In Re Schwartz

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 13:33:11 2011.06.10

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMSC-019

Filing Date: May 31, 2011

Docket No. 32,422

INQUIRY CONCERNING A JUDGE
NO. 2009-081

IN THE MATTER OF ROBERT MERLE SCHWARTZ,
District Court Judge, Bernalillo County, New Mexico

Randall D. Roybal
Albuquerque, NM

for Judicial Standards Commission

Kennedy & Han, P.C.
Paul John Kennedy
Albuquerque, NM

for Respondent

OPINION

PER CURIAM.

{1} This case comes before us on a petition for discipline filed by the Judicial Standards
Commission (Commission). After briefing and at the conclusion of oral argument, we
announced our decision from the bench to adopt the Commission’s recommendations that
Judge Robert M. Schwartz receive a formal public reprimand for committing willful judicial
misconduct in violation of our Code of Judicial Conduct, complete a course regarding sexual
harassment, and take appropriate leave from work during all future medical transitions. We
rejected the Commission's recommendation that Judge Schwartz be suspended for sixty days
without pay and announced that Judge Schwartz would be required to pay a fine of $6,000.
We subsequently entered an order memorializing our decision, and we now issue this
Opinion to further explain our decision and provide guidance for future cases.

BACKGROUND

{2} The willful judicial misconduct at issue in this case arose by Judge Schwartz’s
untimely recusal after initiating a romantic relationship with an assistant public defender

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who had cases pending before him and making dishonest statements from the bench
concerning his reasons for recusing. We adopt the following findings of fact made by the
Commission. Judge Schwartz was appointed to the bench in the Second Judicial District in
March 2008. He was subsequently elected to the position in a contested election in the same
year, and he serves in the Criminal Division where he routinely handles a caseload of over
1,000 criminal cases. Before being elected to the court, Judge Schwartz held several
prominent positions, including District Attorney for the Second Judicial District, legal
correspondent for television news, newspaper columnist, Commissioner for the Public
Utility Commission, and Senior Criminal Justice Policy Advisor to former Governor
Richardson. In addition, Judge Schwartz performed stand-up comedy and hosted various
charity banquets and dinners.

{3} Judge Schwartz has had a collegial relationship with attorneys who have practiced
before him, and after completing business for the day he often engaged in brief friendly
conversations, which sometimes included jokes. In the spring of 2009, Judge Schwartz
changed medications for a serious medical condition, which resulted in a difficult time in his
life. He testified, however, that he was physically and mentally capable of performing his
judicial duties. During this period, a female assistant public defender, who was relatively
new to the practice of law, regularly appeared in his courtroom. Judge Schwartz thought this
assistant public defender had a quick wit, and he believed she shared his interest in comedy
and humor. This assistant public defender was not employed or supervised by Judge
Schwartz, but as a judge, he was in a position of authority over her in his courtroom and
decided if she won or lost cases. On Thursday, July 9, 2009, Judge Schwartz invited her to
lunch the following day.

{4} On Friday, July 10, 2009, Judge Schwartz drove the assistant public defender to a
local take-out restaurant and they ate lunch together in a public park across the street. Judge
Schwartz did not believe he had to recuse in the assistant public defender’s cases before
having lunch with her because, as long as they did not discuss cases, judges and lawyers may
have lunch together. Judge Schwartz did not extend a lunch invitation to any other attorney
scheduled to appear before him the next week. Furthermore, the lunch with the assistant
public defender was not a professional lunch. Although Judge Schwartz doubted that a
romantic relationship would develop, given the difference in their ages, he was open to the
possibility. Judge Schwartz testified that they “just clicked” and had made each other laugh.

{5} At some point during the lunch Judge Schwartz gave the assistant public defender
a gift of a pair of purple latex gloves and a book written by an author with the same name
as Judge Schwartz, entitled, “The One Hour Orgasm.” The gift was intended by Judge
Schwartz and understood by the assistant public defender to be a self-deprecating joke
because the author and Judge Schwartz shared the same name. Before he became a judge,
Judge Schwartz had given this book to others, whose common reaction was to burst out
laughing. When the assistant public defender returned to work, she showed her supervisor
the joke gift. During the afternoon following the lunch, Judge Schwartz and the assistant
public defender spoke on the phone, and Judge Schwartz obtained the assistant public

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defender’s personal phone number so he could contact her outside the office. He did not,
however, recuse from her cases, even though he had the opportunity to do so.

{6} The following day, a Saturday, the assistant public defender called Judge Schwartz
and offered to cook a meal for him at his house. Judge Schwartz suggested that they instead
attend a concert in Santa Fe. At the concert, the assistant public defender drank two glasses
of wine; Judge Schwartz did not drink any alcoholic beverages. During the drive back to
Albuquerque, the assistant public defender asked Judge Schwartz if he thought he could be
fair and impartial in her cases, and he replied that he did not think he could be and would
recuse from her cases. Believing that Judge Schwartz would recuse on all her cases, the
assistant public defender then called her supervisor, leaving a phone message regarding the
Judge’s planned recusal from her cases. Upon returning to Albuquerque, they stopped at the
Albuquerque Press Club. They then drove to the assistant public defender’s apartment,
where Judge Schwartz parked his car before they walked to a local bar. After spending
about an hour and a half at the bar, an acquaintance of Judge Schwartz gave them a ride back
to the assistant public defender’s apartment. With her permission, Judge Schwartz kissed
the assistant public defender goodnight and left. He admitted that he had begun a personal
relationship with the assistant public defender, although he was not sure of its future. Judge
Schwartz spoke to her the following day about the time they had spent together on Friday
and Saturday.

{7} On Monday, July 13, 2009, Judge Schwartz called his office to report that he was
sick and asked his administrative assistant to move his cases scheduled for that day to the
following day. He could not remember which of the assistant public defender’s cases were
scheduled for that day. He did not, however, tell his assistant that he would be recusing from
the assistant public defender’s cases or ask his assistant to prepare notices of recusal. In the
evening, he met with the assistant public defender at a nearby park, told her he intended to
recuse from her cases, and they discussed the effects of recusal on her work, including her
reassignment to a different trial team.

{8} When Judge Schwartz returned to work the next day, Tuesday, July 14, 2009, the
assistant public defender remained listed as counsel for two of the rescheduled cases on his
docket, and he again failed to recuse from those cases prior to the docket call. In one of
those cases, the assistant public defender’s supervisor substituted for her. During the hearing
on the matter argued by the supervisor, Judge Schwartz announced, without providing
reasons, that he would be recusing from that case and the other case in which the assistant
public defender was involved.

{9} After Judge Schwartz announced that he would recuse in these two cases, however,
he provided dishonest reasons for his recusal and entered rulings in both cases. In the case
in which the assistant public defender was still representing the defendant, Judge Schwartz
said he was uncertain that his initial denial of a defense motion to dismiss was correct, and
he announced that he was going to withdraw his order. In the other case, when the attorneys
persisted in arguing an issue to him, he stated that he wanted another judge to make a ruling

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on a technical, legal issue and would “like to hear some guidance” from the Court of
Appeals. He then granted an uncontested motion to release the defendant on his own
recognizance. He did not mention his relationship with the assistant public defender as
grounds for recusing in either case although he later admitted to the Judicial Standards
Commission that his primary reason for recusing was that relationship, and that the assistant
public defender and others in her office knew the true reason for the recusal.

{10} There is no evidence of any adverse impact on these cases from the recusals. Both
cases from which Judge Schwartz recused were resolved in a timely manner. The
relationship with the assistant public defender ended, and following a trial that ended in
August, Judge Schwartz took voluntary medical leave while the Commission obtained an
independent medical examination of his condition. The chief judge of the Second Judicial
District testified that, apart from this one incident that took place over several days, he had
received no complaints about Judge Schwartz’s conduct, and said that he considered him “a
very valuable member of the court.” The Commission also found that although his reasons
for recusal were not credible, Judge Schwartz had been forthcoming and candid with the
Commission, apologized for his conduct, and expressed a desire and willingness to learn
from his mistakes.

{11} Based on these facts, the Commission concluded that Judge Schwartz violated the
following rules: Rule 21-100 NMRA (upholding the integrity and independence of the
judiciary); Rule 21-200(A) NMRA (requiring that a Judge shall “act in a manner that
promotes public confidence in the integrity and impartiality of the judiciary”); Rule 21-
400(A)(1) NMRA (requiring disqualification where impartiality might reasonably be
questioned); and Rule 21-500(A)(1)-(4) NMRA (requiring a judge to conduct extra-judicial
activities to minimize conflict with judicial obligations). The Commission also concluded
that Judge Schwartz committed willful misconduct in office. The Commission
recommended that Judge Schwartz be suspended for sixty days without pay, receive this
formal reprimand, complete a course regarding sexual harassment, take leave during any
future transitions in medication, and pay the Commission’s recoverable costs and expenses.
After hearing oral argument, this Court adopted the findings and conclusions of the
Commission, but modified the recommended discipline, imposing a fine in place of
suspension.

DISCUSSION

{12} Article VI, Section 32 of the New Mexico Constitution provides that judges may be
disciplined only for “willful misconduct in office.” “[Willful] misconduct in office is
improper and wrong conduct of a judge acting in his official capacity done intentionally,
knowingly, and, generally, in bad faith. It is more than a mere error of judgment or an act
of negligence.” In re Locatelli, 2007-NMSC-029, ¶ 8, 141 N.M. 755, 161 P.3d 252 (per
curiam) (internal quotation marks and citation omitted). Thus, while violations of the Code
of Judicial Conduct “furnish some proof of what constitutes appropriate judicial conduct,”

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in order to warrant discipline, those violations must be willful. In re Martinez, 99 N.M. 198,
204, 656 P.2d 861, 867 (1982).

STANDARD OF REVIEW

{13} When called on to discipline a judge, we undertake an independent evaluation of the
record to determine whether clear and convincing evidence supports the Commission’s
recommendation, but in so doing “we may give weight to the evidentiary findings of those
who were able to judge credibility.” In re Castellano, 119 N.M. 140, 149-50, 889 P.2d 175,
184-85 (1995) (per curiam). Clear and convincing evidence is evidence that “instantly tilt[s]
the scales in the affirmative when weighed against the evidence in opposition and the fact
finder’s mind is left with an abiding conviction that the evidence is true.” State ex rel.
Children, Youth & Families Dep't v. Joseph M., 2006-NMCA-029, ¶ 15, 139 N.M. 137, 130
P.3d 198 (internal quotation marks and citation omitted). “There need not be clear and
convincing evidence to support each and every one of the Commission’s evidentiary
findings. Rather, we must be satisfied by clear and convincing evidence that there is willful
judicial misconduct which merits discipline.” In re Castellano, 119 N.M. at 149, 889 P.2d
at 184. We review conclusions of law and recommendations for discipline de novo. In re
Griego, 2008-NMSC-020, ¶ 7, 143 N.M. 698, 181 P.3d 690 (per curiam).

FINDINGS AND CONCLUSIONS

{14} Judge Schwartz does not indicate which of the Commission’s findings to which he
specifically objects, but states only generally that he objects to findings inconsistent with his
own proposed findings. In general, this Court presumes the fact finder is correct, and the
burden is on appellant to point out clearly how the fact finder allegedly erred. Farmers, Inc.
v. Dal Mach. & Fabricating, Inc., 111 N.M. 6, 8, 800 P.2d 1063, 1065 (1990); see also In
re Griego, 2008-NMSC-020, ¶ 7 (citing Stueber v. Pickard, 112 N.M. 489, 491, 816 P.2d
1111, 1113 (1991) (unchallenged findings are binding on the parties on appeal)). Our review
of the record in this matter, however, shows that the findings relevant to our decision are
supported by clear and convincing evidence. We agree with the Commission that the
evidence supports the Commission’s conclusions that Judge Schwartz violated Rule 21-100
(upholding the integrity and independence of the judiciary), Rule 21-200(A) (requiring that
a Judge shall “act in a manner that promotes public confidence in the integrity and
impartiality of the judiciary”), Rule 21-400(A)(1) (requiring disqualification when a judge’s
impartiality might reasonably be questioned), and Rule 21-500(A)(1)-(4) (requiring a judge
to conduct extra-judicial activities to minimize conflict with judicial obligations), and that
he committed willful misconduct in office.

{15} Specifically, we agree that the evidence supports a conclusion that Judge Schwartz
violated Rule 21-400(A)(1), which states that a judge should recuse from a case if his
impartiality might be reasonably questioned. The evidence in this case revealed that, by
Saturday evening, on July 11, 2009, after Judge Schwartz and the assistant public defender
had attended a concert in Santa Fe, had drinks in Albuquerque together, and had kissed,

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Judge Schwartz “thought the relationship was progressing to a point where there was a
possibility of a romantic connection.” The evidence also revealed that on Saturday evening
he told the assistant public defender that he “decided to enter a blanket recusal.”

{16} In State v. Riordan we held that, under Rule 21-400(A), “[a] judge is disqualified and
shall recuse himself or herself in a proceeding in which the judge's impartiality might
reasonably be questioned[.]” 2009-NMSC-022, ¶ 8, 146 N.M. 281, 209 P.3d 773 (per
curiam) (alterations in original) (internal quotation marks and citation omitted). Failure to
recuse under such circumstances results in actual impropriety or an appearance of
impropriety, which, in turn, violates Rule 21-200. In the context of personal relationships,
recusal is specifically required under Rule 21-400(A)(5)(b) of our Code of Judicial Conduct
when “the judge’s spouse, or a person within the third degree of relationship to either of
them, or the spouse of such a person . . . is acting as a lawyer in the proceeding.” Under
such circumstances the judge’s impartiality “might reasonably be questioned.” Rule 21-
400(A).

{17} The list of instances provided in the rule when recusal is required is not exclusive,
and the rationale for requiring recusal in cases involving family members also applies when
a close or intimate relationship exists because, under such circumstances, the judge’s
impartiality is questionable. See Rule 21-400(A); see, e.g., In re McBee, 2006-NMSC-024,
¶ 13, 139 N.M. 482, 134 P.3d 769 (per curiam) (stating that continuing to preside over a case
in which the judge had a personal relationship with the defendant’s attorney, who was the
defendant’s boyfriend, fostered an appearance of impropriety). The gift of a book with a
sexual title suggests a level of intimacy in the relationship, at least in the mind of the donor,
which, at the very least, raises questions about whether Judge Schwartz could be impartial
in proceedings involving the assistant public defender who received the gift, even if the gift
was perceived as a joke. Moreover, it is reasonable to infer from Judge Schwartz’s desire
to obtain the assistant public defender’s personal phone number so that he could contact her
outside the office, that he was looking for more than a casual social relationship, something
the Judge appears to confirm in this instance. We are not suggesting that a judge is
prohibited from becoming romantically involved with an attorney, but before initiating such
a relationship the judge must terminate any professional relationship by recusing from any
cases in which an attorney is or has been involved.

{18} We agree that a judge’s impartiality will not normally be questioned merely because
a judge has a social relationship with an attorney. See, e.g., Demoulas v. Demoulas Super
Markets, Inc., 703 N.E.2d 1141, 1147 (Mass. 1998) (stating that not every public social
discussion between a judge and a lawyer requires an evidentiary hearing to determine
whether the judge’s impartiality can be questioned). When, however, that relationship
becomes something more than casual social interaction, and involves sexual jokes and the
desire for a romantic relationship, then it raises reasonable questions about the judge’s ability
to be impartial. Judges are not barred from associating with attorneys, but as we have stated
in In re Romero, “[t]he conduct prescribed for judges and justices is more stringent than
conduct generally imposed on other public officials.” 100 N.M. 180, 183, 668 P.2d 296, 299

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(1983). In this case, Judge Schwartz acknowledged that recusal was required but failed to
do so in a timely manner. Accordingly, we determine that the facts as found by the
Commission support the conclusion that Judge Schwartz failed to recuse in a timely manner
and violated Rule 21-400(A)(1).

{19} Not only did Judge Schwartz fail to recuse in a timely manner, he also made rulings
in some cases after announcing his intention to recuse. In one of the cases, he claimed that
he had concerns about the correctness of an earlier ruling and announced that he was
withdrawing his earlier ruling. In a second case, Judge Schwartz entered a ruling on a
motion for pretrial release. As the Commission pointed out, a judge has no authority to take
action in a case after announcing recusal. Once Judge Schwartz acknowledged that he was
disqualified from hearing the two cases he could not reinsert himself into the proceedings.
See In re McBee, 2006-NMSC-024, ¶ 14 (pointing out that a judge’s reinserting himself into
proceedings after announcing an intent to recuse displayed “an ignorance of, or indifference
to, basic judicial responsibilities embodied in our Code of Judicial Conduct”).

{20} In addition, Judge Schwartz’s failure to recuse in a timely manner led to further
problems. Had he recused in the afternoon on Friday, July 10, or even on Monday, July 13,
he could have done so simply—issuing straightforward notices of recusal that contained no
reasons for the action. See Gerety v. Demers, 92 N.M. 396, 400, 589 P.2d 180, 184 (1978)
(observing that reasons for recusal may be personal and a judge need not state them).
Instead, when he took the bench on Tuesday and had two of the assistant public defender’s
cases on his docket, he justified his recusals by stating that he was concerned that his rulings
in the cases were incorrect, and that he wanted a different judge to review the issues.

{21} The Commission found these are not credible reasons to recuse. We agree. A judge
has a duty under Rule 21-300(B)(1) NMRA “to hear and decide matters assigned to the
judge except those in which disqualification is required.” See Gerety, 92 N.M. at 400, 589
P.2d at 184 (“[A] judge has a duty to perform the judicial role mandated by the statutes, and
he has no right to disqualify himself unless there is a compelling constitutional, statutory or
ethical cause for so doing.”). Uncertainty about the correctness of a ruling is not one of the
reasons listed in Rule 21-400. If a judge believes he or she has committed an error in a case,
as Judge Schwartz claimed he may have done, recusal is not the remedy. A judge may
reconsider an earlier ruling but must rule, as errors committed in the district court may be
corrected on appeal. See generally Rules 12-101 to -608 NMRA. Judge Schwartz’s stated
reasons were not the real reason for his recusal, and in so doing his actions were
disingenuous at the very least.

{22} Judge Schwartz initiated a relationship with an attorney who had cases pending in
his court and gave her gifts which were inappropriate in that situation. Rule 21-500(A)
requires that a judge be aware of his or her privileged position as a judge at all times. See
In re Romero, 100 N.M. at 183, 668 P.2d at 299. Specifically, Rule 21-500(A) requires a
judge to conduct extra-judicial activities so as not to raise questions about the judge’s
impartiality or reflect badly on the office. Moreover, extra-judicial activities must not

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interfere with the judge’s judicial duties or obligation to uphold the law. Rule 21-500(A)(3),
(4). We agree with the Commission that this conduct violated Rule 21-500(A). Judge
Schwartz’s conduct reflected badly on the judicial office and cast doubt on his capacity to
act impartially.

{23} We therefore agree with the Commission that Judge Schwartz violated Rule 21-100
and Rule 21-200, which contain the overarching and interrelated principles that inform our
Code of Judicial Conduct and ensure the rule of law. Rule 21-100 provides that “[a] judge
shall participate in establishing, maintaining and enforcing high standards of conduct, and
shall personally observe those standards so that the integrity and independence of the
judiciary will be preserved.” Similarly, Rule 21-200(A) requires judges to avoid impropriety
and the appearance of impropriety, to “promote public confidence in the integrity and
impartiality of the judiciary.” Even though the gift of the book was given and received as
a joke, because of its sexual nature it was an inappropriate gift for a judge to give to an
attorney who practiced before him. We recognize that no allegations of sexual harassment
were made in this case and that Judge Schwartz was not the assistant public defender’s
supervisor. However, Judge Schwartz was in a position of considerable authority, having
power to rule in cases the assistant public defender argued before him. By giving a gift that
was inappropriate for a judge to give an attorney practicing before him, by then failing to
recuse in a timely manner, making rulings after having recused, and stating dishonest reasons
for recusal, Judge Schwartz damaged the public’s confidence in the integrity and impartiality
of the judiciary.

{24} We also agree with the Commission that Judge Schwartz’s actions were not simply
negligent. Judge Schwartz acknowledged that he knew he was required to recuse from the
assistant public defender’s cases, but he had failed to do so in a timely manner and provided
dishonest reasons for his recusal. He was also aware that he should not rule in cases from
which he had recused. Judge Schwartz’s actions constituted willful misconduct in office that
warrant discipline. See In re Locatelli, 2007-NMSC-029, ¶ 8 (defining willful misconduct
in office as official actions “done intentionally, knowingly, and, generally, in bad faith”).

RECOMMENDATIONS FOR DISCIPLINE

{25} In imposing discipline on judges, this Court looks “at such factors as the nature of
the misconduct and patterns of behavior.” In re Garza, 2007-NMSC-028, ¶ 26, 141 N.M.
831, 161 P.3d 876 (per curiam). We have applied the standard recommended in the ABA
Model Code of Judicial Conduct (2007) (Model Code) that, when imposing discipline on
judges, courts should consider “factors such as the seriousness of the transgression, the facts
and circumstances that existed at the time of the transgression, the extent of any pattern of
improper activity, whether there have been previous violations, and the effect of the
improper activity upon the judicial system or others.” Model Code scope ¶ 6. See, e.g., In
re Griego, 2008-NMSC-020, ¶ 13.

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{26} Judge Schwartz’s conduct reflects poorly on the integrity of the judiciary. It is
essential that judges “respect and honor the judicial office as a public trust and strive to
maintain and enhance confidence in the legal system.” Model Code pmbl. ¶ 1. The
violations of the Model Code, therefore, are serious. However, there is no evidence of a
pattern of misconduct suggesting Judge Schwartz is a danger to the public: the misconduct
addressed in this case occurred over several days, but then ended. Neither the State nor the
defendants in the affected cases were prejudiced by the conduct, and no other complaints
have been made against this judge. Moreover, while Judge Schwartz may have created
fictitious reasons to explain his need to recuse, the Commission found that his testimony
before the Commission was “forthcoming and candid,” and he has acknowledged and
apologized for his conduct. Cf. In re Rodella, 2008-NMSC-050, ¶ 36, 144 N.M. 617, 190
P.3d 338 (per curiam) (emphasizing that “when a judge denies making mistakes, he or she
cannot learn from the mistakes, and there is little that can be done to correct the behavior”).

{27} Under these circumstances, we adopt the Commission’s recommendation that Judge
Schwartz receive this formal reprimand. We also adopt the recommendations that he take
appropriate leave during any future transitions in medical treatment, and that he receive
training on the nature of sexual harassment. We reject, however, the Commission’s
recommendation that Judge Schwartz be suspended without pay and, instead, order him to
pay a $6,000 fine. That fine shall be paid within sixty days of the date this Opinion is filed.

COSTS

{28} The Commission has submitted a request for the cost of depositions used at trial and
for the cost of the transcripts. We will address the costs in a separate order. See In re
Rodella, 2008-NMSC-050, ¶¶ 37-40 (explaining which of the Commission’s costs are
recoverable).

CONCLUSION

{29} For the foregoing reasons, we conclude that Judge Schwartz committed willful
judicial misconduct and order the discipline as set forth in this Opinion. Judge Schwartz is
ordered to pay the $6,000 fine within sixty days of the date this Opinion is filed, and the
costs as determined by separate Order to be issued by this Court.

{30} IT IS SO ORDERED.

______________________________________
CHARLES W. DANIELS, Chief Justice

______________________________________
PATRICIO M. SERNA, Justice

_____________________________________

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 PETRA JIMENEZ MAES, Justice

_____________________________________
RICHARD C. BOSSON, Justice

_____________________________________
EDWARD L. CHÁVEZ, Justice

Topic Index for In re Robert M. Schwartz, Docket No. 32,422

AE APPEAL AND ERROR
AE-AR Appellate Review
AE-AP Appellate Rules and Procedure

JG JUDGES
JG-CC Code of Judicial Conduct
JG-DS Disqualification
JG-EX Excusal or Recusal
JG-JA Judicial Authority
JG-PC Propriety of Conduct

JM JUDGMENTS
JM-CS Costs

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