Opinion 17
(This Opinion discusses a prior version of the Canons of Judicial Conduct and Mo. Const. Art. V, Sec.24: the most comparable current rules are: See Rule 2-1.1 Compliance with the Law & Mo. Const. Art V, Sec. 20. See also Rule 2-3.12 Compensation for Extrajudicial Activities.)
Pursuant to Supreme Court Rule 12.28 the Commission on Retirement, Removal and Discipline issues the following opinion:
Issue:
It is a violation of the Code of Judicial Conduct for a judge to accept fees, gifts, or gratuities for performing marriage ceremonies?
Discussion:
The Attorney General’s Office has issued two Opinions (26 and 71) on this issue, deciding that a magistrate who accepts fees, gifts, or gratuities for performing marriage ceremonies is in violation of Article V, Section 24 of the Constitution of the State of Missouri which states:
(Emphasis added).
The Opinion of the Attorney General is as follows:
Violations of Article V, Section 24 of the Missouri Constitution by a judge are considered by this Commission to also violate the Code of Judicial Conduct.
Missouri Supreme Court Rule 2, Canon 2(A) states:
Conclusion:
A judge may not accept fees, gifts, or gratuities for performing marriages. To do so violates both the Constitution of the State of Missouri and the Code of Judicial Conduct.
Any unsolicited fees, gifts, or gratuities given to a judge for the performance of a marriage should be returned to the donor. Where this is not possible the money should be forwarded to the escheat fund of the State of Missouri.
This opinion of the Commission shall have prospective application and shall not be the basis retroactively for disciplinary proceedings.
(Undated)
COMMISSION ON RETIREMENT, REMOVAL AND DISCIPLINE
OPINION 17
Pursuant to Supreme Court Rule 12.28 the Commission on Retirement, Removal and Discipline issues the following opinion:
Issue:
It is a violation of the Code of Judicial Conduct for a judge to accept fees, gifts, or gratuities for performing marriage ceremonies?
Discussion:
The Attorney General’s Office has issued two Opinions (26 and 71) on this issue, deciding that a magistrate who accepts fees, gifts, or gratuities for performing marriage ceremonies is in violation of Article V, Section 24 of the Constitution of the State of Missouri which states:
All judges and magistrates shall receive as salary the total amount of their present compensation until otherwise provided by law, but no judge’s or magistrate’s salary shall be diminished during his term in office. No judge or magistrate shall receive any other or additional compensation for any public service, or practice of law or do law business.
(Emphasis added).
The Opinion of the Attorney General is as follows:
We also note that there is no statutory authority for a magistrate to compel the payment of a fee and no fee authorized for the service of solemnizing marriages. However, marriages are performed in such a case by virtue of the office. Cf., Ward v St. Louis County, 183 S.W.2d 68 (Mo. 1944). And, in our view, any compensation received for such service regardless of whether it is called a fee or gratuity and whether or not it is voluntary or involuntary constitutes ‘additional compensation’ within the prohibition of Section 24, Article V of the Constitution.
Violations of Article V, Section 24 of the Missouri Constitution by a judge are considered by this Commission to also violate the Code of Judicial Conduct.
Missouri Supreme Court Rule 2, Canon 2(A) states:
A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. (Emphasis added).
Conclusion:
A judge may not accept fees, gifts, or gratuities for performing marriages. To do so violates both the Constitution of the State of Missouri and the Code of Judicial Conduct.
Any unsolicited fees, gifts, or gratuities given to a judge for the performance of a marriage should be returned to the donor. Where this is not possible the money should be forwarded to the escheat fund of the State of Missouri.
This opinion of the Commission shall have prospective application and shall not be the basis retroactively for disciplinary proceedings.
(Undated)