May a magistrate act as judge in a school district truancy program using the courtroom or judicial robe?

Plain-English summary

A magistrate judge asked about serving in a school district's truancy program. Students, parents and principals would appear before the judge; principals would report individual attendance problems, and the judge would explain compulsory attendance law and relay each principal's recommendation. The committee treated this as outside activity because no case would be filed in the magistrate court. [Source: Opinion 13-05, pp. 1–2]

The committee said the courtroom and robe created a coercive appearance for real student behavior and possible consequences, so they could not be used for the program, even after court hours. It also said the program did not meet Rule 21-301(E)'s exception for incidental use of court resources on matters concerning the legal system or administration of justice. [Source: Opinion 13-05, p. 2]

Moving the program to a school and leaving the robe behind lessened the atmosphere but did not end the committee's concern: directing students or parents, especially while warning of criminal charges, still raised an issue under Rule 21-301(D). The committee also said the judge could not later hear attendance prosecutions involving parents of students who appeared in the program, and the frequency of such cases could matter under Rule 21-301(B). It suggested advising the program or speaking generally to groups about attendance law instead of acting as its judge. [Source: Opinion 13-05, pp. 2–3]

In practice

The opinion distinguishes a judge acting as the program's decision-maker from advising the school district or giving general educational talks. It finds the former problematic for coercion and possible later disqualification and identifies the latter two roles as permitted ways to participate. [Source: Opinion 13-05, pp. 2–3]

Common questions

Q: Could the judge use the courthouse and robe after business hours?

A: No. The committee said both carried judicial authority into an outside program dealing with actual behavior and consequences. [Source: Opinion 13-05, p. 2]

Q: Would moving the program to a school and removing the robe resolve the concern?

A: The committee said the judge's direction to students and parents would still appear coercive, especially when accompanied by a warning about criminal charges. [Source: Opinion 13-05, p. 3]

Q: Could the judge later hear an attendance prosecution involving a family seen in the program?

A: No. The committee said the judge's personal knowledge of the facts would preclude presiding over that case. [Source: Opinion 13-05, pp. 2–3]

Q: What participation did the committee identify as possible?

A: It identified advising the school district's program and speaking to groups about attendance law and how such cases are handled. [Source: Opinion 13-05, p. 3]

Background and rules framework

The committee applied New Mexico Code of Judicial Conduct Rule 21-301 to the outside program, particularly its provisions on frequent disqualification, apparent coercion and use of court resources. It also applied Rule 21-211(A) to later cases involving a participating family and cited Rule 21-307 as an analogy for limits on otherwise beneficial activities. [Source: Opinion 13-05, pp. 2–3]

Citations and references

New Mexico Code of Judicial Conduct:

• Rules 21-301(B), (D), (E), 21-211(A), and 21-307. Source: Opinion 13-05.

See also

• NM Judicial Ethics Op. 14-06: Volunteer Service
• NM Judicial Ethics Op. 13-02: Electric Cooperative Trustee

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 13-05

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.

Bee we Bs eee

SEP 09 2013

SUPREME COURT
LAW LIBRARY

Advisory Committee on the Code of Judicial Conduct

Hon. James J. Wechsler, Chair

Work Nine Bax
Hoax KMAIKIX Kixgwal fer
Paul L. Biderman, Esq.
Prof. Robert L. Schwartz
Hon. Freddie Romero

| September 9, 2013

Re: Judicial Advisory Opinion No. 13-05

You have asked the Advisory Committee on the Code of Judicial Conduct questions concerning your participation under the Code of Judicial Conduct as a judge in a truancy court that would be sponsored by your local school district. You have advised that the school district would refer parents of students who have missed school or classes to a program it calls the truancy court.

In the program, a group of students, their parents, and the school principals appear before a judge. The judge advises the parents about the compulsory school attendance laws, including the potential for the school district to file a criminal complaint, and tells the students about the | importance of education. Then, each school principal comes forward with individual students and the student's parents and reports to the judge the facts concerning that student’s truancy. Based upon the principal’s recommendation, the judge will inform the student and parents whether the principal will continue to monitor the student’s attendance and whether the student and parents will need to return to the truancy court. The same process is followed at subsequent sessions.

The Committee responds as follows to your questions.

(1) Whether you may act as a truancy court judge after business hours in your courtroom and wearing your judicial robe.

The program you have described does not involve the jurisdiction of your court. No filing would be made with the court. And, as a magistrate judge, although you would have jurisdiction if

'Judge Freddie J. Romero did not participate in this advisory opinion.

a complaint were filed against a student’s parents under the compulsory school attendance laws, your court does not have jurisdiction in juvenile proceedings. Thus, any actions you take in connection with the truancy program would be extrajudicial activity. In general, the Code of Judicial Conduct addresses extrajudicial activities in Rule 21-301 NMRA, which reads:

21-301. Extrajudicial activities in general.

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, stationery, equipment, or other resources, except for incidental use for activities that concern the law, the legal system, or the administration of justice.

Your question raises the Committee’s concerns with regard to paragraphs D and E. As to D, a judge may not act in a manner that appears to be coercive. The Committee believes that, in considering whether a judge’s actions comply with this requirement, it must address only the actions involved and not the purpose of the actions. Indeed, actions advising parents of the law and encouraging a truant student to attend school are beneficial to the student and the community and should, in the general sense, be encouraged. The Code, however, is concerned with the extrajudicial behavior of judges, not the result of the judge’s behavior. By way of example, under Rule 21-307 NMRA, a judge may not, with minor exceptions, solicit funds for a charitable purpose, even if the purpose enjoys universal acceptance, such as feeding starving children or eliminating cancer. The courtroom setting and judicial robes are designed to establish the authority of the judge. By their very nature, they provide a coercive appearance for actions taken by a judge. The truancy court is not a mock trial or moot court proceeding conducted for educational purposes; it involves actual behavior and consequences. The Committee does not believe that you may use your courtroom and wear your judicial robes for this activity. As to paragraph E, although your use of the courtroom may be after hours, the truancy court does not concern the law, the legal system, or the administration of

justice.

The Committee also notes a potential problem that your question does not specifically raise—will your participation in the truancy court lead to your frequent disqualification as a judge in cases subsequently brought against parents for failing to comply with the compulsory school attendance laws so presenting a problem under Rule 21-301(B). Under Rule 21-211(A) NMRA, a judge “shall disqualify himself or herself in any proceeding in which the judge’s impartiality might

reasonably be questioned ... .” These circumstances include situations in which a judge has “personal knowledge of facts that are in dispute.” Thus, the Committee does not believe that you would be able to preside over any case in which the parents of a student who has appeared before you in the truancy court has been charged in the magistrate court with violating the compulsory school attendance laws. You will need to determine if the frequency of such filings presents a problem under Rule 21-301(B).

(2) Whether you may serve as the truancy court judge outside of your courthouse without wearing your judicial robe.

Outside of your courthouse and without your judicial robe, the environment does not have the same coercive atmosphere. There, nevertheless, is a related problem. Generally, as a magistrate judge, you are known in your community, and your position commands respect regardless of your surroundings. As a result, even in a truancy-court setting in a local school, your actions directing a student or parents to take a particular action have the appearance of being coercive. On this basis, the Committee believes that your acting as the truancy court judge raises an issue under Rule 21- 301(D). This issue is exacerbated when you advise the student’s parents that continued truancy could lead to criminal charges.

(3) Whether there are ways in which you can participate in the truancy court program.

The Committee does believe that you can assist the school district’s truancy court in at least two possible ways. First, you may assist the school district in its truancy court as an advisor rather than as a judge. Second, rather than serving as a judge, you may speak to groups at a location such as a school to provide general information about the compulsory school attendance laws and the manner in which such cases are addressed when they come before the court.

Very truly "De Wl nets
James J. Wechsler
Chair

reley
Paul L. Biderman, Esq.
Professor Robert L. Schwartz
Hon. Freddie J. Romero

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