Wednesday, June 8, 2011

Judges and Honesty

This is the committee commentary on how a judge should behave in public.


Paragraph A

The commentary to Rule 21-100 NMRA also applies to Paragraph A.

Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. Examples are the restrictions on judicial speech imposed by Subparagraphs (10) and (11) of Paragraph B of Rules 21-300 NMRA that are indispensable to the maintenance of the integrity, impartiality and independence of the judiciary.

The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. Because it is not practicable to list all prohibited acts, the proscription is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. Actual improprieties under this standard include violations of law, court rules or other specific provisions of this Code. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.

Now, I know that a small percentage of judges have not followed these rules in the past year. Their behavior has been inexcusable when it comes to both professional and personal issues. They should and were held accountable for their misconduct by the State Supreme Court. Others are being investigated at this point in time. Like doctors, judges are often judged harshly by the public for what a few rogue individuals may do while in office.

The public should remember that not all judges disregard the rules of conduct. Some judges hold fast to those rule, and yes a few even work to educate the public on those rules. Nevertheless, I myself have been sadly disappointed and even angered by the behavior of a few of these rogue judges over the past year. I can say that they gave no indication of their poor judgment while running for office. If any judges have behaved in a manner that disregards the above rules then they should be investigated thoroughly in order to either prove their incenses or guilt.

As we have seen on the national level not all misconduct is carried out by one party or the other. We must watch closely and question even more harshly any candidate that will replace one of the judges who were forced to retire over the past year.

There is a hearing in Santa Fe, which is open to the public, this month where candidates for the Appeals Court position will be interviewed. I must admit that holding this during a workday instead of a weekend does not show a great desire for encouraging the public to view these interviews.

I personal believe that the public should be allowed to question judicial candidates before they are placed on a short list for the governor. I don’t disagree that their peers should also have an opportunity to review their qualification and question them in an interview process. I think that a combination of both methods would produce a much more successful list of candidate for the governor to choose from in the future. The more open the process the less likely that a candidate with poor moral values will slip through and be picked for a position on our courts.