[This article was originally published in Wendel's California Cannabis Law blog on April 20, 2017]
Yesterday, right on the cusp of 420, the California Supreme Court Committee on Judicial Ethics issued an opinion regarding “Extrajudicial Involvement in Marijuana Enterprises,” stating that judges should refrain from owning an interest in enterprises that sell or manufacture medical or recreational marijuana.
The Committee explained that California’s Proposition 215 (Compassionate Use Act (1996)) and Proposition 64 (Adult Use of Marijuana Act (2016)) did “not legalize medical or recreational marijuana” but rather that “they decriminalize certain marijuana offenses under California law.” However, “[d]espite the rapid decriminalization and new regulation of marijuana across the states, it remains a schedule I drug pursuant to the Controlled Substances Act. (21 U.S.C. §§ 801-904).”
The Opinion cited various canons proscribing judicial activities, including those requiring a judge to “respect and comply with the law” and “avoid impropriety and the appearance of impropriety…” and noted that Maryland, Washington and Colorado, three states that have decriminalized marijuana, have issued opinions prohibiting their state judges from participating in marijuana businesses.
The Committee suggested that a “reasonable person could conclude that a judge who disregards applicable marijuana laws for his or her own personal benefit is unable to act impartially anytime the judge rules on a marijuana-related matter” and that such lack of impartially could equally apply if the judge’s spouse participated in marijuana-related businesses.
The Committee concluded that a judge with “an interest in a marijuana-related business creates an appearance of impropriety, casts doubt on a judge’s ability to act impartially, and is incompatible with a judge’s obligations under canon 2 [impropriety] and canon 4A(1) [impartiality].”
However, the Opinion failed to address the hazier issue of whether California judges must also refrain from partaking of marijuana for medicinal or recreational use? To date, there is no published ethics opinion on this issue.
The Committee appears to allude to that issue in its footnote: “The relatively recent enactment of state medical and recreational marijuana laws, and the conflict with federal law, presents a myriad of issues related to marijuana. However for purposes of this opinion, the committee addresses only the question presented [the ethics of judge having interest in marijuana enterprise].” In short, the Committee, and thus the California judiciary, face the same challenges faced by California residents; seeking to walk the tightrope between California law which permits medicinal and recreational cultivation, distribution and use and Federal law which forbids it.