May a part-time probate judge also serve as a city's chief of police?

Plain-English summary

A part-time probate judge asked about accepting a municipal police chief position. The judge handled only uncontested probate proceedings in a county with limited case activity. The committee distinguished an earlier opinion about a municipal judge with criminal jurisdiction taking a law enforcement job; this probate court did not handle criminal cases or generally hear civil cases involving the city. Source: Opinion 07-02, p. 1

The Code generally limited judges' government appointments, but the committee identified an exemption for probate judges under Rule 21-901(C)(1)(b). Rule 21-500(H) still required enough time for probate duties and barred simultaneous performance of judicial and other paid work. The committee relied on minimal probate activity and the judge's ability to arrange separate police shifts; it also stressed regular, predictable judicial availability. Source: Opinion 07-02, pp. 1–2

If the city had a claim against an estate, the judge's role as police chief could create a conflict. The committee said recusal would be required if the claim materially affected the police department's financial viability. Rare or uncontested claims, or a minimal effect on the chief's administrative role, would not require recusal. Repeated conflicts requiring repeated recusals would indicate that the judge should choose between the two roles. Source: Opinion 07-02, p. 2

In practice

The opinion's permission rests on the limited probate jurisdiction and low case volume, separate work hours, and the absence of recurring city claims that prevent the judge from carrying out judicial duties. The committee left the judge to assess whether probate work would interfere with police chief duties, including emergency response. Source: Opinion 07-02, pp. 1–2

Common questions

Q: Did the committee treat this like a municipal judge hearing criminal cases while working in law enforcement?

A: No. It distinguished Opinion 95-01 because the part-time probate judge had only uncontested probate jurisdiction and did not hear criminal cases. Source: Opinion 07-02, p. 1

Q: Could the judge perform probate and police duties at the same time?

A: No. Rule 21-500(H) required separate time for judicial duties and barred simultaneous other paid work. Source: Opinion 07-02, pp. 1–2

Q: When might city claims against an estate require recusal?

A: The committee identified recusal if a city's claim materially affected the police department's financial viability; rare, uncontested, or minimal-impact claims did not by themselves require it. Source: Opinion 07-02, p. 2

Background and rules framework

The committee applied the New Mexico Code of Judicial Conduct's probate-judge exemption from the limit on other government positions, its rule separating compensated activities from judicial work, and its recusal provisions. It also discussed Rule 21-500(D)'s concern about frequent financial conflicts while acknowledging that the business-dealings provision did not strictly address public service. Source: Opinion 07-02, pp. 1–2

Citations and references

• New Mexico Code of Judicial Conduct Rules 21-001, 21-901(C), 21-901(C)(1)(b), 21-500(C)(2), 21-500(H), 21-400(A)(3) and (5), and 21-500(D)(1)(b). Source: Opinion 07-02, pp. 1–2
• Judicial Advisory Opinion 95-01, distinguished by the committee. Source: Opinion 07-02, p. 1

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 07-02

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Committee on the Code of Judicial Conduct

Hon. James J. Wechsler, Chair
Hon. Marie A Baca
Hon. Kevin L. Fitzwater
Paul L. Biderman, Esq.
Prof. Robert L. Schwartz
January 23, 2007

Re: Judicial Advisory Opinion No. 07-02

Dear Judge,

You have asked the Advisory Committee on the Code of Judicial Conduct for advice on whether you can accept a position as a municipal chief of police, while simultaneously serving as a part-time probate judge. The Committee believes that, so long as certain conditions are satisfied, your service in both positions will not violate the Code of Judicial Conduct, Rule 21- 001 NMRA.

Our opinion relies on the fact that your judicial service is that of a part-time probate judge, with jurisdiction solely over uncontested probate proceedings, and in a county with limited case activity. The Code contemplates that a probate judge may hold other employment. Rule 21-901(C) NMRA. Since your jurisdiction as a probate judge does not encompass criminal cases or civil cases generally involving the city you will serve, there is no inherent conflict with your service in a law enforcement capacity. In this respect, we distinguish your situation from that of a municipal judge having jurisdiction over criminal cases and taking a job in law enforcement, as in Judicial Advisory Opinion No. 95-01. Of course, you must avoid any conflict if particular circumstances give rise to one.

The Code of Judicial Conduct generally limits the ability of judges to accept appointment to other governmental positions in Rule 21-500(C)(2) NMRA, but probate judges are exempted from that limitation by Rule 21-901(C) (1) (b). There are, however, other general provisions that you must consider to ensure that your holding of both positions complies with the ethical requirements of the Code.

First, we call to your attention the requirements of Rule 21-500(H):

Conflicting compensated activities. A judge shall not hold any other paid position, judicial or otherwise, that conflicts with the hours and duties the judge is required to perform for every judicial position. A judge shall devote the number of hours that is required by any judicial position held. In no event shall other paid employment or compensable activity hours be performed simultaneously.
(Emphasis added.)

Under this provision, should you accept the position of chief of police, you could only do so on condition that you set aside sufficient time to maintain the necessary office hours for your service as probate judge. In this regard, the Committee relies on your advice that the probate case activity in your county is minimal, enabling you to arrange your shifts and work as police chief to allow you to perform your duties as probate judge separate from any other responsibilities. Nevertheless, the Committee strongly suggests that a judge needs to maintain regular and predictable hours to ensure that the public is aware of the judge's availability. Additionally, as stated in Rule 21-500(H), your services as probate judge cannot be performed simultaneously with your work as chief of police. You would have to assess whether this requirement might interfere with your ability to perform your responsibilities as chief of police, including your ability to respond to emergency situations.

Another general provision of the Code that you should consider would determine whether your interest as head of the city police force might put you in conflict with your adjudication of debts owed by an estate. You might find that the city that you work for has claims against some of the estates that you are called upon to adjudicate. If the financial viability of your department would be materially affected by such claims, you would be placed in a conflict situation requiring you to recuse from the case under Rule 21-400(A)(3), (5) NMRA. Were such claims rare or uncontested, or their impact on your administrative role as police chief de minimis, you would not be required to recuse yourself. But if such claims were to arise with sufficient frequency in your court to require repeated recusal, that circumstance would indicate that you should choose between your judicial and law enforcement duties.

We note in this regard the constraint of Rule 21-500(D):

(1) A judge shall not engage in financial and business dealings that:

….

(b) involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves.

While this provision does not strictly contemplate public service, we believe that the message is clear: a judge may not put himself or herself in a situation in which the judge's financial interest so frequently comes into conflict with judicial duties that the judge cannot fulfill the obligations of the judicial position.

Apart from these general constraints and subject to your assessment as to your ability to perform your responsibilities as chief of police without interference due to your probate judge responsibilities, we do not see that your acceptance of the position of chief of police for your city while serving as part-time probate judge for your county would violate the Code of Judicial Conduct. Very truly yours,

James J. Wechsler
Chair

JJW:ow

cc: Hon. Marie Baca
Hon. Kevin Fitzwater
Paul L. Biderman, IPL Director
Professor Robert L. Schwartz