### IN THE SUPREME COURT OF IOWA

No. 16

– 0097
Filed June 17 , 20 16

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
Gran t 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 locati ons 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 th is website might

v iolate 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

recom mend ed the magistrate be publicly reprimanded.
After the Commission issued its recommendation but b efore the matter was submitted to us, the magistrate resigned. B ecause of the importance of the underlying issue s, we will address whether any
violations of the Iowa Code of Judicial Conduct occurred . We conclude
the c ode does not per se bar a judicial officer from publicizing hi s availability to perform marriage ceremonies, but some aspects of the advertising here violated the c ode.
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. H e was admitt ed to practice law in Iowa that same year. After spending approximately one year in the Johnson County a ttorney’s office, Martinek opened a private law practice in Solon. Martinek held a3
part

- time position as a magistrate in Johnson County from August 2005
until February 2016. 1 Magistrate Martinek also taught a t Kirkwood Community College.
At o ne point, one of his students approached him and s uggested that he
should have a website for his law firm . The student volunteer ed her services in creating the site . The website provided basic biographical
infor mation , as well as infor m ation about hi s 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 Johnso n 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] perfo rming 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

1 Because 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 instruction s f or filling out an application for marriage, an application for a marriag e license, an application for a waiver of th e 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 weddin gs, including same

- sex weddings,
as well as photographs of possible venues for weddings

. Two photos showed Magistrate Martinek we aring 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 beca me concerned becau se his website featured photo s of him wearing his jud icial robes. He showed the
website to friends a nd colleagues who agreed the page might be problematic. He contacted the former student who helped with the
website and asked her to tak e 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 provide d , including forms for some of t hose services like living wills or medical powers of attorney . The second was “to provide5 information to those individuals seeking to be marr ied 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 P ark, 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 readi ng 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 trustwor thy or competent attorney to p[ro] spective clients. While th at certainly was not my intention, I recogni ze 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 confiden ce 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 public6

on th e issue of performing marriages free of charge during regular magistrate work h ours at the courthouse. ”
A hearing took place before th e Commission on December 4

. At the hearing, Magistrate Martinek furnished addition al information about
his reasons for i ncluding a marriage section on his law firm website . As Magistrate Martinek explained, an interested individual would generally
call the county recor der’s office and be referred to those judges and magistrate s 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 evidenc e a copy of a past webpage from the Johnson County record er’s office website that stated, “Important: Th e Court house does not perform ‘on the spot’ marriages. Below are the names and numbers of local magistrates.” T he names of two magistrate judges

— incl uding Magistrate Martinek

— and one district judge appear ed 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 a t the courthouse. After our decision
in Varnum v. Brien , 763 N.W.2d 862 (Iowa 2009), the number of calls that Magistrate Martinek receive d 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 “be cause [he] couldn’t spend that much time on the phone with all the people that were calling.” Al though he told e very caller that marriage ceremonies were free if performed at the courthouse, “[t]he vast major ity of people did not want that, ” but “wanted to have one7

of the other venues.” Magistrate Martinek never asked the Johnson County c lerk’ s o ffice to direct any one 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 web site 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 Magistrat e Martinek self

- reported , the photos showing hi m in judicial robes were taken down from the website , but other we dding

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 charg e the fee, depending on the situation

. He probably performed the most weddings right after the Varnum d ecision. 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

y ear. More than tw o years after the December 4 , 2013 hearing, t he
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 official8 capacity and was exploitin g his position both to bolster his credentials as a private attorney, and to solicit wedding business fo r which he would be paid a fee.
The C ommission determined that Magistrate Martinek had violated
Canon 1 and r ule s 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 Q ualifications de novo. Meldrum , 834 N.W.2d at
652. The C ommission 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 , befo re 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 Expre ss 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 become9

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
d iscipline 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 th at “[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 u p the goals of the can on 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 c anon 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 the10 advertising. T he Judicial Ethics Board of the Colorado Supreme Court
addressed this issue in an advisory ethics opinion wherein the b oard 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 i nquired 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 letter s to wedding planners. Id. Col orado’s ethical canons , like Iowa’s, prohibited judges from using their position for financial gain or personal benefi t

. See i d.
I n light of these prohibition s, the b oard 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 indica t ed that judges could list their

names on a court or recorder’s office websi te to show their willingness to perform marriage ceremonies. Id. at *2. While we have carefully considered the views of the Colorado board, w e are not persuaded that merely publicizing on a web site 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 an d magistrates to perform marriage ceremonies outside regular business hours for a reasonabl e fee subject to a maximum prescribed by this court

. Iowa Code § 595.12(1). So clearly a magistrate’s performance of a wedd ing for $200 or less11 outside regular business hours does not violate the Iowa Code of Judicial
Conduct

. The question then becomes w hat 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

. Co lorado 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 wel l occu r during regular court hours, during which the judicial officer could be asked about of f

- 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 cerem onies 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 o fficer, 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

2 It is also noteworthy t hat the Colorado opinion was a judicial e thics b oard advisory o pinion. It was not a judicial discipline proceeding sanctioning a judicial officer.12 confidence in the judiciary for this serv ice 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 incre asingly rely on the Internet rather than the telephone for getting information

. We believe the public benefit s when people can find out, relatively quickly and easily from the Internet, which judicial officer s are willing to perform weddings outside regul ar 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 devo ting to their official duties. As noted above, the calls coming in to Magistrate Martinek increased dramatically after Varnum . D ue 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 servic es and s ave himself time on the phone.
The Commissi on 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 I nquiry Concerning S evcik , 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 o r 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 lega l services by judicial officers

. See 834 N.W.2d at 652. In that case, a magistrate promote d his legal services in phone book s 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

n ot 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 6 53

– 54.
As w e 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

perso nal 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 his14 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 attentio n 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
Meld rum, 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 avail ability as a judicial
officer to perform weddings as permitt ed 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 pract ice on the website” was
i nap propriate

. 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, an d judicial use of the robe, which symbolically sets aside the judge ’s individuality and passions.” Id.

3 We 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 ma gistrate 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. Magis trate Martinek testified that he nonetheless provide d this information at the beginning of the
conversation whenever any one contacted him. No evidence to the contrary was presented. Thus, we have no reason to believe that anyone was actually misled by th e website. However, we agree the proper course of action would have been to include both marriage ceremony alternatives on the website. This would have avoid ed a possible undermining of public confidence in the integrity of the judiciary . The public e xpects judges to be even

- handed an d 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 r ules 51:1.2 and 51:1.3 b y (1) including advertising about

pe rforming marriage ceremonies on his pr ivate law practice website, (2) including photos of himself in his judicial robes on his privat e 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 indu stry. 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 th at 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 was17

res ponding 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] pe rsonal 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 judici al 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 av ailability 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 exp ected 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 advertis ing 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.