Must judges recuse from cases filed by applicants who challenged the court’s hiring decision?

Plain-English summary

Four unsuccessful court job applicants petitioned the Supreme Court to challenge a hiring decision and named the chief judge in an official capacity. The chief judge and four other judges involved in hiring asked whether they could hear the applicants’ pending cases. [Source: Opinion 18-08, p. 1]

The committee treated the hiring dispute as official court business rather than a personal relationship with the applicants. It cited the distinction between judicial or official activity and personal bias under Rule 21-211(A). [Source: Opinion 18-08, pp. 2–3]

It concluded that the judges were not disqualified absent actual personal prejudice against a petitioner, whether arising from the petition or otherwise. [Source: Opinion 18-08, pp. 2–3]

In practice

The opinion does not treat an official-capacity challenge to a court hiring decision as automatic disqualification in the applicants’ unrelated cases. Its conclusion leaves actual personal prejudice as a separate issue. [Source: Opinion 18-08, pp. 2–3]

Common questions

Q: Did the applicants’ hiring petition automatically disqualify the judges?

A: No. The committee viewed the petition as arising from official court business. [Source: Opinion 18-08, pp. 2–3]

Q: What would change the result?

A: Actual personal prejudice against a petitioner would require a separate disqualification analysis. [Source: Opinion 18-08, pp. 2–3]

Background and rules framework

The opinion applies New Mexico Code of Judicial Conduct Rule 21-211(A), including subsection (A)(1), and cites United Nuclear Corp. and Purpura on personal bias. [Source: Opinion 18-08, pp. 2–3]

Citations and references

New Mexico Code of Judicial Conduct:

• Rules 21-211(A), 21-211(A)(1). Source: Opinion 18-08.

See also

• NM Judicial Ethics Op. 20-01: Lawsuit Against Prosecutor
• NM Judicial Ethics Op. 20-03: Prior Ruling and Recusal

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 18-08

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 Hon. Freddie J. Romero issued, approved, or endorsed by the New Mexico Hon. Sandra W. Engel Supreme Court; nor are théy binding.

October 31, 2018

• Re: AO 18-08

Your court recently hired a domestic relations commissioner. Four of the unsuccessful candidates filed a petition in the Supreme Court for a writ of mandamus and request for a stay, challenging the hiring decision. They named you as the defendant in your official capacity as chief judge. Four other judges on your court, which has a total of eight judges, also served on the committee that conducted interviews and made the hiring decision. The four petitioners have numerous cases pending in your court. You have asked the Advisory Committee on the Code of

Judicial Conduct whether you and the other participating judges are disqualified from hearing the cases of the petitioners.

Rule 21-211(A) NMRA requires a judge to disqualify himself or herself “in any proceeding in which the judge’s impartiality might reasonably be questioned, ... .” Our Supreme Court has stated that the basis for disqualification “must stem from an extrajudicial source.” United Nuclear Corp. v. General Atomic Co., 1980-NMSC-094, 7 418, 96 N.M. 155, 629 P.2d 231 (internal quotation marks and citation omitted). The Court determined that the district judge was not disqualified because of criticism the judge had ofa party in the course of a court proceeding. Id. J] 411-28. Our Court of Appeals has held that, absent personal animosity, a judge need not recuse from a contempt hearing due to previous contempt charges and sanctions imposed. Purpura v. Purpura, 1993-NMCA-001, Tf 8-12, 115 N.M. 80, 847 P.2d 314 (decided prior to 2011 compilation). Moreover, as a leading treatise has noted, “a judge is not ordinarily disqualified from presiding over a case where one of the attorneys has filed a disciplinary complaint — the judge.” Geyh, et. al, Judicial Conduct and Ethics,
§ 4.10 (Sth ed. 2013).

Although the basis for the petition filed against you does not stem from judicial proceedings, it arises from official court business. As a result, for the purposes of disqualification, the Committee views it similarly to judicial activity. Indeed, it does not arise from personal involvement that you or the other judges have had with the petitioners. Under these circumstances, the Committee believes that you are not

disqualified absent some actual personal prejudice that you may have against any of

2
the petitioners, either because of the petition or otherwise. See Rule 21-2] I(A)Q) (stating that a judge shall disqualify himself or herself if the judge “has a personal bias or prejudice concerning a party or a party’s lawyer”); see also Geyh, et. al, Judicial Conduct and Ethics, § 4.07(3) ( “hostility toward a party’s attorney must be

both personal and extreme before it is disqualifying”)

fees J. Wed¥Sler
o-chair

Judge Julie J. Vargas did not participate in this opinion.