Must a judge recuse after learning that a witness may be a former government colleague?

Plain-English summary

A judge who had formerly served as a New Mexico department deputy secretary and secretary learned that a witness in an employment case might be a person who had worked in that department. The witness was not a party, but had supplied an affidavit for the defendant agency's summary judgment motion, which the judge had granted before learning of the possible connection. Source: Opinion 21-01, p. 1.

The committee assumed for its analysis that the witness was the former colleague. The judge reported no personal bias for the defendant, no close work with the witness, and no contact with him since leaving the department nearly ten years earlier. The committee found these facts did not create an appearance of personal bias or reasonably question the judge's impartiality. Source: Opinion 21-01, pp. 1–2.

Because Rule 21-211(A) did not disqualify the judge on these facts, the committee also concluded that the earlier summary judgment ruling did not need reversal. Source: Opinion 21-01, p. 2.

In practice

Under this opinion, a witness's possible prior employment with a judge did not itself require recusal where the judge lacked bias, had not worked closely with the witness, and had had no contact in nearly ten years. The committee applied the same conclusion to the judge's already issued ruling. Source: Opinion 21-01, p. 2.

Common questions

Q: Did the former colleague's affidavit require the judge to recuse?

A: No. The committee concluded that the stated relationship did not create an appearance of bias or reasonably call the judge's impartiality into question. Source: Opinion 21-01, p. 2.

Q: Did the judge need to reverse the summary judgment ruling?

A: No. The committee tied that answer to its conclusion that Rule 21-211(A) did not disqualify the judge. Source: Opinion 21-01, p. 2.

Background and rules framework

The opinion applied New Mexico Code of Judicial Conduct Rule 21-211(A)'s reasonable-question standard and Rule 21-211(A)(1)'s personal-bias ground. It did not decide the witness's identity as a fact; it assumed the witness was the former colleague for the analysis. Source: Opinion 21-01, pp. 1–2.

Citations and references

New Mexico Code of Judicial Conduct:

• Rules 21-211(A) and 21-211(A)(1). Source: Opinion 21-01.

See also

• NM Judicial Ethics Op. 18-01: Campaign Endorsement and Recusal
• AL Judicial Ethics Op. 96-613: Old Connections and Recusal

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 21-01

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, 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 Romero approved, or endorsed by the New Mexico Supreme Court; Hon. Sandra Engel nor are they binding.

January 19, 2021

RE: AO 21-01

You formerly served as the deputy secretary and secretary of a State of New

Mexico department. During that time, a person with the same name as a witness in a case before you worked for the department including as an acting division director. The case before you is an employment case against a public agency; the person named as a witness was the executive director of the agency. The agency listed him as a witness, and he provided an affidavit in support of the agency's motion for summary judgment, which you granted. He was not a party to the case. You have requested an advisory opinion from the Advisory Committee on the Code of Judicial Conduct as to whether, under the Code of Judicial Conduct, (1) you should now, after learning about the prior employment of the witness, disqualify yourself from

the case; and (2) you should reverse your summary judgment ruling. Rule 21-211(A) NMRA provides

A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to the following circumstances: (1) The judge has a personal bias or prejudice concerning a party

Although you have stated that you do not know with certainty that the witness was the person with whom you previously worked, for the purposes of our opinion, the Committee will assume that he is the same person. We note that you were not aware that you had any connection with the witness until it was brought to your

attention after you acted on the summary judgment motion.

Under Rule 21-211(A)(1), you would be disqualified if, as a result of your previous work with the witness, you had a personal bias for the witness’s current employer, the defendant in the case. You have advised the Committee that you do not have such a bias, that you did not work closely with the witness, and that you have not had any contact with the witness since your employment with the department ended nearly ten years prior to your action in the case before you. The Committee does not believe that the circumstances you have described give rise to an appearance of personal bias toward the defendant in the case. Nor does the Committee believe that these circumstances raise an appearance under which your impartiality might reasonably be questioned. Because you would not be disqualified from the case under Rule 21-211(A), you would not need to reverse your summary

judgment ruling.

James J. Wechsler

Co-chair