May a judicial candidate learn which attorneys endorsed the campaign committee?

Plain-English summary

A judicial candidate asked what “should” means in Comment 17 to Rule 21-402 and how a candidate could avoid knowing the identities of attorney supporters when attorneys often participate visibly in campaigns. The comment allows campaign committees to solicit endorsements but says candidates should not be informed of individual attorney supporters. Source: Opinion 12-03, pp. 1–2

The committee distinguished enforceable rules from comments, which the Code's Scope describes as aspirational and not independently binding. It interpreted Comment 17 to mean that the campaign committee should not tell the candidate which attorneys it obtained endorsements from. The committee also suggested that striving beyond the rule could include declining to review names in an endorsement advertisement. Source: Opinion 12-03, pp. 2–4

The committee acknowledged that judges may nonetheless learn of attorney support through other campaign activity. If that knowledge creates personal bias concerning an attorney that might reasonably affect impartiality, the judge must disqualify from a proceeding involving the attorney under Rule 21-211(A)(1). Source: Opinion 12-03, pp. 3–4

In practice

The opinion separates the committee's interpretation of an aspirational endorsement comment from the rule barring disclosure of campaign-fund sources to the candidate. It also identifies a case-specific disqualification consequence if known attorney support produces personal bias. Source: Opinion 12-03, pp. 2–4

Common questions

Q: Who may solicit attorney endorsements?

A: Comment 17 permits the campaign committee, not the judicial candidate, to solicit endorsements. Source: Opinion 12-03, pp. 1, 3

Q: Are Code comments enforceable rules?

A: No. The committee said the comments identify aspirational goals and do not themselves add binding obligations. Source: Opinion 12-03, p. 2

Q: What if a judge learns an attorney supported the campaign?

A: The opinion recognizes that some knowledge is unavoidable. It calls for disqualification if the judge believes that knowledge created personal bias that might reasonably affect impartiality in a proceeding involving the attorney. Source: Opinion 12-03, p. 4

Background and rules framework

The committee addressed Comment 17 to Rule 21-402, the Scope's distinction between rules and comments, Rule 21-402(E)'s restrictions on campaign-fund disclosures, and Rule 21-211(A)(1)'s disqualification standard. Source: Opinion 12-03, pp. 1–4

Citations and references

New Mexico Code of Judicial Conduct:

• Rules 21-400, 21-402, 21-402(A)(1)(e), 21-402(E), and 21-211(A)(1), plus Comment 17 to Rule 21-402. Source: Opinion 12-03

See also

• NM Judicial Ethics Op. 18-01: Campaign Endorsement and Recusal
• NM Judicial Ethics Op. 15-02: Campaign Seed Money

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 12-03

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 20, 2012

Re: Judicial Advisory Opinion No. 12-03

You have requested from the Advisory Committee on the Code of Judicial Conduct guidance in the interpretation and application of Comment 17 of the Committee Commentary to Rule 21-402 NMRA 2012 of the revised Code of Judicial Conduct that became effective January 1, 2012. That comment reads:

Candidates for judicial offices may, through a campaign committee, solicit endorsements of support, including endorsements from attorneys. The judicial candidate may not solicit endorsements and should not be informed about the identity of individual attorney supporters.

Your inquiry specifically raises two questions. The first focuses on the meaning of the word “should” in the second sentence, and the second focuses on the remainder of the second sentence concerning a judicial candidate’s information about the identity of attorney supporters.

With respect to your first question, you point out that in the Scope of the Code there are two provisions that have bearing on the intended meaning of the word

“should” and you believe that they are inconsistent. Paragraph 2 of the Scope states When a rule contains a permissive term, such as “may” or “should,” the conduct being addressed is committed to the personal and professional discretion of the judge or candidate in question, and no disciplinary action should be taken for action or inaction within the bounds of such discretion.

Paragraph 4 of the Scope provides that
the comments [to the Code] identify aspirational goals for judges. To implement fully the principles of this Code as articulated in the canons, judges should strive to exceed the standards of conduct established by the rules, holding themselves to the highest ethical standards and seeking to achieve those aspirational goals, thereby enhancing the dignity of the judicial office. The Committee does not believe that the two paragraphs are inconsistent.

Paragraph 2 discusses the structure of the Code, which consists of the canons and the rules. It explains that the “canons” are the “overarching principles of judicial ethics that all judges must observe.” It then explains that a “rule” provides the basis for discipline if violated, but the “canons” guide the interpretation of the “rules.” Paragraph 2 then discusses the language in question by explaining that permissive language in the rules, such as “should” commits conduct to the “personal and professional discretion” of the judge or judicial candidate. Paragraph 4 (and paragraph 3) of the Scope, on the other hand, discusses the “comments” to the rules. By explaining that “the comments identify aspirational goals,” paragraph 4 sets standards to which judges “should strive,” particularly in the exercise of their discretion. However, comments are not rules and are not of themselves binding and enforceable. See Scope, paragraph 3 (“Comments neither add to nor subtract from the binding obligations set forth in the rules.”) The application of these paragraphs may be explained with reference to your second question concerning a judge’s or judicial candidate’s knowledge of the identity of individual attorney supporters. In this regard, you state that you are concerned because

[a]s a practical matter, attorneys are inherently involved in judicial races

in one form or another. They may serve on campaign finance

committees; campaign organizational committees; may host fundraisers;

may attend fundraisers (by virtue of their appearance it can be implied

that they support you, whether of not they actually donate; money);

support candidates in literature or advertisements (i.e. Bar Bulletin). In

these situations, it would be unrealistic for a judicial candidate not to

know the attorney’s identity.

Canon 4 states the “overarching principles of judicial ethics,” Scope, paragraph 2, that a judge or judicial candidate “shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.” Rule 21-400 NMRA 2012. Rules 21-401 through 21-405 NMRA 2012 set forth the standards of conduct required by the Code. See Scope, paragraph 2 (stating that “a judge may be disciplined only for violating a rule”). The Code recognizes that Canon 4 must allow political activity by judges who are candidates in a partisan, non- partisan, or retention election. See Rule 21-402 (establishing rules allowing certain political activity by judicial candidates). In particular with respect to your inquiry, Rule 21-402(A)(1)(e) requires a judicial candidate intending to raise or expend more that $1000 to form a campaign committee. In addition, Rule 21-402(E) prohibits a judicial candidate from soliciting or receiving campaign funds from an attorney, and further prohibits a campaign committee from disclosing to the judicial candidate “the identity or source of any funds raised by the committee.”

Comment 17 to Rule 21-402 provides guidance to the rule. It addresses “endorsements of support” from attorneys and others and permits campaign committees, not judicial candidates, to solicit such endorsements. By further stating that judicial candidates “should not be informed about the identity of individual attorney supporters,” it means that the campaign committee should not inform the judicial candidate of the attorneys from whom the committee has obtained endorsements.

Paragraph 4 of the Scope of the Code describes as aspirational the comments to the Code, including Comment 17 to Rule 21-402. It expresses the overall goal that judges not only meet the standards established by the rules, but strive to exceed them in order to enhance the dignity of judicial office: In the context of Comment 17 to Rule 21-402, such effort on the part of a judge may include refusing to review the

names of attorney supporters that will or do appear in an advertisement on behalf of the judge.

Your inquiry tangentially raises the additional question concerning the knowledge of a judge or judicial candidate of the identity of attorneys who support the campaign committee in ways other than endorsements. As you point out, “attorneys are inherently involved in judicial races in one form or another.” Indeed, attorneys are generally the persons who are most interested in judicial campaigns. The Committee believes that the Code takes this practicality into account. And, if the judge believes that he or she has developed a personal bias concerning an attorney as a result of knowledge received that the attorney has supported the judge in the judge’s campaign that might reasonably affect the judge’s impartiality, the judge shall disqualify himself or herself in a proceeding involving the attorney. Rule 21- 211(A)(1) NMRA 2012. 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