• Do you benefit personally from the conduct?
• Is the conduct motivated by personal feelings toward a party or an attorney?
• Is the conduct undignified or does it otherwise reflect poorly on the judiciary?
• Does the conduct involve contact with a party or an attorney outside the court?
• Does the conduct make it appear you are doing something improper, even if you are not?
• Are you personally involved in a legal proceeding related to any of the parties, the attorneys, or the subject matter of a case brought before you?
• Is the conduct to be engaged in publicly or privately?
• Do you, as an individual, have a right to engage in the conduct?
• Does the conduct offend anyone or make you appear to be prejudiced or biased?
• Is the conduct law-abiding?

3-300. Introduction. Judges wield great power and are expected to conduct themselves according to the highest standards, both on and off the bench. The prestige of the judiciary is essential in a system of government in which the judiciary functions independently. The behavior of judges is closely scrutinized to ensure continued confidence in the integrity of the courts; however, judges also are human beings with feelings, opinions and private lives. "Judges are not essentially different from other government officials. . . . [T]hey remain human even after assuming their judicial duties." Green v. United States, 356 U.S. 165, 198 (1958) (Black, J., dissenting). This combination of power, responsibility and humanity accounts for both the most exemplary and the most regrettable judicial conduct.

The achievement of justice is the inherent ethic in judging. Rothman, supra, at xxxiii. This goal is thwarted if:

the judge, consciously or unconsciously, [has] allowed the intrusion of insidious bias to command; or allowed case load and time pressures to transcend justice; or given the pretense of a hearing when, in fact, no listening took place; or failed to throw off the role of advocate on assuming the bench; or bowed to popular opinion in reaching decisions for public favor, career advancement or electoral victory. Rothman, supra, at xxxiii.

The Code's initial provisions reflect this concern with independence, integrity, impartiality and competence. These essential values underlie the more specific sections of the Code of Judicial Conduct and frequently are cited in conjunction with them. For example, conduct that undermines public confidence in the judiciary under NMRA 21-200(A) may also violate the conflict-of-interest provisions of NMRA 21-500. The basic provisions also operate independently in cases that the Code does not address specifically. The Code cannot anticipate every situation a judge may face. "To answer the questions that arise, judges must extrapolate from the language of the Code and the principles and policies underlying the Code and consider all the relevant circumstances.” Shaman, supra, at x.

These principles are broad and frequently overlap. Typically, more than one ethical principle applies in a given fact situation, so that the same facts may be discussed in several ethical contexts.

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.

3-400. Integrity and Independence.

An independent and honorable judiciary is indispensable to justice in our society. The provisions of this Code should be construed and applied to further that objective. Preamble to Code of Judicial Conduct.

Judges, through their conduct, are held responsible for maintaining the credibility of the judicial system.

A judge shall participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. NMRA 21-100.

Judges have been disciplined, and sometimes removed from office, for engaging in conduct that violates this principle. Typically, this kind of unethical conduct constitutes abuse of power or seriously conflicts with the judicial role.

The judge may not use his power by retaliating for a personal affront;

A Kansas judge refused a request for probation in order to punish a defendant whose attorney had displeased the judge. State ex rel. Committee on Judicial Qualifications v. Rome, 623 P.2d 1307, 1310 (Kan. 1981).

A Florida judge was offended by the din of a police radio in a restaurant, and sent the officer a letter on official stationery threatening him with contempt. In re Muszynski, 471 So. 2d 1284, 1285 (Fla. 1985).

A municipal judge received a letter of caution for becoming impatient with police officers in his courtroom. After the hearing, the judge went to the police department and engaged in a heated discussion with the officers. The conduct prescribed for judges is more stringent than the conduct generally imposed on other public officials. JSC 91-I4.

or by promoting a personal interest;

A magistrate was removed from office after filing two criminal complaints in his own court against a former tenant in the judge's apartment building and a visitor to a tenant, although the facts indicated the charges were for civil damages, proceeding to hear the cases in which he had an interest, and arresting one defendant and jailing him without authority. In re Lucero, 102 N.M. 745, 700 P.2d 648 (1985).

or for direct financial gain.

A New York judge accepted money in exchange for dismissing charges against individuals. In re Kuehnel, 403 N.E.2d 167 (N.Y. App. 1980).

The judge may become inappropriately involved with a party outside the courtroom,

A magistrate was suspended and publicly reprimanded for willful misconduct and violating the Code for drinking in his home with a man who had alcohol-related charges pending against him in the judge's court and going with him to buy more beer. The judge threatened to throw the man's "ass in jail" if he didn't clear up his court problems that week. JSC 90-F1.

or behave publicly in a manner that demeans the judiciary.

A municipal court judge attended a wedding at which an altercation occurred. The judge intervened in the fight and was charged with obstruction of justice. The judge was admonished that such conduct did not display good judgment and tended to place the judiciary in disrepute and decrease public confidence in judicial system. JSC 88-I3.

The Judicial Standards Commission petitioned the Supreme Court to remove a magistrate judge for numerous alleged acts of misconduct in office, including cursing in court offices, use of alcohol during court and other official proceedings, abuse of court staff, making racially biased references about court staff, and public derision of the chief judge. In re Angie Vigil-Perez, NM Supreme Court Nos. 99-15 and 99-70.

Judges have also been disciplined for stepping outside their judicial roles,

A magistrate judge was cautioned not to deliver messages from a defendant's father to a law enforcement officer because such an act is unseemly and not in the best interests of the judiciary. JSC 92-I2.

A magistrate judge was admonished not to perform the services of a law enforcement officer after he accompanied a citizen to the home of the citizen's estranged wife in order to collect some personal items. JSC 92-I4.

A judge was alleged to have requested the police allow him to participate in undercover drug operations. JSC 87-I3(g).

A judge was alleged to have conducted investigations of complaints against police officers instead of referring them to the proper investigative agency. JSC 87-I3(j).

A municipal judge was cautioned for attempting to counsel his niece, the complainant in a trial in magistrate court. JSC 88-I1.

or for patterns of conduct demeaning that role.

A district judge was removed from office, among other reasons, for engaging in a pattern of conduct toward court staff, litigants, and his judicial colleagues as well as his own workload, which pattern adversely affected his reputation for impartiality, independence, and integrity. In re Castellano, 119 N.M. 140, 889 P.2d 175 (1995).

3-500. Impropriety and appearance of impropriety.

3-510. General rule.

A judge shall avoid impropriety and the appearance of impropriety in all the judge's activities. NMRA 21-200.

3-520. Scope of rule. This general principle frequently applies as much to off-the-bench conduct as to conduct on the bench. Rothman, supra, §100.200. Both the appearance of impropriety and impropriety itself are prohibited, regardless of a good faith defense or exonerating facts.

The appearance of impropriety and public confidence in the impartiality of the judiciary, raise issues that must be viewed from the standpoint of the perception of the public. The question is not what a judge does or does not do, but what do others think he has done or might do. AO 88-8.

This objective standard is needed because public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. Commentary to NMRA 21-200. For example, a judge who speaks at length with a litigant in a pending case appears to be giving that party an advantage, even if in fact the conversation is unrelated to the case. This rule "places an especially heavy burden on the rural judge because of the intense public scrutiny, but rural communities like urban communities still need to be assured that their judges are impartial and have integrity." 1990 Code, Annotation to 2A.

A metropolitan court judge who was charged with criminal offenses, being abusive toward staff and engaging in public criticism of police department practices was suspended from the bench, and eventually resigned. JSC 02-F3.

The Advisory Committee set out guidelines for distributing proceeds of an unclaimed litigation fund without undermining public confidence in the impartiality and integrity of the judiciary. AO 00-01.

A municipal judge who failed to sign over 700 outstanding bench warrants, routinely started court late, scheduled trials late in the evening to discourage their use, and met outside of court with defendants demonstrated a clear and convincing pattern of behavior that lacked respect for the constitutional, statutory and procedural limitations upon the judge’s authority and conduct and lacked respect for the concept of avoiding the appearance of impropriety. The Judicial Standards Commission recommended that the judge be permanently removed; the charges ultimately were dismissed as moot when the judge was not re-elected. JSC 97-1F.

A magistrate judge who served as a firearms instructor for the sheriff’s department, had regular contact with the sheriff’s department through two-way radio, maintained a commission with the sheriff’s department, carried a concealed loaded firearm, acted without jurisdiction in a domestic relations matter, unilaterally reduced a charge without an adversarial proceeding, and handled a plea and sentence over the phone with the defendant violated the Code of Judicial Conduct and demonstrated willful misconduct in office. The judge was temporarily suspended and placed on supervised probation. JSC 97-2F.

A district judge who repeatedly used contumacious language from the bench, failed to follow the law, treated litigants inappropriately, and publicly displayed contempt for the judicial system demonstrated a clear and convincing pattern of behavior that lacked respect for the constitutional, statutory and procedural limitations upon the judge’s authority and conduct and lacked respect for the concept of avoiding the appearance of impropriety. The judge was ordered to resign. JSC 98-1F.

A judge was cautioned about not drinking alcoholic beverages in the courthouse or during court hours and not hosting holiday parties with alcohol in the courthouse. The judge also was cautioned that the odor of alcohol on his breath may itself give rise to the appearance of impropriety. JSC 97-II(1).

A judge was cautioned about not using judicial letterhead to write letters to the police department concerning a complaint the judge’s family had about a local business. JSC 97-II(3).

A judge was cautioned against serving as a police dispatcher to avoid the appearance of impropriety. JSC 97-II(4).

3-530. Injudicious conduct. Like NMRA 21-100, the rule prohibiting impropriety applies to conduct unbecoming a judge.

A judge who wrote bad checks, failed to pay taxes and used county facilities for her private business was placed under the mentorship of a district judge and required to repay her obligations. After failing to meet her obligations, she resigned from office. JSC 02-F1.

A municipal judge was cautioned to avoid activities giving the appearance of impropriety. The judge placed a call to an individual's place of employment after the person was involved in a confrontation with members of the judge's family, and threatened the person with criminal charges. JSC 93-I6.

A magistrate was publicly reprimanded and suspended for 120 days by the Supreme Court for willful misconduct and violations of the Code because of conduct with a defendant who had appeared before him on arraignment for two felonies. One of the conditions of release the judge had imposed was that the defendant refrain from alcoholic beverages. Several weeks later judge encountered defendant in liquor store, gave her a ride home, drank with her, and allegedly had sexual intercourse with her. JSC 92-F4.

3-540. Misuse of power. It is highly unethical for a judge to misuse judicial power to advance judge's personal interests or the interests of others.

A municipal judge was suspended for thirty days for willfully accepting a favor from a person appearing before his court, creating an appearance of impropriety. The judge accepted a bundle of lumber from a trucker who was convicted by the judge of having an overweight load. The trucker paid the fine and then unloaded the lumber on the judge's property. In re Terry, 101 N.M. 360, 683 P.2d 42 (1984).

3-550. Criminal charges. When a judge is charged with a criminal offense, there is an appearance of impropriety as well as a conflict of interest in continuing to hear criminal cases.

A district judge who entered a no-contest plea to DWI and other motor vehicle code violations was reprimanded and resigned from office. JSC 02-F4.

A magistrate judge indicted on thirteen criminal charges, including battery, criminal sexual contact, stalking, demanding a bribe, and soliciting commission of a felony, agreed to suspension without pay pending the resolution of the criminal charges, and ultimately retired with a commitment never again to seek judicial office. JSC 01-F3.

Although it is not a violation of the Code to be charged with a crime, a judge who has been charged with DWI should not continue to preside in such cases because of the appearance of impropriety and the conflict between the authority that is bringing the charges against the judge. The judge should disqualify him/herself after charges are filed and proceed in all due speed in getting the matter resolved. For similar reasons, a judge charged with a felony should recuse him/herself from all criminal matters in which the DA's office prosecutes a case due to the appearance of impropriety and the obvious conflict with that office. AO 89-1.

A magistrate judge was suspended from office after being charged with DWI and domestic violence and related offenses. The judge subsequently entered into a plea agreement and resigned from the bench. JSC 99-1F.

The Supreme Court removed a municipal judge from office after he was convicted of DWI, continued to serve in a judicial capacity after the Supreme Court had suspended him while the DWI charges were pending, and was not truthful to the Court and the Judicial Standards Commission during oral argument in his disciplinary proceedings. JSC 99-3F.

The facts underlying a criminal charge may be grounds for discipline against a judge even if the charges are not proven.

An Illinois circuit judge testified under a grant of immunity about benefits he improperly received in connection with the management of the state fair. The grand jury named him an unindicted co-conspirator. The court ordered him removed from office, finding the grant of immunity did not apply to the disciplinary proceeding and the judge's personal conduct off the bench was relevant to his qualifications to be a judge. Conduct that does not constitute a criminal offense may still violate the Judicial Canons. Napolitano v. Ward, 457 F.2d 279 (7th Cir. 1972).

3-560. Creating potential conflict-of-interest. A judge should avoid situations that may create bias in her decisionmaking.

It is improper for part-time municipal judges to represent criminal defendants in other courts in the same county in which the judges serve. It is also improper to represent clients in civil actions against the same city in which the judges serve as alternative municipal judge. Police officers who appear before the judge in municipal court are likely to testify or act as opposing parties; therefore the judge may not represent criminal defendants. Even if no actual conflict of interest existed, a reasonable person could assume that a conflict did exist, and this would create the appearance of impropriety. NMRA 21-200(A); AO 89-1. But compare NMRA 21-901 (C)(2), limiting restriction of law practice by probate and part-time magistrate and municipal judges to the court on which judge serves or to which appeals may be taken.

A magistrate judge was cautioned about the appearance of impropriety created when he was present when persons whom he had convicted were being supervised outside the judicial complex, in order to prevent ex parte communications between the judge and defendants attending meetings in the probation department whose cases have not been adjudicated. JSC 93-I7.

3-570. Relevant factors. The following factors may be relevant in determining impropriety:

1. The public or private nature of the act when done. The more private the conduct, the greater the judge's expectation of privacy. But even private conduct is subject to disciplinary measures if it indicates bias.
   
2. The extent to which the conduct is protected as an individual right. Speech is constitutionally protected but a judge's speech is circumscribed by the requirements that judges avoid the appearance of impropriety and bias in decisionmaking.
   
3. Whether the conduct was harmful or offensive to others. Such conduct is inherently objectionable.
   
4. The degree of respect or lack of respect for the public or individuals that the conduct demonstrates. Frequent use of biased epithets or stereotypes demonstrates disrespect for the public.
   
5. The degree to which the conduct is indicative of bias, prejudice, or improper influence. Judges must be impartial both in appearance and in fact. Shaman, supra, §10.22 at 303.

3-600. Respect for the law.
Disrespect for the law is a specific form of impropriety.

3-610. General rule.

A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. NMRA 21-200(A).

3-620. Scope of rule. This is one of two provisions of the Code explicitly concerned with a judge's adherence to the law. NMRA 21-200(A) relates primarily to a judge's personal conduct; NMRA 21-300(B) pertains to a judge's application of the law in deciding cases. See EXERCISE OF JUDICIAL POWER. "Requiring adherence to the law . . . even in strictly private matters is a given." Shaman, supra, §10.08 at 280. Violations of the law also implicate NMRA 21-100.

A district judge who gave written notice that an appellate court’s order “will not be honored” expressed contempt for the law in a public manner calculated to undermine the integrity of the judicial system, in defiance of the judge’s solemn obligation to respect and comply with the law. The judge was suspended, placed on probation and publicly censured. In re Hon. Benjamin S. Eastburn, 121 N.M. 531 (1996).

A district judge who repeatedly used contumacious language from the bench, failed to follow the law, treated litigants inappropriately, and publicly displayed contempt for the judicial system demonstrated a clear and convincing pattern of behavior that lacked respect for the constitutional, statutory and procedural limitations upon the judge’s authority and conduct and lacked respect for the concept of avoiding the appearance of impropriety. The judge was ordered to resign. JSC 98-1F.

A judge who cannot obey the law cannot be expected to apply it.

A probate judge was charged with cocaine trafficking. The JSC charged him with misconduct and when the judge did not respond, suspended him until final disposition of the charges. After the conviction the judge was charged with willful misconduct and resigned before the disciplinary hearing. JSC 90-F3.

Bribery not only is a crime but also directly undermines public confidence in the judicial system.

A municipal judge was removed from office for misconduct for taking bribes in exchange for dismissing serious traffic charges. JSC 91-F4.

Similarly, criminally fraudulent conduct committed by a judge undermines public confidence in the courts.

A Michigan judge was removed from office for conduct including solicitation to commit perjury and intentional misrepresentation on an insurance application and solicitation to commit perjury. In re Jenkins, 465 N.W. 2d 317, 318 (Mich. 1991).

Violations of alcohol laws have subjected New Mexico judges to disciplinary action.

The Supreme Court found willful misconduct and violations of the Code in the case of a municipal judge who accompanied his minor son to a liquor store where they purchased a keg of beer that was made available to minors at the judge's home at a going away party for his son. The judge was subsequently convicted of the criminal charge of giving alcoholic beverages to minors. The judge was suspended from office for 30 days. JSC 90-F4.

A municipal judge was arrested for DWI. His breath test registered .21. The judge's actions in driving while intoxicated, causing an accident and not cooperating fully with investigating officers constituted willful misconduct and were in violation of NMRA 21-200. The Supreme Court imposed one month's suspension because of the judge's cooperative attitude in seeking alcohol counseling. JSC 88-F5.

A magistrate was stopped for DWI, led officers on a high-speed chase and attempted to avoid arrest. He was found not guilty of criminal charges, but was suspended from office by the Supreme Court for willful misconduct. While still under suspension, he was again arrested for DWI. This time, he was removed from office. JSC 89-F1; JSC 89-F3.

3-630. Statutory duties. A judge may also be prosecuted for violating statutory requirements.

Section 14-12-18 makes it a misdemeanor for a person to authenticate a document in the absence of the proper party.

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.

3-700. Impartiality.

3-710. General rule.

A judge shall not allow family, social, political, or other relationships to influence the judge's judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interest of the judge or others; nor should a judge convey or permit others subject to the judge's direction and control to convey the impression that they are in a special position to influence the judge. NMRA 21-200(B).

The general prohibition against partiality is NMRA 21-200(B). Other provisions of the Code also are concerned with maintaining impartiality, especially NMRA 21-300 and NMRA 21-500.

3-720. Policy. If a judge appears partial, public confidence in the judiciary is eroded, the public loses confidence in the judiciary, and the judicial system cannot function. Therefore a judge must avoid all activity suggesting the judge's decisions are affected by self-interest or favoritism. The Code prohibits activities that are deemed inherently inconsistent with the appearance of impartiality. As with questions of impropriety, an objective standard applies: does the conduct create the appearance that the judge is less than partial?

A municipal judge's ownership and directorship of a DWI school created an appearance of impropriety and reflected adversely on his impartiality because the judge had a direct financial interest in having individuals appear before him and then attend the school. Even if the judge had not been paid, there was an appearance of partiality because the school's existence was directly related to the number of people sentenced in his court. In re Rainaldi, 104 N.M. 762, 762, 727 P.2d 70 (1986).

The Judicial Standards Commission petitioned the Supreme Court to remove a magistrate judge for numerous alleged acts of misconduct in office, including dismissing DWI and other cases of friends and relatives, without notice to the prosecutor, based upon ex parte communications, and even though some of the cases had been assigned to other judges. In re Angie Vigil-Perez, NM Supreme Court Nos. 99-15 and 99-70.

3-730. Effect.

3-731. Distinguish impartiality from opinion. The requirement of impartiality means the judge's opinions about a case cannot be influenced by external factors--such as a judge's personal relationship with a party or interest in the outcome. Of course the judge will have opinions, but they must be formed in the course of the legal proceeding. The judge must shrewdly observe the parties and their lawyers: "He has an official obligation to become prejudiced in that sense. Impartiality is not gullibility. . .. If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions." In re International Business Machines Corp., 618 F.2d 923, 930 (quoted in United Nuclear Corp. v. General Atomic Co., 96 N.M. 249, 629 P.2d at 324); see also DISQUALIFICATION.

3-732. Other activities. A judge may not take on activities, including law-related activities, that conflict with judicial duties.

An alternate municipal judge cannot defend criminal defendants before the municipal court. Holding both positions would create the appearance of impropriety and a conflict with judge's independence. The judge would be in an adversarial relationship with certain attorneys while acting as a lawyer, and yet would have to be impartial as a judge when ruling on cases involving those lawyers. When his criminal clients are sentenced he must pray for leniency and then as judge he must sentence other defendants for the same crime under similar situations. The dual position also would involve the judge in financial dealings that involve frequent transactions with attorneys likely to come before the court. AO 89-5.

3-740. Testimony as a character witness.

A judge shall not testify voluntarily as a character witness. NMRA 21-200(B).

A judge's testimony as a character witness injects the prestige of the judicial office into a proceeding and may be misunderstood to lend the prestige of the judicial office in support of the party for whom the judge testifies. The rule does not apply to testimony given in response to an official summons. Commentary to NMRA 21-200.

The reports of the Judicial Standards Commission report violations of this rule. JSC 84-I; JSC 88-I6.

A judge may not use rulings in a case in a manner that creates an appearance of bias.

A district judge was removed from office for a pattern of conduct, including creating an appearance of bias and partiality in his rulings on a case. The judge had delayed entry of judgment against a losing party, apparently to forestall an appeal; after being ordered to file the judgment, had attempted to prolong the case by enlarging the scope of issues to be litigated; after reversal on the merits, refused to award costs on remand, forcing another appeal. In re Castellano, 119 N.M 140, 889 P.2d 175, 183 (1995).

3-800. Related topics.
Exercise of Judicial Power
Demeanor and Impartiality
Disqualification

Continue to Part 4: Exercise of Judicial Power