              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.
                                      2

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
                                          3

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.
                                     4

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
                                    5

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
                                    6

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
                                     7

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
                                    8
      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
                                       9

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
                                        10

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
                                        11

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.
                                     12

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”).
                                     13

      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
                                          14

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.
                                       15

      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.
                                     16

                                                  #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.
