Gen. 91] 91

C OURTS AND J UDGES

) M ILI TARY S ERVICE

) C ONSTIT UTIONAL L AW

) P REEMPTI ON

) S TATE COD E OF JUDI CIAL C ONDUCT NOT PREEMPTE D B Y F EDERAL S T ATU TE E STABLI SHING E MPLOYMENT R IGHTS FOR R ESERVISTS

June 1, 1999

The Ho nora ble L aw renc e R. D aniels Circ uit Co urt F or B altimo re C oun ty

You have request ed our op inion w hethe r a fed eral statu te preem pts th e St ate Code of Judi cialConduct, as inter preted by

the Maryland

Judic ial Ethic s Co mm ittee. Sp ecifica ll y, th e Committee concludedthat a

State c ircui t court

judge who serves a s a Staff Judge Ad voca te or military

judge in the M aryland Arm y National G uard
wo uld be pract ici ng law in viol ation of Canon 4 of the Code of Judici al Co ndu ct. You ask whether the fe deral Unif ormed Services Employmentand Reemployment Ri ghts Actof 199 4 (“US ER RA ”), which general ly

forbids discriminat ion agai nst an em ploy ee who serves in the mil itar

y, preempts t

his provi sion of t

he Code.

For the rea sons st ated bel ow, we conclude that USER RA does not displace the historic po wer o f the S tate to regul ate j udicia l cond uct, nor does it create anexcepti on from the re quirement s of the Code of Ju di ci alCon duc t f

ora j udg e wh o se rves i n the Nati onal Guard.

I
Background

On June 5, 199 5, you w rote to th e Jud icial E t hics Committ ee and request ed an opini on on the propr iety of your se rving as Sta te Staff Judge Advocate for t

he Maryland Army National Gu ard in light of your position as a ju dge on the Circuit C ourt for Ba ltimore C ou nt y. In your le tter, you ex plaine d that th e Staff Jud ge A dvo cate h as b oth admini strative and legalresponsibili ties , inc luding t he provisi on of leg al adv ice to the Adj utant Gener al and the Head quarters Staff conc erni ng “.. . the legalsuffici ency of92 [84 Op. Att’y

1 Prior to 1990, the State Constitution prohibited a j udge f rom holding“any other office, civil or military.” A 1990 amendment of Article 33 of the Declaration of Rights permitted a judge to be “a member of a r eserve component of the armed forces of the United States or a member of the militia of the United States or this State.” SeeChapter 61, Lawsof Maryland 1990. Neither the language nor the legislative history of the amendment indicates whether there was any intent to override judicial ethics rules toallow a judge to serve asa legal adviser within the military. SeeS enate Judicial Proceedings Committee Floor Report, Senate Bill 271.

2 The s ame prohibition applies to federal judges and magistrate ju dges. 28 U.S.C. §§ 454, 632(a); Code of Conduct for United S tate s Judges,Canon 5F. The Committee on the Codes of Conduct of the United S tates Judicial Conference has construed the prohibition against t he practiceof law to bar a

part-time magistrate judge from serving as a legal adviser t o a State adjutant general of the National Guard, a bankruptcy judge from serving asa

staff judge advocate in the National Guard, and a magistratejudge from accepting a JAG position. SeeCommittee on Codes of Conduct, Compendium of Selected Opinions , §5.3-7-[1](a) - (c); Advisory Opinion No. 76. Aju dici al ethics committee in Florida interpreting a similar prohibitionagainst the practice of law reached a different result. In 1975, (continued...) administrative personnel pro ceedings; interpretation of statutory and regulatory lan guage a s it applies to the Maryland Army National Guard and its missions; and advice as to military justice matters and legislative issues.” You indicated that, as Staff Judge Advocate, you woul d not be involved in litigation. Letter from Lawrence R. Daniels to William W. Wenner , C hair, Commission on Judicial Ethics (June 5, 1995).

On July 6, 1 995, the Judicial Ethics Committee issued an opinionthat a judge may not serve as State Staff Judge Advocate for the Marylan d Army National Guard. Letter from William W. Wenner, Chair, Judicial Ethics Committee, to Lawrence R. Daniels (July 6, 1995). The Commit tee recog nized that Article 33 of the Declaration of Rights specifica lly allows a judge to serve in the National Guard, 1 but it concluded that a judge may not serve in the National Guard as a State Staff Judge Advocate. Id . Although the Committee did not explicitly state the reason for this conclusion, it
was apparently based on the proscription against the practice of law bya judge set forth in Canon 4 of the Code of Judicial Conduct. 2 InGen. 91] 93

2 (...continued)
a major it y of the Florida Committee on Standards of Judicial Conduct (now known as theJudicial Ethics Advisory Committee) concluded that
a judge ma

y serve in a limited capacity as a military legal adviser. Opinion No. 75-3 (February 11, 1975). You indicated that

judges i n South Carol ina se rve as r eserve Judge Advocat es. The South Carolina Judicial Ethics Committee has not issued
nopinion on thi s subjec t. Telephone conversation between A. Camben Lewis, Esq

. , Chairman, South Carolina Judicial Ethics Committee and Assistant Attorney Gene

ral Craig Nielsen (March 31, 1999). In a differe

nt context, the Court of Appeals of Mary land has noted
a division of authority among c ourts as to whether a JAG officer is engaged in “the practice of law” for purposes of qualifying

for admission to a bar as

an out-of -state attorney. In the Matter of Application of Mark W. , 303 Md. 1, 491 A.2d 576 (1985). response to y our subsequent ques tion w hethe r you co uld serve as a militaryjudge , the Committee i ssued an opi nion concluding such servi ce would consti tute t he pract ice of l aw in viol ation of Canon 4 of th e C ode of J udi cial C ond uct.

You now ask whether Canon 4, as interpr eted i n the Co mm ittee’ s de cisio ns, is pre em pted by U SE RR A.

II

State Code of Judici al Conduct

The State Code of Judicia l Conduct and t he authority

of th e Judici al Ethics Committee derive f rom the Court of

Appeals’ br oad power to regul ate j udicia l conduct . Arti cl e IV, §18 (a) of t he Maryland

Co nstitution autho rizes the Co urt of A ppea ls to issue rules and regulations gover ning the c onduct of judges and the administ rati on of the courts that have the “force o f law.” T he Co urt of Ap peals h as ch aracte rized th e auth ority to regulate the conduct of judges as a fu ndam ental c onstitu ti onal pow er fo r the “. . . maintenance of the hon or an d dig nity of the j udiciaryand the proper administ rati on of just ice. . .” In re Diener and Broccol ino , 268 Md. 659, 670, 304 A.2d 587 (1973); see also Ma ryland State B ar Ass’n
v. Boone , 255 Md. 420, 429- 32, 258 A.2d 438 (1969) (regul ation of the practice of law is a funda mental judicial po wer).94 [84 O p. Att’y

The Court of Ap peals h as exe rcis ed its rulemaki ng power und er the S tate Constit

ution to adopt the Code of Judici al Conduct (“C od e”) as p art o f the M arylan d R ules

. See Maryland Rul e 16- 813. A violati on of the Code cou ld result in p rocee ding s aga inst a judge before the Comm ission on JudicialDisa bili ties. See id. , Canon 6; Rul e 16 -8 03( g) . Up on r eco mme nd ation by the Commission on Judici al Disabi lities, the Court of Appeals may discipline, cen sure , o r remov e a ju dge for mis con duc t. See M arylan d C ons titutio n, A rticle IV , §4B (b).

Canon 7 of the Code creates the Judi cialEthics Committee, which serves a s an advis orybody t o the Court of Appeals andalso issues opinions on the proper inter pretation of the Code of Judici al Conduct and the confl icts and financi al dis closur e provis ions of t he State Public Ethics Law. A judge wh o com plies w ith an opinion of the Committee i s prote cted fr om a charge of vi olati on of the Code or the statu te. Can on 7 B; see also 65 Opinions of the Attorney General 285 , 297 -30 0 (1 980 ).

This opinion i s address ed solely t o the pree m ptio n questi on that you have r aised, as inter pretation of the rules governing j udicia l ethic s is ent

ruste d to the Judici al Ethics Committee and not t o the A ttor neyGeneral. Thus, we do not di scuss t he Committee’ s conclusi on that s ervice as a Staff J udge Advocate or mil itar y j udge consti tutes the “pra ctic e of law” general ly

proscribed byCanon 4 of the C ode of J udi cial C ond uct.

III

Federal Law

Wh e n Congress enact ed USERR A in 1994, it built upon 50 years of prior

legis lati on that protect ed the p ay, seniority , and empl oymentstatu s of

vete ran s w ho r etur n to civil ian li fe. See H. Rep. 103-65 at p. 20, 1994 U.S. Code Cong. & Admin. News, 2450, 2453; Monroe v. Standard Oil Co. , 452 U.S. 549, 554-57 (1981) (detail ing history of predecess or stat utes th at provi ded reemploy ment rights for vete ran s an d em plo ymen t righ ts fo r rese rvist s). The statute is intended to (1 ) e ncourag e servi ce in the uniformed se rvices by elimi natingor minimi zing dis advantages to c ivili an career s; (2) minimize disrup tion to p erson s perform ing se rvice a nd to their employers by providing fo r promp t reemployme nt after militaryGen. 91] 95

3 State law embodies a similar policy to prote ct the employment status of members of the N atio nal Guard. SeeAnnotated Code of Maryland, Ar

ticle 65, §32A. servi ce; and ( 3) pro hib it d iscriminat ion agai nst per sons because of th eir se rv ice in th e m ilit ar y. 3 38 U .S.C . § 43 01.

Perti nentto you r qu estio n, USERRA and its predecess or legis lati on forb id discr imina tion in e mp loymen t again st re servists and members of the Nati onal Guard who a re a bsent fr om employment

due to res erve trainingresp ons ibilitie s. In particular, the statut e provides:

(a) A per son who is a m em ber of ... a uniformedservi ce shallnot be deni ed initial emp loymen t, re em pl oym e nt, reten tion in emp loymen t, pr omotion, or any benefit of employment

by an emp loyer o n the basis of that m em ber ship

... (c) An employer s hall be con sid ered to have engaged in [prohibited actions] (1)...if the person’s mem bership [o r] servi ce

... in the u niformed services is a motivat ing facto r in the e mployer ’s act ion, unless t he employ er canprove that t he acti on wo uld have been take n in the absence of such
me mb ersh ip [o r] ser vice

... 38 U.S .C. § 4 311(a), (c)( 1). The st atute is desi gned to meet “t he need to prot ectreserv ists from the tem ptation of em ployers to deny them the same treat

ment afforde d their cow orkers w ithout military obl igati ons .” Monroe v. Stand ard Oil Co ., 452 U.S . at 557. It protec ts a pers on se rving in the N ationa l Gu ard “w hen e ngag ed in acti ve duty

for tr aining, inact ive duty training, orful l- ti me National Gua rd duty.” 38 U .S.C. §430 3(16).

When a re se rv is t r eturns to hi s or her ci vi li an j ob, USERRA proh ibits the employ er from den yin g any “rights and benefit s” aris ing out of the employment relationsh ip . The statute b road ly defines “rights and bene fits” to m ean “ any adv antag e, profit,96 [84 O p. Att’y privi lege, gain, statu s, ac cou nt, o r inte rest . . . that accr ues byreason of an employment contrac t or agr eement or an empl oyer policy , plan, or practi ce . . .” 38 U.S .C. § 4 303 (2). U SE RR A, the refor e pro tects those “rights and b enefits” that a re par t of the employment relation ship and that

are affected because of anemployee’s absence formilitaryservic e. See , e.g., Alab am a Po wer Co . v. Da vis , 431 U.S. 581, 594 (197 7) (em ployme nt pen sion); Palmarozzo v. CocaCo la Bottl ing Co. of

New Yor k, Inc . , 490 F .2d 586, 59 1 (2d C ir. 1973) (emp loymen t senior ityrights); Peel v. Florida Department of Transportation , 600 F.2d 1070 (5t h Cir. 1979) (rei ns tate men t of
em plo ymen t; resto ratio n of lost w age s an d be nef

its).

USERRA applie s to st at e em plo yers. 3 8 U .S.C . § 4303(4 )(A)(iii). It also pre em pts “ ... any S tate la w ..., contra ct, agree men t, policy , plan, practice, or other matter that red uces , limits
or elimi nates in any manner any right or

benefit provided by [US ER RA ] .... ” 38 U .S.C. § 430 2(b).
Thus, the ess ence of y our quest ion is whether Canon 4, as i nterpr etedby t

he Judici al Ethi cs Committee, adversely affe ct s a right or be ne fit of

em pl oym ent p rotected by USERRA and, as a
re su lt , i s p re emp te d by

USERRA.

IV

Pre em ption An alys is

As an initial mat

ter, it i s not at

all c lear t

hat the Code of Judic ial Co ndu ct is in co nflict w ith US ER RA

. The Judici al Ethi cs Committee did not con clude that judg es are prohibi tedfrom servi ng in the N ationa l Gu ard. N or w as the c ircum stance that t he practi ce of law w ould occu r in a mili tary setting a factor in the C omm ittee’s decisi on. Rather, it l ooked to the role of aStaff Judge Advocate as legal adviser as the b asis for the conflict with Canon 4's pr ohibition againstthe pra ctice of la w. See also Annotated Code of Maryland, Business Occupations & Profes sions Articl e, §10-101 ( defini ng the “pr actic e of

law ” to in clud e “g ivin g leg al ad vice ”).

Sim ply put, t

he Code of Judici al Conduct does not d iscrimin ate againstreservist s. A circuit court j udge who serves in the Nat ional Gua rd labors underthe same ethical proscription againstthe prac tice of law as every

other circuit

court j udg e. To conclude otherw iseGen. 91] 97

wo uld be to est ablis h a spe cialdispensation for those j udges who choose to join the Nati onal Guard. USERRA w as notdesigne d to establishspecialprivil eges or benefits for reser vist s that

are not availa ble to co -w ork ers. Rumsey v . Ne w Yo rk State Dept. of Correcti onal Servi ces , 19 F .3d 8 3, 90 (2d Cir . 199 4).

Even if the Committee’s constr uctionof the canons of judic ial ethic s were d eemed to treat judges w ho serve in the Na tional Gua rd diffe rently fro m o ther jud ges , w e do not beli eve that the Code of Judici al Conduct is pr eempted by U SERRA . The Tenth Amendment to the Unite d States Constit ution guarantees to the stat es the power and respo nsibil ity to dete rmine the qualif icat ions of j udges and of other impo rtant go vern men t offic ials who perform functi ons at “the hear t o f repres entat ive government .” Sug arm an v. D oug all , 413 U

. S. 634, 647 (1973) . If Congres s int ends to l egisl ate i n areas tradition ally reserv ed to the states, it must make its int ention to do so “unm istakab lyclear

in the l anguage of the st atute .” Atascadero State Hospital

v. Scanlon , 473 U.S. 234, 242 (19 85); Rice v. San ta Fe Elevator

Corp. , 331 U. S. 218, 230 (1947) (congres sionalintent to preemp t the historic pow ers of the states sho uld be “clea r a nd manife st”).

On its face, USERRA does not indicat e a congress ional intent to preempt the hist oric power of a state to regu late judici al conduct
or ex em pt ju dg es w ho se rv e in th e m ilit ar y from the s tate codes of judici al co ndu ct . U SERRA onl y pr eempts a st ate l aw or an employe r plan or policy that reduces or elimi nates any “right or bene fit” of employment that is protected by

the st atute

. 38 U .S.C . § 4302. The rights and benefit s it protect s are t

hose that derive from the rese rvist’s r ela tio ns hi p w ith hi s o r h er em pl oye r, s uc h a s p ay, se ni or ity, and leave. 38 U.S.C. §4303(2) ; H. Rep. 103- 65 at pp. 17- 19, 199 4 U .S. Co de C ong . & A dm in . News at 2450-2452. Such a bene fit must be one that ar ises “ a s a result of the pe rson’s employment

by t he employ er in ques tion. ” Thomsen v. Department of the Treasury , 169 F.3d 1378, 13 81 (Fed . Cir. 1999).

The con st itutiona l autho rity of the S tate’s hig hest co urt to
re gulate the co ndu ct of ju dges is distinct f rom perso nnel r ule s governing pa y, leave, seniority , and si milar be nefit s of emp loymen t. Even if a j udg e we re san ctio ned with res pect t o some aspect of judici al employment

as a res ult of a

violation of

Canon 4 relat ed to the practi ce of law, t

hat dis cipline would not be attribu tabl e to98 [84 O p. Att’y

servi ce in the NationalGuard alone. Exemption from st ate rul es of ju dic ial conduct i s not a “bene fit” of employment withi n the
me anin g of

US ER RA

. Since an inte nt to dis place the co nstrain ts of ethi cal standards pertaining to the c onduct of i mportant St ate offi cial s is neither cl ear n or manife st, in our

view, the s tat

ute d oes not

preempt the St at e Code of J udi cial C ond uct. Cf. Gregory v. Ashcr oft , 50 1 U.S. 452, 467 (1991). (“We will not read the ADE A [A ge Disc rimina ti on in EmploymentAc t] to cove r state jud ges u nless C ong ress ha s ma de it clea r tha t jud ges are in clud ed.” ).

V

Conclusion

In sum mary, it is our opinion that USERRA does not preempt the Code of Judi cial Condu ct’s ba n on the pra ctice o f law with respect to a ju dge who wishes to ser ve as a Stat e Staff Judge Ad voca te or m ilitary judge in the Maryl and Army Nationa l Guard.

J. Joseph C urran, Jr. AttorneyGeneral Craig A. Niel sen Assis tant Atto rney General

Ro bert N . Mc Do nald Chief Counsel Opinions and Advic e