Must a newly appointed judge recuse after a senator who is a defendant agreed to introduce the judge to legislative colleagues?

Plain-English summary

A newly appointed judge presided over a legal-malpractice case involving a state senator as a defendant. Before taking the oath, the judge met the senator to discuss an upcoming election; the senator agreed to introduce the judge to legislative colleagues. The judge abandoned follow-up upon learning of the lawsuit. [Source: Opinion 17-05, p. 1]

The committee explained that Rule 21-211(A) uses an objective standard: disqualification is required when impartiality might reasonably be questioned, even without actual bias. The senator’s promise offered a political benefit, and the committee considered the plaintiff’s concern reasonable. It recommended disqualification. [Source: Opinion 17-05, pp. 2–3]

The committee did not treat the senator’s role in court budgeting, or a separate defendant’s advice about judicial appointment, as requiring disqualification. It reserved the case of a senator appearing as counsel rather than as a party. [Source: Opinion 17-05, p. 3]

In practice

The opinion’s recommendation turns on the senator’s commitment to introduce the judge to colleagues while he was a party before that judge. The judge’s decision not to pursue the introduction did not remove the appearance concern. [Source: Opinion 17-05, p. 3]

Common questions

Q: Did the committee require proof of actual bias?

A: No. It read Rule 21-211(A) as an objective standard covering reasonably questioned impartiality. [Source: Opinion 17-05, p. 2]

Q: Did declining the promised introductions resolve the concern?

A: No. The committee recommended disqualification because the senator had already made the commitment. [Source: Opinion 17-05, p. 3]

Q: Did the senator’s budget role independently require recusal?

A: No. The committee said his official role in court budget and legislation did not itself require disqualification. [Source: Opinion 17-05, p. 3]

Background and rules framework

The committee applies New Mexico Code of Judicial Conduct Rules 21-211(A) and 21-211(A)(1), and cites Rule 21-102 on avoiding the appearance of impropriety. [Source: Opinion 17-05, p. 2]

Citations and references

New Mexico Code of Judicial Conduct:

• Rules 21-211(A), 21-211(A)(1), 21-102. Source: Opinion 17-05.

See also

• NM Judicial Ethics Op. 18-01: Campaign Endorsement and Recusal
• NM Judicial Ethics Op. 20-01: Lawsuit Against Prosecutor

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 17-05

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, Co-Chair (ret.) This is an advisory opinion by the New Mexico Advisory Hon. Julie J. Vargas, Co-Chair Committee on the Code of Judicial Conduct. Advisory Paul L. Biderman, Esq. opinions are responses to inquiries from judges seeking Prof. Robert L. Schwartz guidance on judicial ethics questions. They are not issued, Hon. Freddie J. Romero approved, or endorsed by the New Mexico Supreme Court; Hon. Sandra W. Engel nor are they binding.

December 7, 2017

Re: Judicial Advisory Opinion No. 17-05 (Re-issued)

You were recently appointed to the bench and are the presiding judge in a legal malpractice case against a law firm and its individual partners. You initiated contact with one of the defendants prior to your appointment and with another immediately after your appointment. You have asked the Advisory Committee on the Code of Judicial Conduct for advice as to whether you should disqualify yourself from the case.

You made the first contact with one of the defendants to discuss his experience with a previous judicial nominating commission and appointment process. At that time, of course, you were not a judge, and you did not know about the case that was pending in the court. After your appointment, but before you assumed your position, you left a telephone message for this defendant to thank him for his assistance.

Your contact with the other defendant began after your appointment. You exchanged telephone message both to set up a meeting and to discuss possible dates for your investiture. This defendant is a state senator, and you planned to invite him. You met with him after your appointment but before taking your oath of office and discussed your upcoming election and the political landscape. Although he informed you that he would not endorse any candidate, he agreed to introduce you to his legislative colleagues. When you learned of the existence of the lawsuit, your abandoned any effort to follow up on this meeting.

Page Two

The attorney for the plaintiff in the case has written you, asking that “you consider whether it would be appropriate for you to recuse yourself in this case.” In addition to citing the contacts you have had with the two defendants, the attorney notes that two other judges have recused and suggests that they did so because of the senator’s capacity to influence the court’s budget and other matters affecting the court.

Rule 21-211(A) NMRA addresses the circumstances that require a judge’s disqualification. It provides that a “judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.” Rule 21-211(A)(1) cites the example of a judge’s “personal bias” concerning “a party or a party’s lawyer” as a circumstance requiring disqualification.

In addressing the standard for disqualification, we note that the example of Rule 21- 211(A)(1) focuses on when a judge has an actual bias toward a party or the party’s lawyer. You have advised the Committee that you do not have an actual bias toward the defendants as a result of your contact with them and that you believe that you can impartially preside over this case. Notwithstanding the language of this example, however, the rule requires an objective, rather than a subjective determination. It specifically requires disqualification if “the judge’s impartiality might reasonably be questioned.” See also Rule 21-102 NMRA (requiring a judge to avoid the appearance of impropriety). By using the word “might,” the rule specifically embraces situations in which there is merely the possibility that a reasonable person could question the judge’s impartiality. See American Heritage Dictionary of the English Language 1115 (5" ed. 2011) (defining “might” as indicating “a possibility or probability that is weaker than ‘may’”). This wording indicates the Code’s intent to favor disqualification if reasonable minds could disagree as to the judge’s ability to be impartial.

Under this analysis required by Rule 21-211, the Committee believes that your contact with the senator-defendant might reasonably give rise to a question concerning your ability to act impartiality in light of the defendant’s agreement to introduce you to his legislative colleagues. We observe that you did not take any knowing action to place yourself in this position; you had not reason to know of the pending case at the time of your contacts because you were not yet in your position. We also acknowledge that the campaign requirements for a newly-appointed judge require reaching out to persons in the community in ways that you would not otherwise endeavor to do. Nevertheless, Rule 21-211 requires disqualification when a judge’s impartiality might reasonably be questioned.

Page Three

The Committee believes that the plaintiffs attorney question concerning you impartiality in this case is not unreasonable and recommends that you disqualify yourself from the case. You initiated the contact and met with the senator. As a result of your meeting, he agreed to perform a favor for you - to introduce you to his legislative colleagues. Objectively, such an introduction would be a political benefit to you. Notwithstanding that you decided not to pursue this favor, the agreement had been made. To the objective observer, he had recently made a commitment to you and was now a defendant in a case reflecting upon the propriety of his law firm’s actions. Such observor might reasonably believe that you could not put his previous commitment entirely aside when he appears before you as a party in the case.

The Committee does not believe that the fact that the senator passes on the court’s budget or other legislation affecting the court requires disqualification. The senator in such circumstances is acting in his official duties. Moreover, if such responsibilities would require disqualification, no judge would be able to preside over the case. Additionally, the Committee considers the senator’s position as a party to be significant to our analysis. We do not take a position as to disqualification if the senator had been a lawyer, not a party. Lastly, the Committee does not believe that your contact with the defendant concerning the judicial nominating commission and the appointment process requires disqualification.

Very truly yours,
James J. Wechsler Julie J. Vargas
Co-Chair Co-Chair

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

*Please note that Paul L. Biderman was not involved in this decision by the Committee.