Could a new New Mexico Supreme Court justice continue serving on a public technical college governing board?

Plain-English summary

The requester asked whether joining the New Mexico Supreme Court required leaving the T-VI public technical college governing board. The committee concluded that Canon 21-500(C)(2), governing public appointments unrelated to improving law or justice administration, controlled despite the general permission for some educational nonprofit board service in paragraph C(3). Source: Opinion 96-08

The committee cited Code commentary distinguishing a public educational institution other than a law school from a public law school or private educational institution. It said the prohibition applied to continued service, not merely to accepting a new appointment after becoming a judge. Source: Opinion 96-08

Currency note

This 1996 opinion applied the New Mexico Code of Judicial Conduct as it stood then. Later amendments or opinions may have changed the analysis. Treat it as historical context and verify the current Code before relying on it. Source for historical rule: Opinion 96-08

Common questions

Q: Did an earlier board appointment allow the judge to stay on?

A: No. The committee read the rule and commentary to prohibit service itself during judicial tenure, even if appointment occurred earlier. Source: Opinion 96-08

Q: How did the committee distinguish a public law school?

A: It relied on commentary saying service on a public educational board other than a law school was prohibited, while a public law school or private educational board was generally permitted under paragraph C(3). Source: Opinion 96-08

Background and rules framework

The committee interpreted New Mexico Code of Judicial Conduct Canon 21-500(C)(2) and (C)(3), giving controlling effect to the restriction on governmental positions concerned with matters other than improvement of law, the legal system, or justice administration. Source: Opinion 96-08

Citations and references

• New Mexico Code of Judicial Conduct Canon 21-500(C)(2) and (C)(3). Source: Opinion 96-08

See also

• NM Judicial Op. 96-06: CASA Board

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Judicial Advisory Opinion 96-08

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Committee on the Code of Judicial Conduct

Hon. Frank H. Allen. Jr. Chairman
Hon. Thomas A. Donnelly
Prof. William T. MacPhearson. Jr.
June 19, 1996
Hon. Marie A. Baca

Re: Judicial Advisory Opinion No. 96-08

This advisory opinion is in response to your inquiry as to whether the New Mexico Constitution, the Code of Judicial Conduct, or any law of New Mexico requires you to resign from the T-VI Governing Board when you become a member of the New Mexico Supreme Court. After reviewing New Mexico law and the applicable Code provisions, we conclude that the Code of Judicial Conduct and its accompanying Commentary, promulgated by the New Mexico Supreme Court, provide an answer to your question.

As you noted in your letter of inquiry, the provisions of Canon 21-500(C)(2) and (C)(3) specifically address the involvement of a judge in non-judicial activities and are applicable to your situation.

Canon 21-500(C)(2) provides:

A judge shall not accept appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system or the administration of justice. A judge may, however, represent a country, state or locality on ceremonial occasions or in connection with historical, educational or cultural activities;

and Canon 21-500(C)(3) further states:
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A judge may serve as an officer, director, trustee or non-legal advisor... of an educational... organization not conducted for profit, subject to the... other requirements of this Code....

The language in Canon 21-500(C)(3) subjects any activity permitted by that provision to the other requirements of the Code, such as Canon 21-500(C)(2). Thus, in this instance, we believe the requirement of Canon 21-500(C)(2) that a judge not accept a governmental position concerned with issues other than the improvement of the law is controlling.

The Commentary to Canon 21-500(C)(2) provides an illustrative explanation of this provision of the Code, which we deem highly instructive:

[S]ervice on the board of a public educational institution, unless it were a law school. would be prohibited under Paragraph C(2), but service on the board of a public law school or any private educational institution would generally be permitted under Paragraph C(3). [Emphasis added.]

Because T-VI is a public educational institution other than a law school, we conclude that the provisions of Canon 21-500(C) and the Commentary thereto indicate that an individual may not serve on the governing board of such institution during the period that a judge serves as a member of the judiciary. We do not believe the provisions of Paragraph C(2), and the Commentary explaining such provision, apply only to situations involving an appointment to the board of an educational institution by a sitting judge. The language of the Commentary indicates that it is service on the board of a public educational institution by a judge which Paragraph C(2) prohibits, rather than merely the acceptance of an appointment to such a board.

Yours very truly,

Thomas A. Donnelly
Member, Judicial Advisory
Committee