May a magistrate judge hear probation cases when the judge's spouse works for and shares revenues with the court's compliance officer?

Plain-English summary

A magistrate judge's husband worked as a compliance officer in the judge's division. He and another officer split revenues from the county's compliance-services contract. The husband was the only officer assigned to the judge's division, so he would be involved in every case needing probation supervision. [Source: Opinion 14-09, p. 1]

The committee said the husband's participation by report or testimony required disqualification under Rule 21-211(A)(2)(d). Although Rule 21-211(C) allows parties to remit certain disqualifications after disclosure on the record, the committee did not regard case-by-case remittal as an adequate permanent answer to this recurring arrangement. [Source: Opinion 14-09, pp. 1–2]

Moving the husband to the other division would not resolve the conflict while he continued sharing contract revenue. The committee found that financial interest and the appearance it created disqualified the judge from all cases with compliance-officer involvement. It suggested ending both the husband's participation in the judge's cases and his financial benefit from the other officer's work there; it viewed sixty days as a reasonable period to resolve the conflict and allowed remittal in the interim. [Source: Opinion 14-09, p. 2]

In practice

Under this opinion, moving the spouse's daily assignment to the other division leaves the shared-revenue conflict in place. The committee permits remittal only as an interim measure while the structural conflict is resolved. [Source: Opinion 14-09, p. 2]

Common questions

Q: Does the spouse's report or testimony in a case require disqualification?

A: Yes. The committee treats that participation as falling within Rule 21-211(A)(2)(d)'s material-witness provision. [Source: Opinion 14-09, p. 1]

Q: Would assigning the spouse to the other court division cure the problem?

A: No. The spouse still shared the county contract's revenues from cases handled by the other compliance officer. [Source: Opinion 14-09, p. 2]

Q: Could the judge continue using party waivers?

A: The committee allowed Rule 21-211(C) remittal in the interim, but said repeated waivers were not a permanent response to the structural conflict. [Source: Opinion 14-09, p. 2]

Background and rules framework

The committee applied New Mexico Code of Judicial Conduct Rule 21-211(A)(2)(d) to the spouse's role in proceedings, Rule 21-211(A)(2)(c) to his financial interest, and Rule 21-211(C) to remittal. It cited Rule 21-311 comment 2 by analogy when suggesting a period to resolve the conflict. [Source: Opinion 14-09, pp. 1–2]

Citations and references

New Mexico Code of Judicial Conduct:

• Rule 21-211(A)(2)(c)–(d), Rule 21-211(C), and Rule 21-311 comment 2. Source: Opinion 14-09.

See also

• NM Judicial Ethics Op. 14-07: Former Prosecutor Recusal
• NM Judicial Ethics Op. 14-05: Former Hearing Officer

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 14-09

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
Nox

WORX KOGRXIX RARER
Paul L. Biderman, Esq.

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

Hon. Sandra W. Engel

December 11, 2014

Re: Judicial Advisory Opinion No. 14-09

You were appointed as a magistrate judge in May and elected to your position in November. Your court has two divisions located in separate towns, each with a single judge. You have requested an opinion from the Advisory Committee on the Code of Judicial Conduct as to the manner in which you should handle potential conflicts of interest that may arise because your husband appears as a compliance officer in cases in your division.

Compliance officers supervise defendants ordered to serve probation by the court. Your husband has held his position for twelve years. He is not, however, a public employee. Rather, he works with another compliance officer who contracts directly with the county to operate the compliance office for your court. The other compliance officer operates a sole proprietorship that the county pays a certain amount for each case handled. He and your husband divide equally the contractual revenues. The other compliance officer currently serves the other division of your court.

The operative provisions of the Code responsive to your inquiry are contained in Rule 21- 211(A) NMRA relating to disqualification. In particular, that Rule 21-211(A) provides:

A. A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:

(2) The judge knows that . . . the judge’s spouse . . . is:

(d) likely to be a material witness in the proceeding.

The Committee believes that your husband’s participation in a proceeding, whether by report or testimony, falls within this provision such that you must disqualify yourself.

You have advised the Committee that in such proceedings you have been informing the parties about your disqualification, and the parties have waived it. Rule 21-211(C) permits a judge subject to disqualification in circumstances such as these to “disclose on the record the basis of the judge’s disqualification and .. . ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification.” If the parties agree to such a remittal of disqualification, their agreement must be “incorporated into the record of the proceeding.”

Although remittal of disqualification permits a judge to participate in proceedings in which the judges would otherwise be disqualified, and has permitted you to participate in proceedings in which your husband was involved, it is an imperfect solution to your circumstances. You have informed the Committee that your husband is the only compliance officer assigned to your division. He would thus be assigned to every case requiring a probation officer. You thus have a structural conflict. The Committee does not believe that you may continue a structural conflict and attempt to address it on an ad hoc basis through remittal.

You have additionally inquired as to whether your disqualification may be resolved if your husband worked in the other division of your court, and the other compliance officer worked in your division. This arrangement also is problematic under the Code. Rule 21-211(A)(2)(c) provides that a judge shall disqualify himself or herself if the judge knows that the judge’s spouse “has more than a de minimis interest that could be substantially affected by the proceeding.” Because your husband shares in the revenues under the county contract, he has a financial interest in every case in which a compliance officer acts, regardless of whether he or the other compliance officer works on the case. Although the payment for compliance officer services may not be substantially affected by the outcome of any case, the continued contractual relationship with the county would, at least apparently, depend on the performance of the compliance officers. The Committee therefore believes that your presiding over cases in which your husband receives a financial benefit gives rise to an appearance that affects your impartiality.

Given the structural conflict that exists because of your husband’s position as a compliance officer and his financial interest in the cases that may come before you, the Committee believes that you are disqualified from all cases with compliance officer involvement. The Committee suggests that you resolve this conflict on a permanent basis by ensuring that your husband does not participate in cases over which you preside and does not benefit from a contractual relationship with the compliance officer who does participate in such cases. The Committee further suggests that a sixty- day period to resolve the conflict is reasonable and practicable. Cf Comment 2, Rule 21-311 NMRA (“As soon as is practicable without serious financial detriment, the judge must divest himself or herself of investments and other financial interests that might require frequent disqualification ....”). In the interim, the Committee believes that you may continue to use the remittal procedure.

Very truly yours,

(Poe DOO —
James J. Wechsler
Chair
cc: Paul L. Biderman, Esq.
Hon. Sandra W. Engel
Hon. Freddie J. Romero

Professor Robert L. Schwartz