Rule 1-088.1.Peremptory excusal of a district judge; recusal; procedure for exercising

[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 by Supreme Court Order No. 20-8300-020, effective for all cases pending or filed on or after December 31, 2020.]