May a retired magistrate serving part time as a pro tempore judge also serve as an alternate municipal judge?

Plain-English summary

The inquiry concerned a retired magistrate serving as a pro tempore judge who also wished to be an alternate municipal judge. The committee read Rule 21-500(I)'s ban on holding another judicial position as expressly directed to full-time judges. It reasoned that the listed full-time positions excluded part-time judges from that prohibition. Source: Opinion 11-01, p. 1

Rule 21-500(H) separately barred another paid position that conflicts with the hours or duties of a judicial position and barred simultaneous compensated work. The committee said this subsection also did not prohibit a part-time judge from holding two judicial roles. Source: Opinion 11-01, pp. 1–2

The committee therefore permitted the two proposed roles together, subject to the concrete condition that the municipal position not conflict with pro tempore magistrate hours or duties. Source: Opinion 11-01, p. 2

In practice

The opinion distinguished the full-time restriction in Rule 21-500(I) from Rule 21-500(H)'s rule against conflicting hours and duties. Its permission for dual part-time service depended on satisfying the latter condition. Source: Opinion 11-01, pp. 1–2

Common questions

Q: Does Rule 21-500(I) bar this part-time judge from another judgeship?

A: The committee said no because the subsection's prohibition names full-time judges. Source: Opinion 11-01, p. 1

Q: What condition applies to the two positions?

A: The alternate municipal role could not conflict with the hours or duties of the part-time pro tempore magistrate position. Source: Opinion 11-01, p. 2

Q: May the judge perform paid duties for both roles at once?

A: No. The Rule 21-500(H) passage quoted in the opinion bars simultaneous paid employment or compensable activity hours. Source: Opinion 11-01, pp. 1–2

Background and rules framework

The committee applied Code of Judicial Conduct Rule 21-500(H) and (I). To explain its reading of the full-time limitation, it cited New Mexico cases discussing expressio unius and construction of Supreme Court rules. Source: Opinion 11-01, p. 1

Citations and references

New Mexico Code of Judicial Conduct:

• Rule 21-500(H) and (I). Source: Opinion 11-01

Cases:

• Vives v. Verzino, 2009-NMCA-083, ¶ 17, 146 N.M. 673, 213 P.3d 823, on expressio unius. Source: Opinion 11-01, p. 1
• H-B-S P'ship v. Aircoa Hospitality Servs., Inc., 2008-NMCA-013, ¶ 10, 143 N.M. 404, 176 P.3d 1136, on construction of a Supreme Court rule. Source: Opinion 11-01, p. 1

See also

• NM Judicial Ethics Op. 12-10: Probate Judge's Other Work
• NM Judicial Ethics Op. 18-02: Part-time Judge's Legal Work

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 11-01

Original opinion text

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

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Advisory Committee on the Code of Judicial Conduct

Hon. James J. Wechsler, Chair
Hon. Kevin L. Fitzwater

Paul L. Biderman, Esq.

Prof. Robert L. Schwartz
Hon. Freddie J. Romero

February 9, 2011

Re: Judicial Advisory Opinion No. 11-01
Dear XXX

You have asked the Advisory Committee on the Code of Judicial Conduct for an opinion as to whether a retired magistrate judge, who currently serves on a pro- tempore basis, may also hold the position of alternate municipal court judge.

The Code of Judicial Conduct addresses multiple activities of a judge in Rule 21-500 NMRA. Rule 21-500(I) states that “[n]o full-time municipal, magistrate, metropolitan, district or appellate judge may hold any other judicial position, elected or appointed." By its specific language, it does not pertain to part-time judges. As a matter of construction of the rule, we read the inclusion of only full-time judges in the rule to imply the exclusion of part-time judges. See Vives v. Verzino, 2009- NMCA-083, ¶ 17, 146 N.M. 673, 213 P.3d 823 (applying the doctrine of expressio unius est exclusion alterius-"the expression or inclusion of one thing indicates exclusion of the other”); H-B-S P'ship v. Aircoa Hospitality Servs., Inc., 2008-NMCA- 013, ¶ 10, 143 N.M. 404, 176 P.3d 1136 (applying rules of statutory construction to a Supreme Court rule).

Rule 21-500(H) provides

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.

Rule 21-500(H) also does not prohibit part-time judges from acting in dual judicial capacities. Moreover, in the first sentence, it implies that a part-time judge may do so, by stating that a judge may not hold a paid, judicial position, if it conflicts with “every” judicial position of the judge.

Thus, the Committee reads these two provisions to allow a retired magistrate judge to act both as a magistrate pro tempore on a part time basis and as an alternate municipal judge. However, as stated in Rule 21-500(H), a retired magistrate may not also act as an alternate municipal judge if there would be any conflict with the hours or duties relating to the judge's service as a magistrate pro tempore.

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