N.M. Code. Jud. Cond. 21-204
N.M. Code. Jud. Cond. 21-204
Committee commentary. -
[1] An independent judiciary requires that judges decide cases according to the law and facts, without regard to whether particular laws or litigants are popular or unpopular with the public, the media, government officials, or the judge's friends and family. Confidence in the judiciary is eroded if judicial decision making is perceived to be subject to inappropriate outside influences.
[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. 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). Judge's relatives having ties to the victim. - Recusal of a judge at a murder trial was not required where the judge's brother-in-law was the attorney representing the victim's family in a wrongful death action against defendant and the judge's son was employed as a law clerk by the district attorney. State v. Fero, 1987-NMSC-008, 105 N.M. 339, 732 P.2d 866, aff'd, 1988-NMSC-053, 107 N.M. 369, 758 P.2d 783 (decided prior to the 2011 recompilation). JUDICIAL REPRIMANDS Issuance of a temporary restraining order based on personal knowledge of the parties. - Where, in a criminal case filed by one resident against another resident for vehicle vandalism, the municipal judge in a small community, in an attempt to keep the peace between the parties, issued a temporary restraining order based on the judge's personal knowledge of an incident that occurred between the parties that was outside the scope of the complaint or any court proceedings, the municipal judge's conduct constituted willful misconduct in office. In re Rael, S.Ct. No. 33,633 (Filed October 3, 2012), Inquiry Concerning a Judge No. 2011-040 (decided prior to the 2011 recompilation). Fund-raising activities. - Where a magistrate judge personally participated in the solicitation of funds for a baseball tournament for the benefit of municipal and high school baseball programs and used the prestige of the judge's judicial office for the fund-raising and created the appearance that the judge had done so, the judge's conduct constituted willful misconduct in office. 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). 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). Improperly touching a party. - Where, at a hearing in a case involving a building permit, the judge kept moving the judge's chair closer to the code enforcement officer and the defendant, kept moving the judge's hands around, and touched the defendant with the result that the code enforcement officer and the defendant felt uncomfortable and moved away from the judge; and prior to the hearing, the mayor of the municipality had told the judge that the code enforcement officer had filed an EEOC claim against the judge based on improper touching, 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). Making campaign promise to provide assistance if elected. - Where, during the time a judge was a candidate for magistrate court judge, the judge told a landlord that the judge would help if the landlord had a problem in court; when the judge learned that the landlord was having trouble with a tenant, the judge reviewed the lease and advised the landlord to file suit after the judge was elected; the judge also explained how the landlord could excuse the other magistrate court judges to make sure the judge heard the case; after the judge was elected, the landlord filed suit and excused the other magistrate court judges; and at a hearing on the case, the judge became impatient with the landlord and filed a recusal, the judge violated the Code of Judicial Conduct, subjecting the judge to removal from office. In re Rodella, 2008-NMSC-050, 144 N.M. 617, 190 P.3d 338 (decided prior to the 2011 recompilation). Insufficient evidence of willful misconduct in office. - Where a judge called the jail and set bond for a defendant who was the parent of the judge's friend and who had been arrested for DWI; when no one was available to accept the bond, the judge changed the release order to release the defendant to the custody of the defendant's spouse and hand-delivered the release order late at night to the jail in another town; the judge presided over the arraignment of the defendant; and the judge filed a recusal when a newspaper reported on the matter, there was no clear and convincing evidence that the judge committed willful misconduct in office. In re Rodella, 2008-NMSC-050, 144 N.M. 617, 190 P.3d 338 (decided prior to the 2011 recompilation). Adjudicating traffic cases for family members and friends. - Where a judge adjudicated more than twenty cases involving family members, friends, and family members of friends and staff, ex parte without hearings or taking evidence; the judge was not the assigned judge and adjudicated the cases before their scheduled arraignment dates, either deferring or continuing the cases with the requirement that no further traffic violations occur within ninety days; and where defendants had failed to appear, the judge cancelled bench warrants and dismissed charges for failure to appear, the judge's conduct constituted willful misconduct in office. In re Griego, 2008-NMSC-020, 143 N.M. 698, 181 P.3d 690 (decided prior to the 2011 recompilation). Insufficient evidence of willful misconduct. - Where a municipal judge accepted an uncounseled guilty plea and sentenced the defendant; the defendant's attorney appealed to the district court; in the district court, the municipal attorney made an oral motion to dismiss the appeal and the district court judge allowed the defendant to enter another guilty plea; when the municipal judge received the district court judgment and discovered that a written motion to dismiss had not been filed by the municipal attorney, the municipal judge believed that the municipal attorney and the defendant's attorney had misrepresented the municipal proceedings to the district court judge; after researching the law of contempt and consulting the Municipal League and the Attorney General's office, the municipal judge charged the municipal attorney and the defendant's attorney with contempt; and when the municipal judge reviewed the district court proceedings and discovered that a motion to dismiss had been made, the municipal judge dismissed the contempt charges, the evidence did not clearly and convincingly demonstrate that the municipal judge's actions constituted willful misconduct in office. In re Locatelli, 2007-NMSC-029, 141 N.M. 755, 161 P.3d 252 (decided prior to the 2011 recompilation). Attempt to gain favorable treatment for a relative. - Where, after the step-child of a magistrate judge was jailed by the district court for nonpayment of child support, the magistrate judge telephoned the district court judge, told the district court judge that the step-child was not a flight risk, and asked the district court judge to reduce the stepchild's bond or let the step-child out of jail, the magistrate judge's telephone call to the district court judge was an attempt to gain favorable treatment for the step-child and constituted willful misconduct in office. In re Naranjo, 2013-NMSC-026. Interference in friend's criminal case. - Where a judge developed a personal relationship with the defendant in a DUI case; the judge told the presiding judge at the defendant's bond hearing to make special concessions with regard to the defendant's bond, talked to the presiding judge at the defendant's probation violation hearing to influence the disposition, instructed the court clerks to issue a clearance of the defendant's driver's license, and attempted to influence a police officer when the defendant was stopped for speeding, the judge's conduct constituted willful misconduct in office. In re Garza, 2007-NMSC-028, 141 N.M. 831, 161 P.3d 876 (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, the judge's conduct constituted willful misconduct in office. In re McBee, 2006-NMSC-024, 138 N.M. 482, 134 P.3d 769 (decided prior to the 2011 recompilation). Interference in child's criminal case. - Where the adult child and friends of the child of a district court judge were cited for drinking in public in violation of a municipal ordinance; as the police officers were issuing the citations, the judge identified the judge to one of the officers as the child's parent by showing the officer the judge's court identification card and driver's license; the judge asked the officer if the officer remembered who the judge was; the judge collected all of the citations from the recipients and later instructed the judge's bailiff to assist the child and the child's friends in responding to the citations in municipal court; the bailiff prepared and filed written waivers of arraignment and not guilty pleas on municipal court forms; when pretrial conferences were scheduled, the judge contacted a municipal judge who was not the assigned judge to advise the municipal judge the judge was sending the judge's child and some of the friends to the municipal judge to change their pleas before the pretrial conference set by the assigned judge was scheduled to occur; and the judge's child and some of the friends appeared before the municipal judge and pled no contest and received more lenient sentences than the child's friends who appeared before the assigned municipal judge, the judge's conduct constituted willful misconduct in office. In re Ramirez, 2006-NMSC-021, 139 N.M. 529, 135 P.3d 230 (decided prior to the 2011 recompilation). Director of a DWI school. - Where, as permitted by a municipal ordinance, a municipal judge was the owner and director of a DWI school and had a pecuniary interest in having individuals initially appear before the judge in court and then attend the DWI school, the judge's conduct violated the Code of Judicial Conduct. In re Rainaldi, 1986-NMSC-079, 104 N.M. 762, 727 P.2d 70 (decided prior to the 2011 recompilation). Ex parte communications with police officers about pending cases. - A judge who had ex parte communications with police officers concerning defendants' out-of-court demeanor, attitude or behavior with the officers and about the use of "smiling" and "frowning" faces to be drawn on uniform traffic citations by the officers, which would inform the judge about defendants' demeanor, attitude or behavior with the officers during traffic stops, the judge committed willful misconduct in office. In re Arnold, S.Ct. No. 26,645 (Filed January 10, 2001) (decided prior to the 2011 recompilation). Failure to pay taxes and debts. - Where a judge failed to pay gross receipts taxes for the judge's private business activities for five consecutive years; failed to timely file state personal income tax returns for three consecutive years; used the facilities and equipment of the probate court for the judge's private business activities; failed to pay the county for copying charges incurred at the county clerks' office for the judge's private business and gave the county clerk an insufficient funds check to pay for the copying; and failed to cooperate with and comply with the rules, regulations, and procedures of the Judicial Standards Commission by failing to file a written response to the commission's notice of preliminary investigation, the judge's conduct constituted willful misconduct in office. In re Vigil, S.Ct. No. 26,328 (Filed June 13, 2000) (decided prior to the 2011 recompilation). Failure to comply with the law. - Where a judge approved and agreed in a plea and disposition agreement to withhold from the Motor Vehicle Division an abstract of record upon the defendant's completion of a probationary period and in another case, and failed to impose the mandatory minimum sentence required by law, the judge's conduct constituted willful misconduct in office. In re Sanchez, S.Ct. No. 25,821 (Filed August 17, 1999) (decided prior to the 2011 recompilation). Failure to perform judicial duties. - Where a magistrate judge delayed in signing and filing written judgments and sentences; failed to impose the mandatory minimum sentences required by law; failed to submit abstracts of record to the Department of Motor Vehicles within the time required by law; and had ex parte communications with the former court administrator of the district court concerning the sentencing and disposition of a defendant who was a relative of the former court administrator and the desire of the defendant's family that the defendant be ordered to obtain alcohol/drug counseling, the judge's conduct constituted willful misconduct in office. In re Perea, S.Ct. No. 25,822 (Filed August 17, 1999) (decided prior to the 2011 recompilation). Control of an organization that appeared before the judge. - Where a judge had de facto control over a non-profit organization that regularly engaged in proceedings before the judge; the judge personally selected the majority of the board of directors and caused the hiring and firing of directors; the judge's spouse served as executive director; and the judge allowed the judge's spouse to use the judge's chambers and telephone and the judge's name, title, official stationery, and photograph to be used in solicitation of funds for the organization, 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). Director of a DWI school. - Where, as permitted by a municipal ordinance, a municipal judge was the owner and director of a DWI school and had a pecuniary interest in having individuals initially appear before the judge in court and then attend the DWI school, the judge's conduct violated the Code of Judicial Conduct. In re Rainaldi, 1986-NMSC-079, 104 N.M. 762, 727 P.2d 70 (decided prior to the 2011 recompilation). Delegation of judicial power. - A magistrate court judge who delegated the duty to perform marriages to a municipal clerk committed willful misconduct in office. In re Perea, 1986-NMSC-001, 103 N.M. 617, 711 P.2d 894 (decided prior to the 2011 recompilation).