N.M. R. Crim. P. Dist. Ct. 5-106
N.M. R. Crim. P. Dist. Ct. 5-106
Committee commentary. - This rule governs the exercise of the statutory right to excuse the judge before whom the case is pending. See NMSA 1978, § 38-3-9 (1985). Paragraph B precludes a party from exercising this right in certain pretrial proceedings, including arraignment and pretrial release and detention hearings. Paragraph B does not prevent a judge from recusing under the provisions of the New Mexico Constitution or the Code of Judicial Conduct either on the court's own motion or on motion of a party. See N.M. Const. art. VI, § 18 ; Rule 21-211 NMRA.
Reassignment of a judge usually occurs in individual cases in which a party has excused the trial judge or the judge recuses himself or herself. When this happens, the clerk easily can and does provide individual notice of the reassignment to the parties by mail.
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 excusal the successor judge. Providing individual notice by mail to every party in each of those cases is administratively difficult, expensive, and time consuming. Clerks sometimes provide notice of reassignment in an alternative manner - usually through publication in the Bar Bulletin, on the State Bar's website, or both.
The 2008 amendment formally incorporates into Rule 5-106 NMRA the use of notice by publication in that situation - now identified as a "mass reassignment." The amended rule requires that the specified notice be published on the State Bar's website 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 part of other judges' caseloads are assigned to the new judge. When this occurs, if the number of pending cases reassigned from any judge 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 that list in the Bar Bulletin, publish a notice in the Bar Bulletin that directs the reader to the court's website where the list will be posted, or post notice on the State Bar's website.
Substituting publication for individual notice increases the chance that a party will not receive actual notice of a reassignment. When actual notice is not achieved through publication, the trial court has ample authority to accept a late recusal. See Rule 5-104(B) NMRA (providing that the court may permit an act to be done after a deadline has passed for cause shown).
[Adopted by Supreme Court Order No. 08-8300-039, effective December 15, 2008; as amended by Supreme Court Order No. 17-8300-005, effective for all cases pending or filed on or after July 1, 2017; 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 stylistic compliance by Supreme Court Order No. 20-8300-020, effective for all cases pending or filed on or after December 31, 2020; as amended by Supreme Court Order No. 22-8300-015, effective for all cases pending or filed on or after December 31, 2022.]
ANNOTATIONS The 2019 amendment, revised the notice requirements for a mass reassignment, made technical changes, and revised the Committee commentary; in Paragraph E, 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 2017 amendment, approved by Supreme Court Order No. 17-8300-005, effective July 1, 2017, provided that a party is precluded from excusing a judge from certain pretrial proceedings, and revised the committee commentary; in Paragraph B, added "reviewing a lower court's order setting or revoking conditions of release, or presiding over a detention hearing"; and in the committee commentary, added the first undesignated paragraph. The 2015 amendment, approved by Supreme Court Order No. 15-8300-019, effective December 31, 2015, provided procedures and penalties to address the misuse of peremptory excusals; and added new Paragraph G and redesignated the succeeding paragraphs accordingly. The 2008 amendment, approved by Supreme Court Order No. 08-8300-39, effective December 15, 2008, added a new Paragraph C and relettered former Paragraph C as Paragraph D; added Subparagraphs (3) and (4) of Paragraph D; relettered former Paragraph D as Paragraph E; in Paragraph E, added the second and third sentences; relettered the last sentence of former Paragraph D as Paragraph F and added the title; and relettered former Paragraphs E through G as Paragraphs G through I. The 1994 amendment, effective June 1, 1994, rewrote Paragraph A, which formerly read "'Party' as used in this rule, shall mean: a defendant, and on behalf of the state the district attorney or the attorney general." Denial of recusal not an abuse of discretion. - Where defendant was a child offender under the juvenile system; the court determined that defendant was not amenable to rehabilitation or treatment as a child and sentenced defendant as an adult after defendant pled guilty to second degree murder; prior to being appointed as district judge, the trial judge had been appointed as a contract public defender to represent the victim, who had been murdered by defendant, in a juvenile delinquency proceeding; the judge's former law partner actually appeared at all the hearings in the victim's case; and the judge did not personally represent the victim, engage in plea negotiations on the victim's behalf, discuss a plea with the victim or the victim's parents, appear before the court on behalf of the victim or the victim's parents, or have direct contact with the victim in the juvenile proceedings, the judge did not err in denying defendant's request for recusal. State v. Trujillo, 2009-NMCA-128, 147 N.M. 334, 222 P.3d 1040, cert. granted, 2009-NMCERT-011. Effect of amendment of information. - Following a mistrial, the state's amendment of the criminal information to add a new charge has the effect of renewing the defendant's right to peremptorily excuse the presiding judge, which attaches upon the filing of the amended information. State v. Devine, 2007-NMCA-097, 142 N.M. 310, 164 P.3d 1009. Exercise of discretion. - When a district court decides whether probable cause exists to believe that a defendant committed the crime charged, the court has exercised discretion. State v. Devine, 2007-NMCA-097, 142 N.M. 310, 164 P.3d 1009. Failure to recuse. - District judge did not abuse his discretion in denying defendant's to recuse filed motion in defendant's second trial where the motion was based on statements made by the district judge at defendant's sentencing after the first trial, that the district judge had experience dealing with allegations of sexual abuse, that he had made an effort to develop a sense about the veracity of such allegations, that he thought the minor victim whom defendant was accused of sexually abusing was being truthful, and that he believed defendant had sexually abused the victim. State v. Ruiz, 2007-NMCA-014, 141 N.M. 53, 150 P.3d 1003, cert. denied, 2007-NMCERT-001. Former rule created unreasonable burden on judicial system. - The ever-increasing number of disqualifications under former Rule 34.1 , N.M.R. Crim. P. (replaced by rule adopted March 5, 1984) constituted an unreasonable burden on the judicial system, and as the rule permitted abuse and was inappropriate, it was retracted and the present rule promulgated. State ex rel. Gesswein v. Galvan, 1984-NMSC-025, 100 N.M. 769, 676 P.2d 1334. Failure to recuse not abuse of discretion. - Where the judge had previously informed the parties of his mother's friendship with the victim, but defendant did not think that recusal of the trial judge was necessary until after an adverse ruling, the trial judge did not abuse his discretion by declining to recuse himself. State v. Hernandez, 1993-NMSC-007, 115 N.M. 6, 846 P.2d 312. Peremptory excusal rejected. - Where defendant's notice of peremptory excusal was not filed until 10 months after notice of the judge's assignment, was mailed to defense counsel, and defendant had already exercised his right to excuse another judge, the excusal was properly rejected. State v. Harris, 1997-NMCA-119, 124 N.M. 293, 949 P.2d 1190, cert. denied, 124 N.M. 268, 949 P.2d 282. Law reviews. - For article, "Survey of New Mexico Law, 1979-80: Criminal Law and Procedure," see 11 N.M.L. Rev. 85 (1981). 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 annual survey of New Mexico criminal procedure, see 16 N.M.L. Rev. 25 (1986). Am. Jur. 2d, A.L.R. and C.J.S. references. - 46 Am. Jur. 2d Judges § 40 et seq. Disqualification of judge because of assault or threat against him by party or person associated with party, 25 A.L.R.4th 923. Disqualification from criminal proceeding of trial judge who earlier presided over disposition of case of coparticipant, 72 A.L.R.4th 651. 23A C.J.S. Criminal Law §§ 1178, 1179.