May a part-time probate judge run for trustee of a member-owned electric cooperative?

Plain-English summary

A part-time probate judge asked whether the Code of Judicial Conduct barred a contested run for trustee of a private, member-owned electric cooperative. The committee said the cooperative's nonprofit status did not change that it operated a business, but the Code's general restriction on judges serving as business directors did not apply to continuing part-time probate judges. [Source: Opinion 13-02, p. 1]

Rule 21-301 still restricted outside activities that interfere with judicial duties, cause frequent disqualification, undermine impartiality, appear coercive or misuse court resources. The committee had no details about the trustee's duties, so it did not decide whether service in that particular position would meet those restrictions. It said court resources could not be used for trustee work. [Source: Opinion 13-02, p. 2]

The committee found no Code provision directly addressing the contested election. Because the Code did not bar this part-time judge from seeking a public nonjudicial office, it concluded that seeking election to the private cooperative position was also allowed. It recommended that the campaign remain consistent with the Code. [Source: Opinion 13-02, pp. 2–3]

In practice

The opinion permits seeking election to the cooperative trustee position while reserving judgment on the unspecified duties of the position. It separately applies Rule 21-301's outside-activity restrictions to any service after election. [Source: Opinion 13-02, pp. 1–3]

Common questions

Q: Does the cooperative's nonprofit status remove the business-activity issue?

A: No. The committee treated the electric cooperative as a business, then explained that the director restriction did not apply to continuing part-time probate judges. [Source: Opinion 13-02, p. 1]

Q: Did the committee decide that all trustee duties would be permissible?

A: No. It lacked details about the duties and said Rule 21-301's restrictions still had to be considered. [Source: Opinion 13-02, p. 2]

Q: May the judge use court staff or equipment for cooperative work?

A: No. The committee specifically said Rule 21-301(E) barred court resources for trustee activity. [Source: Opinion 13-02, p. 2]

Background and rules framework

The committee relied on the Code's Application II treatment of continuing part-time judges, applied Rule 21-301 to extrajudicial activity, and compared the contested private election with Rule 21-405(C)'s restriction on full-time judges seeking public nonjudicial office. [Source: Opinion 13-02, pp. 1–3]

Citations and references

New Mexico Code of Judicial Conduct:

• Rule 21-301, Rule 21-405(C), and Application II. Source: Opinion 13-02.

See also

• NM Judicial Ethics Op. 13-01: Former Practice Financial Ties
• NM Judicial Ethics Op. 14-06: Volunteer Service

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 13-02

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.

ANSI RI Y LL

SUPREME COURT
LAW LIBRARY

Advisory Committee on the Code of Judicial Conduct

Hon. James J. Wechsler, Chair
Honsitarie #oBaca

Hon. Kevin L. Fitzwater
Paul L. Biderman, Esq.

Freddie J. Romero

February 14, 2013

Re: Judicial Advisory Opinion No. 13-02

You have asked the Advisory Committee on the Code of Judicial Conduct whether the Code of Judicial Conduct prohibits you, as a probate judge, from seeking election to a trustee position in the electric cooperative that serves your community and of which you are a member. You state that the cooperative is a private, non-

profit entity that is owned by its members.

Although the cooperative is a non-profit entity, it engages in the business of providing electric service to its members. As a general rule, the Code prohibits judges from serving as a director of a business entity. Probate judges, however, as continuing part-time judges, are not subject to this restriction of the Code. Code of

Judicial Conduct, Application, II. Continuing Part-time Judge.

Rule 21-301 NMRA further restricts a judge’s ability to engage in extrajudicial activities. It provides

A judge may engage in extrajudicial activities, except as prohibited by law or this Code: “However, when engaging in extrajudicial activities, a judge shall not:

A. _ participate in activities that will interfere with the proper performance of the judge’s judicial duties;

B. participate in activities that will lead to frequent disqualification of the judge;

C. participate in activities that would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality;

D. — engage in conduct that would appear to a reasonable person to be coercive; or

E. make use of court premises, staff, stationary, equipment, or other resources, except for incidental use for activities that concern the law, the legal system, or the administration of justice.

You have not provided the Committee with any specifics concerning the activities of a trustee of the cooperative. Before seeking a trustee position, the Committee urges that you examine the responsibilities of the position in order to determine whether the restrictions of Rule 21-301 apply. Of course, if you become a trustee, you may not use any court resources in connection with your trustee activity, as prohibited in Rule 21-301(E).

The related question of your inquiry is whether the Code permits you to run in a contested election for the trustee position. No provision of the Code directly addresses this issue. Under the Code, a full-time judge may not be elected to a public, non-judicial office. Rule 21-405(C) NMRA. Because, as a part-time probate judge, the Code does not preclude you from seeking election to a public, non-judicial office, the Committee believes that it also does not preclude you from seeking election to a non-public, non-judicial office. In conducting a campaign, however, the Committee

recommends that you act at all times in a manner consistent with the Code.

Very truly yours,

James J. Wechsler
Chair

JJ W:ow

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