Gen. 91] 91

COURTS AND JUDGES ) MILITARY SERVICE ) CONSTITUTIONAL

LAW ) PREEMPTION ) STATE CODE OF JUDICIAL CONDUCT

NOT PREEMPTED BY FEDERAL STATUTE ESTABLISHING

EMPLOYMENT RIGHTS FOR RESERVISTS

June 1, 1999

The Honorable Lawrence R. Daniels

Circuit Court For Baltimore County

You have requested our opinion whether a federal statute

preempts the State Code of Judicial Conduct, as interpreted by the

Maryland Judicial Ethics Committee. Specifically, the Committee

concluded that a State circuit court judge who serves as a Staff Judge

Advocate or military judge in the Maryland Army National Guard

would be practicing law in violation of Canon 4 of the Code of

Judicial Conduct. You ask whether the federal Uniformed Services

Employment and Reemployment Rights Act of 1994 (“USERRA”),

which generally forbids discrimination against an employee who

serves in the military, preempts this provision of the Code.

For the reasons stated below, we conclude that USERRA does

not displace the historic power of the State to regulate judicial

conduct, nor does it create an exception from the requirements of the

Code of Judicial Conduct for a judge who serves in the National

Guard.

I

Background

On June 5, 1995, you wrote to the Judicial Ethics Committee

and requested an opinion on the propriety of your serving as State

Staff Judge Advocate for the Maryland Army National Guard in

light of your position as a judge on the Circuit Court for Baltimore

County. In your letter, you explained that the Staff Judge Advocate

has both administrative and legal responsibilities, including the

provision of legal advice to the Adjutant General and the

Headquarters Staff concerning “... the legal sufficiency of
92 [84 Op. Att’y

1

 Prior to 1990, the State Constitution prohibited a judge from

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 reserve component of the armed forces of the United States or a

member of the militia of the United States or this State.” See Chapter 61,

Laws of Maryland 1990. Neither the language nor the legislative history

of the amendment indicates whether there was any intent to override

judicial ethics rules to allow a judge to serve as a legal adviser within the

military. See SenateJudicial Proceedings Committee Floor Report, Senate

Bill 271.

2

 The same prohibition applies to federal judges and magistrate

judges. 28 U.S.C. §§ 454, 632(a); Code of Conduct for United States

Judges, Canon 5F. The Committee on the Codes of Conduct of the United

States Judicial Conference has construed the prohibition against the

practice of law to bar a part-time magistrate judge from serving as a legal

adviser to a State adjutant general of the National Guard, a bankruptcy

judge from serving as a staff judge advocate in the National Guard, and a

magistrate judge from accepting a JAG position. See Committee on

Codes of Conduct, Compendium of Selected Opinions, §5.3-7-[1](a) - (c);

Advisory Opinion No. 76.

A judicial ethics committee in Florida interpreting a similar

prohibition against the practice of law reached a different result. In 1975,

(continued...)

administrative personnel proceedings; interpretation of statutory and

regulatory language as 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

would not be involved in litigation. Letter from Lawrence R.

Daniels to William W. Wenner, Chair, Commission on Judicial

Ethics (June 5, 1995). 

On July 6, 1995, the Judicial Ethics Committee issued an

opinion that a judge may not serve as State Staff Judge Advocate for

the Maryland Army National Guard. Letter from William W.

Wenner, Chair, Judicial Ethics Committee, to Lawrence R. Daniels

(July 6, 1995). The Committee recognized that Article 33 of the

Declaration of Rights specifically 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

by a judge set forth in Canon 4 of the Code of Judicial Conduct.2 In
Gen. 91] 93

2

 (...continued)

a majority of the Florida Committee on Standards of Judicial Conduct

(now known as the Judicial Ethics Advisory Committee) concluded that

a judge may serve in a limited capacity as a military legal adviser.

Opinion No. 75-3 (February 11, 1975). 

You indicated that judges in South Carolina serve as reserve Judge

Advocates. The South Carolina Judicial Ethics Committee has not issued

n opinion on this subject. Telephone conversation between A. Camben

Lewis, Esq., Chairman, South Carolina Judicial Ethics Committee and

Assistant Attorney General Craig Nielsen (March 31, 1999).

In a different context, the Court of Appeals of Maryland has noted

a division of authority among courts 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 your subsequent question whether you could serve as a

military judge, the Committee issued an opinion concluding such

service would constitute the practice of law in violation of Canon 4

of the Code of Judicial Conduct. 

You now ask whether Canon 4, as interpreted in the

Committee’s decisions, is preempted by USERRA. 

II

State Code of Judicial Conduct

The State Code of Judicial Conduct and the authority of the

Judicial Ethics Committee derive from the Court of Appeals’ broad

power to regulate judicial conduct. Article IV, §18(a) of the

Maryland Constitution authorizes the Court of Appeals to issue rules

and regulations governing the conduct of judges and the

administration of the courts that have the “force of law.” The Court

of Appeals has characterized the authority to regulate the conduct of

judges as a fundamental constitutional power for the “. . .

maintenance of the honor and dignity of the judiciary and the proper

administration of justice. . .” In re Diener and Broccolino, 268 Md.

659, 670, 304 A.2d 587 (1973); see also Maryland State Bar Ass’n

v. Boone, 255 Md. 420, 429-32, 258 A.2d 438 (1969) (regulation of

the practice of law is a fundamental judicial power).
94 [84 Op. Att’y

The Court of Appeals has exercised its rulemaking power

under the State Constitution to adopt the Code of Judicial Conduct

(“Code”) as part of the Maryland Rules. See Maryland Rule 16-

813. A violation of the Code could result in proceedings against a

judge before the Commission on Judicial Disabilities. See id.,

Canon 6; Rule 16-803(g). Upon recommendation by the

Commission on Judicial Disabilities, the Court of Appeals may

discipline, censure, or remove a judge for misconduct. See

Maryland Constitution, Article IV, §4B(b). 

Canon 7 of the Code creates the Judicial Ethics Committee,

which serves as an advisory body to the Court of Appeals and also

issues opinions on the proper interpretation of the Code of Judicial

Conduct and the conflicts and financial disclosure provisions of the

State Public Ethics Law. A judge who complies with an opinion of

the Committee is protected from a charge of violation of the Code or

the statute. Canon 7B; see also 65 Opinions of the Attorney General

285, 297-300 (1980). 

This opinion is addressed solely to the preemption question

that you have raised, as interpretation of the rules governing judicial

ethics is entrusted to the Judicial Ethics Committee and not to the

Attorney General. Thus, we do not discuss the Committee’s

conclusion that service as a Staff Judge Advocate or military judge

constitutes the “practice of law” generally proscribed by Canon 4 of

the Code of Judicial Conduct. 

III

Federal Law

When Congress enacted USERRA in 1994, it built upon 50

years of prior legislation that protected the pay, seniority, and

employment status of veterans who return to civilian life. 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)

(detailing history of predecessorstatutesthat provided reemployment

rights for veterans and employment rights for reservists). The statute

is intended to (1) encourage service in the uniformed services by

eliminating or minimizing disadvantages to civilian careers; (2)

minimize disruption to persons performing service and to their

employers by providing for prompt reemployment after military
Gen. 91] 95

3

 State law embodies a similar policy to protect the employment

status of members of the National Guard. See Annotated Code of

Maryland, Article 65, §32A.

service; and (3) prohibit discrimination against persons because of

their service in the military.3

 38 U.S.C. § 4301. 

Pertinent to your question, USERRA and its predecessor

legislation forbid discrimination in employment against reservists

and members of the National Guard who are absent from

employment due to reserve training responsibilities. In particular,

the statute provides:

(a) A person who is a member of ... a

uniformed service shall not be denied initial

employment, reemployment, retention in

employment, promotion, or any benefit of

employment by an employer on the basis of

that membership...

(c) An employer shall be considered to

have engaged in [prohibited actions]

(1)...if the person’s membership [or]

service ... in the uniformed services is a

motivating factor in the employer’s action,

unless the employer can prove that the action

would have been taken in the absence of such

membership [or] service...

38 U.S.C. § 4311(a), (c)(1). The statute is designed to meet “the

need to protect reservists from the temptation of employers to deny

them the same treatment afforded their coworkers without military

obligations.” Monroe v. Standard Oil Co., 452 U.S. at 557. It

protects a person serving in the National Guard “when engaged in

active duty for training, inactive duty training, or full-time National

Guard duty.” 38 U.S.C. §4303(16).

When a reservist returns to his or her civilian job, USERRA

prohibits the employer from denying any “rights and benefits”

arising out of the employment relationship. The statute broadly

defines “rights and benefits” to mean “any advantage, profit,
96 [84 Op. Att’y

privilege, gain, status, account, or interest . . . that accrues by reason

of an employment contract or agreement or an employer policy, plan,

or practice . . .” 38 U.S.C. § 4303(2). USERRA, therefore protects

those “rights and benefits” that are part of the employment

relationship and that are affected because of an employee’s absence

for military service. See, e.g., Alabama Power Co. v. Davis, 431

U.S. 581, 594 (1977) (employment pension); Palmarozzo v. CocaCola Bottling Co. of New York, Inc. , 490 F.2d 586, 591 (2d Cir.

1973) (employment seniority rights); Peel v. Florida Department of

Transportation, 600 F.2d 1070 (5th Cir. 1979) (reinstatement of

employment; restoration of lost wages and benefits). 

USERRA applies to state employers. 38 U.S.C. §

4303(4)(A)(iii). It also preempts “... any State law ..., contract,

agreement, policy, plan, practice, or other matter that reduces, limits

or eliminates in any manner any right or benefit provided by

[USERRA] ....” 38 U.S.C. § 4302(b).

Thus, the essence of your question is whether Canon 4, as

interpreted by the Judicial Ethics Committee, adversely affects a

right or benefit of employment protected by USERRA and, as a

result, is preempted by USERRA.

IV

Preemption Analysis

As an initial matter, it is not at all clear that the Code of

Judicial Conduct is in conflict with USERRA. The Judicial Ethics

Committee did not conclude that judges are prohibited from serving

in the National Guard. Nor was the circumstance that the practice

of law would occur in a military setting a factor in the Committee’s

decision. Rather, it looked to the role of a Staff Judge Advocate as

legal adviser as the basis for the conflict with Canon 4's prohibition

against the practice of law. See also Annotated Code of Maryland,

Business Occupations & Professions Article, §10-101 (defining the

“practice of law” to include “giving legal advice”). 

Simply put, the Code of Judicial Conduct does not discriminate

against reservists. A circuit court judge who serves in the National

Guard labors under the same ethical proscription against the practice

of law as every other circuit court judge. To conclude otherwise
Gen. 91] 97

would be to establish a special dispensation for those judges who

choose to join the National Guard. USERRA was not designed to

establish special privileges or benefits for reservists that are not

available to co-workers. Rumsey v. New York State Dept. of

Correctional Services, 19 F.3d 83, 90 (2d Cir. 1994). 

Even if the Committee’s construction of the canons of judicial

ethics were deemed to treat judges who serve in the National Guard

differently from other judges, we do not believe that the Code of

Judicial Conduct is preempted by USERRA. The Tenth Amendment

to the United States Constitution guarantees to the states the power

and responsibility to determine the qualifications of judges and of

other important government officials who perform functions at “the

heart of representative government.” Sugarman v. Dougall, 413

U.S. 634, 647 (1973). If Congress intends to legislate in areas

traditionally reserved to the states, it must make its intention to do so

“unmistakably clear in the language of the statute.” Atascadero

State Hospital v. Scanlon, 473 U.S. 234, 242 (1985); Rice v. Santa

Fe Elevator Corp., 331 U.S. 218, 230 (1947) (congressional intent

to preempt the historic powers of the states should be “clear and

manifest”).

On its face, USERRA does not indicate a congressional intent

to preempt the historic power of a state to regulate judicial conduct

or exempt judges who serve in the military from the state codes of

judicial conduct. USERRA only preempts a state law or an

employer plan or policy that reduces or eliminates any “right or

benefit” of employment that is protected by the statute. 38 U.S.C. §

4302. The rights and benefits it protects are those that derive from

the reservist’s relationship with his or her employer, such as pay,

seniority, and leave. 38 U.S.C. §4303(2); H. Rep. 103-65 at pp. 17-

19, 1994 U.S. Code Cong. & Admin. News at 2450-2452. Such a

benefit must be one that arises “as a result of the person’s

employment by the employer in question.” Thomsen v. Department

of the Treasury, 169 F.3d 1378, 1381 (Fed. Cir. 1999).

The constitutional authority of the State’s highest court to

regulate the conduct of judges is distinct from personnel rules

governing pay, leave, seniority, and similar benefits of employment.

Even if a judge were sanctioned with respect to some aspect of

judicial employment as a result of a violation of Canon 4 related to

the practice of law, that discipline would not be attributable to
98 [84 Op. Att’y

service in the National Guard alone. Exemption from state rules of

judicial conduct is not a “benefit” of employment within the

meaning of USERRA. 

Since an intent to displace the constraints of ethical standards

pertaining to the conduct of important State officials is neither clear

nor manifest, in our view, the statute does not preempt the State

Code of Judicial Conduct. Cf. Gregory v. Ashcroft, 501 U.S. 452,

467 (1991). (“We will not read the ADEA [Age Discrimination in

Employment Act] to cover state judges unless Congress has made it

clear that judges are included.”). 

V

Conclusion

In summary, it is our opinion that USERRA does not preempt

the Code of Judicial Conduct’s ban on the practice of law with

respect to a judge who wishes to serve as a State Staff Judge

Advocate or military judge in the Maryland Army National Guard.

J. Joseph Curran, Jr.

Attorney General

Craig A. Nielsen

Assistant Attorney General

Robert N. McDonald

Chief Counsel

 Opinions and Advice