Should California Judges Be Allowed in the Cannabis Industry?

California’s highest court is not sure whether it’s a good idea for a representative of the court to get into the business of legal marijuana.

Earlier this week, the California Supreme Court Committee on Judicial Ethics Opinions (CJEO) published a formal advisory that suggests judges should not be permitted to invest in any company whose business involves the cultivation or sale of medical or recreational marijuana. The draft says that while the prohibitionary standard has been lifted in the Golden State, the cannabis plant remains a Schedule I dangerous drug in the eyes of the federal government, putting those adjudicators earning profits from pot at risk of violating the state’s ethics code.

The draft, prepared by Hon. Ronald B. Robie, goes on to say, “California marijuana laws do not legalize medical or recreational marijuana,” only decriminalize certain aspects of the law, which the federal government still considers illegal. It also says there are no guarantees that the temporary protections provided under the Cole Memo and a rider that prevents the DEA from spending federal funds to kick down the doors of the medical marijuana industry will experience longevity.

“It is the committee’s opinion that maintaining any interest in a commercial enterprise that involves the cultivation, production, manufacture, transportation or sale of medical or recreational marijuana is incompatible with a judge’s obligations to follow the law under canon 2. Such conduct is an activity involving impropriety that fails to comply with federal law and puts a judge at risk for federal prosecution,” the opinion reads.

“Despite the limited decriminalization of medical and recreational marijuana, there will continue to be a bounty of marijuana-related matters in the courts,” the document continues. “Moreover, a reasonable person could easily find that a judge’s disregard of federal law creates an appearance of impropriety and casts doubt on the judge’s ability to act impartially, particularly in marijuana-related cases. Therefore, the committee concludes that 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 and canon 4A.”

Several states, including Maryland, Washington and Colorado, consider it a violation of ethics for a judge to be involved in the cannabis industry. These rulings all stem from the conflict between state and federal law.

The CJEO has put the opinion up on its website for public comment. The deadline for commentary is March 2017.