N.M. Code. Jud. Cond. 21-203
N.M. Code. Jud. Cond. 21-203
Committee commentary. -
[1] A judge who manifests bias or prejudice in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute.
[2] Examples of manifestations of bias or prejudice include, but are not limited to, epithets; slurs; demeaning nicknames; negative stereotyping; attempted humor based on stereotypes; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant references to personal characteristics. Even facial expressions and body language can convey to parties and lawyers in the proceeding, jurors, the media, and others an appearance of bias or prejudice. A judge must avoid conduct that may reasonably be perceived as prejudiced or biased.
[3] Harassment, as referred to in Paragraphs (B) and (C), is verbal or physical conduct that denigrates or shows hostility or aversion toward a person on bases such as race, religion, color, national origin, ethnicity, ancestry, sex, sexual orientation, gender identity, marital status, spousal affiliation, socioeconomic status, political affiliation, age, physical or mental handicap or serious medical condition. Judges are also subject to the New Mexico Judicial Branch harassment policy.
[4] Sexual harassment includes, but is not limited to, sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is unwelcome.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
ANNOTATIONS Recompilations. - Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers. Threats against a presiding judge. - Where thee criminal cases pending against the defendant were assigned to the same judge; during the pendency of the three cases, the defendant was charged with conspiring to commit an assault with a deadly weapon on the judge; the judge filed a recusal in the conspiracy case, but not in the other three pending cases; and there was no showing of bias by the judge against the defendant, the judge did not abuse the judge's discretion in denying the defendant's motion requesting the recusal of the judge. State v. Riordan, 2009-NMSC-022, 146 N.M. 281, 209 P.3d 773 (decided prior to the 2011 recompilation). Denial of recusal not an abuse of discretion. - Where defendant was a child offender under the juvenile system; the court determined that defendant was not amenable to rehabilitation or treatment as a child and sentenced defendant as an adult after defendant pled guilty to second degree murder; prior to being appointed as district judge, the trial judge had been appointed as a contract public defender to represent the victim, who had been murdered by defendant, in a juvenile delinquency proceeding; the judge's former law partner actually appeared at all the hearings in the victim's case; and the judge did not personally represent the victim, engage in plea negotiations on the victim's behalf, discuss a plea with the victim or the victim's parents, appear before the court on behalf of the victim or the victim's parents, or have direct contact with the victim in the juvenile proceedings, the judge did not err in denying defendant's request for recusal. State v. Trujillo, 2009-NMCA-128, 147 N.M. 334, 222 P.3d 1040, cert. quashed, 2010-NMCERT-011, 150 N.M. 490, 262 P.3d 1143 (decided prior to the 2011 recompilation). Judge acting as mediator and as hearing officer to impose sanctions. - Where a district judge appointed another district judge as a mediator to conduct a settlement conference; the mediator judge was subsequently appointed to hear motions for sanctions against one party for alleged bad faith participation in the settlement conference; the mediator judge heard the motions, made findings of fact, concluded that the party had conducted itself in bad faith at the conference, and entered an order requiring the party to pay a sanction; and the appointing district judge independently reviewed the mediator judge's decision and came to its own independent conclusion regarding sanctions; the appointing judge did not abuse its discretion in appointing the mediator judge to hear the motions for sanctions. Carlsbad Hotel Associates, L.L.C. v. Patterson-UTI Drilling Co., 2009-NMCA-005, 145 N.M. 385, 199 P.3d 288, cert. quashed, 2010-NMCERT-001, 147 N.M. 673, 227 P.3d 1055 (decided prior to the 2011 recompilation). Recusal not required for prior judicial encounters. - The defendant's arguments that the trial judge was biased, based on the judge's previous contempt charges and sanctions or dislike toward the defendant, were without merit, since bias requiring recusal must arise from a personal, extra-judicial source, not a judicial source. Purpura v. Purpura, 1993-NMCA-001, 115 N.M. 80, 847 P.2d 314 (decided prior to the 2011 recompilation). Request for findings of fact and conclusions of law. - Because the court had decided in the state's favor, it was reasonable for the trial court to want to see requested findings of fact and conclusions of law from the plaintiff. Its request for those findings and conclusions did not show a bias or prejudice that would necessitate recusal, despite the defendant's assertion of an apparent personal interest of the court in ensuring that the state submit its requested findings and conclusions. State ex rel. Taxation & Revenue Dep't Motor Vehicle Div. v. Van Ruiten, 1988-NMCA-059, 107 N.M. 536, 760 P.2d 1302, cert. denied, 107 N.M. 413, 759 P.2d 200 (decided prior to the 2011 recompilation). Bias or prejudice as grounds for disqualification. - Bias or prejudice towards an attorney on each matter raised in the trial court is insufficient to disqualify a judge. This rule, however, is not absolute. If the bias or prejudice toward an attorney is of such a degree as to adversely affect the interest of the client, bias and prejudice toward an attorney is sufficient. Martinez v. Carmona, 1980-NMCA-139, 95 N.M. 545, 624 P.2d 54, cert. quashed, 95 N.M. 593, 624 P.2d 535 (1981) (decided prior to the 2011 recompilation). When a district judge believes that the judge's impartiality might reasonably be questioned with reference to bias and prejudice concerning a party, the judge must not exercise the judge's judicial function. Martinez v. Carmona, 1980-NMCA-139, 95 N.M. 545, 624 P.2d 54, cert. quashed, 95 N.M. 593, 624 P.2d 535 (1981); Klindera v. Worley Mills, Inc., 1981-NMCA-104, 96 N.M. 743, 634 P.2d 1295 (decided prior to the 2011 recompilation). Comment reflecting feelings about violent crimes after conviction was obtained.- A comment reflecting the judge's feelings about violent crime once a conviction was obtained did not suggest that the judge had a personal bias or prejudice against defendant during trial. State v. Swafford, 1989-NMCA-069, 109 N.M. 132, 782 P.2d 385, cert. denied, 109 N.M. 54, 781 P.2d 782 (decided prior to the 2011 recompilation). Imposition of the maximum sentence. - A claim of judicial bias cannot be based upon the imposition of the maximum legal sentence. State v. Swafford, 1989-NMCA-069, 109 N.M. 132, 782 P.2d 385, cert. denied, 109 N.M. 54, 781 P.2d 782 (decided prior to the 2011 recompilation). Judge's refusal to accept a tendered plea agreement did not demonstrate judicial bias or prejudice, where, when the plea and disposition agreement was tendered, the judge reserved ruling on it until the judge could consider a presentence report, information or treatment programs, and written statements from the victim of the crime and the victim's sibling regarding their feelings and views on the proposed disposition. State v. Swafford, 1989-NMCA-069, 109 N.M. 132, 782 P.2d 385, cert. denied, 109 N.M. 54, 781 P.2d 782 (decided prior to the 2011 recompilation). JUDICIAL REPRIMANDS Potential witness in a criminal case. - Where a magistrate judge released the defendant on the defendant's own recognizance; the defendant had been arrested for driving while intoxicated after a baseball tournament; the judge was not the designated on-call judge on the day the defendant was arrested; the judge knew the defendant and had been at the tournament with the defendant earlier in the day; and the judge knew that there were people drinking alcoholic beverages at the tournament, the judge's conduct constituted willful misconduct in office because the judge was a potential witness in the defendant's criminal case. In re Wingenroth, S.Ct. No. 33,228 (Filed October 19, 2011), Inquiry Concerning a Judge No. 2011-020 (decided prior to the 2011 recompilation). Personal acquaintance with the defendant in a criminal case. - Where the defendant had been arrested for driving while intoxicated after a baseball tournament; the defendant's spouse telephoned the magistrate judge's spouse at the judge's home to discuss the defendant's arrest; the defendant and the defendant's spouse knew the judge's family well enough to call the judge's spouse in an attempt to influence the judge; and the judge agreed to release the defendant on the defendant's own recognizance even though the judge was not on-call or assigned to handle the matter, the judge's conduct constituted willful misconduct in office because the judge took judicial action based on the telephone calls from the defendant's family to the judge's home. In re Wingenroth, S.Ct. No. 33,228 (Filed October 19, 2011), Inquiry Concerning a Judge No. 2011-020 (decided prior to the 2011 recompilation). Unlawfully accepting per diem expenses. - Where the judge wanted to attend training in another municipality; the judge certified and submitted a travel voucher claiming reimbursement for per diem expenses; the training was cancelled; the judge arranged to pick up the training material in the other municipality, drove to the other municipality and then drove to another municipality out-of-state; and the judge told the treasurer of the municipality that the training had been cancelled because of bad weather, the judge's conduct constituted willful misconduct in office. In re Lozano, S.Ct. No. 29,264 (Filed June 8, 2010) (decided prior to the 2011 recompilation). Abusing prestige of judicial office. - Where a municipal judge had private conversations with a contractor about the contractor's personal financial dispute with landowners who allegedly owed the contractor money for cleaning up the landowners' property; the judge called the landowners and left a message on the landowners' answering machine in which the judge identified himself as a judge and stated that the judge was calling about the financial dispute between them and the contractor and that the judge wanted the matter cleared up; the judge subsequently wrote the landowners a letter on municipal stationery, using the judge's title and court name discussing the contractor's claim and indicating that a lawsuit would be filed if the contractor was not paid; two weeks later, the judge was assigned to preside over a nuisance action by the municipality concerning the land that the contractor had supposedly cleaned; and the judge accepted the case and issued a summons to the landowners that did not conform with the rules of procedure, the judge's conduct constituted willful misconduct in office. In re Ramirez, S.Ct. No. 31,664 (Filed June 26, 2009) (decided prior to the 2011 recompilation). Allowing relationship to influence judicial conduct. - Where a judge was assigned a criminal case in which the defendant was charged with multiple counts of trafficking cocaine and distribution of methamphetamine; during the proceedings, the judge stipulated that the judge knew that by presiding over defendant's case the judge would not appear to be impartial, because the judge had a personal relationship with the attorney for and fiancé of the defendant who subsequently became the spouse of the defendant; the judge did not recuse from the case; the defendant pled no contest; the pre-sentence report stated that the defendant was a drug dealer and recommended prison sentences; at the sentencing hearing, the judge considered assigning the defendant to a new drug court program in lieu of incarceration; the judge agreed with the chief judge to recuse from the case; at a sentencing hearing before the new judge, the defendant stated that the original judge wanted to revoke the recusal; the new judge recused; and the original judge revoked the recusal and accepted jurisdiction over sentencing. In re McBee, 2006-NMSC-024, 138 N.M. 482, 134 P.3d 769 (decided prior to the 2011 recompilation). Personal involvement with and harassment of trial counsel. - Where a judge presided over and took judicial action in cases in which the assistant district attorney appeared on behalf of the state during the time the judge was engaged in a personal relationship with the assistant district attorney; the judge failed to inform all counsel or parties of record of the judge's relationship with the assistant district attorney in cases where the assistant district attorney appeared before the judge; the judge failed to be patient, dignified and courteous to counsel by making inappropriate remarks to assistant district attorneys about the judge's rulings in front of defendants, defense counsel, and co-counsel; and in one case, the judge suppressed evidence of a breath test, refused to allow the assistant district attorney to call the officer who administered the breath test to testify, and then taunted the assistant district attorney about not being able to prove the state's case, the judge committed willful misconduct in office. In re Galvan, S.Ct. No. 28,609 (Filed May 17, 2004) (decided prior to the 2011 recompilation). Intentional denial of right to appeal. - Where a judge ruled in favor of the defendant, refused to enter a judgment in the case to prevent the plaintiff from appealing in order to force the plaintiff to settle with the defendant; when the Supreme Court ordered the judge to enter a judgment, the judge expanded the issues litigated in the case; and after being reversed, the judge refused to award costs to the plaintiff, precipitating another appeal, the judge's conduct constituted willful misconduct in office. In re Castellano, 1995-NMSC-007, 119 N.M. 140, 889 P.2d 175 (decided prior to the 2011 recompilation).