New Mexico Statutes
Article 3 - Venue; Change of Judge
Section 38-3-9 - Peremptory challenge to a district judge.

A party to an action or proceeding, civil or criminal, including proceedings for indirect criminal contempt arising out of oral or written publications, except actions or proceedings for constructive and other indirect contempt or direct contempt shall have the right to exercise a peremptory challenge to the district judge before whom the action or proceeding is to be tried and heard, whether he be the resident district judge or a district judge designated by the resident district judge, except by consent of the parties or their counsel. After the exercise of a peremptory challenge, that district judge shall proceed no further. Each party to an action or proceeding may excuse only one district judge pursuant to the provisions of this statute. In all actions brought under the Workmen's Compensation Act (52-1-1 to 52-1-69 NMSA 1978) [Workers' Compensation Act (Chapter 52, Article 1 NMSA 1978)], the employer and the insurance carrier of the employer shall be treated as one party when exercising a peremptory challenge to the judge under this statute. The rights created by this section are in addition to any arising under Article 6 of the constitution of New Mexico.
History: 1978 Comp., § 38-3-9, enacted by Laws 1985, ch. 91, § 1.
Repeals and reenactments. — Laws 1985, ch. 91, § 1 repealed former 38-3-9 NMSA 1978, as amended by Laws 1977, ch. 228, § 1, and enacted a new section.
Cross references. — For motion for change of venue upon ground of interest or relationship with party of judge, see 38-3-3 NMSA 1978.
For disqualification of judges, see N.M. Const., art. VI, § 18.
For disqualification of probate judges, see 34-7-9 NMSA 1978.
Authority to review timeliness and correctness of a peremptory challenge. — A district court judge has the authority to decide whether a peremptory challenge filed against the judge is both timely and correct. The authority of the district judge necessarily entails an examination of whether the party seeking to exercise the peremptory challenge is entitled to do so at the time the challenge is made and whether the party has a sufficient diversity of interest from that of other parties to entitle the party to exercise an independent right of excusal without cause. Quality Automotive Ctr. LLC v. Arrieta, 2013-NMSC-041.
Where respondents' original complaint for wrongful death named Quality Tire & Service as defendant; counsel for Quality Tire & Service filed a motion to dismiss on the grounds that Quality Tire & Service did not exist because the owners had sold the business prior to the accident to Oscar Chavez, who operated a business known as "Quality Automotive Center", and who formed "Quality Automotive Center, LLC" after plaintiffs filed the complaint; the motion to dismiss contained defense counsel's representation of the original owners and Oscar Chavez; plaintiffs filed an amended complaint that named Oscar Chaves and Quality Automotive Center, LLC as defendants; defense counsel entered an appearance on behalf of defendants and filed a notice of peremptory excusal and a motion to dismiss on behalf of Quality Automotive Center, LLC; and the motion to dismiss indicated that Oscar Chavez was the sole organizer and manager of Quality Automotive Center, LLC, the district court had authority to review the peremptory excusal and to determine whether Quality Automotive Center, LLC and Oscar Chaves had a sufficient diversity of interest to entitle Quality Automotive Center, LLC to exercise a separate peremptory challenge. Quality Automotive Ctr. LLC v. Arrieta, 2013-NMSC-041.
Constitutionality of section. — This section does not violate any of the following articles and sections of the constitution: N.M. const., art. II, § 18; art. III; art. IV, § 34; art. VI, § 18. State ex rel. Hannah v. Armijo, 1933-NMSC-087, 38 N.M. 73, 28 P.2d 511.
Section provides a procedural method of disqualification, therefore the supreme court can modify it by rule. State ex rel. Gesswein v. Galvan, 1984-NMSC-025, 100 N.M. 769, 676 P.2d 1334.
Section not exclusive disqualification method. — The right of disqualification provided by this section is not the exclusive method of disqualification. United Nuclear Corp. v. Gen. Atomic Co., 1980-NMSC-094, 96 N.M. 155, 629 P.2d 231, appeal dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981).
This section does not apply in direct contempt cases. State v. Pothier, 1986-NMSC-039, 104 N.M. 363, 721 P.2d 1294.
Section clearly gives to "a party" - that is to each party - the right to disqualify the judge before whom the action or proceeding is to be tried and heard. Romero v. Felter, 1972-NMSC-032, 83 N.M. 736, 497 P.2d 738.
The state is a "party" to a criminal case and entitled to file an affidavit of disqualification of a district judge. State ex rel. Tittman v. Hay, 1936-NMSC-049, 40 N.M. 370, 60 P.2d 353.
One who had petitioned to intervene was not a party to an action within the meaning of this section, where order allowing intervention had not been made. State ex rel. Lebeck v. Chavez, 1941-NMSC-016, 45 N.M. 161, 113 P.2d 179.
Intervenor. — While a wife of property owner was permitted to intervene in condemnation proceeding, she was not a party in the sense of one entitled to disqualify a trial judge, regardless of whether she must by statute be brought into the suit as a party. Harms v. Coors, 1946-NMSC-008, 50 N.M. 12, 167 P.2d 353.
Where claim is prosecuted under Workmen's [Workers'] Compensation Act, the action taken is a "proceeding" within the terms of this section. State ex rel. Pac. Emp'rs Ins. Co. v. Arledge, 1950-NMSC-039, 54 N.M. 267, 221 P.2d 562.
Section exclusive method for disqualification of judge by party. — This section only addresses itself to the issue of a party disqualifying a judge and it appears to be the exclusive method by which a party may disqualify the presiding judge. Doe v. State, 1977-NMSC-075, 91 N.M. 51, 570 P.2d 589.
Section authorizes the disqualification of only one judge by a party. Beall v. Reidy, 1969-NMSC-092, 80 N.M. 444, 457 P.2d 376.
Disqualified judge is the one before whom the case is to be tried. Gray v. Sanchez, 1974-NMSC-011, 86 N.M. 146, 520 P.2d 1091; Beall v. Reidy, 1969-NMSC-092, 80 N.M. 444, 457 P.2d 376.
Peremptory challenge in second case where first indictment dismissed nolle prosequi. — Defendant's peremptory challenge was timely since the defendant filed it within ten days after a second indictment was brought against him subsequent to the dismissal of the first indictment based on nolle prosequi. The defendant's right to disqualify the judge attached upon the filing of the second indictment because nolle prosequi ended the prior criminal proceeding. State v. Ware, 1993-NMCA-041, 115 N.M. 339, 850 P.2d 1042, cert. denied, 115 N.M. 228, 849 P.2d 371.
Disqualification barred after party invokes court's discretion. — A judge may not be statutorily disqualified under this section after a party has invoked the discretion of the court. Smith v. Martinez, 1981-NMSC-066, 96 N.M. 440, 631 P.2d 1308; State v. Mantelli, 2002-NMCA-033, 131 N.M. 692, 42 P.3d 272, cert. denied, 131 N.M. 737, 42 P.3d 842.
The determinative issue is whether a party has invoked the judicial discretion of the court; if so, that party may not excuse the judge. JMB Retail Properties Co. v. Eastburn, 1992-NMSC-045, 114 N.M. 115, 835 P.2d 831.
Test for determining if discretion involved. — The rule that a judge may not be peremptorily challenged after a party has invoked the discretion of the court depends, not upon whether the court in fact exercised discretion, but upon whether the response of the court was subject to discretion. JMB Retail Properties Co. v. Eastburn, 1992-NMSC-045, 114 N.M. 115, 835 P.2d 831.
What constitutes discretionary act. — An extension of time to answer or otherwise plead is a discretionary act, even if in response to the agreed motion or stipulation of the parties, and, therefore, disqualification of a judge who had granted such a motion was not allowed. JMB Retail Properties Co. v. Eastburn, 1992-NMSC-045, 114 N.M. 115, 835 P.2d 831.
Section applicable to juvenile court judges. Frazier v. Stanley, 1972-NMSC-028, 83 N.M. 719, 497 P.2d 230; Smith v. Martinez, 1981-NMSC-066, 96 N.M. 440, 631 P.2d 1308.
Section not applicable to small claims court judges. Stein v. Speer, 1973-NMSC-070, 85 N.M. 418, 512 P.2d 1254.
Section not applicable to probate judges. Estate of Tarlton, 1972-NMSC-060, 84 N.M. 95, 500 P.2d 180.
Language of section is absolute and mandatory. — No discretion is vested in the judge against whom the affidavit is filed as to his disqualification, if the application is timely made. State ex rel. Hannah v. Armijo, 1933-NMSC-087, 38 N.M. 73, 28 P.2d 511.
Disqualification privilege limited to resident judges or appointees. — The disqualification privilege of this section is limited to resident judges or those appointed by resident judges. Vigil v. Reese, 1981-NMSC-112, 96 N.M. 728, 634 P.2d 1280.
Disqualification affidavit to trial judge. — An affidavit of disqualification must be directed only to the judge before whom the case is to be tried on the merits. Demers v. Gerety, 1978-NMCA-019, 92 N.M. 749, 595 P.2d 387, aff'd in part, rev'd on other grounds, 1978-NMSC-097, 92 N.M. 396, 589 P.2d 180.
Judge removing himself from case. — When a judge believes he will not be able to remain impartial, he should use his discretion and remove himself from the case in order to avoid any hint of impropriety. Gerety v. Demers, 1978-NMSC-097, 92 N.M. 396, 589 P.2d 180.
Parties have no statutory right to disqualify judge designated by the chief justice. State v. Ericksen, 1980-NMCA-029, 94 N.M. 128, 607 P.2d 666; Vigil v. Reese, 1981-NMSC-112, 96 N.M. 728, 634 P.2d 1280.
Designated replacement judge subject to disqualification. — If the resident judge for any reason is unable to be present to try and hear the case, or decides not to try and hear the case, and another judge is designated, the judge designated is subject to disqualification. Martinez v. Carmona, 1980-NMCA-139, 95 N.M. 545, 624 P.2d 54, cert. quashed, 95 N.M. 593, 624 P.2d 535 (1981).
Disqualification of presiding district judge is accomplished when affidavit provided for in this section is timely made. State ex rel. Weltmer v. Taylor, 1938-NMSC-035, 42 N.M. 405, 79 P.2d 937.
Affidavit of prejudice. — The filing of the affidavit of prejudice, after the case is at issue, in the manner and form prescribed by this section and 38-3-10 NMSA 1978, ipso facto divests the judge of all further jurisdiction in the case, and his subsequent proceedings are without jurisdiction and null and void. Rivera v. Hutchings, 1955-NMSC-049, 59 N.M. 337, 284 P.2d 222.
In an action for which a judge may be disqualified by the timely filing of statutory affidavit, the judge is ipso facto divested of all further jurisdiction in the case, and his subsequent proceedings are without jurisdiction and null and void. Norton v. Reese, 1966-NMSC-154, 76 N.M. 602, 417 P.2d 205.
Disqualification may be waived. — Where the judge is disqualified effective when the affidavit is filed, thereafter he has no jurisdiction to act in the case, but such disqualification may be waived. State v. Latham, 1972-NMCA-025, 83 N.M. 530, 494 P.2d 192.
Disqualification for prejudice may be waived, and it is waived by implication as well as by specific acts of the party having a right to rely thereupon. State ex rel. Lebeck v. Chavez, 1941-NMSC-016, 45 N.M. 161, 113 P.2d 179.
Disqualification of trial judge may be waived both expressly and by implication, and where defendant on trial for murder, after having filed affidavit of disqualification, appeared voluntarily asking the judge to accept a plea of guilty of second degree murder, the disqualification was waived. State v. Garcia, 1943-NMSC-040, 47 N.M. 319, 142 P.2d 552.
Where the judge, after striking the affidavit of disqualification, set the case for trial, defendant made no effort to prohibit the judge from trying the case, defendant appeared on set date and requested a continuance and this continuance was granted, the judge's prior disqualification was effectively waived. State v. Latham, 1972-NMCA-025, 83 N.M. 530, 494 P.2d 192.
After submitting to a judge the sufficiency of a petition for recount of votes, the question of the disqualification of the judge could not thereafter be raised. State ex rel. Gandert v. Armijo, 1936-NMSC-070, 41 N.M. 38, 63 P.2d 1037.
One seeking the disqualification of a judge in adoption proceedings who had invoked the ruling of the court on a controverted question was denied the right to have the cause further heard by another judge. Hill v. Patton, 1938-NMSC-068, 43 N.M. 21, 85 P.2d 75.
In condemnation proceedings, the submission of exceptions to the commissioner's report for a ruling thereon by district judge waived exceptor's statutory right to disqualify the district judge in that case. State ex rel. Weltmer v. Taylor, 1938-NMSC-035, 42 N.M. 405, 79 P.2d 937.
Disqualification resulting from the filing of an affidavit of prejudice was waived where affidavit was withdrawn. State ex rel. Lebeck v. Chavez, 1941-NMSC-016, 45 N.M. 161, 113 P.2d 179.
If a party requests ruling on a motion for change of venue, he thereby loses his right to disqualify the judge in view of this section. State v. Garcia, 1943-NMSC-040, 47 N.M. 319, 142 P.2d 552.
Judge may perform mere formal acts after disqualification. — The mere signing, by disqualified judge, of certificate compelling attendance of a witness was a formal act and did not invoke a question of jurisdiction. A judge may properly perform mere formal acts after his disqualification. State v. James, 1966-NMSC-110, 76 N.M. 376, 415 P.2d 350.
Preliminary matters heard by disqualified judge. — A judge has no jurisdiction to hear a petition for preliminary injunctive relief after having been disqualified. A proceeding for a preliminary injunction is not a "mere formal act" such as has been contemplated to fall within the "preliminary matter" language of Paragraph A of Rule 1.088.1. Borrego v. El Guique Community Ditch Ass'n, 1988-NMSC-081, 107 N.M. 594, 762 P.2d 256 (decided under pre-1988 version of Rule 1-088.1 NMRA).
Consolidation order after timely disqualification invalid. — Where affidavit of disqualification was timely filed, judge's subsequent consolidation order was without legal effect. Pueblo of Laguna v. Cillessen & Son, 1984-NMSC-060, 101 N.M. 341, 682 P.2d 197.
Right to disqualify a presiding district judge is based upon an assumed prejudice or bias on his part, and not upon his views regarding the law of the case. State ex rel. Weltmer v. Taylor, 1938-NMSC-035, 42 N.M. 405, 79 P.2d 937.
Where it was shown that compensation for one of plaintiff's attorneys, who was the son of the presiding judge, was on a contingent basis, the judge was disqualified. Tharp v. Massengill, 1933-NMSC-105, 38 N.M. 58, 28 P.2d 502.
Filing of provisional affidavit. — Though parties may not know before which of two or more eligible judges a case will come on for trial, the party seeking disqualification of one honestly believed by him to be biased could make a provisional affidavit, reciting the facts and adding "that if the judge before whom the case is to be tried or heard should be judge ______, then according to affiant's belief such judge cannot preside over the same with impartiality, etc." Notargiacomo v. Hickman, 1951-NMSC-069, 55 N.M. 465, 235 P.2d 531; see also Gray v. Sanchez, 1974-NMSC-011, 86 N.M. 146, 520 P.2d 1091.
Execution of affidavit. — The section is explicit; the affidavit must be executed by a party. It does not authorize an attorney to execute the affidavit as an attorney and such an affidavit will not be effective to disqualify a judge. Coca v. New Mexico Health & Social Servs. Dep't, 1976-NMCA-092, 89 N.M. 558, 555 P.2d 381, cert. denied, 90 N.M. 8, 558 P.2d 620.
A copy of the affidavit need not be served on opposing counsel nor must it be brought to the trial judge's attention after it is filed in the office of the clerk of the district court. Rivera v. Hutchings, 1955-NMSC-049, 59 N.M. 337, 284 P.2d 222 (decided under prior law, see now Rule 1-088 NMRA).
Selection of judge pro tempore. — When a judge has been disqualified upon an affidavit of prejudice, the parties may agree upon a member of the bar to act as judge pro tempore. Moruzzi v. Federal Life & Cas. Co., 1938-NMSC-002, 42 N.M. 35, 75 P.2d 320 (decided under prior law, see now Rule 1-088 NMRA).
Law reviews. — 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).
For note, "Determining When a Party Gives Up the Right to Disqualify a Judge by Invoking the Discretion of a Court: JMB Retail Properties Co. v. Eastburn," see 24 N.M.L. Rev. 399 (1994).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 46 Am. Jur. 2d Judges §§ 86 et seq., 98, 123, 137, 146, 149, 172, 175, 179.
Constitutionality of statute making mere filing an affidavit of bias or prejudice sufficient to disqualify judge, 5 A.L.R. 1275, 46 A.L.R. 1179.
Affidavit to disqualify judge as contempt, 29 A.L.R. 1273.
Residence or ownership of property in city or other political subdivision which is party to or interested in action as disqualifying judge, 33 A.L.R. 1322.
Right to change of judges on issues raised by petition for writ of error coram nobis, 161 A.L.R. 540.
Relationship of judge to one who is party in an official or representative capacity as disqualification, 10 A.L.R.2d 1307.
Mandamus as remedy to compel assertedly disqualified judge to recuse self or to certify his disqualification, 45 A.L.R.2d 937, 56 A.L.R. Fed. 494.
Relationship to attorney as disqualifying judge, 50 A.L.R.2d 143.
Public office: construction and effect or constitutional statutory provision disqualifying one for public office because of previous tenure of office, 59 A.L.R.2d 716.
Disqualification of judge in proceedings to punish contempt against or involving himself or court of which he is a member, 64 A.L.R.2d 600, 37 A.L.R.4th 1004.
Time for asserting disqualification, 73 A.L.R.2d 1238.
Intervener's right to disqualifying judge, 92 A.L.R.2d 1110.
Witness in the case, disqualification of judge on ground of being a witness, 22 A.L.R.3d 1198.
Bias against counsel for litigant, disqualification of judge for, 23 A.L.R.3d 1416.
Stock in corporation involved in litigation, disqualification of judge because of his or another's holding or owning, 25 A.L.R.3d 1331.
Bias or prejudice: disqualification of judge by state in criminal case for bias or prejudice, 68 A.L.R.3d 509.
Pecuniary interest in fine, penalty, or forfeiture imposed on defendant as disqualifying judge, 72 A.L.R.3d 375.
Membership in fraternal or social club or order affected by a case as ground for disqualification of judge, 75 A.L.R.3d 1021.
Adequacy of defense counsel's representation of criminal client regarding venue and recusation matters, 7 A.L.R.4th 942.
Disqualification of judge because of political association or relation to attorney in case, 65 A.L.R.4th 73.
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 for bias against counsel for litigant, 54 A.L.R.5th 575.
Power of successor or substituted judge, in civil case, to render decision or enter judgment on testimony heard by predecessor, 84 A.L.R.5th 399.
Prior representation or activity as prosecuting attorney as disqualifying judge from sitting or acting in criminal case, 85 A.L.R.5th 471.
Disqualification of judge for having decided different case against litigant - state cases, 85 A.L.R.5th 547.
Laws governing judicial recusal or disqualification in state proceeding as violating federal or state constitution, 91 A.L.R.5th 437.
48A C.J.S. Judges § 161 et seq.

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