May a nonincumbent judicial candidate allow a charity to use the candidate's name and photo in a fundraising brochure?

Plain-English summary

The requester had served on a nonprofit board for years before becoming a nonincumbent judicial candidate. The organization wanted the candidate's name and picture in its fundraising brochure without referring to the campaign. Source: Opinion 98-01, p. 1

The committee reasoned that Rule 21-500's prohibition on using judicial prestige for fundraising did not apply to a nonincumbent candidate who had not attained office. It cited the Code provision specifying which rules bind candidates and emphasized that its answer was limited to this fact pattern and fundraising provision. Source: Opinion 98-01, pp. 1–2

In practice

The opinion concerns a nonincumbent candidate's existing charity relationship and a brochure without any mention of the candidacy; it does not address an incumbent judge's use of judicial prestige. Source: Opinion 98-01, pp. 1–2

Common questions

Q: Did the committee extend its answer to incumbent judges?

A: No. It expressly limited the conclusion to nonincumbent candidates and the particular Rule 21-500 restriction. Source: Opinion 98-01, p. 2

Q: Did the brochure promote the judicial campaign?

A: The request said it would use the person's name and photo but make no mention of the candidacy. Source: Opinion 98-01, p. 1

Background and rules framework

The committee compared then-current New Mexico Code of Judicial Conduct Rules 21-500, 21-901, and 21-900 on judges, judicial candidates, and charitable fundraising. Source: Opinion 98-01, pp. 1–2

Citations and references

• New Mexico Code of Judicial Conduct Rules 21-500, 21-901, and 21-900. Source: Opinion 98-01, pp. 1–2

See also

• NM Judicial Op. 99-03: Charity Letterhead
• NM Judicial Op. 99-07: Campaign Word Retain

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Judicial Advisory Opinion 98-01

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.
Hon. Marie A. Baca
February 20, 1998

Judicial Advisory Opinion 98-01

Dear

You have requested an opinion from this committee whether it is a violation of the Code of Judicial Conduct for a non incumbent judicial candidate to allow the use of his or her name to solicit funds for a nonprofit charitable organization.

You have been a member of the board of this organization for several years prior to your decision to become a candidate for district judge.
The nonprofit charitable organization wishes to use your name and a picture in a brochure which is used to solicit funds. There is to be no mention of your judicial candidacy in the brochure.
The use of a judge's name for fund raising or membership solicitation for a nonprofit charitable organization is prohibited by Rule 2l-500(C)(3)(b)(iv). "A judge shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation."

Rule 21-901(A) provides that all candidates for judicial office shall comply with the provisions of the Code except as provided in this rule.

The specific rule which applies to violations of any of the rules of the Code by candidates for judicial office is Rule 21-900(B) violations by candidates for judicial office which states:

All candidates for judicial office shall comply with Rules 21- 700 [Elections and political activity], 21-800 [Campaign fund-raising], 21-900 [Violations] and 21-901 [Applicability] of the Code of Judicial Conduct. ***
[Bracketed descriptions added]
Nowhere in the specific rule concerning candidates is there any mention of Rule 21-500. It does not seem reasonable for Rule 21-500 (C)(3)(b)(iv)'s prohibition on the use of the prestige of judicial office for fund-raising to apply to a non incumbent judicial candidate that has not attained office and therefore does not have any prestige to use.

It should be noted that the Model Code of Judicial Conduct prohibits candidates from inappropriate political activity and makes no reference to any prohibition of judicial candidates to fund-raising or membership solicitation.

Also it should be noted that this opinion is limited to the fact situation as set out herein. It applies only to 2l-500(C)(3)(b)(iv) and to non incumbent judicial candidates. The application of the code to judicial candidates should be made based upon the fact situation in each case.

Very truly yours,

Frank H. Allen, Jr.
Chairman, Judicial Advisory
Committee

FHA/mav