A.Definition of parties. "Party" as used in this rule shall be the defendant and the state, municipality, or county filing the complaint or citation.B.Excusal. Whenever a party to any criminal action or proceeding of any kind files a notice of excusal, the judge's jurisdiction over the cause terminates immediately.C.Limitation on excusals. No party shall excuse more than one judge, including a pro tem judge. A party may not excuse a judge after the party has requested that judge to perform any discretionary act other than conducting an arraignment or first appearance, setting initial conditions of release, or making a determination of indigency. No judge may be excused from conducting an arraignment or first appearance or setting initial conditions of release. Any judge designated by the chief justice of the Supreme Court of New Mexico may not be excused except under Article VI, Section 18 of the New Mexico Constitution. D.Procedure for excusing a judge. A party may exercise the statutory right to excuse the judge before whom the case is pending by filing with the clerk of the court a notice of excusal. When a judge, including a pro tem judge, is designated to hear any matter because of the unavailability of the assigned judge, subject to the limitations in Paragraph C of this rule, the parties shall exercise their right to the excusal either in writing or orally when the designated judge first calls the case. In all other instances, the notice of excusal must be signed by a party and filed within ten (10) days after the later of (1) arraignment or the filing of a waiver of arraignment; or(2) service on the parties by the court of notice of assignment or reassignment of the case to a judge.E.Notice of reassignment; service of excusal. If the case is reassigned to a different judge, the court shall give notice of the reassignment to all parties. Any party electing to excuse a judge shall serve notice of that election on all parties.F.Misuse of excusal procedure. Excusals are not to be exercised to hinder, delay, or obstruct the administration of justice. If it appears that an attorney or group of attorneys may be using excusals for improper purposes or with such frequency as to impede the administration of justice, the Chief Judge of the metropolitan court shall send a written notice to the Chief Justice of the Supreme Court and shall send a copy of the written notice to the attorney or group of attorneys believed to be improperly using excusals. The Chief Justice may take appropriate action to address any misuse, including issuance of an order providing that the attorney or attorneys or any party they represent may not file excusals for a specified period of time or until further order of the Chief Justice.G.Recusal. No judge shall sit in any action in which the judge's impartiality may reasonably be questioned under the provisions of the Constitution of New Mexico or the Code of Judicial Conduct, and the judge shall file a certificate of recusal in any such action. Upon receipt of notification of recusal from a judge, the clerk of the metropolitan court shall give written notice to each party. Upon recusal, another judge shall be assigned or designated to conduct any further proceedings in the action in the manner provided by Rule 7-105 NMRA.H.Failure to recuse. If a party believes that the judge's impartiality may reasonably be questioned under the provisions of the Constitution of New Mexico or the Code of Judicial Conduct, the party may file a notice of facts requiring recusal. The notice shall specifically set forth the constitutional grounds alleged. Upon receipt of the notice, the judge may file a certificate of recusal in the action or enter an order finding that there are not reasonable grounds for recusal. If within ten (10) days after the filing of notice of facts requiring recusal, the judge fails to file a certificate of recusal in the action, any party may certify that fact by letter to the district court of the county in which the action is pending with a copy of the notice of recusal. No filing fee shall be required for the filing of a letter certifying grounds for recusal described in Paragraph G of this rule. The party's certification to the district court shall be filed in the district court not less than five (5) days after the expiration of time for the metropolitan court judge to file a certificate of recusal or not less than five (5) days after the filing of an order in the metropolitan court finding the grounds alleged in the notice of recusal do not constitute reasonable grounds for recusal, whichever date is earlier. A copy of the letter shall also be filed with the metropolitan court. The district court shall make an investigation as the court deems warranted and enter an order in the action, either prohibiting the metropolitan court judge from proceeding further or finding that there are insufficient grounds to reasonably question the metropolitan court judge's impartiality under the provisions of the Constitution of New Mexico or the Code of Judicial Conduct. I.Stay. If a letter is filed with the district court and metropolitan court certifying the issue of recusal to the district court under Paragraph H of this rule, the metropolitan court judge may enter a stay of the proceedings pending action by the district court. If the metropolitan court judge fails to stay the proceedings, the party filing the letter in the district court may petition the district court for a stay of metropolitan court proceedings. The district court may grant a stay of the proceedings for not more than fifteen (15) days after the filing of a letter certifying a recusal issue to the district court. Unless a stay is granted, the metropolitan court judge shall proceed with the adjudication of the merits of the proceedings.J.Inability of a judge to proceed. If a trial or hearing has been commenced and the judge is unable to proceed, any other judge of the court may proceed with it upon certifying familiarity with the record and determining that the proceedings in the case may be completed without prejudice to the parties. The successor judge may recall any witness. If no other judge is available, either party may certify that fact by letter to the district court of the county in which the action is pending. The district court may make an investigation as the court deems warranted. If the court finds that the metropolitan court judge is in fact disabled or unavailable, the court shall designate another judge to preside over the case.N.M. R. Crim. P. Metro. Ct. 7-106
As amended, effective 5/1/1986;7/1/1988;9/1/1989;9/1/1990;11/1/1995;5/1/2002; as amended by Supreme Court Order No. 06-8300-024, effective 12/18/2006; as amended by Supreme Court Order No. 15-8300-014, effective for all cases pending or filed on or after12/31/2015; as amended by Supreme Court Order No. 20- 8300-020, effective for all cases pending or filed on or after 12/31/2020.Committee commentary. - Because of the constitutional and statutory rights of a defendant to a timely arraignment, felony first appearance, and a hearing on initial conditions of release, and due to the court's need to accommodate these rights, a judge cannot be excused from these proceedings. A judge that presides over an arraignment, felony first appearance, or a hearing to determine initial conditions of release is not in violation of the Code of Judicial Conduct simply for presiding over the hearing, even if an excusal of that judge has been filed. However, the judge's conduct at the hearing remains subject to the Code of Judicial Conduct. Nothing in this commentary shall be read to remove the judge's obligation to recuse as necessary under the Code of Judicial Conduct.
[Adopted by Supreme Court Order No. 08-8300-051, effective January 15, 2009.]
ANNOTATIONS The 2015 amendment, approved by Supreme Court Order No. 15-8300-014, effective December 31, 2015, included pro tem judges within the limitation on excusals of judges, prohibited the excusal of judges designated by the chief justice of the New Mexico Supreme Court with the exception of judges disqualified under N.M. Const., Art. VI, § 18, included pro tem judges within the procedures for excluding judges that have been designated to hear matters because of the unavailability of the assigned judge, and made stylistic changes; in Paragraph A, after "defendant", added "and", after "state", deleted "a", after "municipality", deleted "a" and added "or", and after "county", deleted "or person"; in Paragraph C, in the first sentence, after "one judge", added "including a pro tem judge", and added the last sentence; and in Paragraph D, in the second sentence, after "When a judge", added "including a pro tem judge". The 2006 amendment, approved by Supreme Court Order No. 06-8300-024, effective December 18, 2006, in Paragraph A substituted "a municipality, a county or person filing the complaint or citation" for "or an attorney representing the defendant or the state"; deleted the last sentence of Paragraph B relating to excusal of a judge scheduled to hear a preliminary hearing; added the second sentence of Paragraph D providing for the excusal of a judge designated to hear a matter because of the unavailability of the assigned judge; and amended Paragraph I to substitute "metropolitan court judge" for "magistrate". The 2002 amendment, effective May 1, 2002, deleted "procedure for exercising" from the rule heading; in Paragraph C, moved the last sentence "No party shall excuse more than one judge" to be the first sentence; in Paragraph D, substituted "Excusal procedure" for "Procedure for excusing a judge" in the bold heading, deleted "magistrate court" preceding "judge" and deleted "magistrate" preceding "court" in the first sentence; in Paragraph E, substituted "Notice of reassignment; service of excusal" for "Service of notice of assignment" in the bold heading; in Paragraph F, inserted "procedure" in the bold heading, deleted "court judge" following "magistrate" and inserted "certificate of" preceding "recusal" in the first sentence; in Paragraph G, substituted "facts requiring recusal" for "excusal" at the end of the first sentence and rewrote the pargraph from the third sentence to the end; redesignated former Paragraph H as present Paragraph I and added present Paragraph H. The 1995 amendment, effective November 1, 1995, rewrote the rule.
For territorial limits of magistrate's jurisdiction, see Section 35-3-6 NMSA 1978. For termination of magistrate's jurisdiction upon filing of statement of disqualification, see Section 35-3-7 NMSA 1978. For recusal of magistrate when certain conflicts are present, see Section 35-3-8 NMSA 1978. Peremptory excusal where charges refiled. - Because of the metropolitan court's unique rules pertaining to refiled criminal charges, where charges are dismissed without prejudice and later refiled, a defendant must exercise the right of peremptory excusal of a judge within ten days of arraignment on the original charges. The time for filing a notice of excusal does not begin to run anew when the identical charges are refiled and the case is assigned to the same judge. Walker v. Walton, 2003-NMSC-014, 133 N.M. 766, 70 P.3d 756. Am. Jur. 2d, A.L.R. and C.J.S. references. - Disqualification from criminal proceeding of trial judge who earlier presided over disposition of case of coparticipant, 72 A.L.R.4th 651. Disqualification of judge as affecting validity of decision in which other nondisqualified judges participated, 29 A.L.R.5th 722.