Must a judge recuse from sheriff's department cases when the judge's son-in-law is a sergeant supervising four deputies?

Plain-English summary

A judge's son-in-law served as one of four sergeants in the county sheriff's department and directly supervised four deputies. The judge asked whether cases involving that department were disqualified. Source: Opinion 10-07, p. 1

The committee applied Rule 21-400(A)'s impartiality and family-interest provisions. It required recusal from cases in which the son-in-law or one of his supervised deputies participated in any manner. The sergeant's limited supervisory role did not require recusal from every other sheriff's department case, unlike the broader command role addressed in Opinion 09-04. Source: Opinion 10-07, pp. 1–2

For other department cases, the committee said a particular recusal request could still raise a sufficient question about impartiality. It also described Rule 21-400(C)'s procedure for recorded disclosure and waiver by the parties and lawyers, observing that waiver generally required represented parties and would likely be rare. Source: Opinion 10-07, p. 2

In practice

The opinion distinguishes direct participation by the relative or deputies he supervised from other cases involving the same department. It leaves room for recusal in an otherwise unaffected case if its particular circumstances reasonably call impartiality into question. Source: Opinion 10-07, p. 2

Common questions

Q: When was recusal required because of the son-in-law?

A: When he or any of his supervised deputies participated in the case in any manner. Source: Opinion 10-07, p. 2

Q: Did the sergeant's position disqualify the judge from every sheriff's department case?

A: No. The committee distinguished his limited supervision from the district-wide command responsibility in Opinion 09-04, while cautioning that an individual case might still warrant recusal. Source: Opinion 10-07, pp. 1–2

Q: Could the parties waive disqualification?

A: Rule 21-400(C) allowed that possibility after on-record disclosure and agreement made outside the judge's presence and then entered in the record. The committee said waiver generally was available only when a waiving party had counsel. Source: Opinion 10-07, p. 2

Background and rules framework

The committee read Rules 21-400(A), 21-400(A)(5)(c), and 21-400(C) together with its prior Opinion 09-04 concerning a judge whose spouse had wider State Police responsibility. It treated the relative's actual supervisory reach as central to the difference. Source: Opinion 10-07, pp. 1–2

Citations and references

New Mexico Code of Judicial Conduct:

• Rules 21-400(A), 21-400(A)(5)(c), and 21-400(C). Source: Opinion 10-07, pp. 1–2

Other opinions cited:

• Advisory Opinion No. 09-04, involving a judge's spouse with broader State Police responsibilities. Source: Opinion 10-07, p. 1

See also

• NM Judicial Ethics Op. 11-02: Police Spouse Recusal
• NM Judicial Ethics Op. 18-01: Endorsement and Recusal

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 10-07

Original opinion text

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

July 19, 2010

Re: Judicial Advisory Opinion No. 10-07
Dear XXXXXX
You have asked the Advisory Committee on the Code of Judicial Conduct for an advisory opinion as to whether you may handle cases involving the Sheriffs Department in your county because your son-in-law serves as a sergeant in the department. You have explained that he is one of four sergeants and has direct supervisory responsibilities for four deputies. He does not have other supervisory responsibility.

The Committee has issued a recent opinion, Advisory Opinion No. 09-04, concerning a judge's disqualification when her husband serves as a New Mexico State Police Captain in the district served by the judge's court. In that opinion, we concluded that the judge was disqualified and needed to recuse in all cases involving the state police because the judge's impartiality might reasonably be questioned because of her husband's "overall responsibility for the district's operational and administrative functions." We have attached a copy of Advisory Opinion No. 09-04 to this opinion.

As we discussed in Advisory Opinion No. 09-04, the applicable rules to your inquiry are Rule 21-400(A) and (C) NMRA. Under Rule 21-400(A), "[a] judge is disqualified and shall recuse himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." Rule 21-400(A) also provides that a judge must recuse if the judge knows that a person within the third degree of relationship, or the spouse of such person, has "more than [a] de minimis interest that [can] be substantially affected by the proceeding." Rule 21-400(A)(5)(c). Your son-in-law falls within this class of persons. See Rule 21--400(D)(3) (including "daughter" within definition of "third degree of relationship"). The Committee believes that under both of these provisions you would be disqualified, and must recuse, from cases in which your son-in-law or any of his deputies has participated in any manner. Unlike the circumstances discussed in Advisory Opinion No. 09-04, however, you would not need to recuse in other cases involving the Sheriffs Department, even though your son-in-law is an officer in the department, because he does not have administrative responsibility other than for the deputies under his supervision. Even in those remaining cases, you should be sensitive to requests that you recuse yourself because your son-in-law is an officer in the Sheriff's Department. To some people, your son-in-law's position may raise a question of your impartiality with regard to the department and its officers that would be sufficient for you to recuse in that particular case.

In addition, as we discussed in Advisory Opinion No. 09-04, under Rule 21-400(C), you may participate in a case involving your son-in-law or the deputies under his supervision if you disclose on the record the basis for your disqualification and allow the parties and their lawyers to consider, outside of your presence, whether they agree to waive your disqualification and proceed before you. You must make the agreement a part of the record of the case. Rule 21-400(C). As we pointed out in Advisory Opinion 09-04, this waiver of disqualification is generally an option only when a waiving party is represented by counsel. Such waivers are likely to be very rare.

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