May a judge or the judge’s spouse contribute community funds to the spouse’s campaign for public office?

Plain-English summary

The judge asked whether either spouse could contribute to the spouse's campaign for elective office when they held all assets as community property in joint accounts. The committee said Rule 21-401(C)(4) expressly prohibits the judge's contribution. Source: Opinion 17-01, p. 1.

The committee concluded that the spouse may use community funds for a campaign contribution. It relied on the spouse's authority to manage and dispose of those funds under NMSA 1978, Section 40-3-14(A), and the Code commentary recognizing independent political activity by a judge's family. Source: Opinion 17-01, p. 1.

The judge must avoid actions appearing to endorse the spouse's campaign and public association with the campaign or contributions. The committee suggested urging the spouse to use a separate account for contributions so the judge's name would not appear on checks, while noting that a separate account would not itself change the funds' community-property character. Source: Opinion 17-01, p. 2.

In practice

The opinion distinguishes the spouse's authority over community property from the judge's own bar on contributions and public endorsement. It did not decide whether moving money from a joint account to a separate account would transmute the property. Source: Opinion 17-01, pp. 1–2.

Common questions

Q: May the judge contribute directly to the spouse's campaign?

A: No. The committee applied Rule 21-401(C)(4)'s express prohibition. Source: Opinion 17-01, p. 1.

Q: May the spouse contribute community funds to the campaign?

A: Yes. The committee concluded that the spouse's authority over community funds and right to political activity permit that contribution. Source: Opinion 17-01, p. 1.

Q: Why did the committee suggest a separate account?

A: Checks from an account in the spouse's name would avoid displaying the judge's name and minimize the appearance of judicial endorsement. Source: Opinion 17-01, p. 2.

Background and rules framework

The opinion applies New Mexico Code of Judicial Conduct Rules 21-401(C)(4) and 21-401(C)(2), cites commentary 3 to Rule 21-401, and relies on NMSA 1978, Section 40-3-14(A) for the spouse's authority over community funds. Source: Opinion 17-01, pp. 1–2.

Citations and references

New Mexico Code of Judicial Conduct:

• Rules 21-401(C)(4), 21-401(C)(2), and Rule 21-401 commentary 3. Source: Opinion 17-01.

Statutes:

• NMSA 1978, Section 40-3-14(A). Source: Opinion 17-01, p. 1.

Other opinions cited:

• Maryland Opinion Request 2016-23, Pennsylvania Informal Advisory Opinion 11/30/2010, and Louisiana Advisory Opinion, May 5, 2017, on spouses' campaign contributions. Source: Opinion 17-01, p. 2.

See also

• NM Judicial Ethics Op. 18-01: Campaign Endorsement and Recusal
• NM Judicial Ethics Op. 18-03: Campaign Literature and Business

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 17-01

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

July 6, 2017

Re: Judicial Advisory Opinion No. 17-01

You have asked the Advisory Committee on the Code of Judicial Conduct two questions concerning the application of the Code of Judicial Conduct to political contributions to the campaign of your spouse who is a candidate for elective office: (1) whether you may make a financial contribution to the campaign; and (2) whether your spouse may contribute to the campaign because you hold all assets as community property with your spouse, with all funds in joint checking accounts.

As to your first question, the Code explicitly prohibits your contribution. See Rule 21- 401(C)(4) NMRA (stating that a judge, except in circumstances not applicable, shall not “solicit funds for, pay an assessment to, or make a contribution to a political organization or candidate”).

There is no similarly explicit provision in the Code that addresses your second question. The commentary recognizes, however, that members of a judge’s family may “engage in their own political activity, including running for public office[.]” Rule 21-401 comm. cmt. 3. Political activity may involve contributions to political campaigns. See Rule 21-401(C) (including campaign contributions with other political activity). The Code does not distinguish based on the recipient of the contribution. Thus, although you are prohibited from contributing to your spouse’s campaign, your spouse is not. The issue arises because your spouse does not have separate property from which to make such contributions.

Your spouse, however, “has full power to manage, control, dispose of and encumber” the community funds. NMSA 1978, Section 40-3-14(A) (1975). The Committee believes that this interest, in conjunction with the right to engage in political activity, enables your spouse to use the funds to contribute to your spouse’s campaign.

Nonetheless, the Code imposes restrictions on your behavior with respect to your spouse’s campaign and contributions. Under Rule 21-401(C)(2), a judge shall not publicly endorse any candidate for public office. The commentary provides that a judge “must not become involved in, or publicly associated with, a family member’s political activity or campaign for public office.” Rule 21-401 comm. cmt. 3. Moreover, a judge “should urge members of their families to take[] reasonable steps to avoid any implication that the judge . . . endorse[s] any family member’s candidacy or other political activity.” Id.

Following this rule and commentary, you must not engage in actions that appear to publicly endorse your spouse’s campaign, and you must avoid public association with your spouse’s campaign and contributions to the campaign. You should also urge your spouse to take reasonable action to avoid the appearance that you are supporting the campaign or contributions to the campaign.

Advisory opinions from other states have advised judges that a judge’s spouse may make contributions to political campaigns from separate accounts. See Maryland Opinion Request 2016-23 (advising that a judge’s spouse may make political contributions from other than a joint account); Pennsylvania Informal Advisory Opinion 11/30/2010 (advising that a judge’s spouse may make a political contribution from an account solely in the spouse’s name). These advisory opinions are not from community property states. In the only opinion the Committee has been able to find from a community property state, a recent Louisiana advisory opinion advises that a judge’s spouse may use community funds to contribute to the spouse’s campaign if, among other requirements, the judge’s name does not appear on the check. Louisiana Advisory Opinion, May 5, 2017 (attached),

In New Mexico, also a community property state, even if your spouse created a separate account to make the contributions, the funds would continue to be community property.! The creation of a separate account to make the contributions would thus seem in the legal sense to be a matter of form over substance. As demonstrated by the Louisiana advisory opinion, however, for campaign reporting purposes, your name would not appear on checks from a separate account. Such separation minimizes the appearance that you are endorsing your spouse’s campaign merely because community funds are used to make the contributions. Indeed, as the Committee has expressed, your spouse has full authority to manage and dispose of community funds. The Committee suggests, therefore, that you urge your spouse to create a separate account from which to contribute to your spouse’s campaign.

Very truly yours,

Chair

"The Committee does not address the question of whether the transfer of funds from a joint account to a separate account would transmute community funds to separate property.

2