N.M. R. Civ. P. Dist. Ct. 1-088.1
N.M. R. Civ. P. Dist. Ct. 1-088.1
Committee commentary. - The March 2018 amendment to Rule 1-088.1(C)(4) NMRA corrects a conflict between two subparagraphs of the rule that resulted in a failure of the rule to accomplish the purposes underlying the two subparagraphs. Amendments in December 2015 added Subparagraph (C)(4) to provide the following: "Regardless of the other limits contained in this rule, no peremptory excusal may be filed by any original party or later-added party more than one hundred twenty (120) days after the first judge has been assigned to the case."
The commentary to an earlier draft of the new subparagraph published for comment in 2013 to add a time limitation on excusals of judges who had actually been presiding over a case for the prescribed period of time clearly stated the intent of the provision as follows:
[The] time limit on exercise of peremptories requires their exercise at the outset of a case, before the judge has gotten involved in learning about the case and making rulings. If the original parties do not perceive the need at the outset of the case to peremptorily excuse the judge, there is little justification for allowing later-added parties to review the judge's rulings and remove the judge who has been presiding over the case, especially since the constitutional right to disqualify a judge for cause is always available.
But the wording of various parts of the 2013 proposals were amended for unrelated reasons before their eventual promulgation in 2015, including an amendment that substituted "the first judge has been assigned to the case" for "the case has been at issue before the judge sought to be excused." The result was a clear textual conflict between the intended limitation of the right to excuse a judge who had already been presiding over a case for a period of time, and the intent of the provisions in Subparagraphs (C)(2) and (C)(3) allowing any party to excuse a new judge within ten (10) days of a mass reassignment or a reopening of the case.
The March 2018 amendment by its limitation on the excusal of a judge who has been assigned to a case for at least one hundred twenty (120) days clarifies that Subparagraph (C)(4) neither expands nor reduces the right of a party to file an excusal within ten (10) days of reassignment in the situations described in Subparagraphs (C)(2) and (C)(3).
Reassignment of a judge usually occurs in individual cases in which a party has excused the judge or the judge recuses himself or herself. When this happens, the clerk easily can and does serve individual notice of the reassignment to the parties by mail or electronic transmission. Whether served by mail or electronic transmission, Rule 1-006 NMRA gives the parties an additional three (3) days to file a peremptory excusal under this rule.
When a judge retires, dies, is disabled, or assumes responsibility for different types of cases (e.g., from a criminal to a civil docket), large numbers of cases are reassigned and parties who have not previously exercised a peremptory excusal may choose to excuse the successor judge. Providing individual notice to every party in each such case is administratively difficult, expensive and time consuming. Clerks sometimes serve notice of reassignment in an alternative manner-usually through publication in the New Mexico Bar Bulletin, on the State Bar's web site, or both.
The 2008 amendment formally incorporates into Rule 1-088.1 NMRA the use of notice by publication in such a situation - now identified as a "mass reassignment." The amended rule requires that the specified notice be published on the State Bar's web site for four (4) consecutive weeks and in two (2) consecutive issues of the New Mexico Bar Bulletin, and provides that a party who has not yet exercised a peremptory excusal may do so within ten (10) days after the date of the second Bar Bulletin. When a judge's entire caseload is reassigned, the publication notice need not contain the caption of each affected case, but must contain the names of the initially-assigned judge and the successor judge.
There may be occasions when many, but not all, of a judge's cases are reassigned; for example when an additional judge is appointed in a judicial district and a portion of other judges' cases are assigned to the new judge. When this occurs, if the number of pending cases collectively reassigned exceeds one hundred (100), the 2008 amendment authorizes notice by publication. To assure that the parties have notice of which cases were reassigned, the court should either make a list available containing the title of the action and file number of each case reassigned, or not reassigned, whichever is less. The court may publish such a list in the Bar Bulletin, publish a notice in the Bar Bulletin that directs the reader to the court's web site where the list will be posted, or post notice on the State Bar's web site.
Substituting publication for individual notice increases the chance that a party will not receive actual notice of a reassignment. Where actual notice is not achieved through publication, the trial court has ample authority to accept a late excusal. See Rule 1-006(B)(2) NMRA (providing that the court may permit act to be done after deadline has passed if excusable neglect is shown).
As with any other pleading filed in court, a peremptory excusal of a judge must be signed by the party's attorney or, if the party is not represented by counsel, it must be signed by the party. See Rule 1-011 NMRA. All of the procedures for excusing a judge in Paragraph C are subject to the limitations in Paragraph A.
[Adopted by Supreme Court Order No. 08-8300-038, effective December 15, 2008; as amended by Supreme Court Order No. 12-8300-031, effective for all cases filed or pending on or after January 7, 2013; as amended by Supreme Court Order No. 15-8300-019, effective for all cases pending or filed on or after December 31, 2015; as amended by Supreme Court Order No. 18-8300-003, effective March 1, 2018; as amended by Supreme Court Order No. 19-8300-008, effective for all cases pending or filed on or after July 1, 2019; as amended for typographical corrections and stylistic compliance by Supreme Court Order No. 20-8300-020, effective for all cases pending or filed on or after December 31, 2020.
ANNOTATIONS The 2019 amendment, approved by Supreme Court Order No. 19-8300-008, effective for all cases pending or filed on or after July 1, 2019, revised the notice requirements for a mass reassignment, made technical changes, and revised the Committee commentary; in Paragraph D, after "reassignments to all parties by", deleted "publication in the New Mexico Bar Bulletin for four (4) consecutive weeks" and added "publishing the notice for four (4) consecutive weeks on the State Bar web site and in two (2) consecutive New Mexico Bar Bulletins", and after "printed on the", deleted "fourth" and added "second". The 2018 amendment, approved by Supreme Court Order No. 18-8300-003, effective March 1, 2018, clarified that the limitation on the excusal of a judge who has been assigned to a case for at least one hundred twenty (120) days is in addition to other limits contained in the rule and neither expands nor reduces the right of a party to file an excusal pursuant to Subparagraphs C(2) and C(3), and revised the committee commentary; in Subparagraph C(4), deleted "Regardless of" and added "In addition to", and after "(120) days after the", deleted "first judge has been" and added "judge sought to be excused was". The 2015 amendment, approved by Supreme Court Order No. 15-8300-019, effective December 31, 2015, provided a clarification of the definition of "party" for the purposes of peremptory excusals of a district judge, set a final deadline for filing a peremptory excusal notwithstanding other limits contained in the rule, provided procedures and penalties to address the misuse of peremptory excusals, provided procedures for objecting to the validity of a peremptory excusal, and revised the committee commentary; in the heading, after "Peremptory", deleted "challenge to" and added "excusal of"; in Paragraph A, added the third sentence in the introductory paragraph and added Subparagraphs A(1) through A(5); in Paragraph C, in the heading, after "Procedure for", deleted "excusing" and added "exercising peremptory excusal of", in the introductory sentence, after "filing a peremptory", deleted "election to excuse" and added "excusal"; in Subparagraph C(1), after each occurrence of "peremptory", deleted "election to excuse" and added "excusal"; in Subparagraph C(2), after "peremptory", deleted "election to excuse" and added "excusal"; in Subparagraph C(3), after each occurrence of "peremptory", deleted "election to excuse" and added "excusal", and added Subparagraph C(4); in Paragraph E, after "Any party", deleted "electing to excuse" and added "excusing", and after "notice of such", deleted "election" and added "excusal"; added new Paragraph F and redesignated former Paragraph F as Paragraph G; in Paragraph G, deleted "After the filing of a timely and correct exercise of a peremptory challenge, that district judge shall proceed no further." and added "Nothing in this rule precludes the right of any party to move to recuse a judge for cause."; added new Paragraph H; and in the committee commentary, in the third undesignated paragraph, after "peremptory", deleted "recusal" and added "excusal", and in the sixth undesignated paragraph, after "peremptory" deleted "election to excuse" and added "excusal of". The 2012 amendment, approved by Supreme Court Order No. 12-8300-031, effective January 7, 2013, extended the time for filing a peremptory election to excuse a judge; in Subparagraph (1) of Paragraph C, in the first sentence, after "within ten (10) days after", deleted "filing the complaint" and added "service of notice of assignment of the first judge in the case"; in Subparagraph (2) of Paragraph C, after "within ten (10) days after the clerk", deleted "mails a" and added "serves"; in Subparagraph (3) of Paragraph C, after "within ten (10) days after filing a motion to reopen", added "and service of the notice of reassignment"; and in Paragraph D, in the first sentence, after "the clerk shall", deleted "give" and added "serve" and in the second sentence, after "the clerk shall", deleted "give" and added "serve". The 2008 amendment, approved by Supreme Court Order No. 08-8300-038, effective December 15, 2008, in Paragraph A, in the second sentence, added "attended a hearing or"; added new Paragraph B; relettered Paragraph B as Paragraph C; in Paragraph C, changed "filing with the clerk of the district court a peremptory election. The peremptory election to excuse must be:" to "filing a peremptory election to excuse as follows:"; in Subparagraph (1) of Paragraph C, deleted language which required the peremptory election to be signed by a party plaintiff or that party's attorney, added language which provides that a plaintiff may file a peremptory election after filing the complaint, and added the last sentence; in Subparagraph (1) of Paragraph C, deleted former items (a) and (b) which required the filing of the peremptory election within ten days after the later of the filing of the complaint and assignment of a judge or the mailing by the clerk of notice of reassignment of the case to a judge; in Subparagraph (2) of Paragraph C, deleted language which required the peremptory election to be signed by any other party or that party's attorney, added the language which provides that any party may file a peremptory election after the clerk mails a notice of reassignment on the parties or completes publication of a notice of a mass reassignment, and deleted language which provided that the peremptory election had to be filed by any other party or that party's attorney within 10 days after the later of filing the first pleading or motion pursuant to Rule 1-012 NMRA by that party or of mailing by the clerk of notice of assignment or reassignment of the case to a judge; added new Subparagraph (3) of Paragraph C; relettered former Paragraph C as Paragraph D; in Paragraph D, deleted "service of excusal" from the title and added the second and third sentences; designated the last sentence of former Paragraph C as Paragraph E and added the title; and relettered former Paragraph D as Paragraph F. The 2007 amendment, approved by Supreme Court Order No. 07-8300-001, effective March 15, 2007, amended Paragraph A to change "any discretionary act" to "any act"; amended Paragraph B to insert "and assignment of a judge" in Subparagraph (1)(a) of Paragraph B; to delete "assignment or" in Subparagraph (1)(b) of Paragraph B; and to add the first sentence of Paragraph D providing for automatic recusal of the judge if a timely and correct peremptory challenge is filed. The 1995 amendment, effective January 1, 1995, added the last sentence in Paragraph A, rewrote the introductory language of Paragraph B, rewrote Paragraph B(1), substituted "signed by any other party or that party's attorney , and filed within ten" for "by defendant or any other party, by filing a peremptory election to excuse within ten" in Paragraph B(2), and substituted "the judge's impartiality" for "his impartiality" and "and the judge shall file a recusal" for "and shall recuse himself" in the first sentence in Paragraph D.
For procedure to disqualify, see Section 38-3-9 NMSA 1978. Judge acting as mediator and as hearing officer to impose sanctions. - Where a district judge appointed another district judge as a mediator to conduct a settlement conference; the mediator judge was subsequently appointed to hear motions for sanctions against one party for alleged bad faith participation in the settlement conference; the mediator judge heard the motions, made findings of fact, concluded that the party had conducted itself in bad faith at the conference, and entered an order requiring the party to pay a sanction; and the appointing district judge independently reviewed the mediator judge's decision and came to its own independent conclusions regarding sanctions; the appointing judge did not abuse its discretion in appointing the mediator judge to hear the motions for sanctions. Carlsbad Hotel Associates, L.L.C. v. Patterson-UTI Drilling Co., 2009-NMCA-005, 145 N.M. 385, 199 P.3d 288, cert. granted, 2009-NMCERT-001. Objection to jurisdiction by motor vehicle division waived. - Where, as soon as the motor vehicle division received notice of the hearing, it filed a notice of peremptory challenge pursuant to this rule, the division waived any objection to personal jurisdiction. Barreras v. New Mexico Motor Vehicle Div., 2005-NMCA-055, 137 N.M. 435, 112 P.3d 296. Objection to jurisdiction by motor vehicle division without merit. - Because the notice of peremptory challenge filed by the motor vehicle division was made by counsel in his capacity as "special assistant attorney general", any objection to personal jurisdiction based on a failure to serve the attorney general would be without merit. Barreras v. New Mexico Motor Vehicle Div., 2005-NMCA-055, 137 N.M. 435, 112 P.3d 296. Procedure for party plaintiff to file peremptory excusal of a district court judge is governed by this rule. Roberts v. Richardson, 2005-NMSC-007, 137 N.M. 226, 109 P.3d 765. Peremptory excusal not timely filed. - Where plaintiff filed her complaint on March 14, 2003, at which time the clerk stamped the summons with the name of the judge assigned to hear the case, and plaintiff filed her notice of excusal of the judge on April 15, 2003, and the court clerk refused to honor the notice of excusal and wrote at the bottom, "not processed, untimely", plaintiff's peremptory excusal was not timely filed because plaintiff filed the peremptory election to excuse more than 10 days after the filing of the complaint. Roberts v. Richardson, 2005-NMSC-007, 137 N.M. 226, 109 P.3d 765. Resident judges may not be disqualified by successive affidavits. Peoples v. Peoples, 1963-NMSC-067, 72 N.M. 64, 380 P.2d 513. Proceedings not suspended by filing disqualification. - Filing a disqualification of one of the resident judges does not mean that nothing can occur in the case until a new judge is stipulated into the case by counsel or, upon failure to stipulate, until a judge is named by the chief justice. Peoples v. Peoples, 1963-NMSC-067, 72 N.M. 64, 380 P.2d 513. No violation of right to due process. - Although procedure under Section 38-3-9 NMSA 1978 for certification as to party's failure to agree upon a judge was not followed, it was proper under N.M. Const., art. VI, §15 for the chief justice to designate a district judge having proper jurisdiction to try the case; thus, there was no violation of defendant's right to due process. Lohbeck v. Lohbeck, 1961-NMSC-146, 69 N.M. 203, 365 P.2d 445 (decided under prior law). Matters hearable by disqualified judge. - A judge has no jurisdiction to hear a petition for preliminary injunctive relief after having been disqualified. A proceeding for a preliminary injunction is not a "mere formal act" such as has been contemplated to fall within the "preliminary matter" language of former Paragraph A. Borrego v. El Guique Cmty. Ditch Ass'n, 1988-NMSC-081, 107 N.M. 594, 762 P.2d 256 (decided under pre-1988 version of this rule). Excusal not allowed for discretionary act. - An extension of time to answer or otherwise plead is a discretionary act, even if in response to the agreed motion or stipulation of the parties, and, therefore, disqualification of a judge who had granted such a motion was not allowed. JMB Retail Properties Co. v. Eastburn, 1992-NMSC-045, 114 N.M. 115, 835 P.2d 831. Only that party who requests a discretionary act will be precluded from later exercising a peremptory challenge. Saavedra v. Thomson, 1992-NMSC-072, 114 N.M. 718, 845 P.2d 812. Litigant's failure to oppose another party's motion seeking a discretionary act should not constitute an act by the nonmovant that itself invokes the discretion of the court; therefore, the litigant retained his right to exercise his peremptory excusal. Saavedra v. Thomson, 1992-NMSC-072, 114 N.M. 718, 845 P.2d 812. Only challenging party may appeal denial. - Where a party filed a peremptory challenge of the trial judge, the judge denied the challenge, and the challenging party did not appeal and was therefore not a party before the Court of Appeals, a different appealing party could not challenge the trial court's action in refusing to honor the challenge. City of Sunland Park v. Santa Teresa Servs. Co., 2003 -NMCA-106, 134 N.M. 243, 75 P.3d 843, cert. denied, 134 N.M. 179, 74 P.3d 1071. Law reviews. - For article, "Separation of Powers and the Judicial Rule-Making Power in New Mexico: The Need for Prudential Restraints," see 15 N.M.L. Rev. 407 (1985). For note, "Determining When a Party Gives Up the Right to Disqualify a Judge by Invoking the Discretion of a Court: JMB Retail Properties Co. v. Eastburn," see 24 N.M.L. Rev. 399 (1994). Am. Jur. 2d, A.L.R. and C.J.S. references. - 46 Am. Jur. 2d Judges §§5 et seq., 86 et seq. Journalization by judge of finding or decision of predecessor, 4 A.L.R.2d 584. Time for asserting disqualification, 73 A.L.R.2d 1238. Substitution of judge in a criminal case, 83 A.L.R.2d 1032. Power of court to remove or suspend judge, 53 A.L.R.3d 882. Disqualification of original trial judge to sit on retrial after reversal or mistrial, 60 A.L.R.3d 176. Substitution of judge in state criminal trial, 45 A.L.R.5th 591. Power of successor or substituted judge, in civil case, to render decision or enter judgment on testimony heard by predecessor, 84 A.L.R.5th 399. Laws governing judicial recusal or disqualification in state proceeding as violating federal or state constitution, 91 A.L.R.5th 437. Disqualification of judge under 28 USCS §455(b)(5)(iii), where judge or his or her spouse, or certain of their relatives, is known to have an interest that could be affected by the proceeding, 54 A.L.R. Fed. 855. Disqualification of judge under 28 USCS §455(b)(4), providing for disqualification where judge has financial or other interest in proceeding, 55 A.L.R. Fed. 650. Mandamus as remedy to compel disqualification of federal judge, 56 A.L.R. Fed. 494. 48A C.J.S. Judges §§ 161 to 185.