Peremptory Excusal of Judges in New Mexico: Substantive Right, Procedural Right, Both, or Does it Matter?
AuthorClingman, Gary Linn
AdvisorRichardson, James T.
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The New Mexico Supreme Court recently announced its opinion in <italic>Quality Automotive Center, LLC v. Arrieta,<italic> 2013-NMSC-041. The case involved the peremptory challenge to excuse a judge found at § 38-3-9, NMSA 1978. The Supreme Court announced that the right embodied in the statute was procedural in nature and therefore the Court could amend or abolish the right. The Court then proposed new rules of procedure which limited a litigant's ability to exercise § 38-3-9. This article traces the history of judicial disqualification statutes in New Mexico from territorial days through early statehood to the present as well as the evolution of judicial rule-making as a function of the legislative branch and the judicial branch of government. This article argues that the legislature and judiciary reached a compromise on the peremptory excusal of judges in 1985 that the judiciary now seeks to withdraw from. This article questions the need for the modification of the status quo and finds that the proposed new rules will unnecessarily create new problems while inadequately dealing with the problems the Court perceives to exist. Finally this article argues that the legislature does have a role to play in judicial rule-making. The Supreme Court should address its concerns about § 38-3-9 along with its recommended solution to the legislature and allow the legislature to remedy the problem or alternatively recognize that § 38-3-9 contains a substantive right to excuse a judge along with the procedural aspects which the Supreme Court now seeks to amend.i