May a judge distribute gift cards to kinship guardians appointed by the judge?

Plain-English summary

A district access-to-justice committee proposed a program funded by local lawyers or a bar association to give store gift cards to appointed kinship guardians. A judge who appointed these guardians asked whether the judge could distribute the cards in court, where guardians could readily receive them. Source: Opinion 22-03, p. 1.

The committee said the appointed guardians were petitioners before the judge and might return for further proceedings. A judge's role in providing gifts to them or choosing recipients would at least create an appearance of partiality under Rules 21-102 and 21-202. Source: Opinion 22-03, p. 1.

The committee recommended that the judge stay out of the program and distribution. It proposed that the sponsor use another court office to distribute cards. The judge could tell appointed guardians about the independent program and where to inquire. Source: Opinion 22-03, pp. 1–2.

In practice

Under this opinion, the judge's intended direct distribution to guardians the judge appointed was inconsistent with the committee's impartiality analysis. The opinion distinguished informing guardians of an independent program from participating in its gift decisions or distribution. Source: Opinion 22-03, pp. 1–2.

Common questions

Q: Could the appointing judge hand gift cards to kinship guardians in court?

A: The committee recommended against it because the guardians were petitioners before the judge and later issues could return to court. Source: Opinion 22-03, pp. 1–2.

Q: Could the judge tell guardians that the program exists?

A: Yes. The committee said the judge could describe the program as independent of the court and direct interested guardians to the office working with its sponsor. Source: Opinion 22-03, p. 2.

Background and rules framework

The opinion applied New Mexico Code of Judicial Conduct Rules 21-102 and 21-202 on public confidence in judicial integrity and impartial performance of judicial duties. It identified the beneficiaries as petitioners in proceedings under the Kinship Guardianship Act, but did not interpret that Act's eligibility rules. Source: Opinion 22-03, p. 1.

Citations and references

New Mexico Code of Judicial Conduct:

• Rules 21-102 and 21-202; Rule 21-102 Comment 3. Source: Opinion 22-03, p. 1.

Statutes:

• Kinship Guardianship Act, NMRA 1978, §§ 40-10B-1-21 (2001). Source: Opinion 22-03, p. 1.

See also

• AL Judicial Ethics Op. 11-906: Bar Foundation Funding
• AL Judicial Ethics Op. 94-518: Gift of Computer Equipment

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 22-03

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. SupRr Wet ike

PL MENS CRSP ASAD BREN AIS

SANTA rk, Navy ii

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. Kristina Bogardus, 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. Yvette Gonzales nor are they binding.

Re: AO 22-03

You preside over cases under the Kinship Guardianship Act, NMRA 1978, §§ 40-10B-1- 21 (2001). The vast majority of caregivers petitioning your court to be appointed kinship guardians do not have significant financial resources. CYFD does not currently provide any assistance. As a result, the Access to Justice Committee in your district is proposing a program to provide gift cards from local stores to appointed kinship guardians to help defray guardianship expenses. The program would be sponsored by local attorneys or the local bar association.

You have sought the advice of the Advisory Committee on the Code of Judicial Conduct concerning the process to be followed to distribute the gifts cards. You have informed this Committee that you believe that the only practical way to distribute the gift cards is at the court in that it is reasonable to expect that, after they leave the courthouse, many of the appointed kinship guardians will not be able to readily access third-party sponsors whether through the internet or otherwise. You have thus asked this Committee whether the Code of Judicial Conduct permits you to distribute the gift cards to the kinship guardians you appoint.

The issues you raise concern the appearance of impartiality addressed in Rule 21-102 NMRA, requiring judges to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary, and Rule 21-202 NMRA, requiring judges to “perform all duties of judicial office fairly and impartially.” Rule 21-102 NMRA, comment 3, notes that “conduct that compromises or appears to compromise the independence, integrity, and impartiality of a judge undermines public confidence in the judiciary.”

The kinship guardians whom you appoint are petitioners in proceedings before you. Although they have been appointed, additional issues may arise that require further proceedings. It would raise at least the appearance of partiality if you were part of a program that provided gifts to them or decided whether they should receive such gifts.

This Committee therefore recommends that you do not participate in the program or the distribution of the gifts cards. We propose that the program sponsor work with another office of the court to distribute the gift cards. You may inform appointed kinship guardians that there is such a program, that it is independent of the court, and that the kinship guardian should go to the office working with the sponsor if the guardian is interested in receiving gift cards.

James J. Wechsler
Co-Chair

Kristina Bogardus
Co-Chair