N.M. Const. art. IV, § 34
No act of the legislature shall affect the right or remedy of either party, or change the rules of evidence or procedure, in any pending case.
Application to rule changes. — Article IV, Section 34 does not apply to rule changes implemented by the Supreme Court in the absence of some affirmative act by the supreme court to the contrary. Former opinions of the supreme court that state that Article IV, Section 34 does apply to court rules are not viable and should not be cited for that proposition. State v. Martinez, 2011-NMSC-010, 149 N.M. 370, 249 P.3d 82.
This section limits ability of legislature to enact legislation that affects pending litigation. State v. Stanford, 2004-NMCA-071, 136 N.M. 14, 94 P.3d 14.
This section applies to legislative action that changes a substantive right or remedy. State v. Stanford, 2004-NMCA-071, 136 N.M. 14, 94 P.3d 14.
This section expressly applies to either party in a pending case. State v. Stanford, 2004-NMCA-071, 136 N.M. 14, 94 P.3d 14.
Applicability of section to acts of regulatory agencies. — Although this section speaks only of acts of the legislature, it also applies to regulatory agencies created by the legislature. The legislature cannot circumvent the constitutional prohibition by delegating the task to an agency. Pineda v. Grande Drilling Corp., 1991-NMCA-004, 111 N.M. 536, 807 P.2d 234.
Applicability of section to administrative agencies. — This section applies to administrative agencies, such as the workers' compensation division. Pineda v. Grande Drilling Corp., 1991-NMCA-004, 111 N.M. 536, 807 P.2d 234.
Constitutional amendment not "act of legislature". — The 1996 amendment of N.M. Const., art. XI, was not an "act of the legislature" within the meaning of this section. U.S. West Communications, Inc. v. New Mexico Pub. Regulation Comm'n, 1999-NMSC-024, 127 N.M. 375, 981 P.2d 789.
Effective date as determining factor. — Notice of enactment of a law is irrelevant under this section. The effective date is the determining factor. Pineda v. Grande Drilling Corp., 1991-NMCA-004, 111 N.M. 536, 807 P.2d 234.
Statute prior to amendment applies to pending case. — Where a case is pending when an amended statute is enacted, the old statute applies to the case. U.S. Life Title Ins. Co. v. Romero, 1982-NMCA-068, 98 N.M. 699, 652 P.2d 249, cert. quashed, 98 N.M. 762, 652 P.2d 1213.
This section applies to "any pending case" and makes no reference to "parties" in the case. Starko, Inc. v. Cimarron Health Plan, Inc., 2005-NMCA-040, 137 N.M. 310, 110 P.3d 526, cert. denied, 2005-NMCERT-004, 137 N.M. 454, 112 P.3d 1111.
"Pending case" refers to suit pending on some court docket and does not include a suit filed after the statute became effective on a cause of action arising prior to the statute. Gray v. Armijo, 1962-NMSC-082, 70 N.M. 245, 372 P.2d 821; DiMatteo v. County of Dona Ana ex rel. Bd. of Cnty. Comm'rs, 1989-NMCA-108, 109 N.M. 374, 785 P.2d 285.
Case "pending" while under district court's control. — Judgments of the district court remain under control of the court for a period of 30 days, during which period a case remains a "pending case". Marquez v. Wylie, 1967-NMSC-245, 78 N.M. 544, 434 P.2d 69.
Divorce decree with custody provisions not a "pending case". — Although trial court had continuing jurisdiction to modify divorce decree containing child custody provisions under the provisions of 40-4-7 NMSA 1978, that decree was considered final and not within the meaning of a "pending case" under this section; therefore, 28-6-1 NMSA 1978 (making the age of majority 18), which by its operation freed divorced father from making support payments to daughter who had reached age of 18, was not unconstitutional hereunder. Phelps v. Phelps, 1973-NMSC-044, 85 N.M. 62, 509 P.2d 254.
Cause filed after dismissal of original as new case. — Second cause, filed within six months after dismissal of first, under 37-1-14 NMSA 1978, was a new case for all purposes, except for purposes of lowering the bar of the statute of limitations and having been filed almost two years after the effective date of the long-arm statute, 38-1-16 NMSA 1978, its provisions were available; this section had no application, there having been no change of procedure after the case was filed. Benally v. Pigman, 1967-NMSC-148, 78 N.M. 189, 429 P.2d 648.
Effect of removal of case to federal court. — Case removed to federal court and later remanded was "pending" notwithstanding fact that the jurisdiction of the state court was suspended while the case was before federal court. Elephant Butte Irrigation Dist. v. Regents of N.M. State Univ., 1993-NMCA-009, 115 N.M. 229, 849 P.2d 372, cert. denied, 115 N.M. 359, 851 P.2d 481.
Case not pending. — Although under the law as it formerly stood a state officer's salary was exempt from garnishment, application of Laws 1917, ch. 18, removing this exemption, did not violate this section, as final judgment in the case in question had been obtained long prior to enactment of the 1917 law. Stockard v. Hamilton, 1919-NMSC-018, 25 N.M. 240, 180 P. 294.
Where a worker was injured and the employer began paying temporary disability benefits before Payment and Benefits Rule II(A)(3)(b) was promulgated, but the worker's compensation complaint was not filed until long after the rule became effective, and the claim was not placed on any court's docket until after the complaint was filed, the case was not pending, and the rule was constitutionally applied to the claim. Cass v. Timberman Corp., 1990-NMCA-061, 110 N.M. 158, 793 P.2d 288, rev'd, 1990-NMSC-112, 111 N.M. 184, 803 P.2d 669.
The fact that a worker's compensation judgment remains subject to modification during the entire period for which benefits were awarded, does not mean that a workers' compensation case is a "pending case" within the meaning of this constitutional provision. Church's Fried Chicken No. 1040 v. Hanson, 1992-NMCA-115, 114 N.M. 730, 845 P.2d 824, cert. denied, 114 N.M. 577, 844 P.2d 827 (1993).
Since the defendant in an action by a bank charged the bank with violations of usury and disclosure laws that were repealed more than a year before the conduct complained of took place, even though the repeal occurred after the bank filed its action, the repealed provisions did not apply after the final judgment was filed and the case was not pending. Century Bank v. Hymans, 1995-NMCA-095, 120 N.M. 684, 905 P.2d 722, cert. denied, 120 N.M. 533, 903 P.2d 844.
Developer could not avoid a lawful vote by board of commissioners on a moratorium on subdivisions by filing a declaratory judgment action, so as to achieve "pending case" status under this section one month after the proposal of the moratorium but one-half hour prior to the vote. Santa Fe Trail Ranch II, Inc. v. Board of Cnty. Comm'rs, 1998-NMCA-099, 125 N.M. 360, 961 P.2d 785.
Final district court orders following appeals of decisions of administrative agencies were entered after the effective dates of 39-3-1.1 NMSA 1978 and Rule 12-505 NMRA. Therefore, cases before the court of appeals for review were not "pending" cases within the meaning of this section. Hyden v. New Mexico Human Servs. Dep't, 2000-NMCA-002, 128 N.M. 423, 993 P.2d 740.
Where defendant did not appeal his judgment of conviction and sentence, defendant’s criminal liability was not pending for the purpose of this section, as there had been a judgment of conviction and an exhaustion of his right to appeal his conviction, not only by virtue of his plea of guilty but also by the passage of the deadline to appeal. State v. Druktenis, 2004-NMCA-032, 135 N.M. 223, 86 P.3d 1050.
The Energy Transition Act does not affect rights in a pending case. — Where the public regulation commission (Commission) gave leave for the public service company of New Mexico (PNM) to issue energy transition bonds of up to $361,000,000 in connection with the abandonment of its interests in the San Juan generating station units one and four and to collect separate and non-bypassable energy transition charges from its customers in repayment of the bonds, pursuant to the Energy Transition Act (ETA), §§ 62-18-1 through 62-18-23 NMSA 1978, and where appellants, two organizations that represent energy consumers, claimed that the ETA violates this section because it affects the rights of energy consumers in a pending case, appellants' constitutional challenge is without merit, because the enactment of the ETA does not interfere with a pending case with respect to the San Juan generating station because abandonment proceedings can only begin with a public utility's voluntary request for abandonment, and appellants have not shown that PNM voluntarily initiated abandonment proceedings before the ETA's effective date. Citizens for Fair Rates & the Env't v. NMPRC, 2022-NMSC-010.
This constitutional provision applies to court rules. State v. DeBaca, 90 N.M. 806, 568 P.2d 1252 (Ct. App. 1977).
Rules adopted by the supreme court are not effective to change the procedure in any pending case. State v. Gallegos, 1977-NMCA-113, 91 N.M. 107, 570 P.2d 938.
This section should be considered applicable to rules of court as well as statutes. Marquez v. Wylie, 1967-NMSC-245, 78 N.M. 544, 434 P.2d 69.
Supreme court orders as to the use of criminal jury instructions are not to be used, and are not intended to be used, to deprive defendants of a duress defense ex post facto. State v. Norush, 1982-NMCA-034, 97 N.M. 660, 642 P.2d 1119, cert. denied, 98 N.M. 50, 644 P.2d 1039.
Applicability to land use cases. — For this section to apply to a land use decision by a regulatory body, the landowner must show initial approval of the proposed use and that the landowner substantially changed his position in reliance thereon. Santa Fe Trail Ranch II, Inc. v. Board of Cnty. Comm'rs, 1998-NMCA-099, 125 N.M. 360, 961 P.2d 785.
Application to divert water. — This section does not bar the court from considering cases subsequent to their initial filing of an application to divert water in 1982. Herrington v. Office of State Eng'r, 2004-NMCA-062, 135 N.M. 585, 92 P.3d 31, rev’d, 2006-NMSC-014, 139 N.MN. 368, 133 P.3d 258.
Retroactive application of change of credit for time served would be unconstitutional. — Where, in 2004, defendant pleaded guilty to a fourth degree aggravated DWI; in 2007, defendant was arrested for another DWI in violation of the 2004 probation conditions; in 2004, 66-8-102 NMSA 1978 gave defendant full credit for time served on probation; and in 2007, the statute gave defendant no credit for time served on probation, the 2007 no-credit statutory amendment did not apply to defendant’s probation revocation for the 2004 offense, because the retroactive application of the 2007 no-credit version of 66-8-102 NMSA 1978 to defendant for the 2004 offense would increase the punishment allowable for the 2004 offense which would violate the ex post facto clauses of the United States and New Mexico constitutions. State v. Ordunez, 2012-NMSC-024, 283 P.3d 282, rev'g 2010-NMCA-095, 148 N.M. 620, 241 P.3d 621.
Effect of repeal on sentencing. — The sentencing enhancement of 31-18-16.1 NMSA 1978, which was repealed prior to the defendant’s trial, applied to the defendant because the defendant’s criminal information, which charged him with a crime against the elderly, was pending when the legislature repealed that section. State v. Lucero, 2007-NMSC-041, 142 N.M. 102, 163 P.3d 489, rev'g 2006-NMCA-114, 140 N.M. 327, 142 P.3d 915.
Habitual offender statute. — This section precludes the effect of the 2002 amendment to the habitual offender statute when a supplemental criminal information is filed before, and defendant is sentenced after, the July 1, 2002 effective date of the amendment. State v. Stanford, 2004-NMCA-071, 136 N.M. 14, 94 P.3d 14.
Because no habitual offender proceedings were pending at the time the 2002 amendment to 31-18-17 NMSA 1978 became effective and because any right or remedy the state may have to prosecute habitual offenders does not ripen until after the conviction, there is no constitutional prohibition to applying the 2002 amendment to cases in which the supplemental information charging status was not filed before July 1, 2002. State v. Shay, 2004-NMCA-077, 136 N.M. 8, 94 P.3d 8, cert. quashed, 2005-NMCERT-002, 137 N.M. 266, 110 P.3d 74.
City cannot, by enacting ordinance, affect or change result of pending action, based upon valid ordinances existing at the time of the action. State ex rel. Edwards v. City of Clovis, 1980-NMSC-039, 94 N.M. 136, 607 P.2d 1154.
Statute, authorizing racetrack licensees to exclude any person from its racetrack, enacted after case filed cannot be applied to pending case. — Where plaintiff, a racehorse owner and trainer, filed a complaint in 2013 against several private racetracks for excluding plaintiff from entering the racetracks and the races held at the racetracks, alleging that his rights as a licensee were violated, 60-1A-28.1 NMSA 1978, which was enacted in 2014 and gives racetrack licensees the power to exclude any person from its racetrack for any lawful reason, could not be applied to plaintiff’s pending case, because statutes are presumed to operate prospectively only and will not be given a retroactive effect unless such intention on the part of the legislature is clearly apparent. Carrillo v. My Way Holdings, LLC, 2017-NMCA-024.
Retroactive application of zoning ordinances. — The retroactive application of a new zoning ordinance to an administrative action in which the plaintiff only submitted an application for preliminary plat approval of its subdivision did not violate Article IV, Section 34 of the constitution of New Mexico because plaintiff did not establish a "vested right" under the vested rights approach. There are two prongs which must be met for a vested right to exist. First there must be approval by the regulatory body, and second, there must be a substantial change in position in reliance thereon. Brazos Land, Inc. v. Board of Cnty. Comm'rs, 1993-NMCA-013, 115 N.M. 168, 848 P.2d 1095.
No vested right to interest on illegally collected taxes. — Statutory requirement that the state pay interest on refunds of taxes judicially determined to have been illegally collected could not be said to create an obligation of the state to the taxpayer which gives rise to a vested right in the taxpayer within the meaning of the constitutional provision. Bradbury & Stamm Constr. Co. v. Bureau of Revenue, 1962-NMSC-078, 70 N.M. 226, 372 P.2d 808.
Change in interest rate affects the rights or remedies of the parties, even if these rights or remedies are purely statutory, and therefore the statutory rate of interest in effect when a claim became a pending case is applicable to that case even if the rate of interest is changed prior to judgment. Hillelson v. Republic Ins. Co., 1981-NMSC-048, 96 N.M. 36, 627 P.2d 878.
Administrator's compensation. — This section did not prohibit use of statute in effect at time of allowance of compensation to administrator, although it was different from statute in effect at commencement of estate proceeding. In re Hildebrand's Estate, 1953-NMSC-113, 57 N.M. 778, 264 P.2d 674.
Damages in partial condemnation. — The language of former 42-1-10 NMSA 1978, relating to measure of damages to remainder in partial condemnation, did not amount to changing the rule during the pendency of a case in violation of this section, as former 42-1-10 NMSA 1978 did not alter, amend or modify any other existing statutes, but merely codifies the correct and existing rule of measure of damages in cases of a partial taking, in harmony and compliance with the payment of just compensation for the taking of private property as required by N.M. Const., art. II, § 20. State ex rel. State Hwy. Comm'n v. Hesselden Inv. Co., 1972-NMSC-071, 84 N.M. 424, 504 P.2d 634, modified County of Dona Ana v. Bennett, 1994-NMSC-005, 116 N.M. 778, 867 P.2d 1160.
Change in mode of executing death penalty. — Statute (31-14-1 NMSA 1978 et seq.) substituting electrocution for hanging was not rendered violative of this section by fact that it was applicable to persons informed against before passage of the statute. Woo Dak San v. State, 1931-NMSC-056, 36 N.M. 53, 7 P.2d 940.
Effect of intervening validating law on illegal school district consolidation. — In proceeding seeking an order mandamus to members of state and district boards of education and state superintendent to dissolve consolidation of two school districts, a validating statute passed by the legislature in 1967, which became effective after the action was commenced, could in no way alter rights as they existed when the action was commenced. State ex rel. Barela v. New Mexico State Bd. of Educ., 1969-NMSC-038, 80 N.M. 220, 453 P.2d 583.
Continued viability of statutory principle despite repeal. — The Tort Claims Act (41-4-1 NMSA 1978 et seq.) was an extension of previous statutes that recognized a limited waiver of sovereign immunity. Accordingly, a claimant's remedy under former Section 5-6-20, 1953 Comp., to redress her 1974 injury due to the alleged negligence of a state agency did not abate upon the repeal of that statute in 1975, nor upon the enactment of the Tort Claim Act in 1976. Her claim was, thus, not barred under common-law sovereign immunity, but rather retained its vitality pursuant to former 5-6-20, 1953 Comp. Romero v. New Mexico Health & Env't Dep't, 1988-NMSC-073, 107 N.M. 516, 760 P.2d 1282.
The Victim Counselor Confidentiality Act is consistent with the psychotherapist privilege in Rule 11-504 NMRA and does not conflict with this section. Albuquerque Rape Crisis Center v. Blackmer, 2005-NMSC-032, 138 N.M. 398, 120 P.3d 820.
Sex Offender Registration and Notification Act does not violate this section. State v. Druktenis, 2004-NMCA-032, 135 N.M. 223, 86 P.3d 1050.
Where a constitutionally permissible retroactive application of Sex Offender Registration and Notification Act requirements to defendant made him subject to a probation violation if he knowingly failed to register and if he were found to have committed a felony by failing to register, this does not constitute a legislative act that changes rules of evidence or procedure in a pending case. Therefore, the legislative changes are too indirect, remote, and attenuated to be considered unconstitutional under this section. State v. Druktenis, 2004-NMCA-032, 135 N.M. 223, 86 P.3d 1050.
Class certification. — Where Rule 1-023(F) NMRA providing for appeal of grant or denial of class certification became effective after original suit was filed, but before appealing defendants became parties, appeal under Rule 1-023(F) NMRA was not available because the action was pending when the rule became effective. Starko, Inc. v. Cimarron Health Plan, Inc., 2005-NMCA-040, 137 N.M. 310, 110 P.3d 526, cert. denied, 2005-NMCERT-004, 137 N.M. 454, 112 P.3d 1111.
Changes affecting procedure for trial and appeal. — This section applied to legislative changes, during the six years between defendant's original charge and his conviction, to the procedure for the trial and appeal of DWI cases from metropolitan court. State v. Maynes, 2001-NMCA-022, 130 N.M. 452, 25 P.3d 902, cert. denied, 130 N.M. 213, 22 P.3d 681.
Evidence of seat belt non-use barred. — The purpose of this constitutional provision is to prevent legislative interference with adjudication of pending cases, and where 66-7-373(A) NMSA 1978 was in effect for nearly two decades prior to plaintiff’s cause of action, this constitutional provision was not violated. Rodriguez v. Williams, 2015-NMCA-074, cert. denied, 2015-NMCERT-006.
Enactment of "seat belt defense". — It was not error to exclude evidence of the plaintiff's failure to use seat belts because the defendant had no right or remedy with regard to seat belts prior to the adoption of 66-7-373 NMSA 1978, and application of the section did not violate this section of the constitution. Mott v. Sun Country Garden Prods., Inc., 1995-NMCA-066, 120 N.M. 261, 901 P.2d 192, cert. denied, 120 N.M. 68, 898 P.2d 120.
Prima facie evidence provision. — Laws 1921, ch. 133, § 455 (since repealed), declaring tax deed to be prima facie evidence of its own validity, could not be applied to cause of action pending at time of its passage. Hudson v. Phillips, 1923-NMSC-069, 29 N.M. 101, 218 P. 787.
Disqualification of judge. — Laws 1933, ch. 184 (38-3-10 NMSA 1978), relating to disqualification of judges, did not violate this section as applied to a case pending when the statutes became effective. State ex rel. Hannah v. Armijo, 1933-NMSC-087, 38 N.M. 73, 28 P.2d 511.
Designation of motion day. — Designation of a certain day each month on which to hear motions with directions to clerk to notify attorneys and litigants, in place of former custom of hearing motions on notice by attorneys or order of court at irregular periods, was not such change in procedure as prescribed herein. Heron v. Gaylor, 1948-NMSC-072, 53 N.M. 44, 201 P.2d 366.
Dismissal for lack of prosecution. — Laws 1965, ch. 132, purporting to amend Rule 41(e), N.M.R. Civ. P. (see now Rule 1-041 E NMRA), so as to extend from two to three years the period of inaction required for dismissal of suit, was a procedural statute and the changes therein incorporated could not be constitutionally applied in a pending case. Sitta v. Zinn, 1966-NMSC-239, 77 N.M. 146, 420 P.2d 131; Southwest Underwriters v. Montoya, 1969-NMSC-027, 80 N.M. 107, 452 P.2d 176, holding that the 1965 act was void as infringing on the court's duties.
Laws 1937, ch. 121 (superseded by Rule 1-041 E NMRA), which provided for dismissal of suit with prejudice for failure to prosecute for two years, was void as to an action pending when the statute took effect. Pankey v. Hot Springs Nat'l Bank, 1939-NMSC-064, 44 N.M. 59, 97 P.2d 391; State ex rel. Western Acceptance Corp. v. Moise, 1939-NMSC-063, 44 N.M. 6, 96 P.2d 704; City of Roswell v. Holmes, 1939-NMSC-062, 44 N.M. 1, 96 P.2d 701.
Preservation of error. — Because of this section, Laws 1927, ch. 93, § 11, repealing Laws 1917, ch. 43, § 37, dispensing with necessity for formal exceptions in cases tried by the court without a jury, could not be effective in a case instituted five days before the former act took effect. Bays v. Albuquerque Nat'l Bank, 1929-NMSC-026, 34 N.M. 20, 275 P. 769.
Time for objections. — Trial court rule requiring objection to instructions to be made prior to retirement of jury was not applicable to prosecution pending at time of rule's adoption. State v. Hall, 1935-NMSC-097, 40 N.M. 128, 55 P.2d 740.
Computation of time. — Rule change adding Saturdays, Sundays and legal holidays as period not to be included in the running of time was a change in procedure, effect of which in the case in question was to extend the time for filing of new trial motion from 10 to 12 days, and could not be applied to a pending case. Marquez v. Wylie, 1967-NMSC-245, 78 N.M. 544, 434 P.2d 69.
Change in appeal procedure after filing of complaint. — Court of appeals lacked jurisdiction where teacher's original complaint was filed in 1963 but appeal from decision of the state board of education after hearing in 1969 was taken in accordance with provisions of statute that became effective in 1967, as this section provides that no legislative act shall affect the rights of any party in a pending case. Brown v. Board of Educ., 1970-NMCA-046, 81 N.M. 460, 468 P.2d 431.
Appeal in special proceedings. — Section 39-3-7 NMSA 1978, authorizing appeals from judgments of the district court in special statutory proceedings, did not apply to pending case relating to sale of property forfeited for taxes for less than the amount due thereon, since proceedings at institution of case were special and no valid provision had been made for an appeal. In re Sevilleta De La Joya Grant, 1937-NMSC-024, 41 N.M. 305, 68 P.2d 160.
Issue to be raised at trial. — Where appellant was substituted as a defendant in the manner provided by Laws 1931, ch. 156, but did not question the constitutionality of the procedure at trial, he could not raise this objection on appeal on grounds that the act had not gone into effect until after the complaint was filed. In re Sevilleta De La Joya Grant, 1937-NMSC-024, 41 N.M. 305, 68 P.2d 160; Shaffer v. McCulloh, 1934-NMSC-012, 38 N.M. 179, 29 P.2d 486.
Language in this section may not be considered implied grant of legislative authority to enact rules in circumstances other than those expressly forbidden; the constitution itself forbids exercise of such power. Southwest Underwriters v. Montoya, 1969-NMSC-027, 80 N.M. 107, 452 P.2d 176.
Withdrawal of six-month trial rule. — Article IV, Section 34 does not apply to the retroactive withdrawal of the six-month rule from Rule 5-604 NMRA. State v. Romero, 2011-NMSC-013, 150 N.M. 80, 257 P.3d 900.
Parole and probation of juveniles. — 1969 amendments to former Juvenile Act constituting legislative removal of the power of the juvenile courts to parole or release juveniles committed to New Mexico boys' school or girls' home were not contrary to the provisions of this section, because no "right" of the juvenile has been affected. 1970 Op. Att'y Gen. No. 70-57.
Law reviews. — For article, "Separation of Powers and the Judicial Rule-Making Power in New Mexico: The Need for Prudential Restraints," see 15 N.M. L. Rev. 407 (1985).
For article, "Reflections on Fifteen Years of the Teague v. Lane Retroactivity Paradigm: A Study of the Persistence, the Pervasiveness, and the Perversity of the Court's Doctrine," see 35 N.M. L. Rev. 161 (2005).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 73 Am. Jur. 2d Statutes § 347 et seq.
Divorce: retrospective effect of statute prescribing grounds of divorce, 23 A.L.R.3d 626.
82 C.J.S. Statutes § 422.