N.M. Code. Jud. Cond. 21-209
N.M. Code. Jud. Cond. 21-209
Committee commentary. -
[1] To the extent reasonably possible, all parties or their lawyers shall be included in communications with a judge. A judge may utilize court staff for the purposes of screening potential ex parte communications. Court staff should return ex parte communications to the sender with the admonition that the sender, if an attorney, must comply with Rule 16-305(B) NMRA.
[2] Whenever the presence of a party or notice to a party is required by this rule, it is the party's lawyer, or if the party is unrepresented, the party, who is to be present or to whom notice is to be given.
[3] The proscription against communications concerning a proceeding includes communications with lawyers, law teachers, and other persons who are not participants in the proceeding, except to the limited extent permitted by this rule. An appropriate and often desirable procedure for a court to obtain the advice of a disinterested expert on legal issues is to invite the expert to file a brief amicus curiae.
[4] A judge may initiate, permit, or consider ex parte communications expressly authorized by law, rule, or Supreme Court order, such as when serving on therapeutic or problem-solving courts, mental health courts, or drug courts. In this capacity, judges may assume a more interactive role with parties, treatment providers, probation officers, social workers, and others.
[5] A judge may consult with other judges on pending matters, but must avoid ex parte discussions of a case with judges who have previously been disqualified from hearing the matter, and with judges who have appellate jurisdiction over the matter.
[6] The prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic.
[7] A judge may consult ethics advisory committees, outside counsel, or legal experts concerning the judge's compliance with this Code. Such consultations are not subject to the restrictions of Subparagraph (A)(2).
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012; as amended by Supreme Court Order No. 15-8300-013, effective December 31, 2015.]
ANNOTATIONS The 2015 amendment, approved by Supreme Court Order No. 15-8300-013, effective December 31, 2015, authorized probate judges to obtain advice from experts on the law applicable to a proceeding before the probate judge without having to provide notice to the parties, and revised the committee commentary; in Subparagraph A(2), added the last sentence; and in the committee commentary, in Paragraph [7], after "restrictions of", changed "Paragraph" to "Subparagraph". 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. JUDICIAL REPRIMANDS Municipal judge in a small community. - 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 and to protect each party, had separate ex parte communications about the complaint with each party without notice to the other party, 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). Ex parte communications. - Where respondent was a municipal judge; the motorcycle of an acquaintance of respondent had been seized and towed by police officers during a criminal case pending in magistrate court; respondent asked the acquaintance's attorney to prepare an ex parte order regarding the motorcycle; in the order, respondent ordered the towing company to return the motorcycle to the acquaintance; the order falsely stated that respondent held a hearing on the matter; respondent did not give the towing company notice or an opportunity to be heard; respondent embossed the seal of the municipal court on the order even though there was no case pending in the municipal court; respondent failed to inquire if the matter was pending in magistrate court; when respondent signed the order, respondent was on probation with the Judicial Standards Commission in another matter; and respondent failed to consult with the judge who was appointed to mentor and supervise respondent prior to issuing the order, respondent's conduct constituted willful misconduct in office. In re Salazar, 2013-NMSC-007, 299 P.3d 409. Where a judge engaged in ex parte communications with litigants, parties, officers and bail bondsmen in which the judge told defendants in cases not pending before the judge that the judge would help them out and to ask for the judge when they came to court, which resulted in the judge converting a juvenile bench warrant to an adult bench warrant and dismissing a case, the judge's conduct constituted willful misconduct in office. In re Guillory, S.Ct. No. 31,920 (Filed December 7, 2010) (decided prior to the 2011 recompilation). Giving advice to witness in case pending before judge. - Where the judge had an ex parte conversation with the complaining witness in a domestic violence case that was pending before the judge; the witness had been subpoenaed by the state to appear and testify at the witness' spouse's trial; the judge advised the witness that if the witness did not want to testify, there would be no adverse consequences; the witness did not appeal at the trial; the assistant district attorney informed the judge that the district attorney's office had been informed of the ex parte communication with the witness; the judge began drafting a recusal; when the witness appeared, the judge recalled the case and dismissed it; and the judge subsequently produced a recusal that was different from the document that had been reviewed by the assistant district attorney, the judge's conduct constituted willful misconduct in office. In re Rodella, 2008-NMSC-050, 144 N.M. 617, 190 P.3d 338 (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). 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). 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). Ex parte communication in a case pending before another judge. - 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 step-child's bond or let the step-child out of jail, the magistrate judge's telephone call to the district court judge was an ex parte communication in the step-child's child support enforcement case and constituted willful misconduct in office. In re Naranjo, 2013-NMSC-026. 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). Ex parte communications with a relative about sentencing defendant. - Where a magistrate judge 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 was 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).