May a magistrate judicial campaign accept offered endorsements from a county bar association and a police union?

Plain-English summary

A magistrate judge running for election was offered endorsements by a county bar association and police union without asking for them. The judge asked whether the campaign could accept that support. Source: Opinion 11-04, p. 1

The committee read Rule 21-800(C), then in effect, to allow a judicial candidate's campaign committee generally to obtain public statements of support from community organizations, subject to other Code restrictions. It noted similar provisions in the revised Code adopted for January 1, 2012, including Rule 21-402(A)(3)(c)'s permission to seek, accept, or use endorsements. Source: Opinion 11-04, pp. 1–2

The committee also discussed Republican Party of Minnesota v. White in relation to restrictions on campaign speech. On the stated facts, it concluded that the campaign committee could receive the offered endorsements. Source: Opinion 11-04, p. 2

In practice

The opinion addressed organizational endorsements that the candidate had not solicited. Its conclusion was framed as the campaign committee's ability to receive them under the Code provisions discussed. Source: Opinion 11-04, pp. 1–2

Common questions

Q: Could the campaign committee receive the offered endorsements?

A: Yes. The committee concluded the county bar and police union endorsements could be received. Source: Opinion 11-04, p. 2

Q: Did the candidate need to seek the endorsements?

A: The request described organizations that offered endorsements without solicitation; the committee's answer permitted receipt on those facts. Source: Opinion 11-04, pp. 1–2

Q: Which Code version did the committee discuss?

A: It cited Rule 21-800(C) then in force and the revised Rules 21-402 and 21-404 scheduled to take effect January 1, 2012. Source: Opinion 11-04, pp. 1–2

Background and rules framework

The opinion compared the 2011 endorsement rule with the recently adopted 2012 Code and cited the Supreme Court's decision in White concerning a restriction on judicial campaign speech. The revised commentary mentioned solicitation of attorney endorsements by campaign committees and recommended that candidates not learn individual attorney supporters' identities. Source: Opinion 11-04, pp. 1–2

Citations and references

New Mexico Code of Judicial Conduct:

• Rule 21-800(C); revised Rules 21-402(A)(3)(c), 21-404(A), and Comment 17 to Rule 21-402(A)(1). Source: Opinion 11-04

Cases:

• Republican Party of Minnesota v. White, 536 U.S. 765 (2002), on a judicial candidate's speech about disputed issues. Source: Opinion 11-04, p. 2

See also

• NM Judicial Ethics Op. 12-03: Attorney Endorsements
• NM Judicial Ethics Op. 12-08: Optional Campaign Contributions

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 11-04

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.

December 20, 2011

You have asked the Committee on the Code of Judicial Conduct for an opinion as to whether you may, under the Code of Judicial Conduct, receive the endorsements of the County Bar Association and the Police Union in support of your campaign to be elected to your position of magistrate judge. Although you have not sought the endorsements, these organizations have offered to endorse your election.

The Code addresses campaign endorsements in Rule 21-800(C) NMRA. It requires a candidate for judicial office to establish a campaign committee “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” the Code. Rule 21-800(C) authorizes campaign committees to “obtain public statements of support in behalf of the candidate, subject to the restrictions of” the Code. Thus, as a general rule, your campaign committee may obtain endorsements of community organizations in support of your election.

The revised Code of Judicial Conduct, recently adopted by the New Mexico Supreme Court to take effect January 1, 2012, has similar provisions. Rule 21-402(A)(3)(c) will allow candidates to “seek, accept, or use endorsements from any person or organization.” Rule 21-404(A) NMRA 2012 permits campaign committees to “obtain public statements of support on behalf of the candidate, subject to the restrictions of” the rules. The commentary to Rule 21- 402(A)(1) NMRA 2012, ¶ 17, also allows campaign committees to solicit endorsements of support, including from attorneys and further provides that the judicial candidate “should not be informed about the identity of individual attorney supporters.” Although, under Rule 21-800(C) and the revised Rule 21-404, the actions of your campaign committee may be subject to other provisions of the Code, with regard to your campaign speech, the Committee believes that Republican Party of Minnesota v. White, 536 U.S. 765 (2002), limits the Code’s restrictions. In White, the United States Supreme Court held that a clause in the Minnesota canons of judicial conduct that prohibited a judicial candidate from announcing views on disputed legal or political issues violated the First Amendment of the United States Constitution. Id. at 788. It noted that the Court had “never allowed the government to prohibit candidates from communicating relevant information to voters during an election.” Id. at 782.

Based on Rule 21-800(C) (and revised Rule 21-404) and White, the Committee believes that your campaign committee may receive the endorsements.

Very truly yours,

James J. Wechsler
Chair

JJW:ow

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