Rule 1-077.1.Expungement

Section 29-3A-3(D) (expungement of records upon identity theft); due process issue

Section 29-3A-3(D) provides that “After notice to and a hearing for all interested parties and in compliance with all applicable law, the court shall insert in the records the correct name and other identifying information of the offender, if known or ascertainable, in lieu of the name of the person wrongly identified.” Identity theft is a crime. See, e.g., NMSA 1978, § 30-16-24.1 (2009) (theft of identity; obtaining identity by electronic fraud). It would be a violation of due process for the court in a civil proceeding to publicly declare that it found a person guilty of the crime of identity theft and to identify in public records the name and identifying information of the offender, particularly when the statute does not require notice of the proceeding be given to the alleged wrongdoer. For this reason, Rule 1-077.1 omits requirements related to the statutory provision quoted above.

Rule 1-077.1(G)

Rule 1-077.1(G) provides that parties entitled to notice of these proceedings must file and serve specific objections or a Notice of Non-Objection within sixty days of service of the petition. This time limit is contrary to Section 29-3A-4(B), which provides for a thirty-day response time for filing objections to a petition seeking expungement of records upon release without conviction. Rule 1-077.1(G) controls because the Supreme Court can modify a procedural provision in a statute by adopting a contrary rule. Lovelace Med. Ctr. v. Mendez, 1991-NMSC-002, ¶ 15, 111 N.M. 336, 805 P.2d 603 (“[L]egislative rules relating to pleading, practice and procedure in the courts, particularly where those rules relate to court management or housekeeping functions, may be modified by a subsequent rule promulgated by the Supreme Court.); see also id. ¶ 10 (“[T]here are good reasons for construing [statutory time limits] simply as the legislative adoption of a housekeeping rule to assist the courts with the management of their cases, [which] have effect unless and until waived by a court in a particular case or modified by a rule of this Court on the same subject.”).

Rule 1-077.1(J)

Rule 1-077.1(J) provides that if no objections are filed, the district court may decide a petition for expungement of records upon identity theft, § 29-3A-3, or for expungement of records upon release without conviction, § 29-3A-4, without a hearing. This conflicts with Section 29-3A-3(B), which provides that the district court shall issue an order “after a hearing” on a petition for expungement of records upon identity theft and with Section 29-3A-4(E), which provides likewise in the context of a petition for expungement of records upon release without conviction. Rule 1-077.1(J) controls because the Supreme Court can modify a procedural provision in a statute by adopting a contrary rule. Lovelace Med. Ctr., 1991-NMSC-002, ¶ 15 (“[L]egislative rules relating to pleading, practice and procedure in the courts, particularly where those rules relate to court management or housekeeping functions, may be modified by a subsequent rule promulgated by the Supreme Court.).

Rule 1-077.1(K)

Rule 1-077.1(K) provides that the district court shall issue an order within sixty (60) days of an expungement hearing. This time limit is contrary to Section 29-3A-4(E) and Section 29-3A-5(C), which require the district court to issue an order within thirty (30) days of certain expungement hearings. For the reasons stated above in the committee commentary to Rule 1-077.1(G), the time limits in Rule 1-077.1(K) control.

2025 Amendment

Rule 1-077.1(B) was amended to remove former Subparagraph (B)(4), which provided for an action to be filed in district court for automatic expungement of cannabis arrest and public records under Section 29-3A-8. Rule 1-077.1(D) was amended to remove reference to former Form 4-954 NMRA (automatic expungement of arrest records and public records). Rule 1-077.1(J) was amended to remove reference to a petition filed under Section 29-3A-8. These amendments reflect the changes enacted by H.B. 314, 56th Leg., 1st Sess. (N.M. 2023), which amended Section 29-3A-8 of the Criminal Record Expungement Act to provide for a procedure implemented by the Administrative Office of the Courts to verify whether automatic expungement has occurred and request expedited automatic expungement if eligible charges, convictions, or any public records held by a court or agency of the state or a local jurisdiction that relate to the person’s arrest or conviction have not yet been expunged.

[Provisionally adopted by Supreme Court Order No. 21-8300-033; provisionally adopted committee commentary approved as amended by Supreme Court Order No. S-1-RCR-2024-00099.]