August 21, 2017

Judicial Ethics Opinion Released Regarding Judges Contacting Political Representatives

On Tuesday, April 4, 2017, the Colorado Judicial Ethics Advisory Board released C.J.E.A.B. Opinion 2017-01.

Opinion 2017-01 considers whether a judge may contact his or her federal congressional representatives to express approval or dissatisfaction with federal legislation or cabinet appointments if the judge reveals his or her name but not that he or she is a judge. The Colorado Judicial Ethics Advisory Board determined that a judge may do so only in the narrowest of circumstances. The Board found that such contact would appear to implicate the judge’s personal opinions, which would likely amount to impropriety or the appearance of impropriety.

The Board, citing Rule 3.2 of the Code of Judicial Conduct, noted that the judge is permitted to consult with government officials in connection with matters concerning the law, the legal system, or the administration of justice or in connection with matters about which the judge acquired knowledge or expertise in the course of the judge’s judicial duties, as long as the consultation does not violate other provisions of the Code.

For the full text of C.J.E.A.B. Opinion 2017-01, click here. For all of the C.J.E.A.B. opinions, click here.

Colorado Judicial Ethics Advisory Board Releases Two New Opinions

On Monday, November 14, 2016, the Colorado Judicial Ethics Advisory Board released two new opinions.

CJEAB Opinion 2016-02 answers a judge’s question regarding whether Opinion 2007-07 remains effective in light of the repeal and reenactment of the Colorado Code of Judicial Conduct, and whether the judge may serve on the board of directors for the Joint Initiatives for Youth and Families of the Pikes Peak Region, since the operation of the board of directors has changed. The Judicial Ethics Advisory Board evaluated Opinion 2007-07 and determined it was no longer applicable, consequently withdrawing the opinion. The Judicial Ethics Advisory Board then concluded that a judge may serve on the board of directors of the Joint Initiatives for Youth and Families of the Pikes Peak Region, even if the board engages in legislative advocacy benefitting children and families, provided that doing so would not lead to his frequent disqualification or otherwise interfere with his ability to perform his judicial duties.  The judge must ensure that his activities as a board member do not undermine his impartiality, give rise to the appearance of impropriety, or violate other provisions of the Code.

CJEAB Opinion 2016-03 answers a judge’s question regarding whether it is permissible for him to sit on the Board of Trustees of the Colorado PERA. The Judicial Ethics Advisory Board determined that a judge elected to sit on the Board of Trustees of Colorado PERA should abstain from participating as a panelist in PERA’s administrative hearing process because such participation constitutes arbitration or another judicial function outside of a judge’s official duties and violates the Code of Judicial Conduct.

For all of the Colorado Judicial Ethics Advisory Board opinions, click here.

Colorado Judicial Ethics Advisory Opinion 2016-01 Released

On Wednesday, February 24, 2016, the Colorado Judicial Ethics Advisory Board issued C.J.E.A.B. Opinion 2016-01. This opinion addresses whether it is appropriate for a judge sitting on a nonprofit board to personally write or call donors to thank them for their contributions. The requesting judge asked the Advisory Board to consider if such communication would be considered fundraising in violation of the Colorado Code of Judicial Conduct.

The Advisory Board considered applicable provisions of the Code of Judicial Conduct and determined that, in cases where the judge is not soliciting further donations, implicitly or explicitly, it is acceptable for the judge to personally thank donors for their contributions in her role as board member of the nonprofit organization.

The Colorado Judicial Ethics Advisory Board is a committee of the Colorado Supreme Court consisting of judges and non-judges who provide ethical advice to judicial officers who request an opinion on prospective conduct. There are seven committee members: four judges, one lawyer, one non-lawyer citizen, and one law professor. Any Colorado judicial officer may request an opinion. Requests may be submitted to any member of the Advisory Board or to Christine Markman, staff attorney to the Colorado Supreme Court. Requests may be submitted on the Advisory Board’s form, JDF 2.

The full text of C.J.E.A.B. 2016-01 is available here. All of the C.J.E.A.B. opinions are available here.

New C.J.E.A.B. Opinion States Judges Cannot Ethically Use Marijuana

On Thursday, July 31, 2014, the Colorado State Judicial Branch released Colorado Judicial Ethics Advisory Board (C.J.E.A.B.) Opinion 2014-01, advising Colorado judges that because marijuana is still illegal under federal laws, any use of marijuana violates Rule 1.1 of the Canon of Judicial Conduct.

The C.J.E.A.B. consists of judges and non-judges who provide advice on ethical issues to judicial officers who request an opinion. Any judicial officer in Colorado may request an opinion from the Board. Once the request is received, the C.J.E.A.B. will consider whether to research the question and issue an opinion regarding the propriety of the proposed conduct and the ethical issues presented.

The question raised in Opinion 2014-01 was whether a judge may use marijuana privately and in a manner consistent with the Colorado Constitution in light of the legalization of marijuana in Colorado. The C.J.E.A.B. decided that because marijuana is still illegal under federal law, using marijuana even in a manner consistent with Colorado law is more than a minor violation of the law and constitutes a violation of Rule 1.1 of the Canon of Judicial Conduct. The C.J.E.A.B. decided that virtually every violation of Colorado law is a violation of the CJC, because the exceptions delineated by the committee that crafted the CJCs were extremely minor, such as parking tickets. Further, because drug- and alcohol-related offenses were specifically mentioned as not falling under the exception, the C.J.E.A.B. determined that a judge’s use of marijuana is not a minor violation of law.

Click here for the full text of Opinion 2014-01 and click here for all of the C.J.E.A.B. opinions.

Contributing Mask for the Benefit of Denver Hospice is Equivalent to Fundraising

The Colorado Judicial Ethics Advisory Board issued Opinion 2013-04 on August 19, 2013.

The requesting judge was asked to contribute a handcrafted mask to The Mask Project, an annual fundraiser for Denver Hospice. Masks are created by artists, celebrities, sports figures, and community leaders, and an online auction identifies each mask’s creator. The judge’s mask would identify her as a judge, but she noted that she would not solicit contributions or bids. The judge wanted an opinion regarding whether contributing a mask to The Mask Project would violate Rule 3.7 of the Code of Judicial Conduct.

The Judicial Ethics Advisory Board opined that contributing the mask would indeed violate Rule 3.7, as it is the equivalent of fundraising or soliciting contributions for Denver Hospice. The Board noted that the clear language of Rule 3.7(A)(2) and (4) prohibits both active and passive fundraising for a non-law-related non-profit organization. Although the Board noted that the line between permissible and disallowed may not always be clear, it opined that there is no such uncertainty in this instance.

For more information about the Colorado Judicial Ethics Advisory Board, and for a complete list of its opinions, click here.

Judge Not Disqualified from Foreclosure Actions Due to His Interest in PERA

The Colorado Judicial Ethics Advisory Board issued C.J.E.A.B. Opinion 2013-03 on Wednesday, July 10, 2013.

The opinion discusses whether a judge must disqualify himself from two C.R.C.P. 120 foreclosure actions because of his interest in the Public Employees Retirement Association (PERA). The motion requesting the judge to disqualify himself alleged that because PERA held investments in the foreclosing banks, and has an economic interest in litigation involving mortgage-based securities.

The Judicial Ethics Advisory Board opined that the judge need not recuse, because he has at most a de minimus interest in the outcome of the proceedings through PERA, he does not have actual bias or prejudice regarding the parties, and does not have a disqualifying interest in the foreclosing bank.

For the full text of the opinion, click here. For all of the Colorado Judicial Advisory Board opinions, click here.

Colorado Judicial Ethics Advisory Board Opinions 2013-01 and 2013-02 Released

The Colorado Judicial Ethics Advisory Board released two new opinions in late March 2013. The Colorado Judicial Ethics Advisory Board (C.J.E.A.B.) is a supreme court committee comprised of judges and non-judges who offer practical advice on ethical issues to members of the judiciary. There are seven members of the C.J.E.A.B. Four are judges, one is a non-lawyer citizen, one an attorney, and one a law professor with an interest in ethics.

C.J.E.A.B. Opinion 2013-01 addresses the issue of whether a judge can sit on the board of directors for the Colorado Organization for Victim Assistance. The decision confirms that the judge may sit on that board, provided he or she is able to ensure that the board activities do not impair his or her impartiality, and that doing so would not lead to frequent disqualification.

C.J.E.A.B. Opinion 2013-02 discusses whether, as part of their administrative duties, judges may ethically select attorneys who are eligible for appointment as counsel for respondent parents in dependency and neglect proceedings. They may select such attorneys, and may also monitor their performance, provided that they maintain impartiality in exercising those decisions and the decisions are based on merit.

For more information about the Colorado Judicial Ethics Advisory Board, and for all of the C.J.E.A.B. opinions, click here.

Colorado Judicial Ethics Advisory Board Opinion: Judge Whose Daughter is Marrying Deputy DA Must Recuse from That Attorney’s Cases but May Preside Over Cases from Other Attorneys in Same Office

The Colorado Judicial Ethics Advisory Board issued C.J.E.A.B. Formal Opinion 2012-07 on October 31, 2012, finalized and effective October 29, 2012.

Opinion 2012-07 considered a situation where a judge’s daughter was in a relationship with a deputy district attorney in the judge’s district. The judge is a District Court judge whose docket includes criminal cases. Throughout the course if his daughter’s relationship, the judge recused himself from cases involving her boyfriend, and made a full advisement when other attorneys from that district attorney’s office appeared before him. Recently, his daughter became engaged to the deputy district attorney, and the judge requested an opinion on whether he must recuse from all cases involving the district attorney’s office, and also if he could serve as the weekly “duty judge” who reviews and approves search and arrest warrants.

The Judicial Ethics Advisory Board concluded that the judge must continue to recuse himself from any case in which the deputy district attorney who is engaged or married to his daughter appears, but he may preside over cases from other attorneys in the district attorney’s office, provided that his future son-in-law has no personal involvement in those cases and provided that he makes a full disclosure to all parties regarding the relationship.

The Judicial Ethics Advisory Board also determined that the judge can continue serving as the weekly “duty judge” as long as his future son-in-law is not involved with preparing or reviewing any of the search or arrest warrants and affidavits.

The Board considered relevant portions of the Code of Judicial Conduct in making its determination, particularly Rule 2.11(A)(1) and (2)(b), which require recusal when a judge has a personal bias or prejudice, and there is a familial relationship. The discussion also noted that the potential for impropriety is greater in the private sector than the public sector for financial and reputational reasons.

All of the Colorado Judicial Ethics Advisory Board opinions may be found here.

Judicial Ethics Advisory Board Opinion: Judge who Reports Attorney to OARC Must Disclose this When Attorney Before Judge

On Monday, October 15, 2012, the Colorado Judicial Ethics Advisory Board issued Opinion 2012-06.

The Judicial Ethics Advisory Board considered a situation in which a judge had reported an attorney to the police and  Attorney Regulation Counsel. The judge recused from all cases involving the attorney but recently learned that Attorney Regulation Counsel closed the disciplinary proceeding with no action and no police action occurred. The judge feels he can be fair and impartial to the attorney and seeks an opinion regarding whether he is required to disclose his reporting of the attorney, now that the case is closed.

The Judicial Ethics Advisory Board concluded that the judge is only required to disclose his involvement with the attorney’s criminal and disciplinary actions as long as those cases are open. If the cases are closed, the judge has no requirement to disclose his reporting of the attorney. The opinion was based on the Board’s decision in Opinion 2011-01, where the Board determined that a report of misconduct alone is not enough to mandate recusal, unless the facts and circumstances would cause a reasonable person to doubt the judge’s impartiality.

Information about the Colorado Judicial Ethics Advisory Board, as well as all of the Colorado Judicial Ethics Advisory Board Opinions, can be found here,

Colorado Judicial Ethics Advisory Board Issues Opinion on Whether Judge Can Serve on Governmental Committee

On Monday, September 24, 2012, the Colorado Judicial Ethics Advisory Board issued C.J.E.A.B. Advisory Opinion 2012-05.

C.J.E.A.B. Advisory Opinion 2012-05 discusses whether a judge who regularly presides over dependency & neglect proceedings may participate on a newly-created Child Welfare Executive Leadership Council developed by the Colorado Department of Human Services. The Board advised that the judge may participate on the Council as long as she is able to maintain impartiality, does not give rise to the appearance of impropriety, or violate any other provisions of the Code of Judicial Conduct. The Board warned that the judge must continually reevaluate the propriety of her affiliation with the Council and be mindful of her obligations under the Code.

The Colorado Judicial Ethics Advisory Board consists of judges and non-judges who provide advice on ethical issues to judicial officers who request an opinion on prospective conduct.  Any state judge, justice, magistrate, district administrator or clerk of court in Colorado may request an advisory opinion from the Board. A request may be submitted using JDF 2, “Request for Judicial Advisory Opinion Pursuant to Chief Justice Directive (CJD) 94-01.”

All of the Colorado Judicial Ethics Advisory Board opinions may be found here.