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TCL > April 2007 Issue > Court Business

April 2007       Vol. 36, No. 4       Page  101
From the Courts
Court Business

Court Business

Colorado Judicial Department
Colorado Supreme Court
Judicial Ethics Advisory Board Opinions

Colorado Supreme Court
Judicial Ethics Advisory Board (C.J.E.A.B.)
C.J.E.A.B. Advisory Opinion 2007-04
(Finalized and Effective February 21, 2007)

ISSUE PRESENTED

The requesting judge sits on the district Bench in a rural district. The district attorney (DA) in his district has hired as a deputy an attorney who worked in the DA’s office with the judge fourteen years ago. When the judge and the attorney worked in the DA’s office, they were close friends who exercised and went on camping trips together. After the attorney left the DA’s office, he asked the judge to be the godfather of his oldest child. After the christening, the judge and the attorney had a disagreement; their relationship became estranged, and the judge’s only contact with the attorney in the intervening thirteen or fourteen years has been a few telephone calls. The judge has had no contact with his godchild during this time. The judge states that he has made these facts known to other attorneys who appear in his court, but he has not yet had the attorney appear in any case before him. He asks whether his role as godfather to one of the attorney’s children creates a conflict that requires him to disqualify himself or disclose the relationship when the attorney or another member of the DA’s office appears before him.

CONCLUSION

The judge is not required to disqualify himself when his estranged godchild’s father appears before him, solely because of that relationship, but disqualification may nevertheless be appropriate depending on the judge’s subjective and objective analysis of the circumstances. The judge should, however, disclose the godparent relationship to each party when his godchild’s father appears in his court.

APPLICABLE CANONS OF THE CODE OF JUDICIAL CONDUCT

Canon 2 provides that a judge should avoid impropriety and the appearance of impropriety in all of the judge’s activities. Subsection B specifies that a judge should not allow family, social, or other relationships to influence the judge’s judicial conduct or judgment. It further states that a judge should not convey or permit others to convey the impression that they are in a special position to influence the judge.

Canon 3 provides that a judge should perform his or her duties impartially and diligently. Subsection C governs disqualification and specifies that a judge should disqualify himself or herself from a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where a judge has a personal bias or prejudice concerning a party. It also directs a judge to disqualify himself or herself when the judge or the judge’s spouse, or a person within the third degree of relationship to either of them, is involved in the proceedings.

DISCUSSION

This request asks the Board to apply the disqualification and disclosure framework set out in two recent opinions, 2006-05 and 2007-01. As in those requests, here the Board is asked to consider whether, pursuant to Canons 2 and 3, the judge should disqualify himself in proceedings in which his impartiality might reasonably be questioned or an appearance of impropriety is raised. The Board also is asked to consider whether, and to what extent, the same disclosure considerations set out in the previous opinions apply here.

In applying the framework set forth in those opinions to this request, we first conclude that, under the facts presented here, the judge is not required to disqualify himself sua sponte when the attorney appears before him. Here, the godchild is not related to the judge within the third degree of relationship and, in any case, it is the godchild’s father who will be appearing before the judge. Thus, the judge need not sua sponte disqualify himself under Canon 3C(1)(d).

Nevertheless, a godparent-godchild relationship between a judge and the child of an attorney who appears before the judge could make disqualification appropriate. The depth of every godparent-godchild relationship differs, with some maintaining only historical significance after the obligation was perfunctorily assumed, and others held sacred by the godparent, developing into a close bond or nearly familial tie. Cf. Fed. Ad. Op. No. 11. A judge involved in such a relationship should examine all of the facts and circumstances of the relationship in considering whether to disqualify.

As we discussed in 2006-05, in deciding whether to disqualify, the judge should first consult his own emotions and conscience to determine whether he is free from disabling prejudice. The facts of this request do not suggest that the judge maintains a disabling prejudice for or against the attorney, but only the judge can determine his own ability to be impartial. In addition to the subjective analysis of his own conscience, the judge also should consider whether an objective, disinterested person aware of all the circumstances would reasonably question the judge’s impartiality within the meaning of Canon 3C(1) because of the godfather relationship. See C.J.E.A.B. 2006-05 & 2007-01; Az. Ad. Op. 90-08; Ma. Ad. Op. 2002-09. Again, the facts of this request do not suggest that an objective, disinterested person would reasonably question the judge’s impartiality, given that the judge has not created or maintained a godparent relationship with his godchild.

Although disqualification is not mandatory, the judge should disclose the godfather relationship to each party in cases in which the attorney appears before the judge. Although here the judge and his godchild have had very limited, if any, contact, the relationship remains, at least in theory, an ongoing and personal one. Disclosure of the relationship will promote confidence in the impartiality of the judiciary and will inform the parties of any basis on which disqualification may be sought. See C.J.E.A.B. 2007-01.

Because the godfather-godchild relationship is a special and personal one, we conclude that the judge should continue to make the disclosure for as long as the attorney appears before him. In light of the personal nature of the relationship, however, the disclosure obligation does not extend to the DA’s office as a whole, and is personal only to the godchild’s father. Cf. C.J.E.A.B. 2006-05.

Finally, we note that if the judge and his godchild reestablish contact, the disqualification analysis would have to take this circumstance into account.

FINALIZED AND EFFECTIVE by the Colorado Judicial Ethics Advisory Board this 21st day of February 2007.

Barbara Crowfoot (citizen member)
Hon. Martin Foster Egelhoff (judge member)
Daniel S. Hoffman, Esq. (attorney member)
Hon. Morris W. Sandstead, Jr. (judge member)
Hon. Pattie P. Swift (judge member/board chair)
Prof. Emeritus James E. Wallace (law professor member)
Hon. John R. Webb (judge member)
Eileen M. Kiernan-Johnson, Esq. (staff to the board)


Colorado Supreme Court
Judicial Ethics Advisory Board (C.J.E.A.B.)
C.J.E.A.B. Advisory Opinion 2007-05
(Finalized and Effective February 21, 2007)

ISSUE PRESENTED

The requesting judicial officer is a district court magistrate and municipal court judge. She asks whether and to what extent a judicial officer may advertise her availability or solicit business as a wedding officiant. She observes that performing wedding ceremonies, particularly at locations other than the courthouse, is one permissible way for judicial officers to earn extra income, and she would like to make her availability to perform such ceremonies more widely known. She does not desire to place a paid advertisement in wedding magazines, but instead asks whether she may send an introductory letter or flyer to wedding and event planners stating her availability to perform weddings and stating various other factors for the planner to consider, such as the judicial officer’s willingness to customize ceremonies and be available for rehearsals if desired. May the judicial officer advertise her availability to perform wedding ceremonies?

CONCLUSION

The judicial officer may not advertise her availability to perform wedding ceremonies by sending flyers to wedding planners and may not otherwise solicit business as a wedding officiant.

APPLICABLE CANONS OF THE CODE OF JUDICIAL CONDUCT

Canon 2 directs that a judge should avoid impropriety and the appearance of impropriety in all of the judge’s activities.

Canon 5(c)(1) provides that a judge should refrain from financial and business dealings that tend to reflect adversely on the judge’s impartiality, interfere with the proper performance of judicial duties, exploit the judge’s judicial position, or involve the judge in frequent transactions with lawyers or persons likely to come before the court on which the judge serves.

DISCUSSION

Under Colorado law, marriages may be solemnized in a variety of ways, including by judges and magistrates. See § 14-2-109(1), C.R.S. (2006). As Chief Justice Directive (CJD) 98-06 observes, "performing weddings is an important public service that judges and magistrates may continue to perform at any time so long as it does not interfere with, nor delay judicial duties." See CJD 98-06. The Directive goes on to state that judges and magistrates may charge a fee for weddings performed outside normal business hours, but they may not receive compensation of any kind for performing this service during normal business hours. Id. Furthermore, nothing in the Code of Judicial Conduct prohibits a judge from performing weddings and receiving reasonable compensation for the same.

The question before the Board, however, is in what, if any, way may a judicial officer make her availability to perform weddings known to members of the public. Like many of our sister jurisdictions, we conclude that to advertise for a service the judge is being asked to perform only because of his or her judicial office violates Canon 5C(1), which requires a judge to refrain from financial dealings that exploit his or her judicial position. See, e.g., Az. Ad. Op. 00-08; Neb. Ad. Op. 04-02; Tex. Ad. Op, No. 72; Wa. Ad. Op. 91-14. Moreover, to allow the practice of advertising and soliciting weddings could create the appearance that the judicial officer is using his or her judicial office for personal benefit, in contravention of Canon 2, which directs a judge to avoid impropriety and the appearance of impropriety in all of the judge’s dealings. Thus, we conclude that a judge may not send flyers to wedding planners or otherwise advertise her availability to perform weddings, such as through a personal website or Yellow Pages advertisement.

In concluding that a judicial officer may not personally advertise her availability or solicit business as a wedding officiant, we note that nothing in the Canons prohibits judicial officers from including their names on a court or county clerk and recorder’s list or website of judicial officers willing to perform weddings, see, e.g., http://www.denvergov.org/TabId/383424/default.aspx (website of the City of Denver providing information about solemnizing weddings and listing judicial officers who perform daytime, evening, and weekend weddings), because such lists are not commercial solicitations.

FINALIZED AND EFFECTIVE by the Colorado Judicial Ethics Advisory Board this 21 day of February 2007.

Board member Daniel S. Hoffman does not participate in this opinion.

Barbara Crowfoot (citizen member)
Hon. Martin Foster Egelhoff (judge member)
Daniel S. Hoffman, Esq. (attorney member)
Hon. Morris W. Sandstead, Jr. (judge member)
Hon. Pattie P. Swift (judge member/board chair)
Prof. Emeritus James E. Wallace (law professor member)
Hon. John R. Webb (judge member)
Eileen M. Kiernan-Johnson, Esq. (staff to the board)


Colorado Judicial Department
Chief Justice of the Supreme Court Directives

Notice of Availability

A full set of the Chief Justice Directives may be purchased from the Colorado Judicial Department for $15, which includes copying, handling, and postage costs. Checks should be made payable to Colorado Judicial Department and should be mailed to: Court Services Division, Office of the State Court Administrator, 1301 Pennsylvania St., #300, Denver, CO 80203. Individual Chief Justice Directives will be assessed a $5 charge, pursuant to Chief Justice Directive 96-01, concerning standard research fees. Chief Justice Directives also are available from the Colorado Supreme Court homepage at: http://www.colorado.gov/dpa/doah.

Publication in The Colorado Lawyer

Chief Justice Directives will be published on a space available basis in this "Court Business" section of The Colorado Lawyer. Some attachments may be omitted due to space restrictions. To obtain a copy of attachments, contact: Court Services Division, Office of the State Court Administrator, 1301 Pennsylvania St., #300, Denver, CO 80203; or visit
http://www.colorado.gov/dpa/doah.


Chief Justice Directive 07-01
Directive Concerning the Colorado Judicial Department Electronic Communications
Usage Policy: Technical, Security, and System Management Concerns
Done February 2, 2007

This directive and attached policy provides direction to Judicial Branch personnel regarding the security, operation, and permissible use of the Judicial Branch network, hardware, and software. In addition, the policy extends to persons who are not branch employees, but use the Judicial Branch network, hardware, or software with permission of the branch.

The policy and procedures contained in the attached Electronic Communications Usage Policy are adopted as an order of the Colorado Supreme Court. This policy shall be entitled "Electronic Communications Usage Policy: Technical, Security, and System Management Concerns," and shall be available to Judicial Branch personnel and to the public. The policy may be amended by an order of the Colorado Supreme Court signed by the Justice appointed by the Chief Justice as liaison to the JBITS standing committee of the State Court Administrator’s Office.

Chief Justice Directive 97-03 is hereby repealed.

Done at Denver, Colorado this 2nd day of February 2007.

By the Court:

Mary J. Mullarkey, Chief Justice
Colorado Supreme Court

© 2007 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=2007.


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