May a part-time probate judge serve on a local electric cooperative’s election and credentials committee?

Plain-English summary

A part-time probate judge asked about serving on a local electric cooperative’s election committee, which would verify voting credentials and count ballots in a contested election. [Source: Opinion 18-04, p. 1]

The committee said the judge’s limited uncontested-probate jurisdiction and part-time status meant the outside-activity restrictions did not bar this role on the facts given. It distinguished abuse of the prestige of office from simply being known as a judge while undertaking permitted activity. [Source: Opinion 18-04, pp. 2–3]

The committee concluded that service did not violate Rule 21-103 and was permitted under Rule 21-301. It cautioned that circumstances not described in the inquiry could still implicate Rule 21-301’s restrictions. [Source: Opinion 18-04, p. 3]

In practice

The opinion permits this committee role for the described part-time probate judge, while limiting its conclusion to the facts presented and Rule 21-301’s restrictions. [Source: Opinion 18-04, pp. 2–3]

Common questions

Q: Did the judge’s known office itself abuse judicial prestige?

A: No. The committee distinguished being known as a judge from abusing the prestige of office in this permitted outside role. [Source: Opinion 18-04, pp. 2–3]

Q: Could other facts change the result?

A: Yes. The committee said unmentioned circumstances implicating Rule 21-301 could prevent service. [Source: Opinion 18-04, p. 3]

Background and rules framework

The opinion applies New Mexico Code of Judicial Conduct Rules 21-301 and 21-103 and discusses the part-time probate judge exceptions in Rule 21-004(B)(1). [Source: Opinion 18-04, pp. 1–3]

Citations and references

New Mexico Code of Judicial Conduct:

• Rules 21-301, 21-301(A)-(C), 21-004(B)(1), 21-103. Source: Opinion 18-04.

See also

• NM Judicial Ethics Op. 18-03: Campaign Literature and Business
• NM Judicial Ethics Op. 19-03: Family Charitable Foundation Board

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 18-04

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.

SuPREME CourT LAW LIBRARY
P.O. DRAWER L
SANTA FE NM 87504-0318

Advisory Committee on the Code of Judicial Conduct

This is an advisory opinion by the New Mexico Advisory Committee on the Code of Judicial Conduct, Advisory 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

Hon. Sandra W. Engel Court; nor are they binding.

Hon. James J. Wechsler, Co-Chair (ret.)
Hon. Julie J. Vargas, Co-Chair
Paul L. Biderman, Esq.

April 10, 2018

Re: Judicial Advisory Opinion 18-04

You have asked the Advisory Committee on the Code of Judicial Conduct whether you may serve on the election and credentials committee of your local electric cooperative in connection with an upcoming contested election. The duties of committee involve determining whether a person. or entity has the proper credentials to vote in the election and the counting of the ballots.

Rule 21-301 NMRA ofthe Code of Judicial Conduct permits judges to “engage in extrajudicial activities, except as prohibited by law or... [the] Code.” In doing so, however, among other proscriptions, “a judge shall not . . . participate in activities that will interfere with the proper performance of the judge’s judicial duties;”... lead to frequent disqualification of the judge;” ... or “would appear to areasonable person to undermine the judge’s independence, integrity, or impartiality.” Rule 21-301(A)-(C). Page Two

Your position as a part-time probate judge is particularly relevant to the Committee’s analysis. First, as a probate judge, your jurisdiction is limited to uncontested probate matters. Rule 21-004(B)(1) NMRA. As a result, the Committee does not perceive that the proscriptions of Rule 21-301 (A)-(C) restrict your ability to serve on the election and credentials committee. Second, as a part-time probate judge, the Code permits you to engage in extrajudicial activities that are not permissible for a full-time judge. See Rule 21-004(1)(a) (exempting part-time probate judges from compliance with rules pertaining to restrictions on extrajudicial

activities).

The Committee believes that the essential issue raised by your inquiry is whether your service on the election and credentials committee violates Rule 21-103 (and thereby also is impermissible extrajudicial activity under Rule 21-3 01). Rule21- 103 provides in pertinent part “A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of ... others... .” Thus, the issue is whether your service on the election and credentials committee abuses the prestige of your judicial office because it impermissibly advances the interests of the cooperative, presumably in providing a fair election.

The Committee notes the distinction between “abusing” the prestige of judicial office, as currently prohibited by the Code, and “lending” the prestige of judicial office, as prohibited by the Code prior to its amendment effective J anuary 1, 2012. Rule 21-103. By the nature of a judge’s official position, a judge carries the prestige of judicial office in most if not all of the judge’s actions. Rule 21-103. Thus, actions a judge may take for the benefit of another, suchas a cooperative entity, could likely involve the lending of the prestige of judicial office. Indeed, a judge acting as a committee member determining the ability ofa person or entity to vote in an election may attach the prestige of judicial office.

The Code permits you, however, as a part-time probate judge to practice law or serve on a governmental committee, board, or commission, as a fiduciary, as an arbitrator or mediator, or a business advisor. See Rule 2 1-004(B)(1)(a) (exempting part-time probate judges from compliance with Rule 21-304 NMRA (Appointments to governmental positions); 21-308(A) NMRA (Appointments to fiduciary positions); 21-309 NMRA (Service as arbitrator or mediator), 21-310 NMRA (Practice of law); and 21-311(B) NMRA (Financial or business activities). In any of Page Three

these capacities, you may be known as a judge, and with that recognition follows the | prestige of your office. Unless there are extenuating circumstances, in these capacities you do not “abuse” the prestige of judicial office because you are specifically permitted to publicly act in such capacities.

By analogy, the Committee does not believe that you would abuse your judicial position by acting as a member of the election and credentials committee. Although your judicial position may be known, the Code permits you, as a part-time probate judge, to take actions outside of your judicial capacity that involve the interests of others. Asa result, the Committee does not believe that your service on the committee would violate Rule 21-103 and that itis permitted under Rule 21-301. The Committee advises, however, that you should be sensitive to any circumstances not apparent from your inquiry that would indicate the presence of any of the Rule 21-301 proscriptions and would prevent your service.

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

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