Commonwealth of Virginia Judicial Ethics Advisory Committee Opinion 99-2

Date Issued: July 6, 1999

Substitute Judges Performing Marriage Ceremonies

ISSUES

1. May a substitute judge appointed pursuant to Virginia Code § 16.1-69.9:1 perform a marriage ceremony and, if so, under what conditions?

   Answer: Only when serving as a judge pursuant to Virginia Code §16.1-69.21.

2. May the chief judge of a district court direct a substitute judge to serve pursuant to Virginia Code §16.1-69.21 for the sole purpose of performing a marriage ceremony?

   Answer: No.

3. May a substitute judge who performs a marriage ceremony accept a fee or gift for performing the ceremony?

   Answer: No.

FACTS

A substitute judge has been requested to perform a marriage ceremony on a day when he is not sitting in a district court. He has requested that the chief judge of the general district court designate him to sit on the day of the wedding for the sole purpose of performing the wedding. He will not hear any cases on the day of the wedding. The groom has asked him how much he will charge for performing the wedding.

DISCUSSION

ISSUE 1

Code §20-25 provides that "Any judge or justice of a court of record, any judge of a district court of this Commonwealth or any retired judge or justice may celebrate the rites of marriage.... ." The same code section provides that the circuit court shall appoint one or more persons to celebrate the rites of marriage. These persons are often called "marriage commissioners." Code § 16.1-69.21 provides in pertinent part as follows: "While acting as judge a substitute judge shall perform the same duties, exercise the same power and authority, and be subject to the same obligations as prescribed herein for the judge." Canon 2A, provides: "A judge shall respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." The Committee is of the opinion that a substitute judge may perform marriage ceremonies only when he is serving as a judge pursuant to Code §16.1-69.21.

ISSUE 2

Virginia law authorizes a number of persons to perform marriage ceremonies: ordained minister of any religious denomination (Code §20-23), "marriage commissioners" appointed by the circuit court (Code §20-25), active and retired judges and justices (Code §20-25), and persons prescribed by religious societies which have no ordained ministers. A substitute judge does not fall within any of these categories unless he is serving as a judge pursuant to Code §16.1-69.21. The designation of a substitute judge to sit for the sole purpose of performing a marriage ceremony may be seen as a means of circumventing applicable statutes and would violate the provisions of Canon 2: "A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities." The Committee is of the opinion that it is improper to request a chief judge of a district court to make such a designation and improper for him to accede to the request as well.

ISSUE 3

Code §20-27 permits persons authorized to perform marriage ceremonies to charge a fee and certain expenses. The Committee on District Courts has adopted a policy prohibiting district court judges from accepting gratuities or fees for performing marriage ceremonies unless such monies are submitted to the Treasurer of the Commonwealth in accordance with Code §16.1-69.48. All active judges and substitute judges when serving as judges are compensated by the Commonwealth. The acceptance of fees or gratuities by a substitute judge for performing a marriage may well create an appearance of using his judicial position for financial gain. Canon 4D(1)(A) provides: "A judge shall not engage in financial and business dealings that may reasonably be perceived to exploit the judge's judicial position." The Committee views as persuasive authority the position of the Texas Committee on Judicial Ethics as stated in its Opinion 72 that a judge's accepting a fee for performing a wedding ceremony would be an exploitation of the judicial position. The Committee is of the opinion that it would be improper for a substitute judge to accept a fee or gratuity for performing a marriage ceremony.

REFERENCES

Code of Virginia: §§ 16.1-69.21, 16.1-69.48, 20-23, 20-25, 20-27.

Texas Committee on Judicial Ethics, Opinio 72, March 9, 1984.

All opinions shall be advisory only, and no opinion shall be binding on the Judicial Inquiry and Review Commission or the Supreme Court in the exercise of its judicial discipline responsibilities. However, the Judicial Inquiry and Review Commission and the Supreme Court may in their discretion consider compliance with an advisory opinion by the requesting individual to be evidence of a good faith effort to comply with the Canons of Judicial Conduct provided that compliance with an opinion issued to one judge shall not be considered evidence of good faith of another judge unless the underlying facts are substantially the same. Order of the Supreme Court of Virginia entered January 5, 1999.

This page last modified: October 20, 1999