2-200. Introduction. Historically, improper conduct by judges was dealt with by removal proceedings such as impeachment. See E. Schoenbaum, A Historical Look at Judicial Discipline, 54 CHI.-KENT L.REV. 1 (1977). This process was cumbersome, time-consuming and sometimes politically motivated, and resulted in either complete removal from office or no action at all. Schoenbaum at 5-7. Judicial conduct organizations such as the New Mexico Judicial Standards Commission are modern creations, authorized to impose a more flexible range of sanctions and structured so that complaints can be addressed with greater efficiency. In recent years most states have also adopted codes of judicial conduct.

2-300. Constitutional provisions. The New Mexico Constitution grants exclusive authority to the New Mexico Supreme Court to regulate the conduct of judges. No legislatively created means of disciplining or removing judicial officers is recognized. Cooper v. Albuquerque City Comm'n, 85 N.M. 786, 793, 518 P.2d 275, 282 (1974).

The Board of Bar Commissioners has no jurisdiction over a complaint made against a district judge concerning the judge's actions in rebuking a grand jury. In re Board of Comm'rs, 65 N.M. 332, 335, 337 P.2d 400,403 (1959).

2-310. General grant of judicial power. Article VI, Section 1 of the New Mexico Constitution creates the courts.

The judicial power of the state shall be vested in the senate when sitting as a court of impeachment, a supreme court, a court of appeals, district courts, probate courts, magistrate courts and such other courts inferior to the district courts as may be established by law from time to time in any district, county or municipality of the state.

NOTE: The New Mexico Supreme Court has revised the Code of Judicial Conduct in response to a U.S. Supreme Court decision on ethical constraints on judges campaigning for election. These rule revisions may affect the following material. For an unofficial summary of the overall impacts of the revised rules, click here.

2-320. Superintending control. Article VI, Section 3 provides in part that "[t]he supreme court . . . shall have a superintending control over all inferior courts . . .." Superintending control is a broad grant of inherent authority allowing the Supreme Court to regulate the affairs of the courts as a separate branch of government. See J.D. Cameron, The Inherent Power of a State's Highest Court to Discipline the Judiciary, 54 CHI.-KENT L.REV. 45 (1977).

2-321. Authority. Authority. Superintending control gives the Supreme Court the power to issue writs to control litigation in the lower courts, State v. Roy, 40 N.M. 397, 421, 60 P.2d 646, 661 (1936); to supervise personnel decisions by inferior courts, Mowrer v. Rusk, 95 N.M. 48, 52, 618 P.2d 886, 893 (1980); to control the administrative functions of inferior courts, Russillo v. Scarborough, 727 F. Supp. 1402, 1409 (D.N.M. 1989); and to regulate procedure in the courts, Ammerman v. Hubbard Broadcasting, Inc, 89 N.M. 307, 310, 551 P.2d 1354, 1357 (1976). This power is distinct from other authority granted to the Supreme Court under the Constitution. It is to be used only when the remedy by appeal is inadequate or where necessary to prevent unusual hardship or expense. Montoya v. McManus, 68 N.M. 381, 392, 362 P.2d 771, 782 (1961).

2-322. Purpose. Superintending control exists so that the Supreme Court can ensure that inferior courts do not depart from proper judicial activity, become dictatorial or oppressive in their conduct, or otherwise behave improperly so as to interfere with or reflect upon the court system or shake public confidence in the administration of justice and the judiciary. It is the duty of the court to make certain that the traditional high regard in which courts generally are held will in no way be encroached upon. State ex rel. Anaya v. Scarborough, 75 N.M. 702, 410 P.2d 732 (1966). A matter that could bring the judicial system into disrepute invokes the Supreme Court's supervisory control. In re Board of Comm'rs, 65 N.M. 332, 334, 337 P.2d 400, 402 (1959).

2-323. Application to judicial discipline. The New Mexico Supreme Court invoked its power of superintending control to remove a judge from a case because the court concluded it would be improper to require the defendant to be tried before that judge.

A writ of prohibition was issued to remove a judge from continuing to preside over a murder trial, after the judge had tried to get the defendant to plead guilty and had conducted unauthorized proceedings in the case. State ex rel. Anaya v. Scarborough, 75 N.M. 702, 713, 410 P.2d 732, 734 (1966).

The grant of superintending control under Article VI, Section 3 is one of three constitutional provisions pursuant to which judicial officers may be disciplined or removed from office, all of which co-exist as alternatives. In re Castellano, 119 N.M. 140, 889 P.2d 175, 178 (1995); Cooper v. Albuquerque City Comm'n, 85 N.M. 786, 793, 518 P.2d 275, 282 (1974). The other two are impeachment and proceedings before the Judicial Standards Commission.

2-330. Impeachment. N.M. Const. art. IV, §§35 and 36. Impeachment is a criminal proceeding against a public official before a quasi-political court. Black's Law Dictionary 753 (6th ed. 1990). The New Mexico Constitution allows a district judge to be tried by the senate for crimes, misdemeanors and malfeasance in office; by implication, judges of the lower courts are not subject to impeachment. An impeached judge who is convicted is removed from office.

2-340. New Mexico Judicial Standards Commission.

2-341. Creation. The New Mexico Judicial Standards Commission came into being on July 1, 1968, following the adoption in 1967 of Article VI, Section 32. California was the first state to create such a commission; all states now have similar organizations. Shaman, supra §1.03 at 5-6.

2-342. Jurisdiction of the Commission. The Commission may discipline, or recommend to the Supreme Court that it remove from office, any justice, judge or magistrate of any court for:

(1) willful misconduct in office;
(2) persistent failure or inability to perform a judge's duties, or
(3) habitual intemperance. N.M. Const. art. VI, §32; §34-10-2.1.

The Commission may also retire a judge for disability that seriously and permanently interferes with the performance of the judge's duties. NMRA 27-401. Prior acts of misconduct in a judicial office follow the judge to subsequent judicial office and may be the subject of disciplinary proceedings before the commission. In re Romero, 100 N.M 180, 183, 668 P.2d 296, 299 (1983). The Commission's jurisdiction is invoked when a notice of formal proceeding is served upon the judge under investigation. The jurisdiction continues even if the judge subsequently resigns or is terminated from office. JSC Rule 39.

2-343. Powers. The Commission investigates all allegations of inappropriate judicial conduct within its constitutional jurisdiction, including violations of the Code. N.M. Const. article VI, §32; §34-10-2.1. It has the power to receive information, investigate, conduct hearings, take informal remedial action, and make recommendation to the Supreme Court concerning allegations against judges. JSC Rule 4(a).

2-344. Membership. The Commission consists of eleven members: two justices or judges, one magistrate, two lawyers, and six citizens, appointed by the governor in staggered terms. N.M. Const. art. VI, §32; §34-10-1. The Commission maintains a permanent office and staff in Albuquerque. See §§34-10-3, 34-10-4; see also RESOURCES.

2-345. Procedures. Anyone may file a complaint against a judge. JSC Rule 11. If, after initial investigation or preliminary investigation the Commission determines that a formal hearing should be held, the Commission issues a formal notice and may appoint three special masters to hear and take evidence. The parties have a right to discovery. JSC Rule 24. At the hearing, the Rules of Evidence apply, JSC Rule 22, and the judge has a right to an attorney. JSC Rule 24. Formal charges must be proved by clear and convincing evidence. In re Martinez, 99 N.M. 198, 203, 656 P.2d 861, 866 (1982).

Failure to cooperate with the Commission is itself a violation of the Code. NMRA 21-900B. The Commission may issue subpoenas, §34-10-2.1, and may compel physical and mental examinations for good cause in disability cases. JSC Rule 8. The Supreme Court may impose penalties for contempt of the Commission. JSC Rule 4.

2-346. Confidentiality. The filing of papers with the Commission, or testimony, is privileged in any action for defamation. Hearings before the Commission are closed. JSC Rule 23. Papers and testimony filed with the Commission are confidential; however, the record filed by the Commission with the Supreme Court does not remain confidential. N.M. Const. art. VI, §32; JSC Rule 7.

2-347. Authorized actions. The Commission may make any of the following dispositions:

(a) dismissal of complaint;
(b) privately informing the judge that his conduct may be violative of the standards of judicial conduct;
(c) proposing professional counseling or assistance. JSC Rule 35.

Based on the judge's admissions or following a formal hearing, the Commission may recommend to the Supreme Court the following formal sanctions:

(a) removal;
(b) retirement;
(c) discipline, including one or more of the following:

(1) suspension;
(2) imposition of limitations or conditions on the performance of judicial duties;
(3) reprimand or censure;
(4) fine; and
(5) assessment of costs and expenses; or

(d) imposition of any combination of the above sanctions. JSC Rule 36.

If the Commission determines that discipline, retirement or removal is merited, it makes its recommendation to the Supreme Court. The Supreme Court makes its own independent decision about the merits of the complaint. See Martinez, 99 N.M. at 202, 656 P.2d at 865.

2-400. Code of Judicial Conduct.

2-410. Citation. The Code of Judicial Conduct is found in Judicial Volume 3, Rules 21-100 through 21-900. The Code is part of the Supreme Court Rules Annotated, adopted under the court's rulemaking authority.

2-420. History. The first code of judicial ethics in the United States was adopted as an advisory code by the American Bar Association in 1924. In 1972, the ABA adopted a new Model Code, which became the basis for most state ethics codes, including New Mexico's. The ABA revised the Model Code again, in 1990. The New Mexico Code has been amended periodically, most recently on February 16, 1995, when the Supreme Court adopted the 1990 ABA Code, with modifications.

2-430. Judges subject to Code. All judges in New Mexico are subject to the Code, except as specifically exempted.

Except as provided in this rule, all judges and all candidates for judicial office shall comply with the provisions of this Code, including, but not limited to all judges and justices and all judicial candidates of the Supreme Court, Court of Appeals, district court magistrate court, metropolitan court, probate court, and municipal court. Any person who serves as a full-time or part-time judge is a "judge" within the meaning of this Code. NMRA 21-901(A).

Rule 21-901 lists certain rules from which full-time magistrate and municipal judges are exempt in Rule 21-901(B); other exempt provisions for probate and part-time magistrate and municipal judges are in Rule 21-901(C); and still other exempt provisions for pro tempore and periodic part-time judges in Rule 21-901(D). Any judge consulting these rules should be certain to check these exemption provisions to be sure that the rules actually apply to them.

2-440. Conduct subject to Code. Both intentional and unintentional violations of the standards of judicial conduct can be the subject of disciplinary action. Both public and private conduct is subject to discipline under the Code. "Personal" conduct off the bench is relevant to a person's qualifications to be a judge. Napolitano v. Ward, 457 F.2d 279, 284 (7th Cir. 1972). Previous acts of misconduct committed by a judge in his official capacity during a prior term of judicial office follow the judge to any subsequent judicial office. In re Romero, 100 N.M. 180, 183, 668 P.2d 296, 299 (1983).

2-450. Applicability of Code. The Code is applied to judges by the Judicial Standards Commission, acting under its constitutional authority, and by the Supreme Court.

Violations of any of the rules of the Code of Judicial Conduct by incumbent judges shall be investigated, proceeded upon, and disposed of by the Judicial Standards Commission in accordance with its authority and rules of procedure, and by the Supreme Court of New Mexico acting under its powers of contempt and superintending control. Judges shall comply with all rules, requirements and procedures of the Judicial Standards Commission, shall cooperate with the Judicial Standards Commission in the performance of its functions and shall comply with all laws applicable to judicial office. NMRA 21-900(A).

Candidates for judicial office are subject to certain rules as well, and may be disciplined either by the state bar if they are lawyers; or by the Supreme Court if they are non-lawyers. NMRA 21-900(C).

2-460. Standard of review. A judge's conduct is reviewed objectively. The standard is whether a reasonable person--especially a "reasonably prudent and competent judge"--considers the conduct wrong under the circumstances. In re Benoit, 487 A.2d 1158, 1162-3 (Me. 1985).

2-500. Other Court rules. The Supreme Court rules contain procedural and administrative requirements that, if violated, can be subject to disciplinary review.

2-600. Statutes. The New Mexico statutes contain jurisdictional limitations and impose duties on judges. Although the discipline of New Mexico's judges is largely directed by court rule or constitutional provision, a judge's failure to comply with statutory requirements raises ethical issues because it indicates the judge is not performing judicial duties properly.

Some statutes even address judicial conduct issues specifically. For example, Section 66-8-135 requires the courts to send abstracts of DWI convictions to the Motor Vehicle Division and states that "failure to comply with this section is misconduct in office and grounds for removal.” §66-8-135(F).

2-700. Advisory Committee on the Code of Judicial Conduct. The Advisory Committee on the Code of Judicial Conduct is a permanent committee of the Supreme Court to which judges may refer questions about the ethical implications of their conduct or relationships. Any judge may address a letter to the Committee explaining the facts involved and requesting an opinion. The Committee issues its opinion in the form of a personal letter to the judge. The opinion is assigned a number and retained in the Committee's files, where it remains available for review without identifying the judge. Most of the opinions address questions relating to charitable work, financial dealings, conflicts due to family and professional relationships, and political campaigning. Although an Advisory Opinion is not binding in a disciplinary proceeding, a judge's reliance on the Committee's opinion demonstrates the judge's good faith if the question is ever raised. See RESOURCES.

2-800. Types of Ethical Violations.

2-810. Standard of conduct. Judges are held to a more stringent standard of conduct than other public officials. In re Romero, 100 N.M. 180, 183, 668 P.2d 296, 299 (1983). A judge must expect to be the subject of constant public scrutiny, and must therefore willingly accept restrictions on his or her conduct that might be viewed as burdensome by the ordinary citizen. Commentary to NMRA 21-200. A judge's behavior will be judged objectively--does it look bad to someone else--even if the judge's motive is pure or in fact there is nothing unethical about what happened.

Judges are held to higher standards of integrity and ethical conduct than attorneys or other persons not invested with the public trust. In re Piper, 534 P.2d 159, 164 (Or. 1975).

2-820. Willful misconduct. Article VI, Section 32 of the constitution states that "...[A]ny justice, judge or magistrate of any court may be disciplined or removed for willful misconduct in office... ." Conduct that is so serious that (1) the judge knew or should have known the conduct overstepped the bounds of her authority or (2) that was committed for a corrupt purpose will be treated as willful misconduct. The most serious cases of wrongdoing amount to willful misconduct. Before the Code was adopted, willful misconduct was the basis on which judges could be disciplined, usually resulting in removal from office.

2-821. Definition. Willful misconduct is based on proof of bad faith on the judge's part in carrying out judicial responsibilities. Willful misconduct in office is the bad faith misconduct of a judge acting in his judicial capacity. It is the improper or wrongful use of the power of her office by a judge acting intentionally, or with gross unconcern for her conduct. It involves more than an error of judgment or a mere lack of diligence. A specific intent to use the powers of the judicial office to accomplish a purpose which the judge knew or should have known was beyond the legitimate exercise of his authority constitutes bad faith. In re Martinez, 99 N.M. 198, 203, 656 P.2d 861, 866 (1982).

2-822. Relationship to Code. The Code does not control the determination of willful misconduct; it only furnishes proof of what constitutes appropriate judicial conduct. In re Martinez, 99 N.M. 198, 204, 656 P.2d 861, 867 (1982). Disciplinary decisions that include findings of willful misconduct typically also include findings of specific code sections, such as the appearance of impropriety, NMRA 21-200, or failure to follow the law, NMRA 21-300(B).

2.823. Examples. "Willful misconduct" encompasses conduct involving moral turpitude, dishonesty, corruption, and any knowing misuse of the office, whatever the motive, but these elements are not necessary to a finding of bad faith. In re Martinez, 99 N.M. 198, 203, 656 P.2d 861, 866 (1982).

In Martinez, a New Mexico district judge was suspended for willful misconduct for having knowingly countermanded ex parte another judge's order to transport prisoners to the penitentiary and ordered that the District Attorney be denied his right to perform duties in children's court. The court found that the judge had acted in bad faith by knowingly and intentionally misusing the authority of his office to effect a purpose beyond his legitimate authority.

Willful misconduct can be found for acts that the judge knew or should have known were beyond his lawful power, or were within the lawful power but committed for corrupt purposes.

A California municipal judge acted vindictively toward attorneys by making rude gestures to them, used the power of his office to influence the disposition of cases before other judges to help friends and political supporters, and circumvented court procedures to have his own traffic ticket dismissed. This conduct went way beyond ignorance. The municipal court fulfills an important role in the justice system. "The Municipal court is the only court that the average citizen is likely to observe or participate in." Spruance v. Comm’n on Judicial Qualifications, 532 P.2d 1209, 1225 (Cal. 1975).

A California judge engaged in vulgar conduct in order to curtail lawyers' effective cross-examination of witnesses and was abusive to court employees. The judge knew or should have known these acts were beyond his lawful power. A judge's conduct must constantly reaffirm the judge's fitness for the responsibilities of judicial office. The canons of ethics relating to maintaining high standards of conduct and avoiding the appearance of impropriety emphasize the importance of appraising judicial misconduct objectively rather than subjectively. Geiler v. Comm’n on Judicial Qualifications, 515 P.2d 1, 8 (Cal. 1973).

Prior admonitions by the Judicial Standards Commission against a judge's association with fundraising efforts by a not-for-profit organization providing volunteer services for children involved in court proceedings supported a finding of willful judicial misconduct when similar associations with the organization's fundraising efforts continued. In re Castellano, 119 N.M 140, 889 P.2d 175, 184 (1995).

2-824. Defense. There is no defense or mitigation for maliciously motivated, unjudicial conduct. Spruance v. Comm’n on Judicial Qualifications, 532 P.2d 1209, 1224 (Cal. 1975).

2-830. Other ethical violations. Most ethical violations are not willful, but result from poor judgment, lack of knowledge or negligent disregard of ethical standards. Although these violations do not rise to the level of willful misconduct, they will result in disciplinary action.

A magistrate who failed to follow the law in connection with a cash bond and was rude and angry toward a defendant's relatives was suspended from office for thirty days for violations of the Code, although his conduct did not rise to the level of "willful misconduct" as defined in Martinez. In re Romero, 100 N.M. 180, 669 P.2d 296 (1983)

2-840. Relevant factors in determining appropriate sanctions. The Washington Supreme Court has identified the following, non-exclusive factors as being relevant in determining the severity of sanction to be imposed for an ethical violation:

• whether the misconduct is an isolated instance or there is evidence of a pattern of misconduct
• the nature, extent and frequency of occurrence of the acts
• whether the misconduct occurred in or out of the courtroom
• whether the misconduct occurred in the judge's official capacity or in private life
• whether the judge has acknowledged or recognized that the acts occurred
• whether the judge has shown an effort to change or modify the conduct
• the length of service on the bench
• whether there have been prior complaints about this judge
• the effect the misconduct has on the integrity and respect for the judiciary
• the extent to which the judge exploited his position to satisfy his personal desires.

In re Deming, 736 P.2d 639, 659 (Wash. 1987).

Continue to Part 3