NM Supreme Court proposes changes to rule governing peremptory excusal of judges

As a follow-up to its decision in Quality Automotive Center, LLC v. Arrieta, which I discussed earlier in this post, the New Mexico Supreme Court yesterday issued proposed changes to New Mexico Rule of Civil Procedure 1-088.1, which governs the exercise of peremptory excusal of district court judges.

Normally, when a Supreme Court opinion states that it believes a rule amendment is necessary, the appropriate rules committee is given the task of drafting those amendments and proposing them to the Supreme Court.  The fact that the Court took the unusual step of proposing its own rule amendments is a signal that the Court believes the problems associated with peremptory excusals are serious and must be fixed as soon as possible.

The amendments would change the rule in several significant ways:

  • Each “side” of a case would be entitled to excuse one, and only one, judge. 
  • Although Quality Automotive Center holds that parties on one side of a case may exercise more than one peremptory excusal if they have sufficient diversity of interest, the new rule says nothing about this, and so presumably parties on one side of a case will have only one peremptory excusal even if their interests diverge.
  • If a party on one side of a case attends a hearing or asks the judge to perform a discretionary act, then no other party on that side of a case may excuse the judge.
  • No peremptory excusal may be filed by any “original party” or a “later-added party” “after the case has been at issue before the judge sought to be excused for more than ninety (90) days.”
  • If it “appears” that an “attorney or group of attorneys” is abusing the peremptory excusal process, then the chief judge of the judicial district “shall” inform the Chief Justice, who may take action to address the abuse, including “issuance of an order providing that an attorney, or any party the attorney represents, may not file peremptory excusals for a specified period fo time or until further order of the Chief Justice.” 
  • Any objections to the validity of a peremptory excusal will be heard by the “challenged judge.”

You can submit comments to the Supreme Court on these proposed changes. Any comments are due by Friday, September 27, 2013. Keep in mind that any comments you submit will be made publicly available. 

I think the Court would be especially interested in hearing about any ways in which the amendments might be abused, because that is what the Court is trying to prevent. So, for example, as a defense lawyer, I wonder about the 90-day provision.  Could a plaintiff’s lawyer file a complaint, and then delay service for over 90 days so that the defendants would be unable to file an excusal?

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