Amended September 2, 2016 in the Matter of James H. Martinek, a Magistrate. On Application of the Iowa ( 2016 )

IN THE SUPREME COURT OF IOWA
No. 16–0097
Filed June 17, 2016
Amended September 2, 2016
IN THE MATTER OF JAMES H. MARTINEK,
A Magistrate.
On application of the Iowa Commission on Judicial Qualifications.
The Commission on Judicial Qualifications filed an application to
discipline a magistrate. OPINION ISSUED.
Thomas J. Miller, Attorney General, and Kevin R. Cmelik and
Grant Dugdale, Assistant Attorneys General, for complainant.
Patrick M. Roby and Nicholas J. Kilburg, Elderkin & Pirnie, P.L.C.,
Cedar Rapids, Iowa, for respondent.
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MANSFIELD, Justice.
A magistrate maintained a website where he posted information
regarding his availability to perform marriage ceremonies at locations
other than the courthouse for a fee. The website included some photos
of the magistrate wearing his robes while performing such ceremonies.
The magistrate self-reported his conduct to the Iowa Commission on
Judicial Qualifications after becoming concerned that this website might
violate our ethics rules for judicial officers. The Commission found that
the magistrate violated the Iowa Code of Judicial Conduct and filed an
application for the imposition of judicial discipline. The Commission
recommended the magistrate be publicly reprimanded.
After the Commission issued its recommendation but before the
matter was submitted to us, the magistrate resigned. Because of the
importance of the underlying issues, we will address whether any
violations of the Iowa Code of Judicial Conduct occurred. We conclude
the code does not per se bar a judicial officer from publicizing his
availability to perform marriage ceremonies, but some aspects of the
advertising here violated the code.
I. Background Facts and Prior Proceedings.
James Martinek graduated from law school in 1977. He worked
for a year as a legal aid attorney in Idaho, and then moved back to Iowa
in 1978. He was admitted to practice law in Iowa that same year. After
spending approximately one year in the Johnson County attorney’s
office, Martinek opened a private law practice in Solon. Martinek held a
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part-time position as a magistrate in Johnson County from August 2005
until February 2016. 1
Magistrate Martinek also taught at Kirkwood Community College.
At one point, one of his students approached him and suggested that he
should have a website for his law firm. The student volunteered her
services in creating the site. The website provided basic biographical
information, as well as information about his legal practice for
prospective and current clients. The website was occasionally updated
or altered as needed—Magistrate Martinek would call his former student
and communicate his requested changes.
The main page of the website had in large type, “James H.
Martinek, Attorney at Law.” Thereunder the website indicated that
Martinek had a “General Practice, including but not limited to” five
categories. The first four were specific areas of legal practice. The fifth
was “Marriage ceremonies, including same-sex weddings,” with links to
“Forms” and “Cost.” Below this, the website added on the main page,
“James H. Martinek was appointed as a Judicial Magistrate for the 6th
Judicial District in 2005. He holds Court in Johnson County.”
Additionally, the website had a marriage information section
detailing Magistrate Martinek’s willingness to perform marriage
ceremonies. The section informed visitors to the site how to apply for a
marriage license and provided a link to a letter that stated Magistrate
Martinek “enjoy[ed] performing marriage ceremonies” and would “make
every effort to schedule them” when possible. The letter advised that
interested couples would need a marriage license from the Johnson
1Because this case relates to Martinek’s conduct while he was a magistrate, we
shall refer to him as Magistrate Martinek.
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County recorder’s office, that witnesses were required, and that
Magistrate Martinek’s fee for the ceremony would be $200. Additional
links on the information tab were provided to Iowa’s instructions for
filling out an application for marriage, an application for a marriage
license, an application for a waiver of the three-day waiting period,
sample vows for traditional and same-sex marriages, and an application
for a social security card. This section of the website featured photos of
Magistrate Martinek performing weddings, including same-sex weddings,
as well as photographs of possible venues for weddings.
Two photos showed Magistrate Martinek wearing his judicial
robes—one where he was just sitting on the bench and one where he was
performing a same-sex marriage ceremony. The website did not advise
that Magistrate Martinek also performed marriage ceremonies for free
during official duty hours at the courthouse.
After our July 19, 2013 decision in In re Meldrum, 834 N.W.2d 650
(Iowa 2013), Magistrate Martinek became concerned because his website
featured photos of him wearing his judicial robes. He showed the
website to friends and colleagues who agreed the page might be
problematic. He contacted the former student who helped with the
website and asked her to take down the photographs in which he was
wearing his judicial robes. He then telephoned the executive secretary of
the Commission on Judicial Qualifications. After this discussion,
Magistrate Martinek decided to self-report the possible violation.
In his July 22 letter to the Commission, Magistrate Martinek
stated that he maintained a website connected with his law practice for
two reasons. The first was to inform potential clients of the legal services
he regularly provided, including forms for some of those services like
living wills or medical powers of attorney. The second was “to provide
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information to those individuals seeking to be married in Iowa.”
Magistrate Martinek explained,
[T]he reason I set the website up in the first place was to
have a place where I could refer people to get a copy of my
marriage ceremony and general information with regard to
weddings, witnesses, and costs.
....
I have a number of photos on my website and they
were selected to give people who would be unfamiliar with
Johnson County an idea of what the County Administration
Building looked like, so they could get their marriage license
and some possible sites for a wedding. I have several sites
from Kent Park, a site on the University of Iowa campus, and
a picture of me (without a robe) performing a wedding at a
Hawkeye game. In addition to these photos, I also had two
pictures of myself wearing my judicial robe. One was simply
a picture of me in my robe at the courthouse . . . . The
second photograph showed me in my robe marrying a same
sex couple on the University of Iowa campus.
....
Both of these photographs have been removed. I now
recognize after reading the Meldrum decision that when this
wedding information was taken with the balance of my
website, it could look like I was promoting myself, through
my judicial appointment, as a more trustworthy or
competent attorney to p[ro]spective clients. While that
certainly was not my intention, I recognize that it could be
the result.
On October 7, the Commission charged Magistrate Martinek with
violations of Canon 1 of the Iowa Code of Judicial Conduct, including
rule 51:1.2 (failure to promote public confidence in the judiciary) and
rule 51:1.3 (abuse of the prestige of judicial office). Magistrate Martinek
responded, denying the alleged rule violations. He stated that the
marriage information section was included on his website for
informational purposes only for the benefit of parties interested in having
him perform a ceremony at a location other than the courthouse. He
explained, “At no time did Magistrate Martinek seek to mislead the public
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on the issue of performing marriages free of charge during regular
magistrate work hours at the courthouse.”
A hearing took place before the Commission on December 4. At
the hearing, Magistrate Martinek furnished additional information about
his reasons for including a marriage section on his law firm website. As
Magistrate Martinek explained, an interested individual would generally
call the county recorder’s office and be referred to those judges and
magistrates willing to perform marriage ceremonies. When he set up this
section of his website, there were two magistrates and one district
associate judge available in Johnson County for marriage ceremonies;
however, the district judge was not available after hours. Magistrate
Martinek introduced into evidence a copy of a past webpage from the
Johnson County recorder’s office website that stated, “Important: The
Court house does not perform ‘on the spot’ marriages. Below are the
names and numbers of local magistrates.” The names of two magistrate
judges—including Magistrate Martinek—and one district judge appeared
beneath the advisory.
Magistrate Martinek, a former legal aid attorney, always began his
conversations with parties interested in marriage ceremonies by telling
them they could be married for free at the courthouse. After our decision
in Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009), the number of calls
that Magistrate Martinek received asking about marriage ceremonies
greatly increased and he “couldn’t keep up.” Calls were coming from
across the country. Magistrate Martinek put the marriage information
tab on the website “because [he] couldn’t spend that much time on the
phone with all the people that were calling.” Although he told every
caller that marriage ceremonies were free if performed at the courthouse,
“[t]he vast majority of people did not want that,” but “wanted to have one
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of the other venues.” Magistrate Martinek never asked the Johnson
County clerk’s office to direct anyone to his website.
Magistrate Martinek took responsibility for the information on the
website, but he admitted to a lack of familiarity with the technology. He
said he told the former student who set up the website that he did not
want to advertise. He believed that people would only reach the site after
being directed there over the phone because he “thought you had to
register” or “take some action to have a search engine pick you up.”
After Magistrate Martinek self-reported, the photos showing him in
judicial robes were taken down from the website, but other wedding-
related photos remained.
In response to questioning, Magistrate Martinek also stated that he
could not be sure how many marriage ceremonies he performed because
he did not always charge the fee, depending on the situation. He
probably performed the most weddings right after the Varnum decision.
He was performing fewer by the time of the Commission hearing because
the recorder’s office website was now identifying seven judges available
for marriage ceremonies. Magistrate Martinek did not separately track
his wedding ceremony income (it was accounted for with his law practice
income), but he thought it amounted to one to two thousand dollars per
year.
More than two years after the December 4, 2013 hearing, the
Commission concluded that Magistrate Martinek had violated the Iowa
Code of Judicial Conduct and filed an application to discipline a judicial
officer under Iowa Code section 602.2106 (2013). In its January 15,
2016 application, the Commission stated,
Judge Martinek’s merger of judicial position with his
private law practice on the website for his law firm leads to
the conclusion that he engaged in misconduct in his official
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capacity and was exploiting his position both to bolster his
credentials as a private attorney, and to solicit wedding
business for which he would be paid a fee.
The Commission determined that Magistrate Martinek had violated
Canon 1 and rules 51:1.2 and 51:1.3 and recommended a public
reprimand.
II. Standard of Review.
We review recommendations of judicial discipline from the
Commission on Judicial Qualifications de novo. Meldrum, 834 N.W.2d at
652. The Commission must establish ethical violations by a convincing
preponderance of the evidence. In re Block, 816 N.W.2d 362, 364 (Iowa
2012).
III. Mootness.
We must deal with a threshold issue. Magistrate Martinek
resigned his position in February 2016, before this case was submitted to
us and orally argued. There is no indication in the record that
Magistrate Martinek resigned in order to avoid discipline.
The Iowa Code gives us authority to “[d]iscipline . . . the judicial
officer” upon application by the Commission and appropriate findings.
Iowa Code § 602.2106(3)(b). At the time the Commission made
application to us for discipline on January 15, Martinek was still a
magistrate. Generally, subject-matter jurisdiction is determined at the
time of filing. “Courts have long recognized that ‘the jurisdiction of the
[c]ourt depends upon the state of things at the time of the action
brought.’ ” Heartland Express v. Gardner, 675 N.W.2d 259, 266 (Iowa
2003) (alteration in original) (quoting Keene Corp. v. United States, 508
U.S. 200, 207, 113 S. Ct. 2035, 2040, 124 L. Ed. 2d 118, 127–28 (1993)).
However, in the past, we have declined to discipline judicial officers who
resigned their positions before the discipline would have become
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effective. See In re Inquiry Concerning Holien, 612 N.W.2d 789, 798 (Iowa
2000).
Under the circumstances, we decline to address the question of
discipline but simply issue an opinion discussing whether Magistrate
Martinek’s conduct violated the Iowa Code of Judicial Conduct. It is our
expectation and hope that this decision will provide guidance to judicial
officers in our state.
IV. Violations.
Canon 1 of the Iowa Code of Judicial Conduct requires judges to
“avoid impropriety and the appearance of impropriety.” Iowa Code of
Judicial Conduct, Canon 1. Its accompanying rules give the canon scope
and provide clarity regarding prohibited conduct. See Block, 816 N.W.2d
at 364. Rule 51:1.2 requires judges to “act at all times in a manner that
promotes public confidence in the independence, integrity, and
impartiality of the judiciary.” Iowa Code of Judicial Conduct R. 51:1.2.
Rule 51:1.3 states that “[a] judge shall not abuse the prestige of judicial
office to advance [his or her] personal or economic interests.” Id. r.
51:1.3. In summing up the goals of the canon and rules, we recently
stated:
[T]he canon not only captures conduct that violates the law,
but also includes conduct that may not violate the law but
nevertheless diminishes public confidence in the judiciary.
It also includes conduct of a judge both on and off the
bench. Together the canon and its accompanying rules
emphasize that the independence, integrity, and impartiality
of the judiciary are preserved when judges avoid impropriety.
Block, 816 N.W.2d at 364.
We first consider whether Magistrate Martinek violated the Iowa
Code of Judicial Conduct merely by advertising that he performed
weddings for a fee, regardless of the circumstances and content of the
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advertising. The Judicial Ethics Board of the Colorado Supreme Court
addressed this issue in an advisory ethics opinion wherein the board
concluded that judges may not advertise their availability to perform
wedding ceremonies. Colo. Judicial Ethics Advisory Bd., Advisory Op.
2007-05, 2007 WL 7603068, at *1 (2007).
In Colorado, as in Iowa, “judges and magistrates may charge a fee
for weddings performed outside of normal business hours, but they may
not receive compensation of any kind for performing this service during
normal business hours.” Id. A Colorado judge inquired whether “a
judicial officer may advertise her availability or solicit business as a
wedding officiant.” Id. In particular, this judge wanted to make her
availability for ceremonies known by sending fliers or letters to wedding
planners. Id. Colorado’s ethical canons, like Iowa’s, prohibited judges
from using their position for financial gain or personal benefit. See id.
In light of these prohibitions, the board ruled that “a judge may not send
fliers to wedding planners or otherwise advertise her availability to
perform weddings, such as through a personal web site or yellow pages
advertisement.” Id. The board indicated that judges could list their
names on a court or recorder’s office website to show their willingness to
perform marriage ceremonies. Id. at *2.
While we have carefully considered the views of the Colorado
board, we are not persuaded that merely publicizing on a website the fact
that one performs marriage ceremonies for a fee undermines public
confidence in the judiciary or amounts to an abuse of the prestige of
judicial office. Iowa law authorizes judges and magistrates to perform
marriage ceremonies outside regular business hours for a reasonable fee
subject to a maximum prescribed by this court. Iowa Code § 595.12(1).
So clearly a magistrate’s performance of a wedding for $200 or less
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outside regular business hours does not violate the Iowa Code of Judicial
Conduct.
The question then becomes what a judge or magistrate can do to
get the word out for those persons who might prefer such a ceremony
rather than a basic solemnization at the courthouse during regular
business hours. Colorado would limit publicity to a list on the official
taxpayer-supported website of judicial officers willing to perform
weddings and official contact information. The persons to be married
would then have to find the list, and contact the judge or magistrate
directly. These direct contacts might well occur during regular court
hours, during which the judicial officer could be asked about off-duty
availability, venues, fees, and the like. In some instances, the judicial
officers listed on the official website would only be willing and available
to do ceremonies outside of business hours and away from the
courtroom, for which they can charge a fee.
While we have no problem with the approach approved in
Colorado, we have difficulty seeing that it marks the definitive line
between proper and improper judicial behavior. 2 If a judicial officer is
legally authorized to perform off-hours weddings for a reasonable fee
because he or she is a judicial officer, how does it amount to an abuse of
the office for the officer to let the public know that? Why would it
undermine confidence in the judiciary for a judicial officer, at the officer’s
own expense, to make known to the public his or her availability to
perform marriage ceremonies on a website when it does not undermine
2Itis also noteworthy that the Colorado opinion was a judicial ethics board
advisory opinion. It was not a judicial discipline proceeding sanctioning a judicial
officer.
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confidence in the judiciary for this service to be provided either at public
expense or through an informal word-of-mouth process?
Performing marriage ceremonies is, as noted by the Colorado
ethics board, “an important public service.” Advisory Op. 2007-05, 2007
WL 7603068, at *1. People increasingly rely on the Internet rather than
the telephone for getting information. We believe the public benefits
when people can find out, relatively quickly and easily from the Internet,
which judicial officers are willing to perform weddings outside regular
business hours and under what conditions. That is especially true when
the information can be delivered without using public resources,
including the time that judicial officers and judicial employees are
supposed to be devoting to their official duties.
As noted above, the calls coming in to Magistrate Martinek
increased dramatically after Varnum. Due to the limited number of
judges willing to perform such ceremonies in his county, he posted the
information to respond to the demand for his services and save himself
time on the phone.
The Commission found that Magistrate Martinek’s advertisement
of his availability to perform weddings was intended to “advance his
personal and economic interests.” See Iowa Code of Judicial Conduct R.
51:1.3. That may be true, but a violation of rule 51:1.3 also requires an
“abuse [of] the prestige of judicial office,” which we cannot find based
merely on the fact Magistrate Martinek advertised a service that judicial
officers are authorized to provide. See In re Inquiry Concerning Sevcik,
877 N.W.2d 707, 713 (Iowa 2016) (noting that a rule 51:1.3 violation
involves exploitation of the judicial office to obtain “special treatment or
favoritism”).
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This then leads us to the second issue—namely, whether
Magistrate Martinek’s particular form of advertising exceeded the
boundaries of the Iowa Code of Judicial Conduct. Our own recent
decision in Meldrum, which prompted Magistrate Martinek to seek advice
concerning his conduct, addressed the advertising of private legal
services by judicial officers. See 834 N.W.2d at 652. In that case, a
magistrate promoted his legal services in phone books with a photograph
depicting him wearing his judicial robes. Id. at 651. One of his
advertisements stated that he was an “Iowa Judicial Magistrate.” Id.
The Commission charged the magistrate with violating Canon 1 and
rules 51:1.2 and 51:1.3. Id. Magistrate Meldrum stated at a hearing
that the advertisements were intended to communicate his “availability
as a private attorney for private legal services, and it was [his] intention
by using the title of magistrate and the photograph in the robes to
indicate that [he held] a responsible public position.” Id. at 652. He did
not intend to imply that he could use his judicial position for the benefit
of potential clients. Id. We found that Magistrate Meldrum had violated
Canon 1 and the accompanying rules and publicly reprimanded him. Id.
at 653–54.
As we noted in Meldrum, the official comment to rule 51:1.3 states
that judges may not “use or attempt to use his or her position to gain
personal advantage or deferential treatment of any kind.” Iowa Code of
Judicial Conduct R. 51:1.3 cmt. [1]; see Meldrum, 834 N.W.2d at 653.
For example, a judge may “not use judicial letterhead to gain an
advantage in conducting his or her personal business.” Iowa Code of
Judicial Conduct R. 51:1.3 cmt. [1].
The key point in Meldrum, though, was that the magistrate was
conspicuously using his status as a judicial officer as part of his
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advertising for private legal business. As we put it, the problem was that
the magistrate was “attempt[ing] to influence potential clients to use his
services as an attorney . . . . by drawing attention to his judicial office.”
834 N.W.2d at 653. Here, by contrast, Magistrate Martinek used his
judicial robes to promote work he could only perform by virtue of being a
judicial officer.
Yet there is an overlap between the two cases. Like Magistrate
Meldrum, Magistrate Martinek featured his status as a judicial officer,
including his judicial robes, in private law practice advertising. Given
that Magistrate Martinek wished to advertise his availability as a judicial
officer to perform weddings as permitted by Iowa law, the better course of
action would have been to do so separate from his private law practice
website. We agree with the Commission that “Judge Martinek’s merger
of his judicial position with his private law practice on the website” was
inappropriate. Someone interested in hiring Magistrate Martinek to
perform legal services might have been directed to his advertising relating
to marriage ceremonies, and vice versa. 3 And the use of judicial robes on
an unofficial website might “boost [a judicial officer’s] message”
improperly, as compared to the messages of other potential wedding
officiants. See Jenevein v. Willing, 493 F.3d 551, 560 (5th Cir. 2007).
“The state has a compelling interest in preserving the integrity of the
courtroom, and judicial use of the robe, which symbolically sets aside the
judge’s individuality and passions.” Id.
3We are not deciding today that merely disclosing on one’s private practice
website that one holds a position as a magistrate or on the judicial website that one is
engaged in private practice violates the Code of Judicial Conduct. We note that
numerous magistrate biographies on our own official website—www.iowacourts.gov—
mention that the magistrate is also engaged in private practice.
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The Commission also faulted Magistrate Martinek for not
disclosing on the website that he would perform weddings at the
courthouse for no charge. Magistrate Martinek testified that he
nonetheless provided this information at the beginning of the
conversation whenever anyone contacted him. No evidence to the
contrary was presented. Thus, we have no reason to believe that anyone
was actually misled by the website. However, we agree the proper course
of action would have been to include both marriage ceremony
alternatives on the website. This would have avoided a possible
undermining of public confidence in the integrity of the judiciary. The
public expects judges to be even-handed and not to steer people toward a
choice that personally benefits them. Any advertising should reflect that
evenhandedness.
Hence, we conclude Magistrate Martinek committed violations of
Canon 1 and rules 51:1.2 and 51:1.3 by (1) including advertising about
performing marriage ceremonies on his private law practice website,
(2) including photos of himself in his judicial robes on his private law
practice website, and (3) not disclosing in his advertising that he would
perform weddings for no charge during his regular office hours at the
courthouse.
V. Conclusion.
We find Magistrate Martinek violated Canon 1 and rules 51:1.2
and 51:1.3 of the Iowa Code of Judicial Conduct. For the reasons
previously stated, we do not address the question of discipline for these
violations.
OPINION ISSUED.
All justices concur except Zager, J., who concurs specially.
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#16–0097, In re Martinek
ZAGER, Justice (concurring specially).
I concur in the majority opinion. I write separately to voice my
disagreement with what I see as the majority minimizing the violation of
our rules. In my opinion, a judge placing a marriage tab on a private law
practice website is clearly an “abuse [of] the prestige of judicial office to
advance the personal or economic interests of the judge.” Iowa Code of
Judicial Conduct R. 51:1.3. The only reason that a private attorney
would have such a tab on his or her website is because he or she is a
judicial officer who can perform marriage ceremonies. In other words,
the ability to perform marriage ceremonies is a prestige of judicial office.
Clearly, all judicial officers are entitled to perform marriage
ceremonies with certain restrictions. See Iowa Code § 595.12(1).
However, the advertising on Magistrate Martinek’s website went far
beyond what I believe should be allowed under our rules. A marriage tab
on a judicial officer’s private law practice website smacks of the unseemly
creation of a cottage industry. As acknowledged by Martinek, he created
the marriage tab on his website both to address the increased demand
for marriage services after our decision in Varnum v. Brien, 763 N.W.2d
862 (Iowa 2009) and to save himself time. While I do not dispute that
performing marriage ceremonies is an important public service, it is not
the primary duty of our judicial officers. Further, because an exchange
of money occurs when a judicial officer performs a wedding outside
regular business hours, we should expect our judicial officers not to
exploit their ability to provide such services for their own personal and
economic interests.
Unlike the majority, I do not accept the idea the ethics violation
Martinek committed is somehow diminished because Martinek was
17
responding to increased demand for his services and thought advertising
in this way would save him time on the phone. The majority does not
disagree with the Commission’s conclusion that the advertising on
Martinek’s website was intended to “advance [his] personal and economic
interests.” See Iowa Code of Judicial Conduct R. 51:1.3. Yet the
majority somehow concludes Martinek’s advertising the judicial services
he performed to advance his own interests did not amount to an “abuse
[of] the prestige of judicial office.” See id. I disagree.
Instead, I would adopt the rule endorsed by the Colorado Judicial
Ethics Advisory Board, which advised Colorado judicial officers that “a
judge may not send fliers to wedding planners or otherwise advertise [his
or] her availability to perform weddings, such as through a personal
website or yellow pages advertisement.” Colo. Judicial Ethics Advisory
Bd., Op. 2007-05, 2007 WL 7603068, at *1 (2007). This is a
commonsense, bright-line rule all judicial officers should be expected to
follow. Here, as in many jurisdictions today, a judicial officer may have
his or her name and contact information displayed on a court’s official
website or posted at the courthouse. See id. at *2. The judicial officers
are also generally free to make whatever arrangements are convenient for
them and for members of the public who request their services. See Iowa
Code § 595.12(1). Unlike the majority, I perceive judicial officers
advertising services they are able to provide due to the prestige of judicial
office to be a serious problem—even if the advertising is not associated
with a private law practice. Do we really want our judicial officers
advertising for wedding services on the Internet or through the yellow
pages? I think such advertising amounts to a violation of our canons
and rules—even when it is not connected to a private law practice. For
these reasons, I specially concur.