May a judge whose court does not hear death-penalty cases publish a newspaper article about the death penalty?

Plain-English summary

A judge whose court did not hear death-penalty cases submitted a draft newspaper article addressing that subject. The committee declined to advise on the article’s specific content but addressed the proposed writing under Rule 21-301. [Source: Opinion 16-03, p. 1]

Because the court lacked death-penalty jurisdiction, the committee did not expect the article to cause frequent disqualification; writing one article was also unlikely to interfere with judicial duties. Its main concern was whether the writing or content would reasonably appear to undermine independence, integrity, or impartiality. [Source: Opinion 16-03, pp. 1–2]

The committee said writing about the death penalty was generally permissible and did not perceive the submitted draft, which presented both sides, as reasonably impairing impartiality in the criminal cases the judge did hear. It expressly declined to address First Amendment issues. [Source: Opinion 16-03, p. 2]

In practice

The opinion evaluates a single proposed article in light of the judge’s lack of death-penalty jurisdiction and the draft’s treatment of opposing arguments. It reserves specific editorial approval and constitutional free-speech questions. [Source: Opinion 16-03, pp. 1–2]

Common questions

Q: Did the committee approve the article’s exact wording?

A: No. It said it was not positioned to advise on specific content, although it did not see the draft as a whole as impairing impartiality. [Source: Opinion 16-03, pp. 1–2]

Q: Would writing this article lead to frequent disqualification?

A: The committee did not expect that result because the judge’s court did not hear death-penalty cases. [Source: Opinion 16-03, p. 1]

Q: Did the committee decide any First Amendment question?

A: No. It mentioned Republican Party of Minnesota v. White but declined comment because the judge had not raised free-speech issues. [Source: Opinion 16-03, p. 2]

Background and rules framework

The committee applies New Mexico Code of Judicial Conduct Rule 21-301(A)–(C) and its commentary concerning judicial writing on law and the administration of justice. [Source: Opinion 16-03, pp. 1–2]

Citations and references

New Mexico Code of Judicial Conduct:

• Rules 21-301(A), 21-301(B), 21-301(C). Source: Opinion 16-03.

Cases:

• Republican Party of Minnesota v. White, 536 U.S. 765 (U.S. 2002), noted but not decided in this opinion. Source: Opinion 16-03, p. 2.

See also

• NM Judicial Ethics Op. 17-03: Newspaper Volunteer Offer
• NM Judicial Ethics Op. 16-01: Charity Concert Planning

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 16-03

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.

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

Hon. Sandra W. Engel

September 19, 2016

Re: Judicial Advisory Opinion No. 16-03

You are a judge on a court that does not have jurisdiction over death penalty cases, and you

would like to write an article for a local newspaper concerning the death penalty. You have provided a draft of the article to the Advisory Committee on the Code of Judicial Conduct and have asked the

Committee if you may publish the article as written.

The Committee does not believe that it is in a position to advise you with respect to the specific content of the article. We can, nonetheless, provide guidance pertinent to your writing such

an article.

Relevant to your inquiry, the Code of Judicial Conduct permits a judge to engage in

extrajudicial activities that are not prohibited by the Code and do not “interfere with the proper performance of the judge’s judicial duties”; “lead to frequent disqualification of the judge”; or “appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.” Rule 21-301(A)-(C) NMRA. The Committee Commentary recognizes the unique qualifications of judges to write about the law, the legal system, and the administration of justice, and encourages

judges to do so “to the extent that time permits.” Rule 21-301, comm. cmt.1.

Because you do not preside over death penalty cases in your court, the Committee does not believe that your contemplated article will lead to your frequent disqualification. And, the length of time to write a single article is not likely to interfere with your proper performance of your judicial

duties.

The focus of your inquiry, therefore, becomes whether either your writing of the article or its content will reasonably appear to undermine your judicial independence, integrity, or impartiality. As discussed, the Committee Commentary to the Code encourages judges to write about issues concerning the law, legal system, and the administration of justice. As a result, generally speaking, your writing an article concerning the death penalty in criminal cases would be permissible under the Code.

As to the content of the article, even though you do not have jurisdiction over death penalty cases, your court does hear criminal cases. Comments that you make, therefore, may have bearing upon your judicial independence, your integrity, or, in particular, your impartiality. The draft that you have provided attempts to represent opposing arguments both in favor of and in opposition to the death penalty. The Committee does not perceive that the draft as a whole can reasonably be viewed as impairing your impartiality to hear criminal cases that may come before you.

The Committee notes that First Amendment issues concerning free speech may also pertain to your inquiry. See Republican Party of Minnesota v. White, 536 U.S. 765 (2002) (striking ethical prohibition against judges expressing opinions on legal subjects during election campaigns). You have not raised such issues, and the Committee does not comment upon them.

Very truly yours,

James J. Wechsler

Chair

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