N.M. Const. art. VI, § 15
A. Any district judge may hold district court in any county at the request of the judge of such district.
B. Whenever the public business may require, the chief justice of the supreme court shall designate any district judge of the state, or any justice of the supreme court when no district judge may be available within a reasonable time, to hold court in any district, and two or more judges may sit in any district or county separately at the same time.
C. If any district judge is disqualified from hearing any cause or is unable to expeditiously dispose of any cause in the district, the chief justice of the supreme court may designate any retired New Mexico district judge, court of appeals judge or supreme court justice, with said designees' consent, to hear and determine the cause and to act as district judge pro tempore for such cause.
D. If any judge shall be disqualified from hearing any cause in the district, the parties to such cause, or their attorneys of record, may select some member of the bar to hear and determine said cause, and act as judge pro tempore therein. (As amended November 8, 1938 and November 7, 1978.)
The 1978 amendment, which was proposed by S.J.R. No. 4 (Laws 1977) and adopted at the general election held on November 7, 1978, by a vote of 103,611 for and 87,969 against, designated the former first paragraph of this section as the present Subsection A, designated the first sentence of the former second paragraph of this section as present Subsection B, designated the second sentence of the former second paragraph of this section as present Subsection D, and added the present Subsection C.
The 1938 amendment, which was proposed by H.J.R. No. 26 (Laws 1937) and adopted at the general election held on November 8, 1938, by a vote of 44,503 for and 18,601 against, amended this section to allow the designation of a justice of the supreme court to hold court in a district where no district judge will be available within a reasonable time.
Cross references. — For disqualification of judges in certain cases, except with consent of parties, see N.M. Const., art. VI, § 18.
For filing of affidavit of disqualification, see 38-3-10 NMSA 1978.
For disqualification of judge in proceedings where his impartiality might be questioned, see Rule 21-400 NMRA.
Comparable provisions. — Idaho Const., art. V, § 12.
Montana Const., art. VII, § 6.
Utah Const., art. VIII, § 4.
Judge holding court at request of district judge. — A district judge may hold court outside his district, otherwise than by designation from the chief justice, only after being requested to do so by the judge of the district in which he is to hold court. State ex rel. Sedillo v. Anderson, 1949-NMSC-055, 53 N.M. 441, 210 P.2d 626.
A district judge may, by request of another district judge, made orally and without a formal order entered of record, hold court in the district of the latter, under this section. Former Supreme Court Rule 11, § 2, effective March 1, 1928, required a formal order and was to be followed. Massengill v. City of Clovis, 1928-NMSC-024, 33 N.M. 318, 267 P. 70.
Powers of nonresident judge sitting at request of resident judge. — When a resident judge requests judge from another judicial district to act for him, the visiting judge has jurisdiction to hear all matters requiring action during the period of his designation whether they were pending in the court at time request was made or were filed at a later date. State v. Reed, 1951-NMSC-021, 55 N.M. 231, 230 P.2d 966, cert. denied, 342 U.S. 932, 72 S. Ct. 374, 96 L. Ed. 694 (1952).
Nonresident judge who sits at request of a resident judge is vested with all the latter's powers, including that of holding preliminary hearings. State v. Encinias, 1949-NMSC-044, 53 N.M. 343, 208 P.2d 155.
Rendering default judgment. — Any district judge, generally requested by resident judge to attend to judicial business of latter's district, may render default judgment at any place within the state. Hoffman v. White, 1932-NMSC-046, 36 N.M. 250, 13 P.2d 553.
Signing bill of exceptions. — A district judge, sitting in a county outside of his district for and at the request of the resident judge, may settle and sign a bill of exceptions presented to him. State v. Stewart, 1927-NMSC-021, 32 N.M. 242, 255 P. 393.
A resident district judge may designate a judge of another district, holding court in the district of the former, to sign and seal a bill of exceptions. First State Bank v. McNew, 1927-NMSC-017, 32 N.M. 225, 252 P. 997.
Record of request. — A recital in the record by one district judge that he is sitting at request of regular judge of the court, under this section, is sufficient evidence to show jurisdiction to act, although better practice would be to have record show fact of such request by the regular presiding judge. State v. Kile, 1923-NMSC-068, 29 N.M. 55, 218 P. 347.
Chief justice has power to designate any district judge to hold court in any district whenever, for any reason, the public business may require, or by reason of disqualification of the district judge. State ex rel. Holloman v. Leib, 1912-NMSC-031, 17 N.M. 270, 125 P. 601; Vigil v. Reese, 1981-NMSC-112, 96 N.M. 728, 634 P.2d 1280.
Although procedure under 38-3-9 NMSA 1978 for certification as to party's failure to agree upon a judge was not followed, it was proper under this section for the chief justice to designate a district judge having proper jurisdiction to try the case after defendant had disqualified all the judges of the district; thus there was no violation of defendant's right to due process when the designated judge overruled his motion to dismiss for lack of jurisdiction. Lohbeck v. Lohbeck, 1961-NMSC-146, 69 N.M. 203, 365 P.2d 445.
Term "disqualified" encompasses voluntary recusal. Gerety v. Demers, 1978-NMSC-097, 92 N.M. 396, 589 P.2d 180, rev'g 1978-NMCA-019, 92 N.M. 749, 595 P.2d 387.
Designation as ministerial task. — In designating a judge pro tempore, the chief justice does not perform a judicial act and does not act as a court, but performs a ministerial task committed to him by the constitution. State ex rel. Sedillo v. Anderson, 1949-NMSC-055, 53 N.M. 441, 210 P.2d 626.
Designation is mandatory. — Whenever the public business demands, it becomes the mandatory duty of the chief justice to designate a district judge to hold court in any district of the state which so requires it and in event no such judge appears available within a reasonable time he may designate a supreme court justice. State ex rel. Sedillo v. Anderson, 1949-NMSC-055, 53 N.M. 441, 210 P.2d 626.
Designation may be exercised anywhere in state. — Since designation of judges is not a judicial act, the power of designation may be exercised by the chief justice anywhere in the state, and when he is absent from Santa Fe, the seat of the court, this power does not pass automatically to the next justice in order of seniority. State ex rel. Sedillo v. Anderson, 1949-NMSC-055, 53 N.M. 441, 210 P.2d 626.
Designation of judge to sign bill of exceptions. — If judge of district court in which a case was tried is unable to settle and sign a bill of exceptions, chief justice may designate another district judge to perform this official act. Schaefer v. Whitson, 1925-NMSC-051, 31 N.M. 96, 241 P. 31.
Facts requiring designation must be determined by chief justice, and in doing so he may rely on facts presented to him by a district judge, though he is not confined to obtaining his information in that manner. State ex rel. Sedillo v. Anderson, 1949-NMSC-055, 53 N.M. 441, 210 P.2d 626.
It was appropriate to appoint a district judge pro tempore on the basis that the presiding judge was unable to meet the demands of his criminal docket. State v. Madsen, 2000-NMCA-050, 129 N.M. 251, 5 P.3d 573, cert. denied, 129 N.M. 249, 4 P.3d 1240.
Jurisdiction of designated judge exclusive. — Where chief justice has designated a district judge other than the regular presiding judge of any given district to preside over the trial of any given cause, his jurisdiction of said cause is exclusive, and continues until the cause is disposed of or until his designation is rescinded. State v. Towndrow, 1919-NMSC-008, 25 N.M. 203, 180 P. 282.
Powers of designated judge. — Designation by chief justice of a district judge to hold court in another district whenever the public business shall require vests designated judge with the same power as that possessed by regular presiding judge of the district. The designated judge is substituted for the regular presiding judge and for every purpose becomes the presiding judge, and may, when designated for that purpose, sign and settle a bill of exceptions. Ravany v. Equitable Life Assurance Soc'y of United States, 1920-NMSC-024, 26 N.M. 41, 188 P. 1106.
Special master appointed by children's court pursuant to the authority granted by rule is not a judge pro tempore appointed in violation of this section because the special master's report to the children's court is only a recommendation and the children's court retains the final decision-making authority. State v. Jason F., 1998-NMSC-010, 125 N.M. 111, 957 P.2d 1145.
Agreement of parties on judge pro tempore. — When a judge has been disqualified upon an affidavit of prejudice under Laws 1933, ch. 184 (38-3-10 NMSA 1978) the parties may agree upon a member of the bar to act as judge pro tempore. Moruzzi v. Federal Life & Cas. Co., 1938-NMSC-002, 42 N.M. 35, 75 P.2d 320, 115 A.L.R. 407.
District judge's act of orally removing himself from a case substantially complied with this section, and the substitute agreed upon by the parties had authority to preside in the case. Doe v. State, 1977-NMSC-075, 91 N.M. 51, 570 P.2d 589, rev'g 1977-NMCA-085, 91 N.M. 57, 570 P.2d 595.
It is the public policy of this state, as evidenced by its constitution and laws, that regularly elected or appointed district judges shall preside over its district courts unless, because of disqualification of trial judge, the parties to a suit agree that a member of the bar may try a particular case as judge pro tempore. No other means is provided for the trial of causes in the district courts of this state. State ex rel. Tittmann v. McGhee, 1937-NMSC-006, 41 N.M. 103, 64 P.2d 825.
No litigant is entitled to have any particular judge try case for him. State ex rel. Armijo v. Lujan, 1941-NMSC-009, 45 N.M. 103, 111 P.2d 541.
Workers' compensation judge pro tem. — While this section does not provide authority for the pro tem appointment of administrative law judges, neither does it bar such appointment by appropriate officials outside the judiciary; thus, the director of the workers' compensation administration has authority to appoint a workers' compensation judge pro tem. Carrillo v. Compusys, Inc., 1997-NMCA-003, 122 N.M. 720, 930 P.2d 1172, cert. denied, 122 N.M. 589, 929 P.2d 981.
Jurisdiction of non-resident judge. — A judge holding court in one county at the request of the judge of the district would not have jurisdiction to adjudicate matters in another county in the district. 1912 Op. Att'y Gen. No. 12-873.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 46 Am. Jur. 2d Judges §§ 25, 86 et seq., 248 et seq.
Number of changes of judge, statute limiting, 104 A.L.R. 1494.
Power of judge pro tempore or special judge, after expiration of period for which he was appointed, to entertain motion or assume further jurisdiction in case previously tried before him, 134 A.L.R. 1129.
Place of holding sessions of trial court as affecting validity of its proceedings, 18 A.L.R.3d 572.
Power of successor or substituted judge, in civil case, to render decision or enter judgment on testimony heard by predecessor, 84 A.L.R.5th 399.
48A C.J.S. Judges §§ 71, 73, 74, 98 to 185.