May a judicial candidate solicit Voter Action Act seed money or qualifying contributions, including from lawyers?

Plain-English summary

A judicial candidate asked whether the rule insulating judges from the identity of attorney contributors applied to Voter Action Act seed money and qualifying contributions, and whether the candidate could ask lawyers for those contributions. The Act provided public financing for certified statewide judicial candidates. [Source: Opinion 15-02, p. 1]

The committee said amendments adopted after the request answered the solicitation question. Rule 21-404 and commentary to Rules 21-402 and 21-404 treat both seed money and qualifying contributions as campaign contributions, which candidates may not personally solicit or accept from anyone. [Source: Opinion 15-02, pp. 1–2]

Rule 21-402(E) required attorney contributions to go to a campaign committee and barred the committee from revealing any contributor’s identity or funding source to the judge or candidate. The committee concluded that Voter Action Act contributions should not be treated differently for this disclosure restriction. [Source: Opinion 15-02, p. 2]

In practice

The opinion applies the personal-solicitation ban and campaign-committee nondisclosure rule to seed money and qualifying contributions under the Voter Action Act. Its answer is not limited to contributions from lawyers. [Source: Opinion 15-02, p. 2]

Common questions

Q: May a judicial candidate personally request seed money from lawyers?

A: No. The committee said candidates may not personally solicit seed money or qualifying contributions from anyone. [Source: Opinion 15-02, p. 2]

Q: Are Voter Action Act qualifying contributions covered by the campaign rules?

A: Yes. The committee relied on the amended rule commentary treating qualifying contributions and seed money as campaign contributions. [Source: Opinion 15-02, p. 2]

Q: May the campaign committee identify contributors to the candidate?

A: No. The committee applied Rule 21-402(E)’s nondisclosure rule to these contributions as well. [Source: Opinion 15-02, p. 2]

Background and rules framework

The committee applied New Mexico Code of Judicial Conduct Rules 21-402(E) and 21-404, including their recently adopted comments, alongside the Voter Action Act, NMSA 1978, Sections 1-19A-1 to -17. [Source: Opinion 15-02, pp. 1–2]

Citations and references

New Mexico Code of Judicial Conduct:

• Rules 21-402(E), 21-404. Source: Opinion 15-02.

See also

• NM Judicial Ethics Op. 18-01: Campaign Endorsement and Recusal
• NM Judicial Ethics Op. 17-05: Senator Defendant and Recusal

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 15-02

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.

RECEIVED

OCT. 20 2015

SUPREME COURT
LAW LIBRARY

Advisory Committee on the Code of Judicial Conduct

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

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

October 16, 2015

Re: Judicial Advisory Opinion No. 15-02

Dear [redacted]

You have asked the Advisory Committee on the Code of Judicial Conduct two questions concerning the interplay of the Voter Action Act, NMSA 1978, Sections 1-19A-1 to -17 (2003, as

amended through 2015), and the Code of Judicial Conduct.

The Voter Action Act permits certified candidates for statewide judicial positions to apply for, and receive, campaign financing from the public election fund. Sections 1-19A-2(D), 6, 10. The requirements for Secretary of State certification include that the candidate submit an “appropriate number of qualifying contributions” and comply with “seed money contribution and expenditure restrictions.” Section 1-19A-6(A)(2), (4). “Qualifying contributions” are $5.00 donations by

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registered voters made during a specified time period. Section 1-19A-2(H), (J). The availability of

“seed money” allows a candidate to collect contributions of no more than $100.00 each from individual donors and political action committees to be spent during the qualifying period “for the primary purpose” of obtaining qualifying contributions and petition signatures. The total of all such

‘seed money contributions may not exceed $5000. Section 1-19A-5(A), (B), (H).

You have posed the following questions.

(1) Does the prohibition contained in Rule 21-402(E) NMRA regarding a judge’s knowledge of the identity of a lawyer contributor apply to seed money contributions or qualifying

contributions?

(2) Can a judicial candidate ask lawyers for seed money contributions or qualifying

contributions?

Since your request, the Supreme Court has modified Rule 21-402(E) and Rule 21-404

NMRA to clarify the ability of a judicial candidate to solicit and accept campaign contributions for

the candidate’s campaign. Rule 21-404 now states that candidates “shall not personally solicit or personally accept contributions for their own campaigns.” Commentary to Rule 21-402 and Rule 21-404 make clear that seed money and qualifying contributions under the Voter Action Act fall within this proscription. Rule 21-402, Comment 1; Rule 21-404, Comment 6. Comment 1 to Rule 21-402 states:

Under Rule 21-404 NMRA, candidates for judicial office shall not personally solicit or personally accept campaign contributions. Seed money under NMSA 1978, Sections 1-19A-2(K) and 1-19A-5, and qualifying contributions under NMSA 1978, Sections 1-19A-2(H) and 1-19A-4, are considered campaign contributions for the purposes of these rules. A judicial candidate is prohibited from personally soliciting or personally accepting such contributions,

These rule modifications directly respond to your second question; a judicial candidate is not permitted to solicit seed money or qualifying contributions from anyone.

With regard to your first question, Rule 21-402(E) provides in relevant part that “[c]ontributions from attorneys . . . shall be made only to a campaign committee” and that “[c]ampaign committees shall not disclose to the judge or candidate the identity or source of any funds raised by the committee.”

The purpose of Rule 21-402(E) is to avoid an appearance that a judge’s action in any case will be affected by contributions to the judge’s campaign. The rule carries out this purpose by removing and/or insulating the judicial candidate from the campaign contribution process. The recently adopted comment to Rule 21-402 treats contributions under the Voter Action Act for qualifying contributions and seed money the same as other campaign contributions with regard to a judicial candidate’s solicitation and acceptance. The Committee thus believes that the Code does not contemplate that Voter Action Act contributions should be treated any differently with regard to a campaign committee disclosure of contributors of such contributions.

Very truly yours,

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