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. (As amended November 8, 1966.)

ANNOTATIONS

The 1966 amendment, which was proposed by H.J.R. No. 34, § 2 (Laws 1965) and adopted at the general election held on November 8, 1966, with a vote of 81,055 for and 26,317 against, amended this section by substituting "justice, judge or magistrate of any court" for "judge of any court nor justice of the peace" and "are" for "shall be" preceding "related to him," and deleting "the trial of" preceding "any cause in which either of the parties."

Cross references. — For substitution of district court judge for absent or disqualified supreme court justice, see N.M. Const., art. VI, § 6.

For selection of district judge pro tempore by parties to cause in which district judge has been disqualified, see N.M. Const., art. VI, § 15.

For filing of affidavit of disqualification, see 38-3-10 NMSA 1978.

For designation of district judge where judge has been excused or recused, see Rules 1-088 and 5-105 NMRA.

For peremptory challenge to and excusal of district judge, see Rules 1-088.1 and 5-106 NMRA.

For excusal, recusal, or disability of magistrate, see Rules 2-106 and 6-106.

For excusal, recusal, or disability of metropolitan court judge, see Rules 3-106 and 7-106 NMRA.

For disqualification or recusal of municipal court judge, see Rule 8-106 NMRA.

For disqualification of judge in proceedings where his impartiality might be questioned, see Rule 21-400 NMRA.

Purpose of this section is to secure to litigants a fair and impartial trial by an impartial and unbiased tribunal. State ex rel. Bardacke v. Welsh, 1985-NMCA-028, 102 N.M. 592, 698 P.2d 462.

Code of Judicial Conduct expands instances of disqualification. — The Code of Judicial Conduct sets up an objective standard (now in Rule 21-400 NMRA) geared to the appearance of justice, and, thus, expands the instances in which a judge should disqualify himself beyond those set out in this section. State ex rel. Bardacke v. Welsh, 1985-NMCA-028, 102 N.M. 592, 698 P.2d 462.

State is "party" to criminal case and is entitled to file an affidavit of disqualification of a district judge. State ex rel. Tittmann v. Hay, 1936-NMSC-049, 40 N.M. 370, 60 P.2d 353.

"Interest". — "Interest" necessary to disqualify a judge must be a present pecuniary interest in the result, or actual bias or prejudice, and not some indirect, remote, speculative, theoretical or possible interest. State ex rel. Anaya v. Scarborough, 1966-NMSC-009, 75 N.M. 702, 410 P.2d 732.

The "interest" which would disqualify a justice of the peace (now magistrate courts) from sitting on a case, or constitute a denial of due process of law, must be more than the indirect possibility of his interest in the costs assessed against one convicted of a misdemeanor. State v. Gonzales, 1939-NMSC-053, 43 N.M. 498, 95 P.2d 673.

An "interest" necessary to disqualify a judge under this constitutional provision may be an actual bias or prejudice. United Nuclear Corp. v. General Atomic Co., 1980-NMSC-094, 96 N.M. 155, 629 P.2d 231, 26 A.L.R. 4th 705, appeal dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981).

Disqualifying bias must have extrajudicial source. — To be disqualifying, the alleged bias and prejudice must stem from an extrajudicial source, and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. United Nuclear Corp. v. General Atomic Co., 1980-NMSC-094, 96 N.M. 155, 629 P.2d 231, 26 A.L.R. 4th 705, appeal dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981).

To be disqualifying, the alleged bias and prejudice must stem from an extrajudicial source and must result in a decision on a personal bias, not on what the judge learned from sitting in the particular case. State ex rel. Bardacke v. Welsh, 1985-NMCA-028, 102 N.M. 592, 698 P.2d 462.

Disqualification of judge on constitutional grounds is a substantive right; and except by consent of all parties, a judge is disqualified to sit in the trial of a case if he comes within any of the grounds for disqualification named in the constitution. Beall v. Reidy, 1969-NMSC-092, 80 N.M. 444, 457 P.2d 376.

Prejudiced or biased judge would deprive party of due process of law. Beall v. Reidy, 1969-NMSC-092, 80 N.M. 444, 457 P.2d 376.

Appeal not adequate remedy. — Requiring petitioner to stand trial before biased or prejudiced judge and then, if convicted, attempt to gain reversal, does not conform to adequate remedy. State ex rel. Anaya v. Scarborough, 1966-NMSC-009, 75 N.M. 702, 410 P.2d 732.

Section does not contain absolute disqualification, but confers a right upon litigants which they might either exercise or waive by consent. Midwest Royalties, Inc. v. Simmons, 1956-NMSC-084, 61 N.M. 399, 301 P.2d 334.

Judge not disqualified in absence of action by party affected. — Where judge, before appointment, had been a member of a firm which had filed answers for several defendants in a quiet title action, and the plaintiff's attorney indicated that he would be disqualified, but no action was ever taken to disqualify the judge, the action of the judge in dismissing the action as to several defendants after a lapse of several years was not outside such judge's jurisdiction as the judge was not disqualified. Midwest Royalties, Inc. v. Simmons, 1956-NMSC-084, 61 N.M. 399, 301 P.2d 334.

Procedure for disqualification. — If a litigant chooses to avail himself of his constitutional right, then procedure requires that some motion, objection or other appropriate remedy be invoked calling the grounds of disqualification to the court's attention and demanding a ruling thereon. Midwest Royalties, Inc. v. Simmons, 1956-NMSC-084, 61 N.M. 399, 301 P.2d 334.

Affidavit of disqualification. — Laws 1933, ch. 184 (38-3-10 NMSA 1978), relating to the filing of an affidavit of disqualification, does not violate this provision. State ex rel. Hannah v. Armijo, 1933-NMSC-087, 38 N.M. 73, 28 P.2d 511.

Time for filing affidavit. — Trial court's refusal to honor disqualification affidavit filed two days before trial held proper. State v. Sanchez, 1954-NMSC-010, 58 N.M. 77, 265 P.2d 684.

Disqualifications named in this section may be waived by the parties, as may the disqualification for prejudice under Laws 1933, ch. 184 (38-3-10 NMSA 1978), either by implication or specific act of the party having a right to rely on the statute. State ex rel. Lebeck v. Chavez, 1941-NMSC-016, 45 N.M. 161, 113 P.2d 179.

This provision does not contain an absolute disqualification, but confers a right on a litigant which he may either exercise or waive by consent; in the instant case, defendant not only waived right to disqualify the sentencing judge (who had been the district attorney who prosecuted defendant in the original proceedings), but actually agreed that he should preside. State v. Miller, 1968-NMSC-103, 79 N.M. 392, 444 P.2d 577, cert. denied, 394 U.S. 1002, 89 S. Ct. 1597, 22 L. Ed. 2d 779 (1969).

The constitutional right to disqualify a judge may be waived. State v. Lucero, 1986-NMCA-085, 104 N.M. 587, 725 P.2d 266.

Presumption of bias. — A judge is presumptively partial or biased if he is related to any party to the proceeding, if he has served as counsel or presided as a judge in the trial of the cause in a lower court or if he has a pecuniary interest. State ex rel. Anaya v. Scarborough, 1966-NMSC-009, 75 N.M. 702, 410 P.2d 732; State ex rel. Hannah v. Armijo, 1933-NMSC-087, 38 N.M. 73, 28 P.2d 511.

Hostility. — A person charged with a crime should not be required to proceed to trial before a presiding judge who has openly expressed animosity or hostility. State ex rel. Anaya v. Scarborough, 1966-NMSC-009, 75 N.M. 702, 410 P.2d 732.

Participation in plea bargaining. — Defendant should not be required to face trial before a judge who has participated in any manner in efforts to get him to plead guilty. State ex rel. Anaya v. Scarborough, 1966-NMSC-009, 75 N.M. 702, 410 P.2d 732.

Relationship to attorney working for contingent fee. — An attorney for a cause on a contingent fee basis was interested pecuniarily in outcome of the case, and was a party to the extent that such interest disqualified his father from sitting as judge. Defendant did not waive such constitutional disqualification where neither he nor his attorney knew of other attorney's interest until after trial. Tharp v. Massengill, 1933-NMSC-105, 38 N.M. 58, 28 P.2d 502.

Judge's relatives having ties to victim and district attorney. — Recusal of the judge at a murder trial was not required where the judge's brother-in-law was the attorney representing the victim's family in a wrongful death action against defendant and the judge's son was employed as a law clerk by the district attorney. State v. Fero, 1987-NMSC-008, 105 N.M. 339, 732 P.2d 866.

Judge prohibited from trying case. — To require petitioner to go to trial for first degree murder before judge who held him in contempt at a hearing with no foundation or basis in law would be grossly improper; and under supreme court's power of superintending control, alternative writ of prohibition would be made permanent. State ex rel. Anaya v. Scarborough, 1966-NMSC-009, 75 N.M. 702, 410 P.2d 732.

Respondent judge was not disqualified for expressing opinion that state could make out a prima facie case of first-degree murder after reading preliminary hearing transcript in connection with motion by petitioner that he be admitted to bail. State ex rel. Anaya v. Scarborough, 1966-NMSC-009, 75 N.M. 702, 410 P.2d 732.

Newspaper articles insufficient to warrant disqualification. — The possible effect of newspaper articles which discuss the impact of a judgment for one party is the very type of indirect, remote, speculative, theoretical or possible interest which is not sufficient to warrant disqualification. United Nuclear Corp. v. General Atomic Co., 1980-NMSC-094, 96 N.M. 155, 629 P.2d 231, appeal dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981).

Refusal to disqualify proper where bias not established. — Where a movant has failed to meet its burden of establishing that the judge has a personal or extrajudicial bias or prejudice against it, the judge's refusal to disqualify himself is proper. United Nuclear Corp. v. General Atomic Co., 1980-NMSC-094, 96 N.M. 155, 629 P.2d 231, appeal dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981).

Municipal judge can be disqualified. — Police judge disqualified hereunder may not preside at trial absent consent of all parties thereto. State ex rel. Miera v. Chavez, 1962-NMSC-097, 70 N.M. 289, 373 P.2d 533.

Disqualification of small claims judge. — Former 34-8-7 NMSA 1978, relating to transfer of case to district court upon disqualification of small claims court judge, was a statutory declaration of this section; court's attention must be directed to a specific constitutional ground for disqualification. Stein v. Speer, 1973-NMSC-070, 85 N.M. 418, 512 P.2d 1254.

Application to quasi-judicial decision makers. — County commissioners are subject to the kinship-based disqualification of Article VI, Section 18 of the constitution of New Mexico when they sit in a quasi-judicial capacity. Los Chavez Cmty. Ass'n v. Valencia Cnty., 2012-NMCA-044, 277 P.3d 475.

Application to county commissioners in hearing zone change applications. — Where landowners applied to the county commission for a zone change; one of the county commissioners was a first cousin to one of the landowners and the county commissioner refused to recuse from voting on the application, the kinship-based disqualification in Article VI, Section 18 of the constitution of New Mexico applied to the county commissioner and the participation of the county commission in the adjudication of the zone change denied petitioners, who opposed the zone change, due process. Los Chavez Cmty. Ass'n v. Valencia Cnty., 2012-NMCA-044, 277 P.3d 475.

Sale of grant lands not void. — A district judge's approval of a sale of common lands of Tecolote land grant is not void, although the judge is disqualified as a relative of the purchaser. Kavanaugh v. Delgado, 1930-NMSC-066, 35 N.M. 141, 290 P. 798.

Conservancy District Act. — Laws 1927, ch. 45, § 201 (73-14-4 NMSA 1978), providing that a judge shall not be disqualified by reason of holding land benefited by a conservancy district, does not of itself make the act violative of this section. Gutierrez v. Middle Rio Grande Conservancy Dist., 1929-NMSC-071, 34 N.M. 346, 282 P. 1, 70 A.L.R. 1261, cert. denied, 280 U.S. 610, 50 S. Ct. 158, 74 L. Ed. 653 (1930).

Assistance of counsel. — Where defendant was aware that the judge who resentenced him had been prosecuting attorney at original proceedings, had been so informed by both the judge and his attorneys and had specifically consented to having the judge sit in the case, he could not claim in post-conviction proceedings that he was denied adequate assistance of counsel in the matter. State v. French, 1970-NMSC-159, 82 N.M. 209, 478 P.2d 537.

This provision is self-executing; the right to disqualify hereunder does not depend upon statutory enactment. 1970 Op. Att'y Gen. No. 70-100.

Disqualification on grounds named herein is apparently not automatic. 1970 Op. Att'y Gen. No. 70-100.

Time of filing affidavit. — To disqualify a judge, the affidavit of disqualification called for in 38-3-10 NMSA 1978 must be filed before the court has acted judicially upon a material issue; however, this might not be the case if the grounds for disqualification came to light during or after the hearing. 1975 Op. Att'y Gen. No. 75-28.

It would subvert the judicial and administrative process to allow disqualification of a judge or board member based on impartiality, if a person before a tribunal could file an affidavit of disqualification after the judge or board members had heard the case. 1975 Op. Att'y Gen. No. 75-28.

Municipal or police judge can be disqualified. 1959 Op. Att'y Gen. No. 59-207.

A municipal judge may be disqualified by any of the parties to a proceeding before him, if any of the grounds mentioned herein are present. 1970 Op. Att'y Gen. No. 70-100.

Municipal judge can be disqualified only under this section. — A municipal judge cannot be disqualified under a statute providing for the disqualification of other types of judges, and in absence of a statute providing specifically for disqualification of municipal judges, there can be no disqualification of such judges except by way of the constitution; however, certain duties have been made obligatory on all judges by supreme court's adoption of canons of ethics. 1970 Op. Att'y Gen. No. 70-100.

Law reviews. — For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M. L. Rev. 331 (1976).

For annual survey of New Mexico law relating to civil procedure, see 12 N.M. L. Rev. 97 (1982).

For annual survey of New Mexico law relating to civil procedure, see 13 N.M. L. Rev. 251 (1983).

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 annual survey of New Mexico law of civil procedure, 19 N.M. L. Rev. 627 (1990).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 46 Am. Jur. 2d Judges §§ 86 et seq., 123, 137, 146, 149, 172, 175, 179.

48A C.J.S. Judges §§ 99, 107 to 129.

Constitutionality of statutes making mere filing of affidavit of bias or prejudice sufficient to disqualify judge, 5 A.L.R. 1275, 46 A.L.R. 1179.

Necessity as justifying action by judicial officer otherwise disqualified to act in particular case, 39 A.L.R. 1476.

Right of judge not legally disqualified to decline to act in legal proceeding upon personal grounds, 96 A.L.R. 546.

Constitutionality of statute which disqualifies judge upon peremptory challenge, 115 A.L.R. 855.

Modification of decree of divorce, statute providing for change of judge on ground of bias or prejudice as applicable to proceedings for, 143 A.L.R. 411.

Disqualification of judge in pending case as subject to revocation or removal, 162 A.L.R. 641.

Relationship of judge to one who is party in an official or representative capacity as disqualification, 10 A.L.R.2d 1307.

Mandamus as remedy to compel assertedly disqualified judge to recuse himself or to certify his disqualification, 45 A.L.R.2d 937, 56 A.L.R. Fed. 494.

Relationship to attorney as disqualifying judge, 50 A.L.R.2d 143.

Disqualification of judge in proceedings to punish contempt against or involving himself or court of which he is a member, 64 A.L.R.2d 600, 37 A.L.R.4th 1004.

Time for asserting disqualification of judge, and waiver of disqualification, 73 A.L.R.2d 1238.

Propriety and permissibility of judge engaging in practice of law, 89 A.L.R.2d 886.

Intervenor's right to disqualify judge, 92 A.L.R.2d 1110.

Disqualification of judge for having decided different case against litigant, 21 A.L.R.3d 1369.

Disqualification of judge on ground of being a witness in the case, 22 A.L.R.3d 1198.

Disqualification of judge for bias against counsel for litigant, 23 A.L.R.3d 1416.

Disqualification of judge because of his or another's holding or owning stock in corporation involved in litigation, 25 A.L.R.3d 1331.

Disqualification of original trial judge to sit on retrial after reversal or mistrial, 60 A.L.R.3d 176.

State's right to file affidavit disqualifying judge for bias or prejudice, 68 A.L.R.3d 509.

Constitutional restrictions on nonattorney acting as judge in criminal proceedings, 71 A.L.R.3d 562.

Fine, penalty or forfeiture imposed upon defendant, disqualification of judge or one acting in judicial capacity by pecuniary interest in, 72 A.L.R.3d 375.

Membership in fraternal or social club or order affected by case as a ground for disqualification of judge, 75 A.L.R.3d 1021.

Illness or incapacity of judge, prosecuting officer or prosecution witness as justifying delay in bringing accused speedily to trial in state cases, 78 A.L.R.3d 297.

Disqualification of judge because of assault or threat against him by party or person associated with party, 25 A.L.R.4th 923.

Disqualification of judge because of political association or relation to attorney in case, 65 A.L.R.4th 73.

Disqualification of judge for bias against counsel for litigant, 54 A.L.R.5th 575.

Prior representation or activity as prosecuting attorney as disqualifying judge from sitting or acting in criminal case, 85 A.L.R.5th 471.

Laws governing judicial recusal or disqualification in state proceeding as violating federal or state constitution, 91 A.L.R.5th 437.

Disqualification of judge under 28 U.S.C.A. § 455(b)(4), providing for disqualification where judge has financial or other interest in proceeding, 163 A.L.R. Fed. 575.