N.M. Code. Jud. Cond. 21-202
A judge shall uphold and apply the law and shall perform all duties of judicial office fairly and impartially.
N.M. Code. Jud. Cond. 21-202
Committee commentary. -
[1] To ensure impartiality and fairness to all parties, a judge must be objective and open-minded.
[2] Although each judge comes to the bench with a unique background and personal philosophy, a judge must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question.
[3] When applying and interpreting the law, a judge sometimes may make good-faith errors of fact or law. Errors of this kind do not violate this rule.
[4] When pro-se litigants appear in court, they should comply with the rules and orders of the court and will not be treated differently from litigants with counsel. It is not a violation of this rule, however, for a judge to make reasonable accommodations to ensure all litigants the opportunity to have their matters fairly heard.
[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'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). Impartiality throughout a case is required. - When a judge believes that the judge will be unable to remain impartial, the judge should recuse from the case in order to avoid a hint of impropriety. Gerety v. Demers, 1978-NMSC-097, 92 N.M. 396, 589 P.2d 180 (decided prior to the 2011 recompilation). JUDICIAL REPRIMANDS 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). Improper demeanor and abuse of contempt power. - Where a judge referred to the presiding judge in a condescending manner to court staff and the court manager; refused to listen to a litigant, raised the judge's voice, and banged on the bench when the litigant tried to explain why the litigant failed to appear at a pre-trial conference and then held the litigant in direct contempt; and in another case, held a litigant in contempt during a pre-trial conference and then released the contempt order an hour later, 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). Ex parte communications. - 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). Involvement in the trial of a case pending before the judge. - Where in a DWI trial, the judge stepped off the bench to assist an officer in presenting the officer's case and in sight and earshot of the jury, told the court manager that the defendant "blew a .3", 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). Abusing prestige of judicial office. - Where a municipal judge had private conversations with a contractor about the contractor's personal financial dispute with landowners who allegedly owed the contractor money for cleaning up the landowners' property; the judge called the landowners and left a message on the landowners' answering machine in which the judge identified himself as a judge and stated that the judge was calling about the financial dispute between them and the contractor and that the judge wanted the matter cleared up; the judge subsequently wrote the landowners a letter on municipal stationery, using the judge's title and court name discussing the contractor's claim and indicating that a lawsuit would be filed if the contractor was not paid; two weeks later, the judge was assigned to preside over a nuisance action by the municipality concerning the land that the contractor had supposedly cleaned; and the judge accepted the case and issued a summons to the landowners that did not conform with the rules of procedure, the judge's conduct constituted willful misconduct in office. In re Ramirez, S.Ct. No. 31,664 (Filed June 26, 2009) (decided prior to the 2011 recompilation). Giving advice to a witness in a case pending before the 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 has 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). Alcoholism. - Where a judge recessed a criminal jury trial for a long holiday weekend; the judge did not return to court on the date set for the completion of the trial; the judge told an administrative assistant that the judge was ill, but would be in court in the afternoon; the judge did not return that day and the judge's staff rescheduled the trial for two days later; on the day the trial was to resume, the judge told the assistant the judge was hospitalized for heart-related tests; after the trial was twice reset due to the judge's unavailability, a stipulated mistrial order was entered; the judge was absent for two weeks during which the judge was hospitalized for six days; the judge's heart ailment and the hospitalization were due to alcohol withdrawal; and to justify the judge's absence, the judge told a reporter that the judge was being treated for and was recovering from a mild heart attack, the judge's conduct constituted willful misconduct in office. In re Pope, S.Ct. No. 29,778 (Filed June 13, 2007) (decided prior to the 2011 recompilation). Allowing a 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. In re McBee, 2006-NMSC-024, 138 N.M. 482, 134 P.3d 769 (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). Failure to maintain judicial demeanor. - Where, during a bench trial, a judge became agitated with and yelled at the defendant, stood up and hit a gavel on the bench that caused debris, including paper clips, to scatter across the room, striking the defendant and the prosecuting officer, the judge's conduct constituted willful misconduct in office. In re Pindea, S.Ct. No. 29,479 (November 29, 2005) (decided prior to the 2011 recompilation). Involvement in a pending criminal case involving the judge's child. - Where the judge's child was cited for speeding and no proof of insurance and the judge contacted the sheriff to complain that the child had been mistreated and held for an excessive time by the deputy sheriff at the traffic stop; accessed the court's file on the child's case by a private request to the clerk's office to obtain the file from the presiding judge; called the presiding judge to reschedule the child's hearing due to car trouble; provided the presiding judge with a memorandum that the district attorney's office would not appear in the case; and attended hearings with the child where members of the public were present, the judge committed willful misconduct in office. In re Chaparro, S.Ct. No. 27,923 (Filed June 22, 2005) (decided prior to the 2011 recompilation). Use of judicial position to advance private interest in pending case. - A metropolitan court judge who initiated ex parte communications with a special commissioner and a district court judge to influence a child placement in a case involving a family member within the third degree of relationship committed willful misconduct in office. In re Gentry, S.Ct. No. 28,986 (Filed June 29, 2005) (decided prior to the 2011 recompilation). Knowingly failing to credit inmates with statutory credit for incarceration. - Where a judge knowingly failed to follow and apply the law when the judge incarcerated citizens for failure to pay fines by crediting inmates with only $5.00 per day of time served toward payment of fines and fees, the judge's conduct constituted willful misconduct in office. In re Wood, S.Ct. No. 29,085 (Filed May 12, 2005) (decided prior to the 2011 recompilation). Display of extreme anger. - Where, after the judge declared a mistrial and recused from a criminal trial, the judge came off the bench and yelled at the defendant; defense counsel stood in front of the defendant to block the judge's access to the defendant; the judge then passed through the swinging gate, turned, and told defense counsel and the defendant that they could write to the Judicial Standards Commission and tell them what the judge thought of the commission; the judge brought the jury back into the courtroom and explained that there had been a mistrial; and the judge apologized to the counsel several times and agreed to recuse in their cases, the conduct of the judge constituted willful misconduct in office. In re Vincent, S.Ct. No. 27,266 (Filed May 19, 2004) (decided prior to the 2011 recompilation). Personal involvement with and harassment of trial counsel. - Where a judge presided over and took judicial action in cases in which the assistant district attorney appeared on behalf of the state during the time the judge was engaged in a personal relationship with the assistant district attorney; the judge failed to inform all counsel or parties of record of the judge's relationship with the assistant district attorney in cases where the assistant district attorney appeared before the judge; the judge failed to be patient, dignified and courteous to counsel by making inappropriate remarks to assistant district attorneys about the judge's rulings in front of defendants, defense counsel, and co-counsel; and in one case, the judge suppressed evidence of a breath test, refused to allow the assistant district attorney to call the officer who administered the breath test to testify, and then taunted the assistant district attorney about not being able to prove the state's case, the judge committed willful misconduct in office. In re Galvan, S.Ct. No. 28,609 (Filed May 17, 2004) (decided prior to the 2011 recompilation). Causing court employee to be arrested. - Where the judge became embroiled in a controversy with court interpreters; the judge failed to be patient, dignified, and courteous with interpreters, another judge, and the court clerk; the judge issued a warrant for the arrest of a court interpreter on a criminal contempt charge relating to a prior dispute over interpreting services; and the judge had an ex parte communication with another judge about presiding over a pending writ case which involved the judge which caused the other judge to feel threatened and intimidated and to file a recusal in the case, the judge's conduct constituted willful misconduct in office. In re Chaparro, S.Ct. No. 27,923 (Filed April 15, 2003) (decided prior to the 2011 recompilation). Inappropriate demeanor, interference in pending case and illegal modification of sentence. - Where a judge made inappropriate, age and/or gender-based references to female attorneys who appeared before the judge; after the state lost a six-month rule hearing, the judge threatened the Public Defender's Office and its employees; the judge told a defendant in a criminal drug case that the defendant was covering up for the defendant's children and that the defendant could post a property bond with the intention that the state could get rid of the defendant's house if there were complaints by the defendant's neighbors; after filing a recusal in a case, the judge became involved in a pretrial conference in the case and testified against a motion filed by the Public Defender's Office; referred to a female magistrate court judge in an inappropriate, derogatory, and gender-based manner; criticized a female attorney for being employed by the Public Defender's Office; and after the Public Defender's Office filed a notice of appeal from the judge's ruling, verbally modified a sentence and order of eligibility by ex parte communication with the monitoring agent, the judge's conduct constituted willful misconduct in office. In re Vincent, S.Ct. No. 27,266 (Filed March 22, 2002) (decided prior to the 2011 recompilation). Abusing prestige of judicial office. - Where a judge directly or indirectly solicited, commanded, requested, induced, employed, or otherwise attempted to promote, facilitate, or obtain favored treatment or avoidance of due process of the law from law enforcement officers for the judge's friend, the judge committed willful misconduct in office. In re Maestas, S.Ct. No. 27,348 (Filed March 5, 2002) (decided prior to the 2011 recompilation). Involvement in friend's criminal case. - Where a judge became involved in the pending criminal case of a friend by speaking with the arresting state police officer by cellular telephone during the traffic stop and arrest; personally going to the adult detention center and ordered the friend's release and taking the friend to the judge's house, and speaking to a registered nurse and asking the nurse to draw an independent blood sample from the friend; and the judge had an alcoholic drink before going to the jail to release the friend and may have had the odor of alcohol on the judge's breath, the judge's conduct constituted willful misconduct in office. In re Sanchez, S.Ct. No. 25,821 (Filed March 14, 2001) (decided before 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). Issuing insufficient funds checks. - Where a judge, on three separate occasions, issued checks in payment of the judge's debts knowing at the time the checks were issued that there were insufficient funds in or credit with the bank to pay the checks in full upon presentation, and the judge failed to cooperate with and comply with the rules, requirements, 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 was willful misconduct in office. In re Vigil, S.Ct. No. 26,328 (Filed May 7, 2001) (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 and failed to submit abstracts of record to the Department of Motor Vehicles within the time required by law, 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). 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).