Judicial Disqualification Resource Center

New Mexico

Peremptory Challenge & Excusal in New Mexico

Photo by Larry Lamsa

Photo by Larry Lamsa

Since 1851 New Mexico law has provided for the peremptory disqualification of the district judge before whom a proceeding is pending; which, in New Mexico, is referred to as “excusal” of the challenged judge. The current incarnation of New Mexico’s excusal statute, N.M. Stat. Ann. §38-3-9, provides that a party may disqualify a judge by filing an affidavit alleging a belief that such judge cannot impartially preside. The procedure for a filing a peremptory excusal (peremptory challenge) of a district court judge is governed by NMRA Rule 1 088.1.

Since 1851 New Mexican law has provided a mechanism for peremptorily disqualifying a district judge; which, in New Mexico, is referred to as “excusal” of the judge. See Chapter 27. In addition, disqualification for cause in New Mexico may be predicated on a violation of Article VI, §18 of the New Mexico Constitution, which mandates recusal in any case in which the judge has an interest or is related to one of the parties. Disqualification motions may also be based on New Mexico’s Code of Judicial Conduct, Rule 21-4003 of which indicates, in pertinent part, that a New Mexico judge should recuse whenever her impartiality might reasonably be questioned, including when she has a personal bias concerning a party.

References:

To review the New Mexico rule on “excusal” of judges, rule 7-106, click here.  To review the New Mexico Code of Judicial Conduct (section 21-400 is the disqualification provision) click here

1. For a New Mexico certificate of recusal form click here https://nmsupremecourt.nmcourts.gov/legal-forms/pdfs/Muni/9-102b.pdf. For a notice of recusal form click here

2. To review New Mexico Code of Judicial Conduct Advisory Opinions, some of which involve questions about when a New Mexico judge should recuse, click here

3. For an overview of recusal and disqualification law in New Mexico which is updated annually see Flamm, R., Judicial Disqualification: Recusal and Disqualification of Judges, §§ 27.12 and 28.33. See also Los Chavez Cmty. Ass’n v. Valencia County, Docket Nos. 30,458 and 30,459 (consolidated), COURT OF APPEALS OF NEW MEXICO, 2012-NMCA-044, 277 P.3d 475 (N.M. App. 2012), citing Judicial Disqualification: Recusal and Disqualification of Judges § 1.4, at 7 (2d ed. 2007). To locate libraries in New Mexico that have the current edition of Judicial Disqualification click here