Peremptory Excusal of Judges in New Mexico: Substantive Right, Procedural Right, Both, or Does it Matter?
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Authors
Clingman, Gary L.
Issue Date
2014
Type
Thesis
Language
Keywords
Excusal of Judges , Judge Disqualification , Peremptory Challenges of Judges
Alternative Title
Abstract
The New Mexico Supreme Court recently announced its opinion in Quality
Automotive Center, LLC v. Arrieta, 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.
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In Copyright(All Rights Reserved)