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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMSC-026

Filing Date: June 13, 2013

Docket No. 34,097

INQUIRY CONCERNING A JUDGE

NO. 2012-100

IN THE MATTER OF HON. JAMES NARANJO,

Magistrate Judge, County of Socorro, New Mexico

Randall D. Roybal

Deborah L. Borio

Albuquerque, NM

for Judicial Standards Commission

Deschamps Law Firm, L.L.C.

Lee Deschamps

Socorro, NM

for Respondent

OPINION AND PUBLIC CENSURE

DANIELS, Justice.

{1} This matter came before us on a petition to accept the stipulated agreement and

consent to discipline between the Judicial Standards Commission and Respondent, the

Honorable James Naranjo, a magistrate judge in Socorro, New Mexico. We issued an order

granting the petition and imposing a ninety-day suspension with sixty days deferred, subject

to the conditions set forth below. We now file this Opinion as a public censure under Rule

17-206(D) NMRA for publication in New Mexico Appellate Reports and in the New Mexico

Bar Bulletin.

INTRODUCTION

{2} Article VI, Section 32 of the New Mexico Constitution, which created the Judicial

Standards Commission, provides that “any justice, judge or magistrate of any court may be

disciplined or removed for willful misconduct in office.” That constitutional provision vests

this Court with the ultimate responsibility of reviewing recommendations of the
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Commission, determining whether a judge has committed willful misconduct, and imposing

discipline that we find “just and proper.”

{3} Pursuant to this Court’s responsibility under Article VI, Section 3 of the New Mexico

Constitution to exercise “superintending control over all inferior courts,” we have

promulgated a Code of Judicial Conduct, Rules 21-100 to -406 NMRA, that “establishes

standards for the ethical conduct of judges and judicial candidates” requiring that judges

“aspire at all times to conduct that ensures the greatest possible public confidence in their

independence, impartiality, integrity, and competence.” Id. pmbl. (2)-(3). While violations

of Code provisions are not automatic grounds for judicial discipline, they provide “some

proof of what constitutes appropriate judicial conduct.” In re Martinez, 99 N.M. 198, 204,

656 P.2d 861, 867 (1982) (ordering suspension of a judge for willful misconduct in office).

{4} The Commission and Respondent have stipulated to the following facts.

Respondent’s stepson, Albert Hernandez, was a party in a child-support enforcement

proceeding assigned to Seventh Judicial District Court Judge Matthew Reynolds. In August

2012, after Mr. Hernandez was jailed for nonpayment of support, Respondent, who had no

official role in the case, placed a telephone call to Judge Reynolds, stating that Mr.

Hernandez was not a flight risk and requesting that Judge Reynolds reduce Mr. Hernandez’s

bond or let him out of jail. As a result of the ex parte communication from Respondent,

Judge Reynolds recused himself from Mr. Hernandez’s case.

{5} Upon learning of the incident, the Commission initiated a preliminary investigation

and requested a written explanation from Respondent for the phone call. Respondent

explained in a letter that he placed the call “to advise Judge Reynolds that Albert Hernandez

was not a flight risk and that [Respondent] would personally make sure he made his court

date.” Respondent also stated that he recognized that his phone call created an appearance

of impropriety and promised to comply with any remedial action taken by the Commission.

{6} After receiving Respondent’s letter, the Commission filed a notice of formal

proceedings against Respondent, alleging in three counts that the phone call to Judge

Reynolds was (1) an ex parte communication in Mr. Hernandez’s child-support enforcement

case, (2) an abuse of the prestige of Respondent’s judicial office by attempting to gain

favorable treatment for Mr. Hernandez, and (3) an abuse of the prestige of Respondent’s

judicial office by vouching for the character of Mr. Hernandez. The Commission also

alleged that each of the three counts violated specific provisions of the Code of Judicial

Conduct and constituted willful misconduct in office.

{7} Respondent obtained counsel and answered the Commission’s notice, admitting to

the conduct and the violations alleged by the Commission. He and the Commission then

entered into the stipulation agreement and consent to discipline (Agreement) in which

Respondent acknowledged that the telephone call to Judge Reynolds amounted to willful

misconduct and violated Rules 21-101 (requiring compliance with the law), 21-102

(promoting confidence in the judiciary), 21-103 (avoiding abuse of the prestige of judicial
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office), 21-204(B)-(C) (avoiding external influences on judicial conduct), 21-206(A)

(ensuring the right to be heard), 21-209(A) (avoiding ex parte communications), 21-210(A)

(prohibiting statements on pending and impending cases), and 21-303 (prohibiting service

as a character witness). Respondent also agreed that his misconduct caused Judge Reynolds

to disqualify himself from Mr. Hernandez’s case.

{8} As stipulated discipline, Respondent agreed to (1) enroll in and successfully

complete, at his own expense, the National Judicial College’s online course, Ethics and

Judging: Reaching Higher Ground, (2) receive a public censure, to be published in the New

Mexico Bar Bulletin, (3) undergo formal mentorship with supervised probation for the

remainder of his term in office, and (4) accept a suspension without pay for ninety days, with

sixty days deferred on the condition that he successfully complete his probation.

{9} The Commission petitioned this Court for acceptance of the Agreement. We granted

the petition and issued our order accepting the terms of the Agreement but conditioning the

deferral of sixty days of Respondent’s ninety-day suspension on his successful compliance

with all of the terms of the Agreement, not just with the terms of his probation. See Rule 27-

401(A)(3) NMRA (“The Supreme Court, in its discretion and under such conditions as it

may specify, may . . . impose the discipline recommended by the commission or any other

greater or lesser discipline that it deems appropriate under the circumstances . . . .”).

Publication of this Opinion constitutes the public censure component of Respondent’s

discipline.

DISCUSSION

A. Respondent’s Ex Parte Efforts to Obtain Favorable Treatment of His Stepson

Violated the Code of Judicial Conduct

{10} Respondent’s conscious act of placing an ex parte telephone call to Judge Reynolds

on behalf of Respondent’s stepson violated the following specific provisions of the Code of

Judicial Conduct.

1. External Influences on Judicial Conduct

{11} Rule 21-204(C) provides that “[a] judge shall not convey or permit others to convey

the impression that any person or organization is in a position to influence the judge,” and

Rule 21-204(B) provides that “[a] judge shall not permit family, social, political, financial,

or other interests or relationships to influence the judge’s judicial conduct or judgment.”

The committee commentary to Rule 21-204 emphasizes that its provisions are aimed not

only at actual improper influences on judicial conduct but also at the creation of appearances

of impropriety: “Confidence in the judiciary is eroded if judicial decision making is

perceived to be subject to inappropriate outside influences.” See Arthur Garwin et al.,

Annotated Model Code of Judicial Conduct 122 (2d ed. 2011) (“Not only is it misconduct

for a judge to be influenced in her own decision making to advance the judge’s private
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interests or the interests of friends or family members, it is equally improper and a violation

of this canon for a judge to attempt to influence others in the decision-making process to

advance these relationships and interests.”). Respondent’s efforts to influence the assigned

judge on behalf of his stepson therefore violated Rule 21-204(B) and (C).

{12} All judges must be acutely aware of the harm done to the integrity and reputation of

the judiciary when a judge seeks preferential treatment for an acquaintance or relative. Our

legal system is built on principles of fairness, justice, and equality, principles which are

undermined when a judge attempts to obtain favorable judicial treatment for another. And

when such an attempt is directed to another judge behind closed doors, the damage is

magnified. It creates the misperception that our judicial system tolerates secret dealings and

favoritism among those entrusted with the fair and impartial administration of justice.

{13} A citizen who is entrusted with the increased authority inherent in a judicial position

also takes on special ethical obligations designed to ensure litigants and the public that

judicial authority will not be abused. We have previously addressed the potential conflicts

between a judge’s personal relationships and the restrictions imposed by controlling

standards of judicial ethics: “From the perspective of a parent, Respondent’s attempts to

assist his son during a time of trouble may be understandable. . . . Nevertheless, as a judge,

Respondent is expected to regulate his behavior in a way that other parents are not.” In re

Ramirez, 2006-NMSC-021, ¶¶ 4, 6-7, 15, 139 N.M. 529, 135 P.3d 230 (per curiam)

(disciplining a judge who showed his court identification and verbally identified himself to

police officers who were issuing citations to his son and his son’s friends, used a volunteer

bailiff to assist them in responding to their citations, and spoke to a judge assigned to the

cases).

2. Ex Parte Communication

{14} Rule 21-209(A) prohibits a judge from initiating, permitting, or engaging in ex parte

communications, and Rule 21-206(A) prohibits a judge from denying a party the right to be

heard according to law. Judge Reynolds was the duly assigned presiding judge in the case

involving Respondent’s stepson and was obligated by law to avoid any participation in ex

parte communications in that proceeding. See In re Larsen, 616 A.2d 529, 559 (Pa. 1992)

(per curiam) (holding that the presiding judge had “an obligation not to consider ex parte

communications” from Justice Larsen). Judge Reynolds also had a duty to ensure that all

of the parties in Mr. Hernandez’s case had the right to be heard. Judge Reynolds

appropriately disqualified himself when he apparently recognized that his impartiality in Mr.

Hernandez’s child-support enforcement proceeding might reasonably be questioned after the

private conversation initiated by Respondent. See Rule 21-211 (“A judge shall disqualify

himself or herself in any proceeding in which the judge’s impartiality might reasonably be

questioned . . . .”).

{15} Even though the provisions of Rules 21-209(A) and 21-206(A) technically apply

directly to the assigned judge, they are important in understanding why Respondent’s call
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to Judge Reynolds constituted willful misconduct in office. “Ex parte communications are

prohibited generally because they undermine the adversary system, threaten the fairness of

a proceeding, and create an appearance of bias and impartiality.” Garwin et al., supra, at 176

(citing In re Marek, 609 N.E.2d 419, 420 (Ind. 1993)); see also Rule 21-206 committee

commentary ¶ 1 (“The right to be heard is an essential component of a fair and impartial

system of justice. Substantive rights of litigants can be protected only if procedures

protecting the right to be heard are observed.”). And when the improper ex parte

communication is initiated by a judge, whether presiding or otherwise, the effects are even

more severe, violating the principles that lie at the foundation of public confidence in an

impartial judiciary. See Rule 21-102 (“A judge shall act at all times in a manner that

promotes public confidence in the independence, integrity, and impartiality of the judiciary

and shall avoid impropriety and the appearance of impropriety.”).

{16} This case is no exception. Respondent should have been aware of the pernicious

effects that his ex parte communication to Judge Reynolds could have on the lawful conduct

of his stepson’s case and on the public perception of the judiciary. The matter of Mr.

Hernandez’s bond or release from jail was for Judge Reynolds to decide, with public input

from the parties and others as permitted by law and court rules. Respondent simply had no

place communicating with Judge Reynolds about Mr. Hernandez’s case, particularly in a

manner that deprived the parties of notice and an opportunity to respond to Respondent’s ex

parte guarantee that Mr. Hernandez was not a flight risk. The call to Judge Reynolds not

only created the appearance of impropriety, it was clearly prohibited by Rule 21-102.

3. Abusing the Prestige of Judicial Office

{17} The ex parte communication also violated Rule 21-103, which provides, “A judge

shall not abuse the prestige of judicial office to advance the personal or economic interests

of the judge or others, or allow others to do so.” The committee commentary is clear that

the rule encompasses precisely the type of conduct at issue in this matter: “It is improper

for a judge to use or attempt to use his or her position to gain personal advantage or

deferential treatment of any kind.” Id. committee commentary ¶ 1. Respondent’s judge-tojudge communication attempting to gain favorable treatment for his stepson was a clear

violation of this rule and was willful misconduct in office. See, e.g., In re Garza, 2007-

NMSC-028, ¶¶ 2, 4-5, 19, 141 N.M. 831, 161 P.3d 876 (per curiam) (holding that a

magistrate judge abused the prestige of his judicial office by attempting to influence other

magistrate judges who were presiding over an acquaintance’s DWI case); In re Maestas, No.

27,348, ¶¶ 3, 5 (N.M. Sup. Ct. March 5, 2002) (holding that a judge who attempted to obtain

favored treatment from law enforcement officers for the judge’s friend committed willful

misconduct in office); see also Garwin et al., supra, at 78 (“Rule [21-103] prohibits a judge

from lending the prestige of judicial office to advance the personal or economic interests of

others. To do so, or to convey that anyone is in a special position of influence, is to

prostitute the office.”).

4. Vouching for Character of a Person in a Legal Proceeding
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{18} Rule 21-303 provides, “A judge shall not testify as a character witness in a judicial,

administrative, or other adjudicatory proceeding or otherwise vouch for the character of a

person in a legal proceeding, except when duly summoned.” With the adoption of this rule

in January 2012, we expanded the former proscription against judicial character vouching,

which previously consisted only of a textual ban on formal testimony: “A judge shall not

testify voluntarily as a character witness.” Rule 21-200(B) (1995). The current rule is taken

from the American Bar Association’s Model Code of Judicial Conduct, which was amended

in 2007 to include the language “or otherwise vouch for the character of a person in a legal

proceeding.” See Model Code of Judicial Conduct Canon 3, R. 3.3 (2007), available at

http://www.americanbar.org/groups/professional_responsibility/resources/judicial_ethics

_regulation/mcjc.html (follow hyperlinks to “Model Code of Judicial Conduct, as revised

February 2007,” and to “Text Comparison—2007 Model Code to 1990 Code”). This

language was added “in recognition of the fact that under oath is not the only mode in which

judges might abuse the prestige of office when the character of a person is in issue in a legal

proceeding.” Garwin et al., supra, at 352-53 (citing Charles G. Geyh & W. William Hodes,

Reporters’ Notes to the Model Code of Judicial Conduct 60-61 (2009)).

{19} Both the letter and the spirit of Rule 21-303 prohibit the kind of assurances

Respondent made to Judge Reynolds that he did not believe Mr. Hernandez would be a flight

risk. Respondent candidly admitted that he offered this information “to advise Judge

Reynolds that Albert Hernandez was not a flight risk.” Clearly, Respondent was vouching

for the trustworthiness of his stepson in an attempt to influence Judge Reynolds’s judicial

determination of the conditions of Mr. Hernandez’s potential release from jail. See Rule 5-

401(C)(3)(a)-(b) NMRA (providing that a factor to be considered in determining conditions

of release is “the history and characteristics of the person, including . . . the person’s

character and . . . the person’s family ties”). Respondent’s vouching for his stepson as not

being a flight risk in an ex parte conversation with the duly assigned judge was even more

problematical than if Respondent violated Rule 21-303 by offering sworn character

testimony in a public adversary proceeding because the opposing party in a hearing at least

would have known of the vouching and been able to respond with cross-examination and

countering testimony.

5. Making a Statement Likely to Interfere with a Fair Hearing

{20} The phone call also violated Rule 21-210(A), which provides, “A judge shall not

make any public statement that might reasonably be expected to affect the outcome or impair

the fairness of a matter pending or impending in any court, or make any nonpublic statement

that might substantially interfere with a fair trial or hearing.” Because Respondent’s

nonpublic statements deprived any adverse party of an opportunity to respond and because

the nonpublic statements were made from one judge to another, the statements had the

potential not only to “substantially interfere” with the lawful resolution of the release issue

in Mr. Hernandez’s case but to be outcome determinative.

B. Respondent’s Conduct and Code of Judicial Conduct Violations Constituted
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Willful Misconduct in Office

{21} By both the terms of the stipulation offered by the Commission and Respondent and

under our own caselaw, Respondent’s conduct and its resulting Code violations constituted

willful misconduct in office. See In re Gentry, No. 28,986 ¶¶ 4, 6 (N.M. Sup. Ct. July 29,

2005) (per curiam) (holding that a metropolitan 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 committed willful misconduct in office); cf. In re Garza,

2007-NMSC-028, ¶¶ 21, 23 (holding that a magistrate judge who contacted another

magistrate judge in seeking preferential treatment for an acquaintance committed willful

misconduct in office). Respondent consciously made an impermissible judge-to-judge ex

parte telephone call to vouch for the character of and influence the assigned judge’s official

decision regarding Respondent’s stepson and thereby committed willful misconduct in

office.

{22} We therefore accept the stipulation of the parties and issue this Opinion and public

censure, both as an assurance to those we serve and as a reminder to all members of the New

Mexico judiciary that we cannot permit any behavior on the part of any of our judges that

creates either the reality or an appearance of judicial favoritism.

CONCLUSION

{23} For the foregoing reasons, we publically censure Respondent for his misconduct and

confirm our previous order accepting the stipulation of the parties and imposing the

disciplinary sanctions summarized in this Opinion.

{24} IT IS SO ORDERED.

____________________________________

 CHARLES W. DANIELS, Justice 

WE CONCUR:

____________________________________

PETRA JIMENEZ MAES, Chief Justice

____________________________________

RICHARD C. BOSSON, Justice

____________________________________

EDWARD L. CHÁVEZ, Justice
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____________________________________

BARBARA J. VIGIL, Justice

Topic Index for In re Naranjo, No. 34,097

JUDGES

Code of Judicial Conduct

Propriety of Conduct