Must a New Mexico retention-election judge form a campaign committee when planning no spending, fundraising, or endorsements?

Plain-English summary

A judge facing a retention election did not intend to raise funds, spend personal funds, or run an organized campaign. The judge might attend and speak at public events when invited. The committee considered whether Rule 21-800(C) nonetheless required a campaign committee. Source: Opinion 10-03, p. 1

The committee explained that Rule 21-800(C) assigns committees the campaign work that could raise appearance concerns, including receiving and disbursing funds and soliciting public support. Although the rule's language was mandatory, the committee said it did not contemplate a committee where a retention-election judge undertook none of the campaign activities the rule addressed. Source: Opinion 10-03, pp. 1–2

It distinguished Opinion 10-02, where a candidate's plan to use personal funds for campaign expenses required committee management and disbursement. For the stated retention-election facts, the committee concluded no campaign committee was required. Source: Opinion 10-03, p. 2

In practice

The opinion's conclusion rests on the absence of spending, fundraising, endorsement solicitation, and other committee functions. The committee treated personal appearances to address voters, without the other described campaign activity, differently from a campaign with expenses. Source: Opinion 10-03, pp. 1–2

Common questions

Q: Did a retention-election judge need a committee for the stated no-campaign plan?

A: No. The committee said Rule 21-800(C) did not require one where the judge planned no activity for the committee to conduct. Source: Opinion 10-03, p. 2

Q: Could the judge still speak at public events when invited?

A: The request contemplated that limited activity, and the committee said personally addressing voters, in a manner permitted by law and the Code, did not itself create a committee function on the stated facts. Source: Opinion 10-03, pp. 1–2

Q: Why did Opinion 10-02 reach a different result?

A: The candidates in that opinion planned to use and disburse their own funds for campaign expenses, a function Rule 21-800(C) assigned to a committee. Source: Opinion 10-03, p. 2

Background and rules framework

The committee applied New Mexico Code of Judicial Conduct Rule 21-800(C) to a retention election without planned committee-managed activity. Its reasoning contrasted the rule's mandatory wording with its purpose of assigning potentially sensitive campaign work to a separate committee. Source: Opinion 10-03, pp. 1–2

Citations and references

New Mexico Code of Judicial Conduct:

• Rule 21-800(C). Source: Opinion 10-03

Other opinions cited:

• Advisory Opinion No. 10-02, distinguished because the candidate planned to pay campaign expenses with personal funds. Source: Opinion 10-03, p. 2

See also

• NM Judicial Ethics Op. 10-02: Self-Funded Campaigns
• NM Judicial Ethics Op. 11-04: Bar and Police Endorsements

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 10-03

Original opinion text

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

March 15, 2010

Dear XXXXXXXX

Re: Judicial Advisory Opinion No. 10-03

You have asked the Committee on the Code of Judicial Conduct for its opinion as to whether the Code of Judicial Conduct requires you to form a campaign committee in connection with your retention election if you do not intend to raise or expend any funds in the campaign. Not only do you not intend to raise funds, you also do not intend to expend any of your own. The only campaign activity that you might perform would be attending and speaking at public events when you are invited to do so.

The Code addresses campaign committees in Rule 21-800(C), which reads:

Candidates in both partisan and retention elections shall establish committees of one or more responsible persons to conduct campaigns for the candidate using media advertisements, brochures, mailings, candidate forums and other means not prohibited by law or these rules.
Campaign committees may solicit and accept reasonable campaign contributions, and obtain public statements of support in behalf of the candidate, subject to the restrictions of these rules. All campaign contributions shall be paid or turned over to the campaign committee, and shall be managed and disbursed by the committee. A candidate shall not use or permit the use of campaign contributions for the private benefit of the candidate or others.

The general intent of Rule 21-800(C) is to insulate a judicial candidate from engaging in the type of campaign activity that would give rise to an appearance of impropriety. The rule fulfills this purpose by requiring a judicial candidate to establish a campaign committee to assume responsibility for the conduct of campaign activities. It specifically provides that a campaign committee, rather than the judicial candidate, be responsible for receiving, managing, and disbursing funds, and also for soliciting public statements on behalf of the judicial candidate.

Although the language of Rule 21.800(C) is mandatory, requiring a judge in a retention election to form a campaign committee, the Committee believes that the rule does not contemplate the need for a campaign committee when a judge in a retention election does not intend to conduct a campaign as addressed in the rule. Indeed, if a judge in a retention election does not intend to raise funds, expend funds, solicit public endorsements, or engage in activity other than personally addressing voters in a manner not prohibited by law or the Code, there would not be any function for a campaign committee.

The Committee has recently issued an advisory opinion expressing the view that a judge in a partisan election must form a campaign committee under the Code even if the judge does not intend to raise funds because the judge intended to use the judge's own funds to support campaign expenses. See Advisory Opinion No. 10-02, a redacted version of which is attached hereto. We stated in that opinion that the mandatory language of Rule 21-800(C) required a judge in that situation to form a campaign committee because of the intent to use and disburse funds in the campaign. We would expect, as does Rule 21-800(C), that a judicial candidate who has or anticipates opposition in a partisan campaign would need to engage in campaign activity that necessitates forming a campaign committee. On the other hand, a judge in a retention election may elect to refrain from the campaign activity contemplated by Rule 21-800(C). The Committee believes that in such circumstances Rule 21-800(C) does not require the judge to form a campaign committee.

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