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                                                              New Mexico Compilation
                                                            Commission, Santa Fe, NM
                                                           '00'04- 10:04:39 2013.07.19

         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-to-
judge 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




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