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. Continue reading →