N.M. R. App. P. 12-603

As amended through May 8, 2024

Rule 12-603 - Appeals to the Supreme Court in actions challenging candidacies or nominating petitions; primary or general elections; school board recalls and recalls of elected county officials

A.Scope. This rule governs the following:

(1) appeals taken under Section 1-8-18 NMSA 1978, Section 1-8-35 NMSA 1978, Section 1-14-5 NMSA 1978, Section 22-7-9.1 NMSA 1978 and Section 22-7-12 NMSA 1978; and

(2) appeals from final orders of the district court in election recall proceedings involving elected county officials initiated under Article X, Section 9 of the New Mexico Constitution.

B.Notice of appeal; preparation of record.

(1) Notice of appeal, with proof of service on the district court and all parties to the action, shall be filed in the Supreme Court with the certificate of counsel or certificate of appellant required by Paragraph D of this rule. The notice of appeal and certificate shall be filed in the Supreme Court within the time period specified by the statute pursuant to which the appeal is taken or within thirty (30) days of the date the district court's final decision under Article X, Section 9 of the New Mexico Constitution is filed in the district court clerk's office. The three (3) day mailing period set forth in Rule 12-308 NMRA does not apply to the time limits set by this paragraph.

(2) The appellant shall make all arrangements necessary to ensure that the district court clerk prepares the record for transmission to the Supreme Court clerk. The record shall include a complete copy of all documents filed in the district court and any available audio recording or stenographic transcript of any hearings held in the district court. The district court clerk shall file the record required under this subparagraph with the Supreme Court no later than two (2) days after the notice of appeal and certificate are filed with the Supreme Court. If necessary, the transcript of any hearings in the district court may be supplemented in accordance with the provisions in Subparagraphs (I)(1) and (I)(2) of this rule.

C.Content of notice of appeal. The notice of appeal shall state that the appeal is taken to the Supreme Court and shall specify that the appeal is one of the following:

(1) a candidacy appeal under Section 1-8-18 NMSA 1978;

(2) a nominating petition appeal under Section 1-8-35 NMSA 1978;

(3) an election contest appeal under Section 1-14-5 NMSA 1978;

(4) an appeal from a district court decision in an election recall proceeding under Article X, Section 9 of the New Mexico Constitution;

(5) a school board member recall appeal under Section 22-7-9.1 NMSA 1978; or

(6) an appeal challenging a school board member recall petition under Section 22-7-12 NMSA 1978.

D.Certificate of counsel or appellant. At the same time that the notice of appeal is filed in the Supreme Court, the appellant shall pay the appropriate docket fee, subject to the provisions of Rule 12-304 NMRA and 23-114 NMRA, and shall file a certificate of counsel, or if the appellant is not represented by counsel, a certificate of the appellant, with proof of service on all parties and the district court. Either certificate shall include the following:

(1) the name or names of the real parties in interest, if any, when the respondent is a justice, judge or other public officer or employee, court, board or tribunal, purporting to act in the discharge of official duties;

(2) the names, business addresses, and telephone numbers of all counsel appearing in the district court and of those parties not represented by counsel;

(3) a statement of the nature of the proceeding;

(4) the date of entry of the decision appealed from and an acknowledgment that the notice of appeal was timely filed with the Supreme Court at the same time as the certificate;

(5) a concise statement of the facts material to consideration of the questions presented; and

(6) a concise statement of the points relied upon for reversal, including a concise, accurate statement of the case summarizing all facts material to a consideration of the points presented, but without unnecessary detail. General conclusory statements such as "the judgment of the trial court is not supported by the law or facts" will not be accepted.

E.Involuntary dismissal. If the appellant fails to file a timely notice of appeal or certificate in accordance with the requirements of this rule, the appeal shall be dismissed forthwith by the Supreme Court.

F.Notice of proceedings.

(1) Immediately upon the filing of the notice of appeal and certificate, the Supreme Court clerk shall notify the Court of the docketing of the appeal.

(2) If it appears to a majority of the Court that the appeal is without merit, the decision of the district court may be summarily affirmed in accordance with Paragraph J of this rule.

(3) If the appeal is not summarily affirmed, the Court may order one or more of the following:

(a) direct the other parties to the appeal to file a response;

(b) request briefs under Paragraph H of this rule; or

(c) set a hearing.

(4) If the Court decides to set a hearing, notwithstanding the provisions of Rule 23-102(D) NMRA, the Supreme Court clerk shall give notice of the setting in the most expeditious manner practicable and the hearing shall proceed in accordance with Paragraph I of this rule.

G.Stay. The appellant may seek a stay pending appeal in accordance with the provisions of Rule 12-207 NMRA.

H.Briefs. Briefs may be filed only upon, and in accordance with, the directions of the Supreme Court.

I.Hearing. At the hearing appellant shall be limited to arguing the points specified in the certificate filed under Paragraph D. Appellee may present any grounds for affirmance of the trial court's decision. For the purpose of making available such portions of the district court proceedings as may not appear in the record filed with the Supreme Court under Subparagraph (B)(2) of this rule, the appellant shall, unless a complete transcript of proceedings is available, have present at the hearing the following:

(1) the court reporter who reported the district court proceedings, with the reporter's notes; and

(2) any audio recording of the district court proceedings or any part thereof made by the court monitor or other court-designated official, together with equipment and personnel necessary to play back such portions as may be required.

J.Disposition. Disposition of the appeal shall be by order of the Supreme Court, which may, but need not be, accompanied by a written opinion. The order of the Supreme Court shall be effective upon filing the same with the Supreme Court clerk, and there shall be no rehearing. Upon filing the order, the Supreme Court clerk shall forthwith furnish to each party to the appeal and the district court a certified copy of the order. The order shall constitute the mandate of the Supreme Court.

N.M. R. App. P. 12-603

As amended effective 10/11/2005; as amended by Supreme Court Order No. 09-8300-020, effective 9/4/2009; by Supreme Court Order No. 12-8300-010, effective 3/5/2012; as amended by Supreme Court Order No. 15-8300-021, effective for all cases pending or filed on or after12/31/2015.

Committee commentary. - The 2009 amendments to this rule are intended to bring within the scope of Rule 12-603 the appeal of election recall proceedings involving elected county officials under Article X, Section 9 of the New Mexico Constitution. The Court of Appeals in Sparks v. Graves, 2006-NMCA-030, 139 N.M. 143, 130 P.3d 204, accepted jurisdiction to consider an appeal from an election recall proceeding involving an elected county official under Article X, Section 9 of the New Mexico Constitution because no constitutional provision, statute or court rule specifically vested appellate jurisdiction in the Supreme Court. See Rule 12-102(B) NMRA (providing that the Court of Appeals shall have appellate jurisdiction over all appeals except those enumerated in Paragraph A of Rule 12-102 ).

By the 2009 amendments to this rule, appellate jurisdiction over election recall proceedings under Article X, Section 9 of the New Mexico Constitution is now specifically vested in the Supreme Court. See Graves, 2006-NMCA-030, ¶ 11 ("Consistent with Section 34-5-8(A) [NMSA 1978], Rule 12-102(A)(4) NMRA requires appeals to be taken to the Supreme Court when jurisdiction has been specifically reserved to the Supreme Court by the New Mexico Constitution or by Supreme Court order or rule.") (emphasis added). See also State v. Arnold, 51 N.M. 311, 314, 183 P.2d 845, 846 (1947) ("The creating of a right of appeal is a matter of substantive law and outside the province of the court's rule making power. Nevertheless, 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."); Seth D. Montgomery & Andrew S. Montgomery, Jurisdiction as May Be Provided by Law: Some Issues of Appellate Jurisdiction in New Mexico, 36 N.M. L. Rev. 215, 219, 237-241 (2006) (noting the Supreme Court's statutory authority under Section 34-5-8(B) NMSA to transfer cases wholesale from the Court of Appeals to the Supreme Court as a means of case management).

Consistent with the Court's rule-making authority, and to provide continuity with the time requirements for other election recall appeals governed by this rule, these amendments provide that Article X, Section 9 appeals are commenced by filing a notice of appeal with the district court within five (5) days of the district court's final decision. See Maples v. State, 110 N.M. 34, 36, 791 P.2d 788, 790 (1990) (recognizing that the Supreme Court has "the power to set the time for all appeals from final orders").

Although the Legislature has authorized municipalities to adopt election recall procedures for municipal officials, there are no express statutory provisions authorizing judicial review of municipal election recalls proceedings. See, e.g., Section 3-14-16 NMSA 1978 and Section 3-15-7 NMSA 1978. Accordingly, these amendments do not purport to encompass municipal election recall proceedings that may be authorized by local ordinance.

[Adopted by Supreme Court Order No. 09-8300-020, effective September 4, 2009.]

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ANNOTATIONS The 2015 amendment, approved by Supreme Court Order No. 15-8300-021, effective December 31, 2015, provided additional procedures to ensure that, in certain appeals to the Supreme Court, the record is timely provided to the Supreme Court, and made other technical changes throughout the rule; in the heading, after "Appeals", added "to the Supreme Court"; in Paragraph A, in the introductory sentence, after "governs", added "the following"; in Subparagraph A(1), after "appeals taken", deleted "pursuant to" and added "under"; in Subparagraph A(2), after "officials initiated", deleted "pursuant to" and added "under"; in Paragraph B, in the heading, after "appeal", added "preparation of record"; added the designation for Subparagraph B(1), and after "proof of service on", added "the district court and", after "filed in the", deleted "district court" and added "Supreme Court with the certificate of counsel or certificate of appellant required by Paragraph D of this rule. The notice of appeal and certificate shall be filed in the Supreme Court"; added new Subparagraph B(2); in Paragraph C, in the introductory sentence, added "one of the following"; in Subparagraphs C(1) through C(6), changed "pursuant to" to "under", and in Subparagraph C(6), after "NMSA 1978", deleted "as the case may be"; in Paragraph D, in the heading, deleted "Docketing" and added "Certificate of counsel or appellant"; in the introductory paragraph, deleted "Immediately upon the filing of a notice of appeal the district court clerk shall forward the entire original court file to the Supreme Court clerk. Within five (5) days after filing the notice of appeal" and added "At the same time that the notice of appeal is filed in the Supreme Court", after "the appellant shall", deleted "cause the appeal to be docketed in the Supreme Court by paying to the Supreme Court clerk the" and added "pay the", after "23-114 NMRA, and", deleted "filing" and added "shall file", after "service on all parties", added "and the district court", and after "shall include", added "the following"; in Subparagraph D(4), after "appealed from and", added "an acknowledgment that the" and deleted "date of filing", and after "notice of appeal", added "was timely filed with the Supreme Court at the same time as the certificate"; in Paragraph E, after "If the appellant fails to", deleted "docket the appeal", added "file a timely notice of appeal or certificate", and deleted "within the time and", after "requirements of", deleted "Paragraph D of", after "this rule", deleted "the Supreme Court clerk shall promptly return the original court file to the district court clerk and", and after "forthwith by the", deleted "district court" and added "Supreme Court"; in Subparagraph F(1), after "Immediately upon", deleted "docketing" and added "the filing of the notice of appeal and certificate"; in Subparagraph F(4), after "set a hearing", added "notwithstanding the provisions of Rule 23-102(D) NMRA"; in Paragraph H, after "the directions of the", deleted "court" and added "Supreme Court"; in Paragraph I, in the first sentence of the introductory paragraph, after "the certificate filed", deleted "upon docketing" and added "under Paragraph D", in the third sentence after "may not appear in the", deleted "court file" and added "record filed with the Supreme Court under Subparagraph (B)(2) of this rule", and after "have present at the hearing", added "the following"; and in Paragraph J, in the first sentence, after "by order of the", deleted "court" and added "Supreme Court", in the second sentence, after "order of the", deleted "court" and added "Supreme Court", in the third sentence, after "each party to the appeal", added "and the district court", and after "certified copy of the order", deleted "and shall return the original district court file to the district court clerk together with a certified copy of the order". The 2012 amendment, approved by Supreme Court Order No. 12-8300-010 , effective March 5, 2012, permitted summary affirmance of decisions of the district court if the appeal appears to be without merit; specified the action the court may take if the appeal is not summarily affirmed; provided for the setting of and proceedings in hearings; in Paragraph F, in the title, after "Notice of", deleted "setting" and added "proceedings"; in Subparagraph (1), added the subparagraph number and after "shall notify the", deleted "chief justice" and added "Court"; added Subparagraphs (2) and (3); and in Subparagraph (4), at the beginning of the subparagraph, deleted "The chief justice shall set the date, time and place of hearing, and shall advise the Supreme Court Clerk thereof. The" and added "If the Court decides to set a hearing" and after "expeditious manner practicable", added "and the hearing shall proceed in accordance with Paragraph I of this rule". The 2009 amendment, approved by Supreme Court Order No. 09-8300-020, effective September 4, 2009, added Subparagraph (2) of Paragraph A; in Paragraph B, in the first sentence, after "pursuant to which the appeal is taken", added "or within thirty (30) days of the date the district court's final decision under Article X, Section 9 of the New Mexico Constitution is filed in the district clerk's office"; added Subparagraph (4) of Paragraph C, in Paragraph D, in the second sentence, after "appropriate docket fee", added "subject to the provisions of Rule 12-304 NMRA and 23-114 NMRA", after "represented by counsel", added "a certificate of the appellant", and at the beginning of the third sentence, deleted "The" and added "Either"; added Paragraph G; added the first and second sentences of Paragraph I; and in Subparagraph (2) of Paragraph I, deleted the former last two sentences which provided that at the hearing, the appellant is limited to the points specified in the certificate filed upon docketing and that appellee is not limited to a response to such points but may present any issue directed toward affirmance of the decision. The 2005 amendment, approved by Supreme Court Order No. 05-8300-018, effective October 11, 2005, amended Paragraph A to add Sections 1-14-5, 22-7-9.1 and 22-7-12 NMSA 1978, deleted the time for filing a notice of appeal in Paragraph B and inserts "the time period specified by statute", added Paragraph C relating to the content of the notice of appeal and redesignated former Paragraphs C through H as Paragraphs D through I.

For election proceedings in the district court, see Rule 1-087 NMRA. For statutory time period for appeals under the Election Code, see Eturriaga v. Valdez, 1989-NMSC-080, 109 N.M. 205, 784 P.2d 24.