lawyers.  Nevertheless, while his motives may have been pure, the fact that the “public service” he was providing also enriched him financially created the danger that recipients of his solicitation might feel coerced to hire him, or might think that hiring him to give a presentation would cause him to favor their interests in cases that came before him.

Further, although the Commission agreed that merely being paid to speak or teach may not constitute actively managing a business and emphasized that it was not criticizing or trying to inhibit the practice of judges educating the public regarding the law, it concluded that, by directly soliciting paid speaking engagements and following up to urge reluctant recipients to hire him, the judge “went beyond simply earning a fee for permitted activity, and instead actively sought to increase his extrajudicial sources of revenues.”


* * *
The Texas code of judicial conduct also still has the “lend” version of the rule, and a Special Court of Review Appointed by the Texas Supreme Court recently publicly admonished a judge for referring to his judicial title and position to promote a project with his wife called “divorce in peace” that included a book, website, and an on-line referral service.  In re Roach, Judgment and public admonition (Texas Special Court of Review July 24, 2018).

The judge and his wife, an attorney who conducts mediations in family law cases, co-authored the book Divorce in Peace:  Alternatives to War from a Judge and Lawyer.  The book’s front cover lists “John and Laura Roach” as authors.  The back cover has a photo of the authors together, next to the statement:  “John and Laura have spent their careers, as lawyers and a judge, trying to help couples avoid the pitfalls of high conflict divorces.”  An “About the Authors” section describes John Roach as “a Texas district court judge with a true passion for the law” and states that, “[a]s a judge, he has had a front row seat to over 10,000 family law cases.”  The book’s text does not refer to “Judge John Roach” or “Judge Roach,” but the book has sections entitled “Judge’s Perspective” and “Mediator’s Perspective” that offer additional comment on particular topics.

The book’s introduction refers to the “attorneys, financial planners, mental health professionals and others — who are committed to the same principles of peaceful resolution” and “are listed at our website, http://www.divorceinpeace.com.”  Professionals can be listed on the website without charge with a photo, resumé, practice-area description, and e-mail address.  Professionals who choose a subscription option, which ranged from $59.99 a month to $199 a month, post additional information such as client reviews, blog posts, articles, and videos.

When the book was published, a brochure was mailed to some 18,000 recipients, including about 12,000 Texas attorneys who identified themselves with the State Bar as family law practitioners.  The brochure repeated the website address several times and described the benefits for attorneys who paid fees to subscribe to the network.

A series of promotional videos were made for the project.  For example, in 1 video, entitled “About Us,” the judge and his wife were featured with a picture of a gavel; the judge discusses his expertise as an elected state district court judge who has presided over 10,000 family law cases.  The judge decided not to use the videos after viewing them because he was concerned that portions may violate the canons.  However, the videos were available on the website for approximately 30 days and were still accessible on YouTube as of May 2018.  According to the judge, he had been unsuccessful in his repeated efforts to remove the videos from YouTube because he did not have the necessary user name and password and could not obtain the information from the production company in India that had helped to create the videos.

The court stated that many discipline cases in which judges were found to have impermissibly lent the prestige of office to advance private interests involved “judicial intervention in a discrete court matter or a particular event such as an arrest.”  The court noted that the “guidance regarding ongoing business dealings involving a judge or a judge’s family member is more limited and highly context-sensitive.”

Describing a spectrum, the court explained that, at one end, “are plainly impermissible situations involving a judge who directly uses his or her authority over litigants to coerce actions that will benefit the judge financially.”  At the other end of the spectrum, the court stated, “judges are permitted to write and publish books on legal and non-legal topics; identify themselves as judges in biographical descriptions; and sell books they have written so long as they do not exploit the judicial title in doing so.”

The court concluded that, “[t]his case falls in the middle of the spectrum” because the judge did not direct “coercive conduct towards litigants or attorneys appearing in his court to compel actions from which he stood to benefit financially” but the “circumstances involve more than individual sales of a law-related book written by a judge.”  The court acknowledged that there was no reference to the judge as “Judge John Roach” or “Judge Roach” in the book or in the referral service brochure and no evidence the judge was photographed in his robe in connection with the book and website.  However, it stated that his “judicial role is readily apparent based on the first eight words of the book’s ‘About the Authors’ section” and “[l]ittle effort is required for readers to discern that the ‘Judge’ referenced on the front and back covers is John Roach, and that the ‘Judge’s Perspective’ highlighted throughout the book comes from him.”  The court described the project as “structured to create a financial gain arising from attorneys who paid for subscriptions in hopes of being hired by readers who acted on the book’s multiple invitations to visit the website and find Divorce in Peace-affiliated attorneys.”  The court concluded that the judge’s “participation in aspects of this interconnected project” improperly exploited his judicial position in business activities.

There is more information on the ethical implications of “The judge as author” in an article in the spring 2013 issue of the Judicial Conduct Reporter.  Shortly after the article was published, the U.S. Judicial Conference Committee on Codes of Conduct issued comprehensive advice on promotional activity associated with extrajudicial writings and publications in U.S. Advisory Opinion 114 (2014).

 

Judicial ethics and marijuana

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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).

When judges blog

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Several judicial ethics committees have advised that a judge may maintain a blog but added caveats about being cautious and not violating the code of judicial conduct provisions relevant to communications by judges.  (Merriam-Webster’s on-line dictionary defines a “blog” as “a Web site on which someone writes about personal opinions, activities, and experiences.”)  The Arizona committee, for example, stated that a judge must ensure that no statements on her blog will negatively affect judicial proceedings, be perceived as prejudiced or biased, or necessitate frequent disqualification.  Arizona Advisory Opinion 2014-1.  See also New York Advisory Opinion 2010-138 (a judge may maintain an internet blog that comments on current events).

The Florida advisory committee stated that a judge could publish a blog that would alert readers to state appellate decisions as they were released because the judge did not plan to editorialize, criticize, or otherwise evaluate the opinions but only to briefly describe them.  Florida Advisory Opinion 2012-7.  Noting it had frequently approved judges’ speaking, writing, or teaching, the committee stated it would not make a distinction based on the technology used but warned the judge to exercise caution.  Acknowledging it was “not practicable to list all the provisions of the Code that could apply” and reminding the judge to expect “constant public scrutiny,” the committee directed the judge to “carefully examine all provisions of the Code that relate to the blog and its topics, to insure that the judge is not publishing on the blog something the judge could not ethically say in person.”  Finally, noting “that an interactive blog may invite inappropriate comment by the judge,” the committee suggested that the judge consider adding a disclaimer “that clarifies the judge does not endorse or vouch for the comments of others . . ., and that such comments do not represent the views of the judge.”

The Washington advisory committee stated that a judge may have a blog promoting “a more fair, just and benevolent society” and could respond to comments made by others on the essay the judge planned to post on the site.  Washington Advisory Opinion 2009-5.  The committee suggested that the judge should include a disclaimer that the opinions “are only those of the author and should not be imputed to other judges” and should describe the constraints on judges, such as the prohibitions on commenting on pending cases and discussing cases with persons appearing before the judge’s court.  The committee also advised the judge to consider:

  • “[T]he impression that may be conveyed when responding to comments that are posted on the blog;”
  • “[H]ow to tailor those comments to avoid any impression that the judicial officer’s impartiality might be called into question;” and
  • “[W]hether readers might perceive that the judge’s impartiality is impaired by the volume and content of the comments received.”

The committee recommended that the judge, if possible, review any comments from others before they are published on the blog or “regularly monitor the responses to make sure that the thread of the discussion does not change” into something that is prohibited.

The Connecticut advisory committee stated that a judge may be listed, including her judicial position, as an expert on a non-profit, non-partisan organization’s electronic “answer board” established to provide journalists with information on legal and constitutional.  Connecticut Advisory Opinion 2011-14.  However, the committee cautioned, the judge’s answers must be factual and instructive without expressing her opinion, indicating a predisposition with respect to particular cases, or providing legal advice.  The committee directed the judge to:

  • Monitor the web-site to ensure that it does not link to commercial or advocacy groups;
  • Stay abreast of new features on the site; and
  • Retain the right to review and pre-approve the use of biographical information.

See also Utah Informal Advisory Opinion 2012-1 (a judge may follow a blog on legal or political issues that is also followed by lawyers or politicians and need not continually monitor the contents and comments to prevent association with material that might reflect poorly on the judiciary); U.S. Advisory Opinion 112 (2014) (before commenting on a blog, a judge should analyze the post, comment, or blog to take into account the canons that prohibit judges from endorsing political views, demeaning the prestige of the office, commenting on issues that may arise before the court, or sending the impression that another has unique access to the court).

 

Judges and the Boy Scouts: Top stories of 2015

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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 2014-15A) and 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.  Speakers:  Colin 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.

 

Complying with the law

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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.’”