Does a federal law protecting military reservists' jobs override a state rule barring judges from practicing law while serving as a National Guard legal officer?

Plain-English summary

A sitting judge on the Circuit Court for Baltimore County, who also served in the Maryland Army National Guard, asked the Attorney General whether a federal law protecting reservists' civilian jobs preempted the Maryland Judicial Ethics Committee's conclusion that serving as a Staff Judge Advocate or military judge in the National Guard would violate Canon 4 of the Code of Judicial Conduct's ban on judges practicing law. The Committee had already ruled, in letters to the judge in 1995, that this military legal role would constitute the practice of law and was therefore off-limits.

The opinion concluded that the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) does not preempt the Code of Judicial Conduct. USERRA bars employers, including state governments, from denying "rights and benefits" of employment because of an employee's military service, but the opinion found the rights USERRA protects are things like pay, seniority, and leave that arise from the employment relationship itself, not a general exemption from professional or ethical rules that apply to every judge equally. Since the Code of Judicial Conduct does not single out reservists for different treatment (every circuit court judge is equally barred from practicing law regardless of military service), and since Congress did not clearly state an intent to override a state's constitutional authority to regulate judicial conduct, the opinion concluded there was no conflict requiring preemption. It expressly declined to weigh in on whether the Staff Judge Advocate role actually constitutes the practice of law, since that determination belongs to the Judicial Ethics Committee, not the Attorney General.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, statutory citation, or preemption conclusion mentioned here.

Common questions

Does federal law protecting reservists' jobs let a judge get around state judicial ethics rules while serving in the National Guard?
No, according to this opinion. It concluded USERRA only protects employment-related rights and benefits, like pay, seniority, and leave, that arise from the employment relationship, not a broader exemption from ethical or professional conduct rules that apply equally to every judge, reservist or not.

Did the Attorney General decide whether being a Staff Judge Advocate counts as practicing law?
No. The opinion expressly declined to reach that question, explaining that interpreting the Code of Judicial Conduct and Canon 4's ban on the practice of law is entrusted to the Judicial Ethics Committee, not the Attorney General. This opinion addressed only whether USERRA preempts whatever the Committee had already concluded.

Can Congress override a state's power to regulate its own judges without saying so clearly?
No, according to this opinion. It applied the settled rule that when Congress legislates in an area traditionally reserved to the states, such as qualifications and conduct of judges, its intent to preempt state authority must be clear and manifest in the statute's language, and the opinion found no such clear intent in USERRA.

Background and statutory framework

Maryland's Court of Appeals derives its authority to regulate judicial conduct from Article IV, §18(a) of the Maryland Constitution, which lets the Court issue rules governing judges' conduct with the force of law; it exercised that power by adopting the Code of Judicial Conduct as Maryland Rule 16-813, with violations subject to discipline through the Commission on Judicial Disabilities under Maryland Rule 16-803(g) and Article IV, §4B(b). A 1990 amendment to Article 33 of the Declaration of Rights allowed judges to serve in the National Guard or armed forces reserves, a change from the prior constitutional bar on judges holding any other civil or military office, but the opinion noted neither that amendment's text nor its legislative history addressed whether judges could also serve as military legal advisers consistent with judicial ethics rules.

The opinion applied USERRA's employment nondiscrimination and preemption provisions, particularly 38 U.S.C. §4311 (barring adverse employment action based on military membership) and §4302(b) (preempting state law that reduces USERRA-protected rights or benefits), against the backdrop of Tenth Amendment federalism principles from Sugarman v. Dougall and Atascadero State Hospital v. Scanlon requiring a clear and manifest congressional intent before finding federal preemption of a state's historic power to regulate matters like judicial qualifications, and Gregory v. Ashcroft's related refusal to read federal employment statutes to reach state judges absent explicit congressional inclusion.

Citations and references

Statutes:
- Maryland Declaration of Rights, Article 33, permitting judges to serve in the National Guard or armed forces reserves
- Maryland Constitution, Article IV, §18(a), the Court of Appeals' rulemaking power over judicial conduct
- Maryland Constitution, Article IV, §4B(b), judicial discipline procedure
- Maryland Rule 16-813, adopting the Code of Judicial Conduct
- Maryland Rule 16-803(g), Commission on Judicial Disabilities procedure
- 38 U.S.C. §4301, USERRA's statement of purpose
- 38 U.S.C. §4311(a) and (c)(1), USERRA's ban on employment discrimination based on military service
- 38 U.S.C. §4303(16), defining protected National Guard service
- 38 U.S.C. §4303(2), defining "rights and benefits" protected by USERRA
- 38 U.S.C. §4303(4)(A)(iii), applying USERRA to state employers
- 38 U.S.C. §4302(b), USERRA's preemption of conflicting state law
- Business Occupations & Professions Article, §10-101, defining the practice of law to include giving legal advice
- Annotated Code of Maryland, Article 65, §32A, Maryland's own statute protecting National Guard members' employment status

Cases:
- In re Diener and Broccolino, 268 Md. 659, 670, 304 A.2d 587 (1973), on the Court of Appeals' fundamental power to regulate judicial conduct
- Maryland State Bar Ass'n v. Boone, 255 Md. 420, 429-32, 258 A.2d 438 (1969), on regulation of the practice of law as a fundamental judicial power
- In the Matter of Application of Mark W., 303 Md. 1, 491 A.2d 576 (1985), on divided authority over whether military legal work counts as the practice of law
- Monroe v. Standard Oil Co., 452 U.S. 549, 554-57 (1981), on the history of federal reemployment rights statutes for veterans
- Alabama Power Co. v. Davis, 431 U.S. 581, 594 (1977), on employment pension rights protected by reemployment statutes
- Palmarozzo v. Coca-Cola Bottling Co. of New York, Inc., 490 F.2d 586, 591 (2d Cir. 1973), on protected employment seniority rights
- Peel v. Florida Department of Transportation, 600 F.2d 1070 (5th Cir. 1979), on reinstatement and lost wages as protected benefits
- Rumsey v. New York State Dept. of Correctional Services, 19 F.3d 83, 90 (2d Cir. 1994), holding reservist protection statutes do not create special privileges beyond coworkers
- Sugarman v. Dougall, 413 U.S. 634, 647 (1973), on state authority over qualifications for offices at the heart of representative government
- Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985), requiring unmistakably clear congressional intent to preempt state authority
- Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947), requiring clear and manifest congressional intent to preempt historic state powers
- Thomsen v. Department of the Treasury, 169 F.3d 1378, 1381 (Fed. Cir. 1999), on benefits arising from the employment relationship
- Gregory v. Ashcroft, 501 U.S. 452, 467 (1991), declining to read a federal employment statute to cover state judges absent clear inclusion

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1999/84oag91.pdf

Original opinion text

Gen. 91] 91

C OURTS AND J UDGES – M ILITARY S ERVICE – C ONSTITUTIONAL
L AW – P REEMPTION – S TATE CODE OF JUDICIAL CONDUCT
NOT PREEMPTED B Y F EDERAL S TATUTE E STABLISHING
E MPLOYMENT R IGHTS FOR R ESERVISTS

                        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
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
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).

  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 predecessor statutes that 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
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,
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. Coca-
Cola 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
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
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

[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 Senate Judicial 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 - (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,
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
an 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).

[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.