21-700. Elections and political activity.

A. Incumbent judges.

(1) A judge may engage in political activity on behalf of the legal system, the administration of justice, measures to improve the law and as expressly authorized by law or by this Code.

(2) A judge may, unless and except as prohibited by law:

(a) purchase tickets for and attend political gatherings;

(b) identify the political party of the judge, except as prohibited by Subparagraph (6) of Paragraph B of this rule; and

(c) contribute to a political organization.

(3) A judge shall not:

(a) act as a leader or hold an office in a political organization;

(b) publicly endorse or publicly oppose a candidate for public office through the news media or in campaign literature;

(c) make speeches on behalf of a political organization; or

(d) solicit funds for a political organization or candidate.

B. Candidates for election to judicial office. Candidates for election to judicial office in partisan, non-partisan and retention elections, including judges, lawyers and non-lawyers, are permitted to participate in the electoral process, subject to the requirements that all candidates:

(1) shall maintain the dignity appropriate to judicial office, act in a manner consistent with the impartiality, integrity and independence of the judiciary and shall encourage members of the candidate's family to adhere to the same standards of political conduct in support of the candidate;

(2) shall prohibit public officials and employees subject to the candidate's direction or control from doing for the judge what the candidate is prohibited from doing under these rules;

(3) shall not allow any other person to do for the candidate what the candidate is prohibited from doing under these rules, except activities permitted to a campaign committee;

(4) shall not:

(a) with respect to cases, controversies or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office; or

(b) misrepresent the candidate's or the candidate's opponent's identity, qualifications, present position or other material fact;

(5) may speak at public meetings, subject to these rules;

(6) may use advertising that does not contain any misleading contents, provided that the advertising is within the bounds of proper judicial decorum and does not, in nonpartisan elections, contain any reference to the candidate's affiliation with a political party; and

(7) may respond to personal attacks or attacks on the candidate's record as long as the response does not violate Paragraph B(4) of this rule.

C. Elections for non-judicial offices. No judge of any court in the State of New Mexico may while in office be nominated or elected to a public non-judicial office. A judge must, when filing a statement of candidacy for a non-judicial office, resign the judge's office immediately.

D. Candidates seeking appointment to judicial office.

(1) A candidate for appointment to judicial office shall not solicit or accept funds, personally or through a committee or otherwise, to support the candidacy.

(2) A candidate for appointment to judicial office shall not engage in political activity to secure the appointment except that such candidate may:

(a) communicate with the appointing authority, including any nominating commission designated to screen candidates;

(b) seek support or endorsement for the appointment from organizations and from individuals to the extent requested, required or permitted by the appointing authority and the nominating commission; and

(c) provide to the appointing authority and the nominating commission information as to the candidate's qualifications for office.

E. Judges seeking appointment to public, non-judicial office.

(1) A judge seeking appointment to a public, non-judicial office shall not:

(a) solicit or accept funds, personally or through a committee, or otherwise, to support the candidacy;

(b) engage in any political activity to secure the appointment except:

(i) communicating with the appointing authority;

(ii) seeking the support or endorsement for the appointment from organizations and from individuals to the extent requested, required or permitted by the appointing authority; and

(iii) providing to the appointing authority information concerning the candidate's qualifications for the office.

(2) A judge seeking appointment to a public non-judicial office, during the time the appointment is sought, shall be disqualified from presiding or participating as a judge in any legal proceeding involving or materially affecting the interests of:

(a) the appointing authority; or

(b) an organization or individual that has been contacted by the candidate to make, or is known by the candidate to be making, a recommendation to the appointing authority concerning the appointment.

F. Definition. As used in this rule "political organization" means a political party or other group, the principal purpose of which is to further the election or appointment of candidates to political office.

[As amended, effective June 1, 1990; July 1, 1990; February 16, 1995; August 31, 2004.]

Commentary

With respect to a judge's activity on behalf of measures to improve the law, the legal system and the administration of justice, see Subparagraphs (1) through (3) of Paragraph C of Rule 21-500 NMRA. The Code does not prohibit a judge in the exercise of administrative functions from engaging in planning and other official activities with members of the executive and legislative branches of government.

A judge or candidate for judicial office retains the right to participate in the political process as a voter.

Where false information concerning a judicial candidate is made public, a judge or another judicial candidate having knowledge of the facts is not prohibited from making the facts public.

A candidate for elective judicial office is not prohibited from retaining during candidacy a public office such as county prosecutor, which is not an office in a "political organization".

A judge or judicial candidate is not prohibited from privately expressing the judge's or judicial candidate's views on judicial candidates or other candidates for public office.

A candidate for judicial office does not publicly endorse another candidate for public office by having that candidate's name on the same ticket, or by participating in joint fund-raising with other judicial candidates, or by running for election as part of a slate of judicial candidates.

Although a judicial candidate must encourage members of the judicial candidate's family to adhere to the same standards of political conduct in support of the candidate that apply to the candidate, family members are free to participate in other political activity.

The Code prohibits a candidate for judicial office from making statements that commit the candidate regarding cases, controversies or issues likely to come before the court. As a corollary, a candidate should emphasize in any public statement the candidate's duty to uphold the law regardless of the candidate's personal views. The Code does not prohibit an incumbent judge from making private statements to other judges or court personnel in the performance of judicial duties. Paragraph B(4) of this rule applies to any statement made in the process of securing judicial office, such as statements to commissions charged with judicial selection and tenure and legislative bodies confirming appointment.

This rule does not prohibit a candidate from initiating an evaluation by a judicial selection commission or bar association, or, subject to the requirements of the Code of Judicial Conduct, from responding to a request for information from any organization.

[As revised, effective August 31, 2004.]

Additional Compiler's Annotations
The 2004 amendments, effective August 31, 2004 made general neutral revisions; added to Subparagraph (2) of Paragraph B to require judicial candidates to "act in a manner consistent with the impartiality, integrity and independence of the judiciary; amended Subparagraph (4)(a) of Paragraph B to prohibit judicial candidates from making pledges or commitments with respect to cases, controversies or issues that are likely to come before the court that are inconsistent with the impartial performance of the adjudicative duties; deleted former Subparagraphs (4)(b) and (4)(c) of Paragraph B; redesignated former Subparagraph (4)(d) of Paragraph B as Subparagraph (4)(b) and amended Subparagraph (4)(b) to prohibit a candidate from misrepresenting the candidate's opponent's position or other material fact.
The ABA model rule provides that a candidate may not "knowingly" misrepresent the candidate's identity, qualifications, present position or other material fact.