Marijuana and judicial ethics

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

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

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

Further, the opinion explains:

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

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

Colorado is the only other state that has a judicial ethics advisory opinion on the subject, issued in 2014 in response to a judge who asked “whether a judge who engages in the personal recreational or medical use of marijuana (as opposed to commercial use) in private and in a manner compliant with the Colorado Constitution and all related state and local laws and regulations” violates the code.  Colorado Advisory Opinion 2014-1.

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

However, the advisory committee stated that the exemption only applied to “violations of relatively insignificant traffic offenses and local ordinances, not state or federal drug laws.”  The committee recognized that, under federal law, simple possession of marijuana is a misdemeanor or even an infraction punishable only by a civil penalty under some circumstances.  Nevertheless, it concluded that, “while not necessarily a ‘serious’ offense, it is not a ‘minor’ offense within the meaning of Rule 1.1(B).  It is significantly more serious than the parking ticket and dog at large violation . . . .”

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

Throwback Thursday

10 years ago this month:

  • Based on an agreement for discipline by consent, the Arizona Supreme Court publicly censured a judge for relating an inappropriate joke while chatting in the courtroom with a court clerk and another woman. Inquiry Concerning Tolby, Order (Arizona Supreme Court December 2, 2008).
  • The California Commission on Judicial Performance publicly admonished a judge for her remarks in numerous criminal and domestic violence cases and for appearing to set distant trial dates in 2 cases to reflect her view that the cases should not be tried. Public Admonishment of Moruza (California Commission on Judicial Performance December 16, 2008).
  • Approving the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a court of appeal judge for filing a concurring opinion in which he accused a fellow appellate judge of corruption based on unverified facts from outside the record and motivated by his dislike of the other judge. Inquiry Concerning Allen, 998 So.2d 557 (Florida 2008).
  • The Louisiana Supreme Court suspended a justice of the peace from office without pay until the end of his term for failing to resign when he became a candidate for the non-judicial office of police juror. In re Freeman, 995 So. 2d 1197 (Louisiana 2008).
  • The Massachusetts Supreme Judicial Court publicly reprimanded a former judge for sending 2 letters on judicial stationery to the publisher of the Boston Herald after a $2 million jury verdict in a libel suit against the newspaper in the judge’s favor. In the Matter of Murphy, 897 N.E.2d 1220 (Massachusetts 2008).
  • Based on a settlement agreement, the Michigan Supreme Court censured a judge and suspended her from office for 90 days without pay for driving while intoxicated. In re Steenland, 758 N.W.2d 254 (Michigan 2008).
  • The New York State Commission on Judicial Conduct publicly admonished a judge for, while a candidate for another court, personally soliciting the support of 2 attorneys who were in the courthouse and about to appear before her. In the Matter of Yacknin, Determination (New York State Commission on Judicial Conduct December 29, 2008).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for threatening to hold an agency and 2 police investigators in contempt after the investigators took into custody a litigant from the courtroom’s waiting area. In the Matter of Shkane, Determination (New York State Commission on Judicial Conduct December 29, 2008).
  • The Texas State Commission on Judicial Conduct publicly admonished a court of appeals judge for allowing his acrimonious relationship with his fellow justices to influence his conduct and judgment and failing to treat those with whom he interacted in an official capacity, including court personnel, in a patient, dignified, and courteous manner. Public Admonition of Gray (Texas State Commission on Judicial Conduct December 18, 2008).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for (1) campaign finance violations of the Texas Election Code and the Texas Penal Code and (2) pleading guilty to tampering with a government docket. Public Reprimand of Abascal (Texas State Commission on Judicial Conduct December 18, 2008).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for following a driver who cut his car off, requesting that she appear in his court, admonishing her from the bench, and directing the bailiff to issue a citation after becoming annoyed with her father. Public Admonition of Boyett (Texas State Commission on Judicial Conduct December 18, 2009).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for telling an assistant city attorney, “Hey, shut up. Lower your voice,” and interrupting a defense attorney’s and yelling at her in front of her client, “Shut up.  I’m telling you to shut up.”  In the Matter of Hurtado, Stipulation agreement and order (Washington State Commission on Judicial Conduct December 5, 2008).
  • The Washington State Commission on Judicial Conduct publicly reprimanded a judge for (1) yelling a profanity at the city chief of police and yelling in anger at the court administrator and a court employee; (2) taking action to enforce a policy that restricted the courthouse activities of a city employee, which gave the impression that the judge was retaliating against him for complaining about a comment by the judge; (3) making comments to court staff that could reasonably be perceived as intimidating, including communicating that he would terminate them and replace them with clerks from the superior court, questioning why a clerk would challenge his authority, noting “all the dead bodies” in his court, and raising his voice and slamming his office door; and (4) making jokes and comments to court staff that were or that could reasonably be perceived to be inappropriate, including, commenting about another judge’s alleged personal issues, referring to a former judge as a “moron,” and criticizing other judges, attorneys, and staff in derogatory terms. In the Matter of Morgan, Stipulation agreement and order (Washington State Commission on Judicial Conduct December 5, 2008).

Facebook codes

The current version of the American Bar Association Model Code of Judicial Conduct does not make any reference to social media, not surprising since, when it was adopted in 2007, Facebook had only been available outside of colleges for 1 year, Twitter was only 1 year old, and Instagram and Snapchat had not even been created.  Even without an express reference, however, as numerous cases and advisory opinions have stated, the code obviously applies with equal force to virtual actions and on-line comments and in cyberspace as well as to more traditional forums for communication.

In addition, 4 states have adopted provisions in their codes that remind judges of their ethical obligations while on social media.

Most recently, the California Supreme Court adopted new language to commentary to Canon 2A that states:

A judge must exercise caution when engaging in any type of electronic communication, including communication by text or email, or when participating in online social networking sites or otherwise posting material on the Internet, given the accessibility, widespread transmission, and permanence of electronic communications and material posted on the Internet.  The same canons that govern a judge’s ability to socialize in person, on paper, or over the telephone apply to electronic communications, including use of the Internet and social networking sites.  Those canons include, but are not limited to Canon 2B(2) (lending the prestige of judicial office), 3B(7) (ex parte communications), 3B(9) (public comment on pending or impending proceedings), 3E(2) (disclosure of information relevant to disqualification), and 4A (conducting extrajudicial activities to avoid casting doubt on the judge’s capacity to act impartially, demeaning the judicial office, or frequent disqualification).

Comment 5, Rule 3.1 of the Idaho code of judicial conduct states:

While judges are not prohibited from participating in online social networks, such as Facebook, Instagram, Snapchat, and the like, they should exercise restraint and caution in doing so.  A judge should not identify himself as such, either by words or images, when engaging in commentary or interaction that is not in keeping with the limitations of this Code.

The West Virginia code includes a comment to Rule 3.1 that emphasizes:  “The same Rules of the Code of Judicial Conduct that govern a judicial officer’s ability to socialize and communicate in person, on paper, or over the telephone also apply to the Internet and social networking sites like Facebook.”

The preamble to the New Mexico code encourages judges and judicial candidates “to pay extra attention to issues surrounding emerging technology, including those regarding social media” and urges them “to exercise extreme caution in its use so as not to violate the Code.”

* * *
A 2-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics was published in the spring and summer 2017 issues of the Judicial Conduct Reporter.  Part 1 (http://tinyurl.com/y99relfw) was a general introduction to the topic and a discussion of issues related to judicial duties:  “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and comments on pending cases.  Part 2 (https://tinyurl.com/y8mdda4d) covered off-bench conduct:  conduct that undermines public confidence in the judiciary, commenting on issues, abusing the prestige of office, providing legal advice, disclosing non-public information, charitable activities, political activities, and campaign conduct.  Summaries of advisory opinions and cases up-dating the 2-part article are available here  https://www.ncsc.org/~/media/Files/PDF/Topics/Center%20for%20Judicial%20Ethics/SocialMediaandJudicialEthics%20Update.ashx

 

 

Throwback Thursday

20 years ago this month:

  • Adopting the recommendation of the Commission on Judicial Performance, the California Supreme Court removed a judge from office for (1) in a small claims case, entering a judgement against someone who had not been named as a party; (2) when an attorney was not present when her case was called, saying, “She shouldn’t be handling criminal cases. Here’s another example of a civil attorney who shouldn’t be handling criminal cases,” and, “she probably had something more important to do today, like go to a PTA meeting.  She has a whole bunch of kids.  She’s been having kids ever since I’ve known her;” (3) using in a campaign advertisement without permission, a group photo taken at the end of a court session of court staff and others who appeared before him; (4) telling a court employee she was in contempt when the employee stated she wanted to call her union representative; (5) engaging in ex parte communications with members of his family in a case in which the defendant was charged with cocaine possession, failing to disqualify himself, improperly delegating the question of diversion to the district attorney, directing alteration of a minute order to support his explanation after the Commission’s letter of inquiry, and submitting the minute order to the Commission without disclosing that he had had it altered; (6) having ex parte contact with a man with several family cases before him at the judge’s Bible study class and a men’s fellowship; (7) after several ex parte contacts, giving an unusually lenient sentence to a defendant whom the judge knew personally and who had pled guilty to drunk driving, second conviction; (8) granting a friend a chance to do community service and attend traffic school after the friend approached him at a restaurant and complained about a speeding violation; (9) counseling a probationer he had sentenced and failing to disqualify himself from a subsequent zoning case involving the man and his wife; (10) rejecting a plea bargain after telephoning the victim and the park ranger on the bench without putting them on speaker phone; (11) telephoning 25 to 30 defendant he knew to advise them to come to court after bench warrants had been issued for them; (12) stating that he had dealt with a witness “many, many times and his credibility is not too high” and that another witness would not have much more credibility because they are “both recovering alcoholics that are working hard to try to stay out of trouble;” (13) refusing to appoint a specific public defender after she expressed the desire to disqualify him; (14) his treatment of a defendant in a shoplifting case; (15) denying a dismissal motion because he thought “in the interest of justice” that a man with a drunk driving and 2 priors should go to trial and refusing to disqualify from the motion; and (16) failing to disqualify himself when a peremptory challenge was filed against him in a criminal case, setting a hearing to consider whether the defendant’s right to a speedy trial was being violated, ignoring a writ prohibiting him from presiding in the case, criticizing the district attorney, and urging the defense to seek a writ.  Fletcher v. Commission on Judicial Performance, 968 P.2d 958 (California 1998).
  • Adopting the recommendation of the Judiciary Commission in part, the Louisiana Supreme Court publicly censured a judge for inappropriate language and insensitive, discourteous, and impatient behavior towards those appearing in his courtroom. In re Bowers, 721 So. 2d 875 (Louisiana 1998).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for graphic and sensational campaign advertisements that lacked the dignity appropriate to judicial office and portrayed him as a judge who was biased against criminal defendants. In the Matter of Polito, Determination (New York State Commission on Judicial Conduct December 23, 1998).
  • Pursuant to agreed facts and a joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for, at his son’s home when a police officer was investigating a complaint by his son’s neighbor, angrily shouting that the neighbor was “crazy” and a “son of a b***h,” urging the officer to arrest the neighbor, accusing the neighbor of cutting tree limbs that were on his son’s property, and advising the police officer to charge the neighbor with criminal mischief. In the Matter of Stevens, Determination (New York State Commission on Judicial Conduct December 23, 1998).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for personally soliciting campaign contributions and improperly using the county mail system to distribute campaign materials. In re Paja, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct December 4, 1998).

Recent cases

  • Based on the judge’s agreement, the Arkansas Commission on Judicial Discipline & Disability publicly admonished a judge for having contacts with litigants and/or witnesses in cases pending in his court. Letter of Admonishment to Carruth (Arkansas Commission on Judicial Discipline & Disability November 16, 2018).
  • Based on the judge’s agreement, the Arkansas Commission Judicial Discipline & Disability publicly admonished a judge for an incident while he was a judge-elect in which a bag of methamphetamine was found in a hotel room he had shared with a woman. Letter of Admonishment to O’Hern (Arkansas Commission Judicial Discipline Disability November 16, 2018).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for holding a probation revocation hearing with the defendant present but without notice to the prosecution or the defendant’s attorney and revoking a second defendant’s probation without notice to the prosecution or the defendant’s attorney. Bluff, Order (Arizona Commission on Judicial Conduct September 18, 2018).
  • Approving the findings, conclusions, and recommendation of the Judicial Qualifications Commission based on a stipulation, the Florida Supreme Court publicly reprimanded a judge for providing a character reference letter, on her official court stationery, on behalf of a criminal defendant awaiting sentencing in federal court. Inquiry Concerning White-Labora (Florida Supreme Court November 15, 2018).
  • Accepting an agreement, the Georgia Supreme Court publicly reprimanded a judge for her habitual tardiness in starting court and her excessive absenteeism. Inquiry Concerning Stokes (Georgia Supreme Court November 5, 2018).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, which the judge accepted, the New Jersey Supreme Court publicly censured a judge for identifying himself as a judge to court personnel when disputing his own child support payments and discussing child emancipation. In the Matter of Palmer, Order (New Jersey Supreme Court November 8, 2018).  The Court does not describe the judge’s conduct; this summary is based on the Committee’s presentment.
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for failing to disqualify himself in 3 matters arising out of a boundary dispute involving his neighbor’s daughter that he had previously discussed ex parte with his neighbor. In the Matter of Porter, Determination (New York State Commission on Judicial Conduct November 13, 2018).
  • Adopting the findings and recommendation of the Board of Professional Conduct, which were based on stipulations of fact, misconduct, and aggravating and mitigating factors, the Ohio Supreme Court suspended a former magistrate from the practice of law for 6 months for failing to accurately report his work hours and leave on his timecard; the suspension was stayed on the condition that he engage in no further misconduct. Disciplinary Counsel v. Wochna (Ohio Supreme Court November 8, 2018).

Throwback Thursday

25 years ago this month:

  • Adopting the recommendation of the Judicial Qualifi­cations Commission based on a stipulation, the Florida Supreme Court publicly reprimanded a judge for (1) in several cases in which the defendants did not appear, finding the missing defendant guilty and sentencing him or her to credit for time served and (2) in several driving under the influence cases in which a defendants failed to appear, convicting the defendant and ordering forfeiture of the bond without a plea or trial. Inquiry Concerning Colby, 629 So. 2d 120 (Florida 1993).
  • Affirming a joint motion for approval of recommendations based on an agreed statement of facts, the Mississippi Supreme Court publicly reprimanded a judge and fined him $250 for (1) printing up business cards that identified him on one side as a judge of the Pike County Justice Court and on the other side as “Certified Legal Technician (C.L.T.) Legal Consultation,” and making these cards available at the court office; (2) sending a letter on court stationery to local attorneys advising them that he was available for legal consultation work; (3) appointing as the attorney for indigent criminal defendants in 12 cases an attorney for whom he performed work as a legal consultant without advising the defendant of the relationship although the county attorney was aware of the relationship; (4) presiding over 8 cases in which that attorney represented a party in the proceedings without advising the defendant although the county attorney was aware of the relationship; and (5) his conduct as a certified legal technician in a divorce. Commission on Judicial Performance v. Felder, 629 So. 2d 618 (Mississippi 1993).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge for mishandling court funds and failing to recuse himself or disclose the relevant facts in several cases involving an acquaintance from whom the judge had borrowed $500 several years earlier. Murphy v. Commission on Judicial Conduct, 626 N.E.2d 48 (New York 1993).
  • The New York State Commission on Judicial Conduct removed a judge for failing, as required by statute, to remit court funds and report cases to the state comptroller by the 10th day of the month following collection, to deposit court funds in her official account within 72 hours of receipt, and to maintain adequate records of the receipt of court funds; failing to remit to the state comptroller $550 that she collected; and failing to respond to 3 written inquiries from the Commission. In the Matter of Armbrust, Determination (New York State Commission on Judicial Conduct December 16, 1993).
  • The New York State Commission on Judicial Conduct removed a judge for falsely subscribing that the signature on the petitions to place him on the ballot as the Republican candidate for town justice had been executed in his presence. In the Matter of Heburn, Determination (New York State Commission on Judicial Conduct December 16, 1993).
  • The New York State Commission on Judicial Conduct censured a judge who, from January 1988 through December 1989, failed to deposit court funds in his official account within 72 hours of receipt as required by statute and who cashed 7 personal checks for his relatives and 20 personal checks for himself from cash that he had collected in court. In the Matter of Slomba, Determination (New York State Commission on Judicial Conduct December 16, 1993).
  • The North Carolina Supreme Court publicly censured a judge for giving legal advice and counsel to an employee of the county department of social services with regard to her discharge and intervening on her behalf in his official capacity. In re Cornelius, 436 S.E.2d 836 (North Carolina 1993).
  • The Ohio Supreme Court suspended the law license of a former judge for 1 year for 6 acts of unwelcome and offensive sexual remarks and/or physi­cal contact, 5 of which took place while he was either a judge or a judicial candidate. Office of Disciplinary Counsel v. Campbell, 623 N.E.2d 24 (Ohio 1993).
  • The West Virginia Supreme Court of Appeals publicly censured a magistrate who had been in­volved in his wife’s campaign for circuit judge and had sought disparaging information about her opponent, including contacting the granddaughter of the victim in a murder case handled by the opponent while a prosecuting attorney, facilitating the publishing of advertisements that contained disparaging information about his wife’s opponent, and misrepre­senting who paid for the ads, whose opinion was presented, and who signed them. In the Matter of Codispoti, 438 S.E.2d 549 (West Virginia 1993).

 

To hear and decide

Recently, the California Commission on Judicial Performance publicly admonished a judge for delegating his responsibility to conduct case management conferences to his court clerk.  Public Admonishment of Hiroshige (California Commission on Judicial Performance October 24, 2018).

Case management conferences are scheduled to address items such as what discovery issues are anticipated, whether discovery is complete, the nature of the injuries, the amount of damages, and any additional relief sought, as well as ministerial issues, such as the setting of a jury trial date.  Counsel for represented parties and each self-represented party must appear by telephone or personally and must be prepared to discuss and commit to the party’s position on the issues unless a judge issues a case management order based on the parties’ written submissions after determining that a conference is not necessary and notifying the parties.

In contrast, the judge’s practice was to review the parties’ written submissions and provide his notes to the court clerk for use during the conference at which the parties were still required to appear.  In 2010, the Commission privately admonished the judge for this practice.

The judge continued the practice despite the private admonishment.  In response to the Commission, the judge explained that, after the private admonishment, he posted a notice in his courtroom advising counsel and parties that he had reviewed all submitted case management conference statements and indicated to the clerk the range of dates that should be scheduled in each case, that “[t]he clerk will meet & confer with counsel/parties and attempt to schedule dates in court that are agreeable to all parties,” and that, if there is any disagreement, “please request to discuss the issue with the court.”

The Commission found that, as noted in the private admonishment, the judge’s practice violates the requirement that a judge “hear and decide all matters assigned to the judge except those in which he or she is disqualified.”  The Commission stated that the judge’s “[i]mproper delegation of judicial responsibilities to the court clerk constitutes misconduct” and “dereliction of duty.”

The Commission explained that the judge’s “practice of having his clerk meet with parties and counsel and convey his decisions in court gives the appearance that the clerk, rather than the judge, is running the court.”  Further, it stated, discussions between the judge and parties or counsel can effectively resolve issues that may not have been apparent from the written submissions, and, therefore, “an appearance before a judge at a case management conference can be more efficient and effective in terms of the disposition and management of a case than issuing an order without an appearance before a judge.”

The fall 2016 issue of the Judicial Conduct Reporter has an article analyzing previous discipline cases involving improper delegation of adjudicative responsibilities.