In an earlier post, I discussed the New Mexico Supreme Court’s proposed amendments to the rule governing the peremptory excusal of judges. The Court invited comments from the bar, and the period for submitting comments closed on September 27.
You can read the comments here. As expected, the proposed amendments have attracted a great deal of interest. While some members of the bar are in favor of the proposal, many more have expressed concerns, with a preponderance of criticism coming from civil and criminal defense lawyers (my own firm submitted comments too).
Concerns about the proposed amendments generally focus on several themes:
1. The proposal would treat all parties on one side of the “v.” as a single side entitled to only one excusal, regardless of whether their interests are in conflict with one another.
2. The Court is concerned about abuses of the present rule, but the proposed rule would open other avenues for abuse. As just one example, the new rule prevents parties from excusing a judge after he or she has presided over a case for more than 90 days. A plaintiff could sue several defendants, and wait 91 days to serve them, thus preventing any of the defendants from filing an excusal.
3. The new rule does not address third-party practice at all, so it is unclear how it would apply to such cases.
4. Several commenters express concern that the proposed limits on peremptory excusals will lead to an increase in motions for recusal, with all of the unpleasantness and consumption of time that such motions entail.
5. Other commenters, including a district judge, argue that if certain judges are routinely excused from cases, that is not the result of an abuse of the rule, but rather indicates that some judges are simply not fair or qualified.
In the appellate courts, where most of my work occurs, there is no peremptory excusal rule, so I don’t have a great deal of experience in how the rule works in practice. But it does appear that the commenters have expressed valid concerns about the proposed amendments, and in light of those concerns, any changes to the rule should be made slowly.
Do you have any thoughts about the proposed amendments? If so, please feel free to leave a comment.
