*1 (2) “frоm transac foreign that the interest arose corporations income from is de- by the taxpayer clared as to the regular [taxpayer’s] income course of tions in the parent to the of domi- only allocable state (Wood, J.); business,” supra C. Champion, cile, York, the taxpayer Nеw since contends (3) “relationship of that there was that it non-business income. Sections ac [regular] income source to the business A, D, 7—4-2 1978. N.M.S.A. Tipperary, supra tivities the taxpayer,” (Lopez, J.); investing foreign or in that Sper-
The facts here are close to those corporations integral pаrt was “an ry Department & Hutchinson Co. of Rev- taxpayer,” enue, (Or.1974). regular operations 270 Or. or trade business Woolworth, Barlow, Sperry (S Like & Hutchinson & e an & Inc. v. New McV H) forty-eight Revenue, did business in states and Mexico Bureau of primary domiciled in New York. Its (App.1975). 524, 543 P.2d only Oregon and business in sale of a Accordingly, we and reverse decision trading stamp promotional to retail- service Department as it in- order of the insofar revenues, ers. its From S & H invested in gross-up cludes and dividend income those satisfy short-term securities held to its taxpayer’s in 1976-77 taxable in- amounts liquid capital stamp needs for in the busi- come. ness; short-term pending securities held ac- IT IS SO ORDERED. quisition companies of other or favorable development long-term money mar- HERNANDEZ, J., WOOD, J.,C. con- ket, long-term securities held as an cur. Oregon investment. The Supreme Court ruled, under statute virtually identical to A, only 7—4r-2 N.M.S.A. that cap-
short-term which provided investments
ital obligations needed to meet business during periods of cash flow consti- deficits ‘arising tuted “business income from trans- Mary MARTINEZ, Individually and as activity regular actions and in the course of Representative Johnny Personal Ber- * * taxpayer’s or trade business’ Martinez, Deceased, Jerry Vigil nard (527 731.) at Vigil, Individually and Juan and Next investments, said, were The other “not Jerry Vigil, minor, Friend Plain- Oregon apportionable to because neither tiffs-Appellants, capital invested nor the income derived part therefrom are a business state,” conducted and there was no Transito CARMONA and Eliu E. showing that the interest Romero, on those invest- Defendants-Appellees, Oregon ments was held use in its busi- ness. That is аlso state record Vigil, Vigil Ralph Diana Lillian presently before this court. There is no Vigil, Defendants, indication the income from Wool- long-standing worth’s investments used Department, Human Services Intervenor. taxpayer’s unitary either in ness, domestic busi- 4290. or in its business conducted Mexico, Champion, supra (Wood, J.); C. Court оf Appeals of New Mexico. Revenue, Sperry & Hutchinson Bureau of Sept. 30, 1980. supra. Nor was there evidence Rehearing Oct. Denied “[bjusiness investments were deals [or] performance specific of a in the function 9,1981. Quashed Writ Feb. normal, typical, customary or accustomed procedure policy or the taxpayer’s trade business,” (Sutin, J.); Champion, supra
OPINION SUTIN, Judge. quashing
After affidavit of *3 disqualification granted the District Court summary judgment defendants in motor vehicle collision We reverse.
Chronologically, following events oc- curred: 1, 1979,
(1) February plaintiffs’ On com- Taos plaint County. filed in two judges Joseph Caldwell resident were E. Wright. and John B. 15, 1979,
(2) plaintiff, On February Mary Martinez, filed a “Provisional Affidavit of Disqualification.” Paragraph reads: In the event Caldwell, Joseph the Honorable E. I do not believe John that Honorable B. Wright Angel, or the Honorable Joe Dis- Judges might designated trict who matter, hear this can over this matter with impartiality. 29, 1979,
(3) On March Judge Caldwell he voluntary filed in which re- presiding particiрat- cused himself from ing matter the case.
(4) April 2, On defendants moved provisional disquali- the Court strike by upon grounds plaintiffs fication procedure that to exist- contrary such ing law.
(5) 10, 1979, Wright On May quashed disqual- affidavit of ification. On May plaintiffs filed a Judge Wright
motion for pursuant VI, to Art. 18 of the New Mexi- Constitution, co or for recusаl. It was based the action of affidavit, with reference to the Court, prior the “interest” favor- recusal, of the Court toward able conduct disputes and numerous controversies and plaintiffs’ attorney. between Court and Morrison, Taos, Robert Dale plain- tiffs-appellants. August On this motion Romero, Taоs, Single-
Eliu E. summary judgment Pickard & denied and entered for ton, Fe, for defendants-appellees. Santa and Romero. defendants Carmona ** * an action Whenever I judge of Division and Union Counties. shall make and file
which included Colfax
*
* *
Division II
is to
the action
Caldwell
whom
An
County.
Taos
Order
heard,
which included
whether
be tried
suggestion оf the Su-
at the
was entered
by
judge designated
judge or
resident
**
was dis-
if either
preme Court that
cannot, accord-
the resident
himself
qualified or had recused
making the
ing to the belief
Upon Judge
step in.
the other
would
affidavit,
the action
preside over
recusal,
became
Caldwell’s
proceеd no
judge shall
impartiality,
case on the merits.
desig-
judge shall be
further. Another
cause,
either
for the trial of
nated
10, 1979,
May
was erro-
A. The Order of
*4
the re-
representing
agreement of counsel
neous.
coun-
upon failure of
spective parties, or
10, 1979,
quashed
court
the
May
On
the
disquali-
fact of the
agree,
to
then the
sel
disqualification.
affidavit
provisional
to
another
agree
failure
fication and
The court found:
jus-
to the chief
judge shall be certified
1.
Rule
That
this Court established
Mexico,
supreme court of
tice of the
Eighth Judicial District
in
No. 3 of the
the
justice
designate
shall
the chief
and
78-55,
County District Court
Taos
try the
district
to
judge of some other
designates the
Jo-
which rule
Honorable
[Emphasis
cause.
added.]
seph
judge
the
before whom
Caldwell as
was the resident
1,
Judge Caldwell
January
were
all cases filed after
1979
tried,
was to be tried
as well as all those
whom the case
to be sent and
long
they
date
Judge
filed after that
so
cases
recused himself.
and heard. He
1,
January
yet
not
at issue as of
were
try
to
hear the
designated
Wright was
1979.
pursuant
to a rule
by Judge
case
Caldwell
2. That
cause was filed on Febru-
Judge
disqualified
Plaintiff
of Court.
1979,
ary
the aforesaid
judge.
Judge
designated
as the
Wright
15, 1979,
February
filed on
prо
This
proceed no further.
Wright could
Judge
recused himself on March
Caldwell
language
the
cedure
in accordance
29, 1979.
to
We read this statute
of the statute.
Judge
3. That
was the
Caldwell
the
if
resident
mean
to be
before whom this case was
tried as
try
present
to be
to
reason is unable
provisions
Eighth
рer the
aforesaid
case,
try
not to
and hear
hear the
or decides
Judicial District Court Rule No. 3.
designated,
is
and another
Judge
never was dis-
That
Caldwell
disqualifi
is
judge designated
qualified
this cause.
cation.
was mistaken.
In Doe v.
Wright’s disqualification,
Upon
State,
51, 53,
(1977),
91 N.M.
“is
limitation
as to
may be filed if the case is at
such affidavit
B. The
was timely
affidavit
impending,”
issue
term of court
and a
filed.
[Emphasis
added.]
[Id.
703]
was a prop
timely filing,
to what
is a
that “[a]s
protecting
er method of
party’s
substan must
from the circumstances
be determined
Hickman,
right. Notargiacomo
tial
in each
case.”
P.2d
703.]
N.M.
disavowed on
rule of statutory
This
construction
grounds
other
in Beall v.
80 N.M.
Reidy,
appears
a cen
to have survived аlmost half
P.2d
But the rule in
applied to the
when
tury. As
instant
Notargiacomo remained in the
in New
law
filed,
not at
case was
Sanchez,
Mexico. See State v.
issue,
jury
the time for
a demand for
Gray
304 (Ct.App.1974);
P.2d
v. San
expired,
sought
trial had
and the
chez,
to the
was not
Baca,
State v.
supra,
fixes the
(Ct.App.1970). Notargiаcomo says:
time for
the affidavit after an event
* * *
apply
occurs.
It does not
to events before
True enough, parties may not know
*5
having
they
None of these events
occur.
which of
judges eligi-
two or more
occurred,
timely
affidavit was
filed.
ble
for
will come on
trial.
circumstances,
party seeking
In such
applica
did not challenge
Defendants
disqualification
honestly
of one
believed
v.
They rely
tion of
rule.
on
Talbot
160, 181
by
(1947).
provi- Taylor,
him
biased could
51
P.2d 159
make
N.M.
Talbot,
disqualification
affidavit,
“The affidavit of
sional
facts
reciting the
10,200 (the
case)
general probate
adding “that
if
before whom
prematurely filed due to the fact there
is to
the case
be tried or heard should be
adversary
pending.”
matter
then
no
according
Judge_,
then
to affi-
sup
181 P.2d
This case does not
159.]
belief
ant’s
such
cannot
* * port
position.
defendants’
impartiality,”
over the same with
etc.
good
ex rel. Simpson
rulе is
State
progress
of a
be tried
and fair in
case to
Plaintiff’s
of dis-
delays
It
postponements,
avoids
and heard.
qualification
timely
38-
filed. Section
of
filing
hour
of affidavits
and eleventh
3-10, N.M.S.A.1978 reads:
disqualification
dependent
upon which
The affidavit of
shall
occur-
event of three is the latest in time of
be
within
dаys
ten
after the cause is
im-
A
who files an affidavit
party
rence.
days
at issue or within ten
the time
after
a claim for
filed is
mediately after
relief is
for
a demand for
trial has
jury
guilty
who is
“of the recurrent
one
expired, or
after
days
within ten
constantly
which the statute
abuses to
judge sought
disqualified
be
is as-
being put to fоrestall
trial and otherwise
signed to the
whichever is
later.
delay.” Notargiacomo,
occasion
Id.
[Emphasis added.]
468,
cal cause. The ethical bases for preju- to bias and 3(C)(1) questioned with reference are forth in cation set Canon Conduct, attorney. concerning plaintiffs’ Code of Judicial Judi- dice New Mexico N.M.S.A.1978, which cial Volume reads considered courts which have Numerous part: pertinent prejudice held that bias or the issue have disqualify A should himself in a attorney raised an on each matter towards imрartiality in which his proceeding in the trial court is insufficient * * * might reasonably questioned Com’rs v. of School judge. Davis Board where: (5th F.2d 1044 Cir. County, of Mobile 517 (a) personal prejudice he has bias or Storms, 1975); 112 R.I. 311 State v. * * * concerning Butler, v. 4 Ariz. (1973); A.2d 567 Liston (1967); v. Shakin App. judicial adopted rule This is a Examiners, 254 Cal. Board of Medical Limited dis Court. Cal.Rptr. 274 App.2d an affidavit of a is not qualification, Inc., A.A.P., F.Supp. v. Fleischer required. or essential 10 N.J. (S.D.N.Y.1959); Waugh, Clawans places disqualification This Canon (1950); Dowell v. A.2d 519 Super. within the conscience (1947). Hall, Okl.Cr. within his discretion. United States If the (D.C.App.1976). is not absolute. Haldeman, This rule 559 F.2d attorney is an prejudice toward bias Voluntary disqualifica adversely affect degree as such a It tion are sensible search a fair trial. client, prejudice bias interest importance is a in the ad vital ex attorney is sufficient. State toward justice. adequately It ministration of Parks, 516, 194 141 Fla. So. rel. Davis v. Gerety, explored in both Demers (Ct.App.1978), and its revеrsal in Nevertheless, contrary to a decision *6 3(C)(1) a new rule on the Canon introduces only if appeal it is reviewable on voluntary disqualification. of judicial to abuse of sound dis an amounts Haldeman, supra. cretion. Demers, 400, 180], the P.2d [Id. court said: authority without to Judge Wright being
[E]xcept judge’s in those cases a where is reversed. act, summary judgment the impartiality might reasonably be ques- to the District case remanded The is tioned, judicial he must exercise his func- to certify to the with Court instructions tion. the Supreme Court Justice of the Chief 139, Haldeman, 360], says: note upon the agree to failure of counsel obligation uрon a to this is as much “[t]here
judge not to recuse himself when there is IT SOIS ORDERED. no occasion as there is for him to do so when there is.” ANDREWS, J.,' concurs. words, In other when a district LOPEZ, J., dissenting. impartiality might believes that his
reasonably questioned be with reference LOPEZ, (dissenting). prejudice concerning party,
bias and a The New Mexiсo respectfully dissent. I judicial not function. must exercise his right to party a the Legislature granted has whom he automatically a In the instant the record is evidence, his case with be believes cannot over free fact inference to an affi- proper filing the Wright’s impartiality, therefrom that im on drаwn reasonably questioned disqualification. partiality might davit Legisla- years, the concerning plaintiffs parties. Over the enlarged ture has time compliance the statutory time limit is 184, 2; affidavit. See N.M.Laws ch. impossible, § statutory this court renders the 123; N.M. Laws ch. N.M. Laws meaningless, time limit trespasses and so ch. amendment, Until province into the the legislature. In the possible for the statutory time limit for facts this should be expire parties before the provisional allowed to refuse to honor the knew which to the case. affidavit. refusing While require the trial court believe, however, judgment I judge to honor a late affidavit in situа this reversed, summary judg- should because tion, suggested granted If erroneously. ment there is protect by filing pro could himself a genuine a reasonable as to doubt whether disqualification. visional affidavit of No issue dispute, material fact is in summa- Hickman, targiacomo v. 55 N.M. ry judgment improper. is v. Goodman (1951). P.2d 531 In this and in subse аll Brock, 83 N.M. P.2d quent cases where use of provisional allege negligent Plaintiffs that Carmona’s affidavit was suggested, parties did not operation proximate' truck his was a know which hearing would be genuine cause accident. There is limit, case effect, before the time as then in as to speed traveling, issue he was for filing statutory affidavit of disqualifi question bears of whether he Sanchez, cation expired. Gray hád negligent circumstances sur- State rounding the alleged accident. it was Since Sanchez, (Ct.App. 86 N.M. that Romero employed Carmona and that 1974); Baca, State acting scope Carmоna was within the of his denied, 651 (Ct.App.), cert. accident, employment at time affidavit summary judgment should have been suggested only in those circumstances granted with respect to these two defend- impossible where it was for the file ants. of disqualification within the statutory period. Such circumstances were
not present in the at case bar. The 1977
amendment has obviated the need in such
circumstances for the
by enlarging the time limit for
statutory affidavit “within days ten af
ter the sought ” assigned to the case N.M. Laws *7 сh. codified as GALLEGOS, § Charles P. Plaintiff-Appellant, right a substantive right granted by legislature, not a court John CHASTAIN and Nuclear United Demers, Gerety made rule. Corporation, Defendants-Appellees. An affidavit of dis- qualification prematurely need not be 160,181 Talbot Taylor,
honored. Appeals New Mexico. The Martinez affidavit filed before 27, 1981. Jan. premature. and so was Such provisional affidavit should not be effective possible
when it would have been file a
timely By al- under the statute.
lowing parties to use affidavits
in any but extreme circumstances when