Motion to Recuse Judge in New Mexico

Background

“The constitutional right to a fair and impartial tribunal is the fundamental policy consideration underlying Rule 1–088.1 and is the backbone of our judicial system.” (Quality Auto. Ctr., LLC v. Arrieta (2013) 309 P.3d 80, 86-87.)

“Article VI, Section 18 of the New Mexico Constitution provides:

‘No justice, judge or magistrate of any court shall, except by consent of all parties, sit in any cause in which either of the parties are related to him by affinity or consanguinity within the degree of first cousin, or in which he was counsel, or in the trial of which he presided in any inferior court, or in which he has an interest.’” (Quality Auto. Ctr., LLC v. Arrieta (2013) 309 P.3d 80, 86-87.)

“Article VI, Section 18 is indeed a further constitutional recognition of one's right to a fair and impartial tribunal and does guarantee that right....”

(Id., citing State ex rel. Gesswein v. Galvan, 1984–NMSC–025, ¶ 7, 100 N.M. 769.)

General Information for Complaints and Motions

Rule 1-088.1(D) governs the recusal of a judge:

“After the filing of a timely and correct exercise of a peremptory challenge, that district judge shall proceed no further. No district judge shall sit in any action in which the judge's impartiality may reasonably be questioned under the provisions of the Constitution of New Mexico or the Code of Judicial Conduct, and the judge shall file a recusal in any such action. Upon receipt of notification of recusal from a district judge, the clerk of the court shall give written notice to each party.”

(Cook v. Anding (2008) 144 N.M. 400, 404-05 citing Rule 1-088.1(D).)

“This rule references New Mexico Constitution Article VI, Section 18 and Rule 21-400 NMRA (2004) of the Code of Judicial Conduct, both of which provide guidance as to when a judge should disqualify himself or herself from presiding over a case. These rules provide remedies for the recusal and disqualification of judges....” (Id.)

Standard of Review and Burdens of Proof

“Recusal should be used only for the most compelling reasons.” Nelson v. Fitzgerald, 403 P.2d 677 (Alaska 1965). “A judge ‘has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified.’” (Gerety v. Demers (1978) 92 N.M. 396, 400 citing Laird v. Tatum (1972) 409 U.S. 824, 837.)

The Court’s Decision

“Due process requires a ‘neutral and detached judge in the first instance.’”(Los Chavez Cmty. Ass'n v. Valencia Cnty. (2012) 277 P.3d 475, 483 quoting Ward v. Vill. of Monroeville (1972) 409 U.S. 57, 62.)

“The ‘requirement of impartiality applies not only to judicial officers but also to private persons who serve as adjudicators.’” (Los Chavez Cmty. Ass'n v. Valencia Cnty. (2012) 277 P.3d 475, 483 quoting Rissler v. Jefferson Cnty. Bd. of Zoning Appeals (2010) 225 W.Va. 346.)

“These principles are equally applicable to administrative proceedings.” (Los Chavez Cmty. Ass'n v. Valencia Cnty. (2012) 277 P.3d 475, 483 quoting Schweiker v. McClure (1982) 456 U.S. 188, 195 [stating that “due process demands impartiality on the part of those who function in judicial or quasi-judicial capacities”].)