May a judge send a recommendation for a judicial applicant to the governor or a nominating commission?

Plain-English summary

The committee was asked whether judges may write letters supporting applicants for judicial vacancies to judicial nominating commissions. Rule 21-103 prohibits using the prestige of judicial office to advance another person's interests. Its commentary nevertheless permits a recommendation based on the judge's personal knowledge. [Source: Opinion 14-08, p. 1]

The committee relied on Rule 21-103 comment 3, which addresses cooperation with appointing authorities and screening committees and expressly permits letters for candidates seeking judicial appointment. It read that comment together with Rule 21-401 comment 8, which distinguishes prohibited public endorsements from permitted private ones. [Source: Opinion 14-08, pp. 1–2]

The committee concluded that a recommendation delivered directly to the governor or a judicial nominating committee is a private endorsement. Judges may provide such recommendations in support of judicial appointment candidates. [Source: Opinion 14-08, p. 2]

In practice

The holding concerns recommendations sent directly to the appointing authority or nominating committee. The opinion acknowledges that the public versus private distinction is not always clear and rests its answer on the Code's specific treatment of the judicial selection process. [Source: Opinion 14-08, p. 2]

Common questions

Q: May a judge write to a judicial nominating commission in support of an applicant?

A: Yes. The committee says a direct recommendation to the commission is treated as a private endorsement. [Source: Opinion 14-08, p. 2]

Q: May the judge send the recommendation directly to the governor?

A: Yes. The committee's conclusion expressly includes the governor as appointing authority. [Source: Opinion 14-08, p. 2]

Q: Does the opinion approve a public endorsement of a judicial candidate?

A: No. It cites Rule 21-401 comment 8's distinction between public and private endorsements and addresses recommendations sent directly to the selection authorities. [Source: Opinion 14-08, p. 2]

Background and rules framework

The committee interpreted New Mexico Code of Judicial Conduct Rule 21-103 and its comments 1–3 alongside Rule 21-401 comment 8. It also cited the Code's Scope paragraph 3 and Application I(A) when explaining the role and reach of the comments. [Source: Opinion 14-08, pp. 1–2]

Citations and references

New Mexico Code of Judicial Conduct:

• Rule 21-103 and comments 1–3; Rule 21-401 comment 8. Source: Opinion 14-08.

See also

• NM Judicial Ethics Op. 14-06: Volunteer Service
• NM Judicial Ethics Op. 18-01: Campaign Endorsement

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 14-08

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
PISEXMTEXAK BAR X XK
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Paul L. Biderman, Esq.

Prof. Robert L. Schwartz
Hon. Freddie J. Romero

Hon. Sandra W. Engel

November 19, 2014

Re: Judicial Advisory Opinion No. 14-08

Dear

You have asked the Advisory Committee on the Code of Judicial Conduct whether judges may submit letters of recommendation in support of candidates who have applied to judicial nominating commissions for appointment to vacant judicial positions.

The applicable provision of the Code of Judicial Conduct prohibits a judge from abusing “the prestige of judicial office to advance the personal or economic interests” of others. Rule 21-103 NMRA. By virtue of this rule, a judge is not permitted to use his or her position to gain favorable treatment for others. See Rule 21-103, comment 1 (“It is improper for a judge to use or attempt to use his or her position to gain personal advantage or deferential treatment of any kind.”),

The commentary to the Code gives guidance and examples that are helpful to our analysis of your inquiry. See Code of Judicial Conduct, Scope, [3] (stating that although the commentary does not provide binding obligations as do the rules, it provides “guidance regarding the purpose, meaning, and proper application of the rules” and also may “provide examples of permitted or prohibited conduct”). The commentary recognizes that there are circumstances in which a judge does not abuse the prestige of judicial office even though the judge may be acting in a manner that supports others. For instance, Rule 21-103, comment 2 states that a judge “may provide a reference or recommendation for an individual based on the judge’s personal knowledge.”

More specific to your inquiry, the commentary recognizes that judges may have knowledge relevant to the judicial selection process and may cooperate with appointing authorities and screening committees and respond to inquiries concerning the professional qualifications of applicants. Rule

21-103, comment 3. The commentary directly provides: “A judge may write letters of recommendation for any candidate for judicial appointment.” Jd. These comments apply to all full- time judges of the state courts. Code of Judicial Conduct, Application, I(A).

You have inquired about the relevance of Rule 21-401, comment 8, which reads:

A judge is prohibited from publicly endorsing a judicial candidate or candidate for public office, e.g., adding the judge’s name to a list of supporters or publicly recommending the judge’s election or appointment. Private endorsements, however, are permitted. A judge or judicial candidate is not prohibited from privately expressing the judge’s or judicial candidate’s views on judicial candidates or other candidates for public office.

The Committee agrees that the distinction between a public and private endorsement is not always a clear one. However, Rule 21-103, comment 3 more specifically addresses recommendations to appointing authorities and judicial selection commissions with respect to judicial candidates. When we read that comment and Rule 21-401, comment 8 together, we believe that the intent of the Code is to treat a recommendation to an appointing authority or judicial selection committee as a private endorsement.

The Committee thus is of the opinion that judges may provide recommendations directly to an appointing authority (the Governor) and to judicial nominating committees in support of candidates for judicial appointment.

Very truly yours,
James J. Wechsler

Chair
cc: Paul L. Biderman, Esq.

Hon. Sandra W. Engel
Hon. Freddie J. Romero
Professor Robert L. Schwartz