Does a municipal judge serving less than ten days under an annual contract qualify for the pro tempore lobbying exemption?

Plain-English summary

An appointed municipal judge pro tempore asked whether the Code allowed lobbying at the legislature for a community college and public schools. The judge served fewer than ten days a year but under a continuing annual contract. [Source: Opinion 14-02, pp. 1–2]

Rule 21-302 restricts a judge’s voluntary appearances or consultation with legislative or executive officials, subject to exceptions involving the legal system, administration of justice, or specified private interests. The Code exempts pro tempore part-time judges from that rule except while serving as judges, but gives no comparable exemption to continuing part-time judges. [Source: Opinion 14-02, p. 1]

The committee classified this judge as continuing part-time because the annual contract provided for repeated service, even though actual service was sporadic. It said the answer depended on appointment and contract details and that modified arrangements might instead fit the pro tempore category. [Source: Opinion 14-02, p. 2]

In practice

The opinion distinguishes repeated service under a continuing annual contract from a separate appointment or contract for each period of service or case. On the stated contract, the judge remained subject to Rule 21-302. [Source: Opinion 14-02, pp. 1–2]

Common questions

Q: Why did fewer than ten days of service not make the judge pro tempore under the Code?

A: The judge served repeatedly under one continuing annual contract, rather than under separate appointments or contracts for each period or case. [Source: Opinion 14-02, p. 2]

Q: Does the pro tempore exemption from Rule 21-302 apply here?

A: No. The committee treated the requester as a continuing part-time judge, for whom the Code did not provide that exemption. [Source: Opinion 14-02, pp. 1–2]

Q: Could a different appointment arrangement change the classification?

A: Possibly. The committee said the classification was technical and might change if the contract and appointment details changed. [Source: Opinion 14-02, p. 2]

Background and rules framework

The committee applied New Mexico Code of Judicial Conduct Rule 21-302 and the definitions and exceptions in the Code’s Application sections II, IV, and IV(A). [Source: Opinion 14-02, pp. 1–2]

Citations and references

New Mexico Code of Judicial Conduct:

• Rule 21-302 and Code of Judicial Conduct Application sections II, IV, and IV(A). Source: Opinion 14-02.

See also

• NM Judicial Ethics Op. 16-02: Part-Time Judge Defense Representation
• NM Judicial Ethics Op. 21-05: Drug Recognition Committee

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 14-02

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.

Advisory Committee on the Code of Judicial Conduct...

Hon. James J. Wechsler, Chair
Paul L. Biderman, Esq. [illegible redacted text]

Hon. Sandra W. Engel : . | SUPREME COURT
February 20, 2014 LAW LIBRARY

Re: Judicial Advisory Opinion No. 14-02

. You have asked the Advisory Committee on the Code of Judicial Conduct whether the Code of Judicial Conduct permits you, as an appointed municipal judge pro tempore, to engage in lobbying at the New Mexico Legislature. You have contracts to lobby for a community college and the public schools. |

The Code has specific provisions that describe its applicability to part-time and pro tempore judges. Under these provisions, the Code defines a “pro-tempore part-time judge” as a “judge who serves or expects to serve once or only sporadically on a part-time basis under a separate appointment or by contract for each period of service or for each case heard.” Code of Judicial Conduct, Application, IV. The Code further defines a “continuing part-time judge” as a judge “who serves repeatedly on a part-time basis by election, under a continuing appointment, or by contract.”

Code of Judicial Conduct, Application II.

The difference between these two categories is crucial to our analysis. Under Rule 21-302 NMRA, a judge may not “appear voluntarily at a public hearing, or otherwise consult with, an executive or a legislative body or official, except” when addressing “matters concerning the legal system or the administration of justice” or when acting-pro se concerning certain matters involving the judge’s private interests. Thus, through Rule 21-302, the Code prohibits a judge from engaging in most lobbying activity. A “pro-tempore part-time judge” is not required to comply with the prohibition of Rule 21-302,-“except while serving as a judge.” Code of Judicial Conduct, Application, IV(A). The Code does not, however, contain the same exemption for a “continuing part-time judge.” See Code of Judicial Conduct, Application, IV(A) (stating that a “continuing part- time judge” need not comply with certain provisions of the Code that do not include Rule 21-302).

You have advised the Committee that you serve under a continuing, annual contract and are appointed by the municipal judge to serve less than ten days during the year. Although you do not serve on a regular basis, you do serve repeatedly during the term of your contract. Moreover, your judicial status is the result of a continuing contract in contrast to “a separate appointment or... contract for each period of service or for each case.” Code of Judicial Conduct, Application, IV. As a result, the Committee believes that you fall within the definition of a “continuing part-time judge.” The Committee understands that this conclusion is a technical one that depends specifically upon the details of your contract and appointment. It may be that, if you were able to modify those details, you would fall within the “pro-tempore part-time judge” category. |

Very truly yours,

James J. Wechsler

Chair

cc: Paul L. Biderman, Esq.
Hon. Sandra W. Engel
Hon. Freddie J. Romero
Professor Robert L. Schwartz

¹Paul L. Biderman did not participate in this advisory opinion.

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