A.Appointment. Domestic violence special commissioners shall be at-will positions subject to the New Mexico Judicial Branch Policies for At-will Employees. Consistent with the authority set forth in this rule, domestic violence special commissioners may perform those duties assigned by the chief judge of the district in domestic violence proceedings.B.Qualifications. Any person appointed to serve as a special commissioner under this rule shall (1) be a lawyer licensed to practice law in New Mexico with at least three (3) years of experience in the practice of law; and(2) be knowledgeable in the area of domestic relations and domestic violence matters.C.Duties. A domestic violence special commissioner shall perform the following duties in carrying out the provisions of the Family Violence Protection Act, Sections 40-13-1 to -13 NMSA 1978: (1) review petitions for orders of protection and motions to enforce, modify, or terminate orders of protection;(2) if deemed necessary, interview petitioners, provided that any interview shall be on the record;(3) conduct hearings on the merits of petitions for orders of protection and motions to enforce, modify, or terminate orders of protection; and(4) prepare recommendations, in the form, if any, approved by the Supreme Court, for review and final approval by the district court regarding petitions for orders of protection and motions to enforce, modify, or terminate orders of protection.D.Removal. On motion of any party for good cause shown, or on the court's own motion, the district court may remove the domestic violence special commissioner from acting in a proceeding.E.Authority. The domestic violence special commissioner's recommendations shall not become effective until reviewed and adopted as an order of the court.F.Recommendations.(1)Recommendations concerning ex parte orders. After conducting the necessary review, the domestic violence special commissioner shall promptly submit to the district court recommendations concerning the entry of an ex parte temporary order of protection. The district court judge shall immediately review the recommendations and shall determine whether to immediately enter an order consistent with the recommendations, to enter a different order, to request the commissioner to conduct further proceedings, or to request the commissioner to make additional findings and conclusions. Unless otherwise ordered by the court, an ex parte order of protection signed by the court shall remain in effect, in accordance with the provisions of Section 40-13-4 NMSA 1978, until the court enters a final order ruling on the petition for an order of protection. (2)Recommendations. At the conclusion of the proceedings, the domestic violence special commissioner shall submit to the district court for review and approval the commissioner's recommendations, including proposed findings and conclusions, and shall serve each of the parties with a copy together with a notice that specific objections may be filed within fourteen (14) days after service of the recommendations. G.Objections. Any party may file timely objections to the domestic violence special commissioner's recommendations. The party filing objections shall promptly serve them on other parties. Objections must specifically identify the following: (1) the specific portions of the recommendations to which the party objects;
(2) a summary of the evidence presented at the hearing conducted by the commissioner;
(3) the specific findings of fact made by the commissioner to which the party objects; and
(4) the specific errors made by the commissioner in applying the substantive and/or procedural law to the commissioner's findings of fact.
H.District court proceedings. After receipt of the recommendations of the domestic violence special commissioner, the district court judge shall observe the following procedure: (1) The district court judge shall immediatly review the recommendations of the domestic violence special commissioner and determine whether to immediatly adopt the recommendations. The district court judge shall set aside the decision only if the decision is found to be(a) arbitrary, capricious, or an abuse of discretion;(b) not supported by substantial evidence in the record as a whole; or(c) otherwise not in accordance with law.(2) If a party files timely, specific objections to the recommendations as set forth in Paragraph G of this rule, the district court judge shall conduct an independent review appropriate and sufficient to resolve the objections. The shall consist of a review of the record presented to the special commissioner.(a) The review does not require an in-person hearing before the district court judge.(b) If the district court judge finds that the objections to the recommendations are not specifically stated as set forth in Paragraph G of this rule, the district court judge may issue a general denial of the objections.(3) The district court judge may adopt the recommendations, modify them, reject them in whole or in part, receive further evidence, or remand them to the domestic violence special commissioner with instructions.(4) After reviewing any objections, the district court judge shall enter a final order. When required by Rule 1-052 NMRA, the district court judge also shall enter findings of fact and conclusions of law.I.Limitations on private practice. Full-time domestic violence special commissioners shall devote full time to their duties under the Family Violence Protection Act and shall not engage in the private practice of law or in any employment, occupation, or business interfering with or inconsistent with the discharge of their duties. Part-time domestic violence special commissioners may engage in the private practice of law so long as in the discretion of the appointing judge it does not interfere with nor is inconsistent with the discharge of their duties as domestic violence special commissioners and subject to applicable Code of Judicial Conduct provisions, as stated in Paragraph J of this rule.J.Code of Judicial Conduct. A domestic violence special commissioner is required to conform to all applicable provisions of the Code of Judicial Conduct.N.M. R. Civ. P. Dist. Ct. 1-053.1
Adopted, effective 10/18/1996; as amended by Supreme Court Order No. 06-8300-019, effective 10/16/2006; as amended by Supreme Court Order No. 17-8300-020, effective for all cases pending or filed on or after12/31/2017; as amended by Supreme Court Order No. 22-8300-019, effective for all cases pending or filed on or after December 31, 2022.Committee commentary for 2006 amendment. -
Authority
Former Paragraph C of Rule 1-053.1 NMRA has been amended to make clear the permissible scope of the domestic violence special commissioner's duties. Those duties include not only the review of petitions and the conducting of hearings for requests for all orders of protection, see, e.g., Form 4-961 NMRA (Petition for order of protection from domestic abuse), Form 4-962A NMRA (Counter-petition for order of protection), Form 4-972 NMRA (Petition for emergency order of protection), and related proceedings, see, e.g., Form 4-961B NMRA (Request for order to omit address and phone number of petitioner), but also for motions to enforce, modify, or terminate orders of protection. See Form 4-968 NMRA (Application to modify, terminate, or renew the order of protection).
The requirement in Rule 1-053.1(C) NMRA that interviews with the petitioner be conducted on the record is taken from NMSA 1978, Section 40-13-10(A)(2)(2005).
Form of recommendations
Rule 1-053.1(C)(4) NMRA reflects current practice by providing that where court-approved forms are available, the domestic violence special commissioner will use the forms in preparing recommendations for the court. See Forms 4-961 to 4-974 NMRA.
See relevant Committee comments to Rule 1-053.2 NMRA for discussion of other provisions in the 2006 amendments to Rule 1-053.1 NMRA.
Committee commentary for 2017 amendment. -
The Committee notes that Rule 1-053.1(J) NMRA was amended to remove incorrect references to the Code of Judicial Conduct and clarify that domestic violence special commissioners are required to conform to all applicable Code of Judicial Conduct provisions. See Rule 21-004(C) NMRA.
[As amended by Supreme Court Order No. 17-8300-020, effective for all cases pending or filed on or after December 31, 2017.]
ANNOTATIONS The 2017 amendment, approved by Supreme Court Order No. 17-8300-020, effective December 31, 2017, removed incorrect references to the Code of Judicial Conduct and clarified that domestic violence special commissioners are required to conform to all applicable Code of Judicial Conduct provisions, made certain technical revisions to the rule, and revised the Committee commentary; in Paragraph H, in the introductory clause, after "special commissioner,", added "the court shall take the following actions", and in Subparagraph H(1)(d), after "or", deleted "may"; in Paragraph I, after "subject to", deleted "the Code of Judicial Conduct rules enumerated in Paragraph J of this rule" and added "applicable Code of Judicial Conduct provisions, as stated in Paragraph J of this rule"; and in Paragraph J, after "conform to", deleted "Rules 21-100 through 21-500 NMRA and 21-700 NMRA of" and added "all applicable provisions of". Collateral bar rule precludes a restrained party from challenging the merits of an injunction after a finding of contempt. - Where respondent appealed the district court's finding that respondent violated an order of protection that prohibited respondent from contacting petitioner and from committing further acts of abuse or threats of abuse, which included stalking and harassment, against petitioner, and where the special commissioner expressly found respondent to be a stalker, respondent's failure to file objections to the special commissioner's recommendations, as provided in Rule 1-053.1(H)(1)(b) NMRA, precluded respondent from challenging on appeal the merits of the protective order after a finding of contempt. Best v. Marino, 2017-NMCA-073, cert. denied.
For child support hearing officers, see Section 40-4B-4 NMSA 1978.