N.M. R. App. P. 12-502

As amended through February 27, 2024

Rule 12-502 - Certiorari from the Supreme Court to the Court of Appeals

A.Scope of rule. This rule governs petitions for the issuance of writs of certiorari seeking review of decisions of the Court of Appeals.

B.Time. The petition for writ of certiorari shall be filed with the Supreme Court clerk within thirty (30) days after final action by the Court of Appeals and served immediately on the respondent. Subject to the provisions of Rule 12-304 NMRA and Rule 23-114 NMRA, the petition shall be accompanied by the docket fee. The three (3) day period set forth in Rule 12-308(B) NMRA does not apply to the time limits set by this paragraph. Final action by the Court of Appeals shall be the filing of its decision with the Court of Appeals clerk unless timely motion for rehearing is filed, in which event, final action shall be the disposition of the last motion for rehearing that was timely filed.

C.Petition.

(1)Cover. The cover of the petition shall show the names of the parties, with the plaintiff, petitioner, or party initiating the proceeding in the trial court or administrative body listed first (e.g., State of New Mexico, Plaintiff-Respondent vs. John Doe, Defendant-Petitioner), and the name, mailing address, and telephone number of counsel filing the petition, or, if a party is not represented by counsel, the name, mailing address, and telephone number of the party.

(2)Contents. The petition shall contain a concise statement of the grounds on which the jurisdiction of the Supreme Court is invoked, showing:

(a) the date of entry of the decision and any order on motion for rehearing;

(b) the questions presented for review (the Court will consider only the questions set forth in the petition);

(c) the facts material to the questions presented;

(d) the basis for granting the writ, specifying where applicable:

(i) any decision of the Supreme Court with which it is asserted the decision of the Court of Appeals is in conflict, and showing of such conflict, including a quotation from that part of the Court of Appeals decision, if any, and a quotation from the part of the Supreme Court decision showing the alleged conflict;

(ii) any decision of the Court of Appeals with which it is asserted the decision from which certiorari is sought is in conflict, and showing of such conflict, including a quotation from that part of the Court of Appeals decision, if any, and a quotation from that part of the prior Court of Appeals decision showing the alleged conflict;

(iii) what significant question of law under the Constitution of New Mexico or the United States is involved; or

(iv) the issue of substantial public interest that should be determined by the Supreme Court;

(e) a direct and concise argument amplifying the reasons relied on for granting the writ, including specific references to the briefs filed in the Court of Appeals showing where the questions were presented to the Court of Appeals;

(f) a reference to all related or prior appeals of which the party is aware, including an appropriate citation, if any; and

(g) a prayer for relief, including whether the case should be remanded to the Court of Appeals for consideration of issues not raised in the petition if the relief requested is granted.

(3)Attachments.

(a) A petitioner shall attach to the petition a copy of the decision of the Court of Appeals and, if the Court of Appeals decided the case on the summary calendar, a copy of any calendaring notices.

(b) A petitioner seeking review of an action of the Court of Appeals involving review of an administrative proceeding under Rule 12-505 NMRA shall attach to the petition a copy of the final order or judgment of the district court, any district court findings or decision leading to its final order or judgment, and a copy of the administrative decision under review by the district court.

(c) If a motion for rehearing was filed, the motion and the order of the Court of Appeals on the motion shall be attached to the petition.

D.Length limitations. Except by permission of the Supreme Court, the petition shall comply with Rule 12-305 NMRA and the following length limitations.

(1)Body of the petition defined. The body of the petition consists of headings, footnotes, quotations, and all other text except any cover page, table of contents, table of authorities, signature blocks, and certificate of service.

(2)Page limitation. Unless the petition complies with Subparagraph (D)(3) of this rule, the body of the petition shall not exceed ten (10) pages.

(3)Type-volume limitation. The body of the petition shall not exceed three thousand one hundred fifty (3,150) words, if the party uses a proportionally-spaced type style or typeface, such as Times New Roman, or three hundred forty-two (342) lines, if the party uses a monospaced type style or typeface, such as Courier.

E.Statement of compliance. If the body of the petition exceeds the page limitations of Subparagraph (D)(2) of this rule, then the petition must contain a statement that it complies with the limitations of Subparagraph (D)(3) of this rule. If the petition is prepared using a proportionally-spaced type style or typeface, such as Times New Roman, the statement shall specify the number of words contained in the body of the petition as defined in Subparagraph (D)(1) of this rule. If the petition is prepared using a monospaced type style or typeface, such as Courier, the statement shall specify the number of lines contained in the body of the petition. If the word-count or line-count information is obtained from a word-processing program, the statement shall identify the program and version used.

F.Cross-petitions. If more than one party files a petition for writ of certiorari, the party to file the first petition shall be denominated petitioner, and any party filing a subsequent petition shall be denominated a cross-petitioner, unless the Supreme Court orders otherwise.

G.Conditional cross-petition. Any party may, within fifteen (15) days of service of a petition for writ of certiorari, file a conditional cross-petition for writ of certiorari, to be considered only if the Court grants the petition. Subject to the provisions of Rule 12-304 NMRA and Rule 23-114 NMRA, the conditional cross-petition shall be accompanied by the docket fee. A conditional cross-petition shall be clearly identified as conditional on the cover. Material attached to a petition need not be attached again to a conditional cross-petition. A conditional cross-petition shall be governed by the other provisions of this rule, except Paragraph B.

H.Response. A respondent may file a response to the petition within fifteen (15) days of service of the petition or within fifteen (15) days of the granting of the petition. The response shall comply with Paragraphs D and E of this rule.

I.Reply. A reply is not permitted without leave of the Supreme Court, which may be granted upon a showing of good cause. A motion seeking leave to file a reply must be filed and served within seven (7) days after service of the response and must include the proposed reply.

J.Notice to and action by the Court of Appeals. The Supreme Court clerk shall deliver a copy of the petition to the Court of Appeals clerk. At the Supreme Court's request, the Court of Appeals clerk shall deliver the record proper and any designated transcripts and exhibits to the Supreme Court.

K.Briefs. In the event the writ of certiorari is issued, additional briefs may be filed only as directed by the Supreme Court. Unless the Court orders otherwise, such additional briefs shall conform to the requirements set forth in Rule 12-318 NMRA and the following.

(1) In cases from the Court of Appeals general calendar, the petitioner shall file and serve a brief in chief within forty-five (45) days after service of the order granting the petition for writ of certiorari.

(2) In cases from the Court of Appeals summary or legal calendar, the transcript of proceedings, if designated, or the notice of non-designation of transcript shall be filed as provided in Rule 12-211 NMRA, and the parties' designations of exhibits and depositions shall be filed as provided in Rule 12-212 NMRA. The petitioner shall file and serve a brief in chief within forty-five (45) days after notice from the Supreme Court clerk that the record proper and all designated transcripts and exhibits from the relevant lower court or agency have been filed in the Supreme Court.

(3) The respondent shall file and serve an answer brief within forty-five (45) days after service of the brief in chief. The petitioner may file and serve a reply brief within twenty (20) days after service of the answer brief. The time limits for briefs on cross-appeals are governed by Rule 12-318(I) NMRA.

L.Oral argument. The Supreme Court may order oral argument at its discretion. A party may request oral argument as set forth in Rule 12-319 NMRA.

M.Expedited decision process. The Supreme Court may order an expedited briefing and oral argument schedule in a time-sensitive case. If the Supreme Court orders expedited review, the record forwarded by the Court of Appeals clerk to the Supreme Court clerk shall include

(1) all briefs filed in the Court of Appeals, if the Court of Appeals disposed of the case on the general or legal calendar; and

(2) all memoranda filed in response to notices of proposed disposition under Rule 12-210(D)(2) NMRA, if the Court of Appeals disposed of the case on the summary calendar.

N.Service. Service of any paper shall be made and proof of service accomplished in accordance with Rule 12-307 NMRA.

O.Copies. If the petition for writ of certiorari has been filed pro se by a petitioner adjudged indigent, only the original petition shall be filed. In all other cases, copies shall be filed in accordance with Rule 12-306 NMRA.

N.M. R. App. P. 12-502

As amended, effective 7/1/1990;8/1/1992;10/1/1995;1/1/2000;11/1/2003; as amended by Supreme Court Order No. 07-8300-024, effective 11/1/2007; by Supreme Court Order No. 09-8300-031, effective 8/24/2009, for all pending cases in the district courts and the Court of Appeals; as amended by Supreme Court Order No. 17-8300-015, effective for all cases pending or filed on or after12/31/2017.

Committee commentary. - The committee made several changes to this rule in 2017, as follows: (1) a new Subparagraph (C)(2)(f), requiring the petitioner to alert the Supreme Court to any related or prior appeals consistent with a similar obligation contained in Rules 12-202 and 12-208 NMRA, which is an obligation that continues through the pendency of the case; (2) a new Paragraph F, clarifying how parties should be denominated when opposing parties file separate petitions for certiorari; (3) a new Paragraph I, addressing replies; (4) amendments to Paragraphs K and L to provide more detailed information about briefing and oral argument in a case where the petition for writ of certiorari has been granted from one of the various Court of Appeals dockets; and (5) a new Paragraph M, regarding the Supreme Court's expedited process for briefing and oral argument in time-sensitive cases.

The 2007 amendments to this rule allow practitioners to exceed the traditional page limitations for a petition, conditional cross-petition, or response if the pleading complies with the type-volume limitations set forth in Subparagraph (D)(3) and is accompanied by a statement as provided by Paragraph E to show that the pleading complies with the applicable type-volume limitation. And, in the exercise of the Supreme Court's rule-making power, the time limit in Paragraph B for the filing of a petition was expanded from the twenty (20)-day limit contained in NMSA 1978, Section 34-5-14(B) to thirty (30) days.

See Cummings v. State, 2007-NMSC-048, ¶ 17, 142 N.M. 656, 168 P.3d 1080; see also State v. Arnold, 1947-NMSC-043, ¶ 11, 51 N.M. 311, 183 P.2d 845. ("Once the legislature has authorized the appeal, reasonable regulations affecting the time and manner of taking and perfecting the same are procedural and within this court's rule making power.").

[Adopted by Supreme Court Order No. 09-8300-031, effective August 24, 2009, for all pending cases in the district courts and the Court of Appeals; as amended by Supreme Court Order No. 17-8300-015, effective for all cases pending or filed on or after December 31, 2017.]

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ANNOTATIONS The 2017 amendment, approved by Supreme Court Order No. 17-8300-015, effective December 31, 2017, required the petitioner to alert the Supreme Court to any related or prior appeals, clarified how parties should be denominated when opposing parties file separate petitions for certiorari, prohibited the filing of a reply to a petition for writ of certiorari without leave of the Supreme Court and provided the process for seeking leave to file a reply, clarified provisions regarding briefing and oral arguments, provided an expedited decision process for time-sensitive cases, and revised the committee commentary; in the heading, added "from the Supreme Court"; in Paragraph A, deleted "and of actions of the Court of Appeals pursuant to Rule 12-205 NMRA of these rules"; in Paragraph B, changed "23-113" to "23-114", after "(3) day", deleted "mailing", and after "Rule 12-308", added "(B)"; in Paragraph C, added a new Subparagraph C(2)(f) and redesignated former Subparagraph C(2)(f) as Subparagraph C(2)(g), in Subparagraph C(3), deleted "The petition shall have attached a", added new subparagraph designations "(a)" through "(c)", in Subparagraph C(3)(a), added "A petitioner shall attach to the petition a", after "the Court of Appeals and, if", added "the Court of Appeals", after "decided", added "the case", and deleted "and, if decided by", in Subparagraph C(3)(b), added "A petitioner seeking review of an action of", after "Court of Appeals", deleted "pursuant to" and added "involving review of an administrative proceeding under", added "shall attach to the petition", and after "decision leading", and added "to its final order or judgment", and in Subparagraph C(3)(c), after "attached", added "to the petition"; in Paragraph D, in the introductory sentence, after "permission of the", added "Supreme"; added a new Paragraph F and redesignated former Paragraphs F and G as Paragraphs G and H, respectively; in Paragraph G, changed "23-113" to "23-114"; in Paragraph H, deleted "No other response may be submitted."; added a new Paragraph I and redesignated former Paragraphs H through J as Paragraphs J through L, respectively; in Paragraph J, in the paragraph heading, added "and action by the", in the first sentence, added "The Supreme Court clerk shall deliver a", and deleted "for a writ of certiorari shall be delivered by the Supreme Court clerk", and in the second sentence, added "At the Supreme Court's request, the Court of Appeals clerk", after "deliver the record", deleted "of the cause" and added "proper and any designated transcripts and exhibits", and after "to the Supreme Court", deleted "on request, and recall any previously issued mandate"; in Paragraph K, after the first sentence, added the remainder of the paragraph, and added Subparagraphs K(1) through K(3); in Paragraph L, deleted "Oral argument shall not be allowed unless directed by the Supreme Court" and added the new language; and added a new Paragraph M and redesignated former Paragraphs K and L as Paragraphs N and O, respectively. The 2009 amendment, approved by Supreme Court Order No. 09-8300-031, effective August 24, 2009 for all pending cases in the district courts and the Court of Appeals, in Paragraph B, in the first sentence, changed the time from twenty (20) days to thirty (30) days; and in the second sentence, added "Subject to the provisions of Rule 12-304 NMRA and 23-113 NMRA" and deleted "or a free process order"; in Subparagraph (3) of Paragraph C, after "a copy of any calendaring notices", added the remainder of the sentence; and in Paragraph F added the second sentence. The 2003 amendment, effective November 1, 2003, deleted "of New Mexico" preceding "with" in Subparagraph (4)(a) of Paragraph C, inserted present Paragraph D, redesignated former Paragraph D as present Paragraph E and substituted "fifteen (15)" for "ten (10)" twice in the first sentence of that paragraph, and deleted former Paragraph E. The 1999 amendment, effective for cases filed on and after January 1, 2000, near the end of Paragraph A, inserted "and of actions of the Court of Appeals pursuant to Rule 12-505 of these rules"; in the first sentence of Paragraph C, substituted "if" for "in cases", inserted "a copy of" following "summary calendar", and added the second sentence; in Paragraph F, deleted "forthwith" following "who shall", substituted "on request" for "clerk", and substituted "previously issued mandate" for "any mandate theretofore issued". The 1995 amendment, effective October 1, 1995, added the second sentence in Paragraph C. The 1992 amendment, effective for cases filed in the supreme court and court of appeals on or after August 1, 1992, deleted "and memoranda in opposition" from the end of Paragraph C.

For certiorari review of administrative agency decisions, see Rule 12-505 NMRA. For appeal of final decisions by agencies to district court, see Section 39-3-1.1 NMSA 1978. For the definition and related discussion of proportionally-spaced type style or typeface, see Paragraph (C)(1) of Rule 12-305 NMRA and committee commentary. For the definition and related discussion of monospaced type style or typeface, see Paragraph (C)(2) of Rule 12-305 NMRA and committee commentary. I. GENERAL CONSIDERATION. Applicability of federal Telecommunications Act of 1996 and its compliance mandates on local governments is an issue of significant importance to justify the Supreme Court's review. Paule v. Santa Fe Cnty., 2005-NMSC-021, 138 N.M. 82, 117 P.3d 240. Significant question of constitutional law. - Where defendant alleged in his petition for a writ of certiorari that the state violated his rights as provided under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Article II, Section 14 of the New Mexico Constitution, the state supreme court had jurisdiction to review defendant's case by writ of certiorari because it involves a significant question of law under the constitution of New Mexico or the United States. State v. Urban, 2004-NMSC-007, 135 N.M. 279, 87 P.3d 1061. Requirements for writ. - Certiorari generally is proper in two classes of cases: (1) whenever it is shown that the inferior court or tribunal has exceeded its jurisdiction; (2) whenever it is shown that the inferior court or tribunal has proceeded illegally, and no appeal is allowed or other mode provided for reviewing its proceedings. Albuquerque Nat'l Bank v. Second Jud. Dist. Ct., 1967 -NMSC-068, 77 N.M. 603, 426 P.2d 204. Establishing propriety of writ. - Neither this rule nor 34-5-14 NMSA 1978 would require a defendant to establish the propriety of the writ of certiorari in his brief in chief. State v. Urban, 2004-NMSC-007, 135 N.M. 279, 87 P.3d 1061. Court may only consider questions set forth in petition for certiorari. - In an appeal from a reversal of a summary judgment for the defendant in a defamation action, the supreme court could not review other allegedly defamatory statements by the defendant not set forth in the petition for certiorari in the absence of a cross-appeal or petition raising these issues. Fikes v. Furst, 2003-NMSC-033, 134 N.M. 602, 81 P.3d 545. Remedy of certiorari was proper where district court had exceeded its jurisdiction by order forbidding disbursements from trust under writ of attachment which had been dissolved, even though beneficiary of trust was real party in interest and was not before the court. Albuquerque Nat'l Bank v. Second Jud. Dist. Ct., 1967 -NMSC-068, 77 N.M. 603, 426 P.2d 204. Need for legal precedent. - Where majority of the sitting panel of court of appeals affirmed district court, but were unable to agree upon any single basis for that action, and no precedent was created on important legal issues involved, supreme court would grant certiorari. Jim v. CIT Fin. Servs. Corp., 1975 -NMSC-019, 87 N.M. 362, 533 P.2d 751. II. TIME. Late filing fatal to petition. - When petition for writ of certiorari directed to court of appeals is filed later than the 20-day filing requirement, and absent some unusual circumstance justifying such late filing, it must be denied. Serna v. Board of County Comm'rs, 1975-NMSC-049, 88 N.M. 282, 540 P.2d 212; Gulf Oil Corp. v. Rota-Cone Field Operating Co., 1973-NMSC-107, 85 N.M. 636, 515 P.2d 640. Late filing for certiorari not considered. - A petition for a writ of certiorari must be filed within 20 days after final action by the court of appeals, and where the defendant's application is late, he is not entitled to consideration. State v. Weddle, 1966-NMCA-001, 79 N.M. 252, 442 P.2d 210, aff'd, 1967-NMSC-027, 77 N.M. 417, 423 P.2d 609. Am. Jur. 2d, A.L.R. and C.J.S. references. - 14 Am. Jur. 2d Certiorari § 1 et seq. Existence of jurisdictional facts found by inferior tribunal as subject of inquiry on certiorari, 5 A.L.R.2d 675. Exclusion or inclusion of terminal Sunday or holiday in computing time for taking or perfecting appellate review, 61 A.L.R.2d 482. 4 C.J.S. Appeal and Error § 550 et seq.