The Ethics Advisory Committee has been asked several questions by a district court judge concerning the performance of marriages and related compensation.

The requester performs approximately one marriage per week. The marriages are conducted in the judge's courtroom and are performed on the lunch hour or as close to 5:00 p.m. as possible. The judge assumes all administrative costs related to the marriage ceremonies, such as for postage, typewriter ribbons and envelopes. The judge performs administrative duties related to the ceremonies at home during evening or weekends. The judge generally charges for the ceremonies, but will waive the fee if the couple is struggling financially. The judge declares all income on state and federal tax returns and the funds are sometimes used for office improvements or legal volumes. The judge questions whether any of these practices violate the Code of Judicial Conduct.

The authority for judges to perform marriages is found at Utah Code Ann. 30-1-6. Perhaps significantly, the language authorizing judges to solemnize marriages is not qualified by language similar to that which authorizes county clerks to solemnize marriages, i.e., "if the clerk chooses to solemnize marriages." Thus, while officiating marriages is not a core judicial function, judges, as part of a small group of public officials empowered to perform civil wedding ceremonies, have a responsibility to perform this important public service. It is not acceptable for a public official to accept a fee for performing a statutory function while the official is or appears to be "on duty."

Thus, Canon 4H(c) states that "a judge should not receive compensation for performing a marriage ceremony at the court during regular court hours. However, a judge may receive compensation for performing a marriage ceremony during non-court hours." The Committee believes that the reason for this restriction is to prohibit judges from receiving private compensation for the performance of an official duty during the period when judges are doing the public's business. Compensation is permitted after court hours because judges are no longer on "company time." In Informal Opinion 94-3, the Committee construed regular court hours to be 8:00 a.m. to 5:00 p.m., Monday through Friday, for state-employed judges. A judge may not receive compensation for any marriage performed during these hours. In Opinion 94-3, the Committee also stated that it is "inappropriate for a judge to receive compensation for a ceremony performed at some other location during regular court hours." Thus, a judge cannot accept compensation for a marriage performed on a weekday between 8:00 a.m. and 5:00 p.m. no matter where the ceremony is performed.

The Committee addressed several other issues related to the performance of marriages in Informal Opinion 94-3. The Committee stated that "it is inappropriate for a judge to receive compensation for the performance of a marriage ceremony at the court location, regardless of whether the ceremony is performed during regular court hours." The Committee is of the opinion that an exception to this rule should be recognized. The Committee believes a judge may receive compensation for a marriage at the court performed outside of regular court hours, if the ceremony is performed at a courtroom or other area that has been made available for private use consistent with governmental policy or if the ceremony is performed in the judge's chambers.

The requesting judge has inquired whether the noon hour is or should be included within the definition of regular court hours. Informal Opinion 94-3 did not carve out an exception for the noon hour and the Committee does not now see any reason to recognize such an exception since the courthouse is typically open during the noon hour and the lunchtime routine of individual judges varies so widely.

A judge may and, indeed, should be willing to perform marriage ceremonies at the court location during regular court hours without compensation, due regard being had for Canon 3A which states that "the judicial duties of a full-time judge take precedence over all the judge's other activities." Performing marriages during the lunch hour, scheduled recesses, and "under advisement" days is therefore advisable, while interrupting a trial or hearing to officiate a wedding is not. A judge should advise interested parties of the option of being married at the courthouse during the judge's regular workday, make reasonable efforts to accommodate them if they prefer it, and not deliberately steer business to evening or weekend hours.

The requester also notes that Canon 4H uses the word "should" rather than "shall." As noted in the definition section of the Code, violation of Canon 4H therefore cannot be the basis for disciplinary action. However, failure to comply with this section is nevertheless unethical. Furthermore, charging compensation in violation of this section might also implicate other Code sections, such as the requirement to avoid exploiting the judicial office found in Canon 4A(4).

In conclusion, the judge may continue to perform marriage ceremonies as described, but may not charge a fee for performing ceremonies at the court. If the judge performs ceremonies prior to 8:00 a.m. or after 5:00 p.m. on weekdays, or at any time on weekends or holidays, and the performance is at an off-court location or in the judge's chambers or in a portion of the courthouse that has been made available for private use in accordance with the policies of the government entity controlling the building, the judge may charge a reasonable fee because the judge is on his or her own time and appearances do not suggest otherwise. The Committee notes that administrative duties incident to performing marriages for which no fee is charged may properly be handled by the judge or other court personnel, during court hours, and costs of postage and envelopes need not be borne by the judge individually. If a fee is charged, meaning the marriage was done on the judge's personal time, it is appropriate that the administrative duties be handled by the judge on his or her own time and that the related costs be borne by the judge.