May a full-time New Mexico probate judge accept appointment to the U.S.–Mexico Border Health Commission?

Plain-English summary

A full-time probate judge asked whether judicial service could be combined with an appointed seat on the United States /Mexico Border Health Commission. The committee treated the question as one expressly addressed by the Code of Judicial Conduct. Source: Opinion 10-01, p. 1

Rule 21-500(C)(2) generally prohibited judges from accepting governmental committee or commission appointments concerned with matters other than improvement of the law, legal system, or administration of justice. The committee said the described commission's work appeared to fall within that prohibition. Source: Opinion 10-01, p. 1

Rule 21-901(C)(1)(b), however, excepted probate judges from Rule 21-500(C)(2). The committee therefore advised that this judge could accept the appointment. Source: Opinion 10-01, p. 1

In practice

The opinion turns on the requester's status as a probate judge. The committee applied the probate-judge exception even though it viewed the commission's work as within the general restriction. Source: Opinion 10-01, p. 1

Common questions

Q: Could the probate judge serve on the Border Health Commission?

A: Yes. The committee advised that the judge could accept the appointment under the Code's exception for probate judges. Source: Opinion 10-01, p. 1

Q: Would the governmental-commission restriction otherwise cover this role?

A: The committee said the commission's activities appeared to fall within Rule 21-500(C)(2)'s general prohibition. Source: Opinion 10-01, p. 1

Q: Which provision made the difference for the probate judge?

A: Rule 21-901(C)(1)(b) excepted probate judges from Rule 21-500(C)(2). Source: Opinion 10-01, p. 1

Background and rules framework

The committee read the New Mexico Code of Judicial Conduct's restriction on governmental service together with its separate exception for probate judges. Source: Opinion 10-01, p. 1

Citations and references

New Mexico Code of Judicial Conduct:

• Rules 21-500, 21-500(C)(2), and 21-901(C)(1)(b). Source: Opinion 10-01

See also

• NM Judicial Ethics Op. 12-10: Probate Judge Outside Service
• NM Judicial Ethics Op. 15-01: Youth Development Task Force

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 10-01

Original opinion text

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

February 17, 2010

Dear XXXXXXXXX

Re: Judicial Advisory Opinion No. 10-01

You have asked the Advisory Committee on the Code of Judicial Conduct whether the Code of Judicial Conduct permits you to serve as an appointed member of the United States /Mexico Border Health Commission during your service as a full-time probate judge. Your inquiry is specifically addressed in the Code.

Rule 21-500 NMRA pertains to a judge's extra judicial activities. Generally, under Rule 21-500(C)(2), a judge "shall not accept appointment to a governmental committee or commission or other 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." It would appear that the activities of the commission you discuss would fall within this prohibition. However, the Code excepts probate judges from the prohibition of Rule 21-500(C)(2); Rule 21-901(C)(1)(b) NMRA.

The Committee therefore advises that you may accept appointment to the commission.
Very truly yours,

James J. Wechsler
Chair
JJW:ow

cc: Hon. Kevin L. Fitzwater
Hon. Freddie J. Romero
Paul L. Biderman, IPL Director
Professor Robert L. Schwartz