May a judge join a mayor’s children’s cabinet that seeks private support for youth services?

Plain-English summary

A judge was invited to serve on a mayor’s children’s cabinet intended to educate local foundations and grant sources about youth services, including needs of juvenile delinquency court. The committee recognized that the subject could concern administration of justice under Rule 21-304(A). [Source: Opinion 14-06, pp. 1–2]

The committee nevertheless found the judge’s connection with the mayor problematic because the mayor had at least indirect authority over city police whose officers regularly appeared as witnesses. It also distinguished an earlier federally authorized juvenile justice advisory body: the city cabinet lacked statutory authorization and would seek support from private sources that could include people interested in the judge’s cases. [Source: Opinion 14-06, pp. 2–3]

The committee concluded that cabinet membership was inconsistent with Rule 21-304(A). It said the judge remained free under Rule 21-302(A) to appear or testify before the cabinet about administration of justice, including needed juvenile services. [Source: Opinion 14-06, p. 3]

In practice

The opinion distinguishes membership in this mayor-led, privately funded cabinet from testimony before it on juvenile justice needs. Its adverse conclusion rests on appearance concerns tied to the mayor’s police authority and potential private funders. [Source: Opinion 14-06, pp. 2–3]

Common questions

Q: Was the cabinet’s youth-services goal enough to permit membership?

A: No. The committee found the goal relevant to justice administration but concluded that the mayoral connection and private funding concerns prevented membership in this setting. [Source: Opinion 14-06, pp. 1–3]

Q: Why was an earlier juvenile advisory committee treated differently?

A: The earlier body was authorized by federal statute and guided federal funding, while this city cabinet lacked statutory authorization and sought private support. [Source: Opinion 14-06, p. 2]

Q: Could the judge address the cabinet without joining it?

A: Yes. The committee said Rule 21-302(A) permitted appearing or testifying on matters concerning administration of justice. [Source: Opinion 14-06, p. 3]

Background and rules framework

The committee applied New Mexico Code of Judicial Conduct Rules 21-304(A) and 21-302(A), discussed former Rule 21-500(C)(2), and distinguished Advisory Opinion 02-06 and its federal statutory context. [Source: Opinion 14-06, pp. 1–3]

Citations and references

New Mexico Code of Judicial Conduct:

• Rules 21-304(A), 21-302(A), 21-500(C)(2). Source: Opinion 14-06.

See also

• NM Judicial Ethics Op. 15-01: Youth Development Task Force
• NM Judicial Ethics Op. 21-05: Drug Recognition Committee

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 14-06

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
RECEIVED

Hon. James J. Wechsler, Chair

igi heen OCT 01 2014

Paul L. Biderman, Esq.

Prof. Robert L. Schwartz SUPREME COURT
Hon. Freddie J. Romero LAW LIBRARY

Hon. Sandra W. Engel
September 24, 2014

Re: Judicial Advisory Opinion No. 14-06

You have asked the Advisory Committee on the Code of Judicial Conduct whether the Code of Judicial Conduct permits you to accept an invitation to serve as a member of the children’s cabinet established by the mayor of a city within your judicial district. Rule 21-304(A) NMRA prohibits judges from accepting appointment to governmental commissions, with certain exceptions. The question is whether any of the exceptions apply.

This Committee appreciates your having provided us with detailed information about the composition and objectives of the children’s cabinet. As you have summarized the charge of the

children’s cabinet and your role in it:

Basically, the Cabinet’s focus is to get those that work with children, youth and families in the community, such as myself, the Superintendent [of schools], and the
[Community] College, to educate the community's foundations and grant resources on the needs of the children, youth and families in our community. To this end, I would be called upon to address the concerns particular to juvenile delinquency court, such as the type of services that have benefitted, or would likely benefit, at risk

youth.

As described, the children’s cabinet would provide a valuable service to the judicial system and the community as a whole. As this Committee recognized in a previous advisory opinion, AO 02-06, a juvenile court judge may serve on what was then called a Juvenile Justice Advisory

Committee (JJAC)', the role of which was “the fostering of juvenile justice and delinquency prevention programs.” This Committee believed that the judge could serve on that committee because such service helped the judge direct federal funds toward appropriate programs “directly related to the function of our children’s courts in the handling of juvenile proceedings.” The city’s children’s cabinet would have a similar objective, which, without consideration of other factors, would seem to fall under the “administration of justice” exception to the prohibition on accepting

appointment.

This Committee believes that the ethical problem in connection with your inquiry is your connection with the mayor as a member of the children’s cabinet. Indeed, the term “cabinet” itself connotes a group of trusted advisors to the chief executive. Rule 21-304, comment 1 specifically directs a judge considering whether to serve on any government committee to give “due regard to the requirements of the independence and impartiality of the judiciary.” The mayor serves as the chief executive officer of the city and exercises at least indirect authority over the city police department. City police officers regularly come before you as witnesses in juvenile delinquency proceedings and adult criminal cases. As a result, your service on this cabinet for and with the mayor

could undermine your appearance of impartiality.

While AO 02-06 authorized a judge to serve on a JJAC committee with representatives of law enforcement and prosecutorial agencies, there are two significant differences from the children’s cabinet. First, a juvenile court judge’s service on JJAC is specifically provided for in federal statute 42 USC 5633(a)(3)(A)(2)(II). There is no statutory authorization for the city’s children’s cabinet. Second, the sole funding source to which JJAC is authorized to provide guidance on funding needs is the federal government. The children’s cabinet’s purpose is to “educate the community’s foundation and grant resources on the needs of the children, youth and families in our community.”

[Emphasis added.]

The current Rule 21-304(A) creates an exception to the prohibition against a judge’s service on government commissions when required by law. AO 02-06 was decided under the former rule on this topic, Rule 21-500(C)(2) NMRA, which did not include the exception for statutorily-required appointments. Nonetheless, the fact that federal law required the creation of JJAC bodies and authorized juvenile court judges to serve on them negated any conceivable damage to their appearance of impartiality.” The establishment of JJAC was, and remains, a prerequisite to awarding federal funds to our state. 42 USC 5633(a).

It is also significant that the funds sought and rewarded through the JJAC process are all derived from the federal government, or at least so the federal statute contemplates. Attaining

' The current designation is Juvenile Justice Advisory Board, but this opinion will refer to the body as JJAC, for consistency with our previous advisory opinion.

The federal statute requires the creation of the JJAC entity for a state to receive federal grants, but only authorizes the appointment of the juvenile judge as one of its members. The advisory committee believes that this authorization to serve on a mandated committee satisfies the requirement of our rule. To hold otherwise could unnecessarily mute the voice

of the judiciary in this vital funding process.
Z

funding for the courts through government sources is a constant necessity to improving the administration of justice. More importantly in this context, governmental funding is the lifeblood for the judiciary. The appearance of impartiality of any judge working appropriately to attain such

funds cannot suffer damage.

In the case of the city children’s cabinet, by contrast, the funding would be sought from private sources, including undetermined “foundations and grant resources.” This broad categorization of the potential funders could include individuals or organizations (e.g., corporate donors, wealthy individuals, or family foundations) hoping to influence the outcome of cases that you hear. While this potential in no way reflects on your personal ability to withstand any such pressures, the problem lies in the appearance of a judge’s becoming involved in seeking and accepting grants from a variety of private sources answerable only to the donors—especially when doing so in coordination with the ultimate supervisor of the city’s law enforcement services. It is far from inconceivable that presentations to funders would have to take into account the needs and perspectives of law enforcement as well as those of the juvenile court.

This Committee therefore believes that your service on the mayor’s children’s cabinet would be inconsistent with the prohibition in Rule 21-304(A) against accepting appointment to a governmental committee. However, the Committee believes that you are not restricted from appearing or testifying in front of the cabinet on matters related to the administration of justice, including recommendations for services needed by the juvenile justice system, pursuant to Rule 21-

302(A).
Very truly yours,

James J. Wechsler
Chair

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