May a newly elected probate judge continue serving in an elected seat on a community college board?

Plain-English summary

The requester won an elected seat on a community college board of trustees for a four-year term in 2005, then won election as county probate judge in 2006 and took office in 2007. The question was whether both positions could be held at once. Source: Opinion 07-03, p. 1

The committee acknowledged that the Code exempts probate judges from the general restriction on appointments to other government positions, subject to other Code duties such as scheduling. It distinguished an elected trustee seat from an appointed government position. Rule 21-700(C) barred an incumbent judge from running for or being elected to nonjudicial public office, but did not directly address a nonjudicial elected official who later became a judge. Source: Opinion 07-03, p. 1

The committee read Rules 21-100 and 21-200(A), concerning judicial independence and impartiality, to preclude continuing a separate elected public office after taking judicial office. It described a judge's duty of undivided loyalty to judicial functions and concluded that the trustee must resign the elected board position. Source: Opinion 07-03, pp. 1–2

In practice

The opinion distinguishes a probate judge's ability to hold some other government employment from serving in another elected office. The decisive feature was the trustee position's elected character, even though the trustee election preceded the judicial election. Source: Opinion 07-03, pp. 1–2

Common questions

Q: Did the probate judge exemption permit the trustee seat?

A: The committee said the exemption concerned other government positions generally, while this inquiry involved two elected offices. It held the elected trustee seat incompatible with judicial office. Source: Opinion 07-03, pp. 1–2

Q: Did it matter that the trustee won the board election first?

A: No. The committee said simultaneous service was impermissible regardless of election order. Source: Opinion 07-03, p. 1

Q: What did the committee say the judge must do?

A: It concluded that the trustee must resign the college board seat upon election as probate judge. Source: Opinion 07-03, p. 2

Background and rules framework

The committee considered New Mexico Code of Judicial Conduct Rules 21-500(C)(2), 21-901(C)(1)(b), 21-500(H), and 21-700(C), then rested its holding on Rules 21-100 and 21-200(A)'s requirements of judicial independence and impartiality. Source: Opinion 07-03, pp. 1–2

Citations and references

• New Mexico Code of Judicial Conduct Rules 21-500(C)(2), 21-901(C)(1)(b), 21-500(H), 21-700(C), 21-200(A), and 21-100. Source: Opinion 07-03, pp. 1–2

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 07-03

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

February 8, 2007

Re: Judicial Advisory Opinion No. 07-03

Dear Judge,

You have asked the Advisory Committee on the Code of Judicial Conduct for an opinion concerning your continued service as an elected member of the Community College Board of Trustees after your recent election as probate judge. As the Committee understands your circumstances, you were elected to the Board of Trustees in February 2005 for a four-year term. You were elected as probate judge of County in November 2006 and assumed office on January 1, 2007. The Committee believes that the Code of Judicial Conduct does not permit you to hold the two positions simultaneously, regardless of the order of your elections.

We first note that as a probate judge, you are not subject to the prohibition of Rule 21- 500(C)(2) NMRA that a judge not accept appointment to a "governmental position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system or the administration of justice." See Rule 21-901(C)(1 )(b) NMRA. As a part- time probate judge, you may serve in such a position, provided that your service does not otherwise violate the Code, including Rule 21-500(H) pertaining to conflicts with the hours and duties of a judicial position.

Your inquiry, however, involves more than your service in two governmental positions; it involves two elected positions. Under Rule 21-700(C) NMRA, the Code partially addresses the circumstances of a judge holding dual elected offices. That rule, contained in the part of the Code concerned with elections and political activity, prohibits an incumbent judge from being nominated for, or elected to, a public non judicial office. Rule 21-700(C). It does not address the issue of whether an official already elected to non-judicial office may subsequently run in an election for, and be sworn in as, a judge. We see that situation as addressed in a different rule.

Every elected official, including a judge, is responsible to the citizens of the State of New Mexico. Among a judge's responsibilities is the duty of undivided loyalty to the independent and impartial performance of judicial functions. Rule 21-200(A) NMRA. ("A judge shall ... act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."). The Committee believes that it is a conflict of interest under the Code of Judicial Conduct for a judge to undertake or retain elective responsibilities different from or beyond those of his or her judicial responsibilities. The preservation of the independence of the judiciary is an essential element of the Code of Judicial Conduct. Rule 21- 100 NMRA ("A judge ... shall personally observe those standards so that the integrity and independence of the judiciary will be preserved.").

Rule 21-700(C) recognizes one aspect of this premise, by prohibiting a sitting judge from seeking non judicial elective office. We believe that Rules 21-100 and 21-200(A), embodying the independence of the judiciary, consider the other side of this issue and preclude a judge from continuing in an elected, public non judicial office after assuming a judicial position. We therefore express our opinion that an elected member of a community college board of trustees must resign that post upon election to the office of probate judge.

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