Maryland district court commissioners violate ethical rules if they use marijuana for medicinal purposes, which, though legal in the state, is outlawed by the federal government, the Maryland Judicial Ethics Committee stated in an opinion this week.
In a separate decision, the ethics panel said a Maryland judge may serve on the board of a nonprofit mediation services provider without violating conflict of interest rules even if the court steps in when mediation fails.
The 13-member committee issued its two published opinions in response to questions posed by a district court commissioner and a judge, whose identities were not disclosed.
In its medical marijuana opinion, the panel said a commissioner who violates the federal Controlled Substances Act – even for an act permitted under state statute — runs afoul of the Maryland Code of Conduct for Judicial Appointees’ provisions on complying with the law and promoting confidence in the judiciary. The committee’s conclusion followed its 2016 opinion that commissioners cannot ethically apply for or receive a Maryland license to grow medical marijuana because of the federal prohibition on possessing the drug.
“To be sure, the law related to the personal and medical use of marijuana has shifted at the state level,” the committee stated.
“What has not changed, however, is federal law in regard to the use of marijuana,” the panel added. “The facts here differ only in that the (commissioner) would be a user rather than a grower, processor, or dispenser of medical cannabis. We are not persuaded that that difference supports a different result.”
Medical marijuana is legal for qualifying patients in Maryland under the state’s Health General Article. To qualify, the law requires the patient to have a written certification from a health care provider with whom he or she has “a bona fide provider-patient relationship.”
The panel’s answer to the district court commissioner was limited to the question asked, which concerned the ethics of medical marijuana use by a judicial appointee, not a judge.
However, the committee noted that the state’s Code of Conduct for Judicial Appointees “is patterned after the Maryland Code of Judicial Conduct” and its admonition that judges “shall comply with the law” and “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary.”
The committee also cited decisions by California, Alaska and Colorado judicial ethics boards, which deemed it unethical for judges or judicial appointees to use marijuana for recreational or medicinal purposes due to the federal prohibition, though use of the drug would be legal in their state.
With regard to the mediation services provider, the panel found that a judge can serve on the board without violating ethical rules prohibiting even the appearance of a conflict of interest.
The judicial act of referring a case for mediation in hope that it can be resolved outside of court is in keeping with a judge’s responsibility toward “the administration of justice,” the panel said.
The committee added that courtroom litigation and mediation are literally connected on the Maryland Judiciary’s website, which contains a link to the Maryland Conflict and Resolution Office.
MACRO, housed in the Maryland Administrative Office of the Courts, provides links to nonprofit mediation services throughout the state.
“When the (judge’s) court makes referrals to mediation entities, including the one at issue here, it is merely promoting the availability and use of mediation as does the Judiciary at large through MACRO,” the panel stated. “The judge does not benefit from the referral any more than does MACRO when a disputant uses its website to choose a mediator.”
The panel did advise the judge to recuse himself or herself from any case that involves reviewing a mediation from the services provider on whose board he sits “to avoid any appearance of partiality.”
Maryland Court of Special Appeals Judge Kathryn Grill Graeff chairs the committee, which consists of six sitting judges, three former judges, a circuit court clerk, a judicial appointee and two people who are neither lawyers nor employed by the Maryland Judiciary.