New Mexico Supreme Court establishes new standard for peremptory excusals of judges

After spending the first four years of my legal career in Philadelphia, I returned to New Mexico in 2004. While I expected that New Mexico practice would differ from Pennsylvania’s, by far the biggest surprise was that each party to a civil lawsuit in state court has a right to peremptorily excuse one assigned judge from hearing a case.

This means that if you represent a plaintiff, and Judge Jones is assigned to hear the case, but you don’t like Judge Jones or think he won’t be fair, then you simply file an excusal (within certain time limits), and your case is assigned to Judge Smith. You don’t have to state any reasons at all. If the defendant doesn’t like Judge Smith, then she can file an excusal within 10 days, and the case is then assigned to the next judge, and so forth.

In most states, the notion of excusing the assigned judge for no reason would be inconceivable. And the practice has its critics here. Excusals of judges can lead to delays in resolving cases. Where numerous parties are involved, they sometimes excuse all of the judges in a judicial district, in which case the Chief Justice has to assign a judge from a neighboring district to the case. The right to excusal also has its staunch defenders in both the plaintiffs’ and defense bars, who believe that the right helps to ensure that their clients receive a fair hearing.

But just how long this anomalous practice will endure is open to question, especially in light of the New Mexico Supreme Court’s recent decision in Quality Automotive Center, LLC v. Arrieta. Peremptory excusals are governed by Rule of Civil Procedure 1-088.1, and Justice Barbara Vigil’s opinion declares that “[t]he current rule impedes the effective and efficient administration of justice by causing unnecessary delays in the timely resolution of cases, particularly in multi-party litigation,” and concludes that the rule must be amended.

Quality Automotive Center is a wrongful death lawsuit. The plaintiff sued “Quality Tire & Service,” which was represented by two Las Cruces defense attorneys. After some motion practice on discovery matters, and after defense counsel pointed out that Quality Tire & Service no longer existed, the plaintiff amended the complaint, naming the individual owners and several other business entities owned by them. The same defense counsel entered an appearance for the newly-named individuals and entities, and filed a peremptory excusal on behalf of one of the new entities, Quality Automotive Center, LLC.

The trial judge questioned whether the new peremptory excusal was proper, because defense counsel had already asked him to exercise his discretion with regard to discovery matters, and once a party does so, it cannot file a peremptory excusal. Defense counsel responded that Quality Automotive Center, LLC was a separate entity, and the fact that defense counsel had already asked the trial judge to exercise his discretion on behalf of another defendant in no way prevented Quality Automotive Center, LLC from filing a peremptory excusal. The trial judge ruled that the peremptory excusal was invalid, and Quality Automotive Center sought a writ of mandamus from the Supreme Court.

I think most New Mexico lawyers, believed that each party to a lawsuit has a right to exercise a separate peremptory challenge to a judge, and therefore would have expected Quality Automotive Center to prevail. I certainly did.

But the Supreme Court did not agree with this view. Comparing the peremptory excusal of a judge to that of a juror, the Supreme Court has now held that a party’s right to file an excusal depends on whether it “has a sufficient diversity of interest” from the other parties on its side of the “v.” “so as to be entitled to exercise a separate peremptory challenge of the district judge.” The factors to be considered in determining whether one party has a “sufficient diversity of interest” are “1) whether the parties employed the same attorneys; 2) whether separate answers were filed; 3) whether the parties’ interests were antagonistic; and 4) in a negligence claim, whether different independent acts of negligence are alleged in a suit governed by comparative negligence.” 

I think there are two takeaways from this case:

First, if one party on your side of a lawsuit has already excused Judge Jones, and you are a lawyer considering whether to excuse the subsequently-assigned Judge Smith, you must carefully consider whether your client has a sufficiently diverse interest to justify filing a separate excusal, keeping in mind that Judge Smith will decide whether your attempt to excuse her is proper or not.  I foresee a certain degree of . . .  awkwardness in such proceedings.

Second, the Supreme Court has also stated that Rule 1-088.1 must be amended, but without saying exactly how. If you have strong feelings about peremptory excusals of judges, keep an eye on the Bar Bulletin, where any proposed amendments will be published, and be prepared to submit your comments to the Court.

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