CJEO Oral Advice Summary No. 2016-019 — Accepting Compensation for Performing a Marriage After July 10, 2017 [Updated]

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CALIFORNIA SUPREME COURT
COMMITTEE ON JUDICIAL ETHICS OPINIONS
350 McAllister Street, Room 1144A
San Francisco, CA 94102
(855) 854-5366
www.JudicialEthicsOpinions.ca.gov
CJEO Oral Advice Summary 2016-019
[Issued December 9, 2016; Updated July 14, 2017]
ACCEPTING COMPENSATION FOR PERFORMING A MARRIAGE AFTER
JULY 10, 2017
Oral Advice Update: The oral advice summarized below has been superseded by a
subsequent amendment to Family Code section 400 that became effective July 10, 2017.
The most recent amendment eliminates the inconsistency with the Code of Judicial Ethics
and Penal Code section 94.5, discussed in the oral advice below, and reauthorizes judicial
officers in California to accept reasonable compensation for performing marriages on a
Saturday, Sunday, or legal holiday. Accordingly, the committee’s updated conclusion is
that after July 10, 2017, judges may again accept compensation for performing marriages
on the weekends or holidays.

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[Original Oral Advice Summary]
ACCEPTING COMPENSATION FOR PERFORMING A MARRIAGE AFTER
JANUARY 1, 2016
I. Question
May judges continue to accept compensation for performing marriages on weekends
and holidays?
II. Oral Advice Provided
Beginning in 2017, judicial officers will be prohibited by law from accepting
compensation for solemnizing a marriage. The Legislature recently amended Family
Code section 400 to expand the category of those who may perform marriages to include
former elected officials, and in doing so, prohibited acceptance of compensation by all
those authorized to perform such services. (Fam. Code, § 400, subds. (b)(1) & (2), (c).)
This amendment is effective January 1, 2017.
California judges have long been authorized by Family Code section 400 to
perform marriages; however, the amendment prohibiting acceptance of compensation is
new and conflicts with another statute and the California Code of Judicial Ethics when
applied to judicial officers. Canon 4H provides that judges “may receive compensation
and reimbursement of expenses as provided by law” for permitted extrajudicial activities.
Canon 4H(3) permits judges to accept “fees or other things of value received pursuant to Penal
Code section 94.5 for performance of a marriage.” Penal Code section 94.5, which was not
simultaneously amended by the Legislature, permits acceptance of a fee by judicial officers for
performance of a marriage on a Saturday, Sunday, or legal holiday. Thus, the newly enacted
Family Code prohibition on accepting fees is inconsistent with canon 4H and Penal Code
section 94.5, and with long-standing practices under those laws. (Com. on Jud. Performance,

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Annual Rep. (1992) advisory letter no. 11, p. 14 [judge disciplined for accepting a gift following
performance of a wedding on a weekday in violation of Pen. Code, § 94.5]; Rothman, Cal.
Judicial Conduct Handbook (2013 Supp.) appen. 13, p. 1 [judges may accept a fee for
performing a marriage Saturday, Sunday, or a legal holiday]; Cal. Judges Assn., Formal Opinion
No. 5 (1951) pp. 1-2 [acceptance by a judge of a gratuity for the performance of marriage does
not violate any constitutional provision or statute]; Cal. Judges Assn., Judicial Ethics Update
(1982) par. III.D., p. 4 [a judge may accept a gratuity for the performance of a marriage
ceremony on a Saturday, Sunday, or legal holiday].)
In the face of these inconsistencies, judicial officers must nonetheless comply with all
statutory law. (Cal. Code Jud. Ethics, canon 2 [a judge shall respect and comply with the law];
id., preamble [canons are to be applied in conformance with constitutional requirements,
statutes, other court rules, and decisional law]; id., terminology [“law” means constitutional
provisions, statutes, court rules, and decisional law].) Although the Family Code amendment
prohibits conduct expressly permitted by the California Code of Judicial Ethics and the Penal
Code, judges must comply with the Family Code until such time as it or other laws are
conformed.1 This means that beginning in 2017, judges may no longer accept compensation for
solemnizing a marriage while holding office.

This oral advice summary is advisory only (Cal. Rules of Court, rule 9.80(a), (e); Cal.
Com. Jud. Ethics Opns., Internal Operating Rules & Proc. (CJEO) rule 1(a), (b)). It is based on
1 The committee is authorized to provide ethics advice about whether specific judicial conduct
would violate the Code of Judicial Ethics or other statutes. (Cal. Rules of Court, rule 9.80 (e).)
It is not authorized to provide decisional law reconciling statutory inconsistencies, harmonizing
conflicting enactments, or interpreting intended application and enforcement. (See State Dept.
of Public Health v. Superior Court (2015) 60 Cal.4th 940, 960 [doctrines regarding judicial
interpretation of conflicting statutes hold that later enactments supersede earlier enactments,
except that more specific provisions take precedence over more general provisions regardless of
when enacted].)

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facts and issues, or topics of interest, presented to the California Supreme Court Committee on
Judicial Ethics Opinions in a request for an opinion (Cal. Rules of Court, rule 9.80(i)(3); CJEO
rules 2(f), 6(c)), or on subjects deemed appropriate by the committee (Cal. Rules of Court, rule
9.80(i)(1); CJEO rule 6(a)).