N.M. Const. art. VI, § 3
The supreme court shall have original jurisdiction in quo warranto and mandamus against all state officers, boards and commissions, and shall have a superintending control over all inferior courts; it shall also have power to issue writs of mandamus, error, prohibition, habeas corpus, certiorari, injunction and all other writs necessary or proper for the complete exercise of its jurisdiction and to hear and determine the same. Such writs may be issued by direction of the court, or by any justice thereof. Each justice shall have power to issue writs of habeas corpus upon petition by or on behalf of a person held in actual custody, and to make such writs returnable before himself or before the supreme court, or before any of the district courts or any judge thereof.
Cross references. — For certiorari to the court of appeals, see N.M. Const., art. VI, § 13, and Rule 12-502 NMRA.
For Uniform Certification of Questions of Law Act, see Chapter 39, Article 7 NMSA 1978.
For habeas corpus, see 44-1-1 NMSA 1978 et seq.
For provisions relating to mandamus, see 44-2-1 NMSA 1978.
For quo warranto, see 44-3-1 NMSA 1978.
For rule regarding writs of error, see Rule 12-503 NMRA.
For issuance of extraordinary writs, see Rule 12-504 NMRA.
Comparable provisions. — Idaho Const., art. V, § 9.
Iowa Const., art. V, § 4.
Montana Const., art. VII, § 2.
Utah Const., art. VIII, § 3.
Wyoming Const., art. V, § 3.
Certiorari to court of appeals in criminal case. — Supreme court has authority to issue writs of certiorari directed to court of appeals in a criminal case where the conditions of 34-5-14 NMSA 1978 are met. State v. Gunzelman, 1973-NMSC-055, 85 N.M. 295, 512 P.2d 55, rev'g 1972-NMCA-166, 84 N.M. 451, 504 P.2d 1084, overruled by State v. Orosco, 1992-NMSC-006, 113 N.M. 780, 833 P.2d 1146.
No power of de novo review. — Powers of appellate jurisdiction and original jurisdiction and superintending control do not include the power to review de novo the factual basis for the orders or judgments of district courts. Ammerman v. Hubbard Broad., Inc., 1976-NMSC-031, 89 N.M. 307, 551 P.2d 1354, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978).
Lower court order imposing media ban in criminal case. — The news media has standing in the supreme court to intervene in a criminal case to question the validity of a lower court order impairing its ability to report the news. The proper approach lies in a separate action for declaratory judgment, mandamus or prohibition. State ex rel. N.M. Press Ass'n v. Kaufman, 1982-NMSC-060, 98 N.M. 261, 648 P.2d 300.
Statute allowing discovery only on supreme court order is unconstitutional. — Section 29-9-8B NMSA 1978 partially unconstitutional. The last sentence in 29-9-8B NMSA 1978, allowing the discovery of the records of the governor's organized crime prevention commission only by supreme court order, is unconstitutional, as the legislature lacks the power to prescribe and regulate practice, pleading and procedure. In re Motion for a Subpoena Duces Tecum, 1980-NMSC-010, 94 N.M. 1, 606 P.2d 539.
Attorneys' fees on settled appeal. — Where appellant and appellee compromised a case on appeal, without the intervention of their attorneys, and agreed to and prayed for dismissal of the appeal, a petition of attorneys for appellant asking court to modify district court decree to provide for attorneys' fees invoked the original jurisdiction of the supreme court in a manner not authorized by this section and could not be entertained. Thurman v. Grimes, 1931-NMSC-035, 35 N.M. 498, 1 P.2d 972.
Supreme court may order a change of venue when remanding a case. Marsh v. State, 1980-NMSC-129, 95 N.M. 224, 620 P.2d 878.
Writ of error as appropriate means for invoking collateral order doctrine. Carrillo v. Rostro, 1992-NMSC-054, 114 N.M. 607, 845 P.2d 130.
The district court may not, through the sanction process, limit a litigant’s right to seek relief from a discovery order through a writ of superintending control or a writ of error in the supreme court. Chavez v. Lovelace Sandia Health System, 2008-NMCA-104, 144 N.M. 578, 189 P.3d 711.
Superintending control explained. — The power of superintending control is the power to control the course of ordinary litigation in inferior courts, as exercised at common law by the court of kings' bench and by the use of writs specifically mentioned in the constitution, and other writs there referred to or authorized. State v. Roy, 1936-NMSC-048, 40 N.M. 397, 60 P.2d 646, 110 A.L.R. 1.
Power of superintending control. — The power of superintending control is the power to control the course of ordinary litigation in inferior courts, and where appropriate, the power of superintending control permits the supreme court’s interposition to correct any specie of error and is not limited to jurisdictional error, and the supreme court may also exercise the power of superintending control where it is deemed to be in the public interest to settle the question involved at the earliest moment. Kerr v. Parsons, 2016-NMSC-028.
Where the New Mexico legislature, in its 2015 general appropriation to the law office of the public defender (LOPD), specifically provided that the appropriations to the public defender department shall not be used to pay hourly reimbursement rates to contract attorneys, and where the district court entered an order requiring the LOPD to pay contract counsel hourly rates and the state to provide additional funding, nullifying the legislature’s prohibition of the payment of hourly rates to indigent defense contract counsel as violative of the federal and state constitutions, based on its conclusion that the flat-fee rates paid to contract counsel by the LOPD contravene the constitutional guarantee of effective assistance of counsel, a petition for writ of superintending control was granted because it was in the public’s interest to review the district court’s order. Kerr v. Parsons, 2016-NMSC-028.
Superintending control may be granted to offer guidance on how to properly apply the law. — The New Mexico supreme court has the power of superintending control, a long-standing power to control the course of ordinary litigation in inferior courts, and may exercise the power of superintending control when it is in the public interest to settle the question involved at the earliest moment, and in granting a writ of superintending control, may offer guidance to lower courts on how to properly apply the law. State ex rel. Torrez v. Whitaker, 2018-NMSC-005.
Writ granted to provide guidance on the nature of the evidence required in pretrial detention hearings. — On a writ of superintending control, where petitioner sought guidance on the nature of the evidence required in pretrial detention hearings authorized by the 2016 amendment to Article II, Section 13 of the New Mexico Constitution, the New Mexico supreme court ruled that neither the United States Constitution nor the New Mexico Constitution categorically requires live witness testimony at pretrial detention hearings, and under New Mexico supreme court procedural rules, judges may consider all reasonably reliable information, without regard to strictures of the formal rules of evidence, in considering whether any pretrial release conditions will reasonably protect the safety of any other person or the community. State ex rel. Torrez v. Whitaker, 2018-NMSC-005.
Not substitute for appeal. — The superintending control will not be invoked merely to perform the office of an appeal. State Game Comm'n v. Tackett, 1962-NMSC-154, 71 N.M. 400, 379 P.2d 54.
Control over administrative functions of inferior courts. — The constitutional grant of "superintending control" gives the New Mexico supreme court control over administrative functions of inferior courts. Russillo v. Scarborough, 727 F. Supp. 1402 (D.N.M. 1989), aff'd, 935 F.2d 1167 (10th Cir. 1991).
The supreme court has ultimate authority over administrative matters of the courts. Russillo v. Scarborough, 935 F.2d 1167 (10th Cir. 1991), aff'g 727 F. Supp. 1402 (D.N.M. 1989).
The power of superintending control includes the authority to order the metropolitan court to terminate its court administrator. Russillo v. Scarborough, 935 F.2d 1167 (10th Cir. 1991), aff'g 727 F. Supp. 1402 (D.N.M. 1989).
Superintending power will not be exercised except under unusual circumstances. State Game Comm'n v. Tackett, 1962-NMSC-154, 71 N.M. 400, 379 P.2d 54.
Whether state's public health orders may support a claim for just compensation presents exceptional circumstances, warranting exercise of superintending control. — Where petitioners filed a petition for writ of superintending control and emergency request for stay in response to the filing of twenty lawsuits brought against them by small businesses and business owners seeking just compensation, including lost revenues and expenses incurred due to the seizure, limitation and closure of their businesses pursuant to the numerous public health emergency orders (PHOs) issued by the governor of New Mexico in relation to the ongoing COVID-19 pandemic, the issue raised by the petitioners presented exceptional circumstances in that it was a statewide issue from both the perspective of petitioners, as defendants in each case below, charged with managing a public health emergency and stewarding the public money, and the real parties in interest, which were businesses critically affected by the PHOs, and because the effects of the COVID-19 pandemic continue to impact New Mexico, the issue will continue to affect additional parties, presenting exceptional circumstances justifying the exercise of the power of superintending control. State v. Wilson, 2021-NMSC-022.
When superintending control exercised. — The supreme court's superintending control will be exercised if the remedy by appeal is wholly or substantially inadequate, or if the exercise thereof will prevent irreparable mischief, great, extraordinary or exceptional hardship, costly delays or unusual burdens in the form of expenses. State ex rel. DuBois v. Ryan, 1973-NMSC-097, 85 N.M. 575, 514 P.2d 851; Williams v. Sanders, 1969-NMSC-124, 80 N.M. 619, 459 P.2d 145; State ex rel. Anaya v. Scarborough, 1966-NMSC-009, 75 N.M. 702, 410 P.2d 732; Montoya v. McManus, 1961-NMSC-060, 68 N.M. 381, 362 P.2d 771; Rutledge v. Fort, 1986-NMSC-017, 104 N.M. 7, 715 P.2d 455, overruled on other grounds by Reese v. State, 1987-NMSC-079, 106 N.M. 498, 745 P.2d 1146.
Power of superintending control is distinct from appellate and original jurisdiction of supreme court; therefore, even though petitioners had taken an appeal to this court from the orders of the trial court denying their motions to set aside the amended decree, the extremely unusual circumstances of this case made petitioners' remedy by appeal substantially inadequate, and compelled the court to exercise its superintending control. State ex rel. DuBois v. Ryan, 1973-NMSC-097, 85 N.M. 575, 514 P.2d 851.
Superintending control is limited to control over inferior courts and does not restrict legislative powers to establish procedures for workers' compensation proceedings, including the authority of the worker's compensation administrator 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.
Duty of court to uphold respect for courts. — The duty of the court under its power of superintending control is to make certain, insofar as humanly possible, that the traditional respect and high regard in which courts generally are held will in no way be encroached upon; the courts must not only be impartial, unbiased and fair, but, in addition, no suspicions to the contrary may be permitted to creep in. State ex rel. Anaya v. Scarborough, 1966-NMSC-009, 75 N.M. 702, 410 P.2d 732.
Actions or proceedings under court's superintending control are for court alone and are not a proper consideration for the bar commission. In re Board of Comm'rs of State Bar, 1959-NMSC-028, 65 N.M. 332, 337 P.2d 400.
Inherent power in supreme court to regulate procedure. — Supreme court's power of superintending control over all inferior courts carries with it the inherent power to regulate all pleading, practice and procedure affecting the judicial branch of government. Ammerman v. Hubbard Broad., Inc., 1976-NMSC-031, 89 N.M. 307, 551 P.2d 1354, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978); State ex rel. Anaya v. McBride, 1975-NMSC-032, 88 N.M. 244, 539 P.2d 1006.
The supreme court of New Mexico has superintending control over all inferior courts, and thus the power to regulate and to promulgate rules regarding the pleadings, practice and procedure affecting the judicial branch of government. Hudson v. State, 1976-NMSC-084, 89 N.M. 759, 557 P.2d 1108, cert. denied, 431 U.S. 924, 97 S. Ct. 2198, 53 L. Ed. 2d 238 (1977).
Supreme court has a superintending control over all inferior courts as well as jurisdiction and power to issue writs of certiorari; this constitutional power and jurisdiction carries with it the power to regulate pleading, practice and procedure in inferior courts and the circumstances under which such writs, including writs of certiorari, may issue. Alexander v. Delgado, 1973-NMSC-030, 84 N.M. 717, 507 P.2d 778, aff'g 1972-NMCA-156, 84 N.M. 456, 504 P.2d 1089.
The power to provide rules of pleading, practice and procedure for the conduct of litigation in the district courts, as well as rules of appellate procedure, is lodged in the supreme court under its power of superintending control. The constitutional grant of power to issue the writs by means of which the power of superintending control is exercised comprehends and carries with it the authority to exercise such powers to the extent that it can be exerted by those writs and other processes essential to its complete exercise. State v. Roy, 1936-NMSC-048, 40 N.M. 397, 60 P.2d 646, 110 A.L.R. 1.
By Laws 1933, ch. 84 (38-1-1 and 38-1-2 NMSA 1978), authorizing the supreme court to promulgate rules of procedure, the legislature merely withdrew from the rule-making field wherein it had theretofore functioned as a coordinate branch of government with the court. The act was not a delegation of legislative power, but rather a mere abdication or withdrawal from the rule-making field, and the rules promulgated thereafter were issued pursuant to the supreme court's inherent power to prescribe such rules of practice, pleading and procedure as would facilitate the administration of justice. State v. Roy, 1936-NMSC-048, 40 N.M. 397, 60 P.2d 646, 110 A.L.R. 1.
Constitutional power to regulate the practice of law encompasses the regulation of attorney fees generally, but not regulation of attorney fees within the workers' compensation context specifically. — Regulation of attorney fees generally falls within the purview of the New Mexico supreme court's inherent powers and power of superintending control, but regulation of attorney fees specifically within the workers' compensation context does not. Pena v. State, 2025-NMSC-041.
52-1-54(I) NMSA 1978 infringes on the New Mexico supreme court's power to regulate attorney fees in appeals brought from the quasi-judicial workers compensation administration to the judiciary's courts. — By purporting to regulate attorney fees within the courts for appeals from the workers' compensation administration, 52-1-54(I) NMSA 1978 infringes on the New Mexico supreme court's constitutional power to regulate the practice of law and thus is nonbinding on courts. Pena v. State, 2025-NMSC-041.
Superintending control with respect to privileges. — The supreme court’s constitutional power of superintending control with respect to privileges mandates that when a statutory privilege is not consistent with a rule of the supreme court, the statutory privilege is not given effect and the constitutional or court rule privilege prevails. State v. Strauch, 2015-NMSC-009, rev’g 2014-NMCA-020.
Where defendant, who was charged with criminal sexual contact of a minor, claimed that his communications with his social worker were privileged communications, the supreme court held that the provisions of 61-31-24(A) NMSA 1978, that arguably create social worker evidentiary privileges cannot prevent court-ordered disclosure of communications that would be mandated by the discovery and evidence rules of the supreme court. State v. Strauch, 2015-NMSC-009, rev’g 2014-NMCA-020.
Establishing pretrial procedure for evaluating aggravating circumstances. — The supreme court has the inherent authority to establish a pretrial procedure for evaluating aggravating circumstances in death penalty sentencing under its power of superintending control over lower state courts. State v. Ogden, 1994-NMSC-029, 118 N.M. 234, 880 P.2d 845, cert. denied, 513 U.S. 936, 115 S. Ct. 336, 130 L. Ed. 2d 294.
Exclusion of control by executive or legislature unconstitutional. — Any action of the executive or legislative branch of a municipal government which would preclude the supreme court or the district court from exercising its superintending or supervisory authority over the municipal court violates the state constitution. Mowrer v. Rusk, 1980-NMSC-113, 95 N.M. 48, 618 P.2d 886.
Legislature lacks power to prescribe rules of practice and procedure, although it has in the past attempted to do so. State ex rel. Anaya v. McBride, 1975-NMSC-032, 88 N.M. 244, 539 P.2d 1006.
In the absence of the clearest language to the contrary in the constitution, the powers essential to the functioning of the courts are to be taken as committed solely to the supreme court to avoid a confusion in the methods of procedure and to provide uniform rules of pleading and practice. Ammerman v. Hubbard Broad., Inc., 1976-NMSC-031, 89 N.M. 307, 551 P.2d 1354, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978).
Statutes purporting to regulate practice and procedure in the courts cannot be made binding, for the constitutional power is vested exclusively in the supreme court. Ammerman v. Hubbard Broad., Inc., 1976-NMSC-031, 89 N.M. 307, 551 P.2d 1354, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978); State ex rel. Anaya v. McBride, 1975-NMSC-032, 88 N.M. 244, 539 P.2d 1006.
Discipline of attorneys. — The inherent power of the supreme court of superintending control encompasses the authority and duty to determine what constitutes grounds for the discipline of lawyers and to discipline, for cause, any person admitted to practice law in New Mexico. Any legislative attempt to limit what conduct the supreme court may consider as grounds for imposing attorney discipline would be an unconstitutional infringement of the supreme court's authority to regulate the practice of law. In re Treinen, 2006-NMSC-013, 139 N.M. 318, 131 P.3d 1282.
Statutory rule of evidence invalid. — In view of the clear and unambiguous assertion of the supreme court in Rule 501, N.M.R. Evid. (now Rule 11-501 NMRA) that no person has a privilege, except as provided by constitution or rule of the court, and since under the New Mexico constitution the legislature lacks power to prescribe by statute rules of evidence and procedure, which power is vested exclusively in the supreme court, the journalistic privilege purportedly created by former 20-1-12.1 A, 1953 Comp., is constitutionally invalid and cannot be relied upon or enforced in judicial proceedings. Ammerman v. Hubbard Broad., Inc., 1976-NMSC-031, 89 N.M. 307, 551 P.2d 1354, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978).
Legislature has no power to substitute de novo hearing for appeal from a judgment or order of the district court, and has no power to fix the time within which an appeal must be heard by the supreme court. Ammerman v. Hubbard Broad., Inc., 1976-NMSC-031, 89 N.M. 307, 551 P.2d 1354, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978).
Issuance of writ held appropriate. — The question of whether the state was barred by the double jeopardy clause from prosecuting an individual for driving under the influence (DWI) once the individual had been subjected to an administrative hearing for driver's license revocation based on the same offense was one of great public importance requiring use of the supreme court's power of superintending control. State ex rel. Schwartz v. Kennedy, 1995-NMSC-069, 120 N.M. 619, 904 P.2d 1044.
Issuance of writ held inappropriate. — Issuance of an alternative writ of superintending control restraining a district court from enforcing the portion of its sentence against a defendant awarding him meritorious good-time credit against his sentence for the period he spent in presentence confinement was inappropriate, where the state filed and then voluntarily withdrew an appeal of the district court's order and where the public interest in the orderly administration of the criminal justice system was served by another decision of the supreme court of New Mexico. State ex rel. Schiff v. Murdoch, 1986-NMSC-040, 104 N.M. 344, 721 P.2d 770.
Power of superintending control would be exercised in election contest involving office of lieutenant-governor. Montoya v. McManus, 1961-NMSC-060, 68 N.M. 381, 362 P.2d 771.
Review of interlocutory order. — The supreme court will not invoke its extraordinary power of superintending control over all inferior courts to review an interlocutory order that plaintiff was real party in interest, where there is no great hardship in forcing the parties to await review of the final judgment. Albuquerque Gas & Elec. Co. v. Curtis, 1939-NMSC-024, 43 N.M. 234, 89 P.2d 615.
Vacation of court order. — Supreme court was warranted in exercising its superintending control by vacating an order of the district court allowing an appeal from ad valorem tax valuation and enjoining the state tax commission from certifying tax assessments to county assessors, as entry of the order was an abuse of discretion under the provisions of Rules 65 and 66, N.M.R. Civ. P. (now Rules 1-065 and 1-066 NMRA). State ex rel. State Tax Comm'n v. First Judicial Dist. Court, 1961-NMSC-157, 69 N.M. 295, 366 P.2d 143.
Game commission controversy. — In a case brought to enjoin and restrain the state game commission from authorizing its permittees and licensees to go upon state leased lands for the purpose of hunting wild game, where a writ of prohibition would issue as a matter of right had the order of the district court been threatened but not issued, the supreme court should exercise its right of superintending control. State Game Comm'n v. Tackett, 1962-NMSC-154, 71 N.M. 400, 379 P.2d 54.
Removal or discipline of judges. — The board of bar commissioners of state of New Mexico and its grievance or disciplinary committee have no jurisdiction as to a complaint made against a district judge with respect to the judge's actions in rebuking a grand jury. In re Board of Comm'rs of State Bar, 1959-NMSC-028, 65 N.M. 332, 337 P.2d 400.
Purpose of quo warranto. — Purpose of quo warranto is to ascertain whether a public officer is constitutionally and legally authorized to perform any act in or exercise any functions of the office to which he lays claim. State ex rel. Anaya v. McBride, 1975-NMSC-032, 88 N.M. 244, 539 P.2d 1006.
Impeachment does not preempt quo warranto. — Impeachment by the legislature does not preempt quo warranto as the exclusive means for removing a felon from public office. State ex rel. King v. Sloan, 2011-NMSC-020, 149 N.M. 620, 253 P.3d 33.
Felony conviction occurring during the term of an elective office. — Quo warranto is an appropriate procedure for removing an elected official when the elected official is convicted of a felony during the elected official’s term of office. State ex rel. King v. Sloan, 2011-NMSC-020, 149 N.M. 620, 253 P.3d 33.
Jurisdiction in mandamus and quo warranto concurrent with district courts. — Under this section and N.M. Const., art. VI, § 13, the supreme and district courts each have original jurisdiction in quo warranto and mandamus against all state officers, boards and commissions in all cases, whether the proceeding was instituted by the attorney general, ex officio, in behalf of the state, or brought by some private person for the assertion of some private right. The supreme court will decline jurisdiction in absence of controlling necessity therefor, and will do so in all cases brought at instance of a private suitor. State ex rel. Owen v. Van Stone, 1912-NMSC-003, 17 N.M. 41, 121 P. 611.
Construing this section and N.M. Const., art. VI, § 13, the jurisdiction of the supreme court in quo warranto against state commissions and officers, while original, was concurrent with that of the district courts and not exclusive. State ex rel. Owen v. Van Stone, 1912-NMSC-003, 17 N.M. 41, 121 P. 611.
Liberal interpretation of quo warranto statutes. — Statutes such as those concerning quo warranto are remedial in character, and as such should be liberally interpreted to effectuate the objects intended. State ex rel. Anaya v. McBride, 1975-NMSC-032, 88 N.M. 244, 539 P.2d 1006.
Statute inconsistent with court's powers. — The supreme court would not give approval to the portion of 44-3-6 NMSA 1978 which requires the name of the person rightfully entitled to the office involved in a quo warranto proceeding to be set forth in the complaint, at least not if it is meant to affect the subject matter jurisdiction of the court, especially since the statute is inconsistent with Rule 12(a), N.M.R. App. P. (Civ.), (now Rule 12-504 A NMRA) since in any situation where a vacancy was filled by appointment under such reasoning the court would be shorn of its constitutional powers vis-a-vis quo warranto, and presumably, with additional bits of legislative ingenuity, of its powers to issue other extraordinary writs as well. State ex rel. Anaya v. McBride, 1975-NMSC-032, 88 N.M. 244, 539 P.2d 1006.
State indispensable party to quo warranto. — The state, through the attorney general, is an indispensable party plaintiff in a quo warranto proceeding to challenge the propriety of an election contest. State ex rel. Anaya v. McBride, 1975-NMSC-032, 88 N.M. 244, 539 P.2d 1006.
Mandamus was proper to restrain one branch of government from encroaching on the powers reserved for another branch. — Mandamus is often utilized to restrain one branch of government from encroaching on the powers reserved to another branch, and therefore mandamus was proper where petitioners requested a prohibitory writ restraining the governor from encroaching on the authority of the legislative branch to appropriate money under Article VI, Section 30 of the New Mexico Constitution, which provides that money shall be paid out of the treasury only upon appropriations made by the legislature. State ex rel. Candelaria v. Grisham, 2023-NMSC-031.
Prohibitory writ of mandamus granted to prohibit governor from infringing on the power properly belonging to legislature when administering federal funds. — Where the federal government, through the federal American Rescue Plan Act of 2021 (ARPA), provided approximately $1.75 billion in COVID-19-related financial assistance to New Mexico, and where the New Mexico legislature attempted to appropriate the ARPA funds through the General Appropriation Act of 2021, and where the governor vetoed the portions that related to ARPA funds, asserting that the legislature lacked the authority to direct the executive’s administration of federal funds, and where the governor also spent approximately $600 million of the $1.75 billion in ARPA funds, and where petitioners filed suit against the governor, seeking a writ of mandamus and stay prohibiting her from expending or appropriating any additional ARPA funds, the New Mexico Supreme Court issued a prohibitory writ of mandamus and order providing that the governor and state treasurer shall not transfer, encumber, commit, expend or appropriate any additional ARPA funds absent legislative appropriation, because the amount of discretion the federal government left to New Mexico in allocating the ARPA funds compelled a conclusion that the federal funds were subject to legislative appropriation. State ex rel. Candelaria v. Grisham, 2023-NMSC-031.
Mandamus was the proper remedy for the state's action seeking to restrain certain counties and municipalities from encroaching on and interfering with the plenary authority of the legislature. — Where respondents, several counties and municipalities, enacted local ordinances prohibiting the mailing or receipt of any abortion-related instrumentality and creating licensing schemes exclusive to abortion clinics and providers, and where the State of New Mexico sought a writ of mandamus and stay of respondents' enforcement of the ordinances and to invalidate the ordinances as preempted by state law, the exercise of mandamus jurisdiction was appropriate because the issue implicated a fundamental constitutional question of great importance, whether inferior political subdivisions were encroaching on the plenary authority of the legislature, the question presented a purely legal issue concerning whether respondents exceeded their authority by enacting ordinances in conflict with general laws of the state, and the issue called for an expeditious resolution because the ordinances restricted access to reproductive health care in those counties and cities and could have a chilling effect on the exercise of constitutional rights and on the provision of care by medical professionals. State ex rel. Torrez v. Bd. of Cnty. Comm'rs for Lea Cnty., 2025-NMSC-011.
Mandamus against officers, boards and commissions. — The supreme court of New Mexico exercises constitutionally invested original jurisdiction in mandamus against all state officers, boards and commissions. State ex rel. Sego v. Kirkpatrick, 1974-NMSC-059, 86 N.M. 359, 524 P.2d 975.
A mandamus petition for an order precluding the governor from implementing compacts and revenue-sharing agreements with Indian tribes which would permit gaming on Indian lands pursuant to the federal Indian Gaming Regulatory Act was properly brought before the supreme court in an original proceeding. State ex rel. Clark v. Johnson, 1995-NMSC-048, 120 N.M. 562, 904 P.2d 11.
A writ of mandamus was an appropriate means of vacating an unconstitutional order of the public service commission. State ex rel. Sandel v. New Mexico Pub. Util. Comm'n, 1999-NMSC-019, 127 N.M. 272, 980 P.2d 55.
Supreme Court had original jurisdiction of writ of mandamus brought to compel governor to cease implementation of public assistance program which petitioners alleged exceeded his authority and failed to get required legislative approval. State ex rel. Taylor v. Johnson, 1998-NMSC-015, 125 N.M. 343, 961 P.2d 768.
Mandamus lies to compel performance of statutory duty only when it is clear and indisputable. Witt v. Hartman, 1970-NMSC-147, 82 N.M. 170, 477 P.2d 608.
Relevant considerations in exercising original jurisdiction in mandamus. — The New Mexico supreme court will exercise its original jurisdiction in mandamus when the petitioner presents a purely legal issue concerning the non-discretionary duty of a government official that (1) implicates fundamental constitutional questions of great public importance, (2) can be answered on the basis of virtually undisputed facts, and (3) calls for an expeditious resolution that cannot be obtained through other channels such as direct appeal. N.M. Bldg. and Constr. Trades Council v. Dean, 2015-NMSC-023.
Where petitioners, an alliance of craft unions representing the interests of thousands of New Mexico employees working on public works projects throughout the state, sought a writ of mandamus ordering the director of the labor relations division of the New Mexico department of workforce solutions (director) to set prevailing wage and prevailing benefit rates in accordance with the Public Works Minimum Wage Act, §§ 13-4-10 to -17 NMSA 1978, mandamus was proper because petitioners presented a purely legal issue concerning whether the director had a nondiscretionary duty to set prevailing wage and benefit rates, the director’s undisputed five-year delay in setting rates in accordance with the act warranted a speedy resolution, and the avenue for appeal provided for in the act had proven not to be an adequate remedy at law. N.M. Bldg. and Constr. Trades Council v. Dean, 2015-NMSC-023.
Multifactor test to evaluate whether mandamus is appropriate. — Mandamus is a discretionary writ that will lie when there is a purely legal issue that (1) implicates fundamental constitutional questions of great public importance, (2) can be answered on the basis of virtually undisputed facts, and (3) calls for an expeditious resolution that cannot be obtained through other channels such as a direct appeal. Adobe Whitewater Club v. State Game Comm'n, 2022-NMSC-020.
Mandamus was appropriate to resolve issue of whether the right to fish in public waters also allows the public the right to access privately owned beds below those waters. — Where petitioners sought a writ of prohibitory mandamus challenging the constitutionality of regulations promulgated by the New Mexico state game commission (commission) which outlined the process for landowners to obtain a certificate allowing them to close public access to segments of public water flowing over private property, mandamus was the appropriate vehicle to address petitioners' claims, because the scope of the public's ownership rights in the natural waters of New Mexico and the competing real property interests of private landowners implicated a question of great public importance. Second, whether it is unconstitutional for the regulations to restrict the recreating public from accessing public waters flowing over private property and whether the commission may promulgate the regulations in the first place were both legal questions that could be decided on undisputed facts. Third, the importance of the constitutional issue and the need for clarification on public water access and private property ownership merited an expeditious resolution that the New Mexico supreme court was uniquely positioned to provide. Adobe Whitewater Club v. State Game Comm'n, 2022-NMSC-020.
Mandamus to restore rights or privileges. — Mandamus is defined to include an order directing the restoration to the complainant of rights or privileges of which he has been illegally deprived. State ex rel. Bird v. Apodaca, 1977-NMSC-110, 91 N.M. 279, 573 P.2d 213.
Mandamus directing district court to act. — Under its power of superintending control, supreme court could by mandamus direct district court to act, even though remedy by appeal or writ of error existed, where such remedy was entirely inadequate. State ex rel. Meyers Co. v. Raynolds, 1917-NMSC-013, 22 N.M. 473, 164 P. 830.
Mandamus was available to enforce provisions of Enabling Act in view of acceptance of act's provisions by adoption of N.M. Const., art. XXI, §§ 9 and 10. State ex rel. Shepard v. Mechem, 1952-NMSC-105, 56 N.M. 762, 250 P.2d 897.
Publication of proposed amendments. — Supreme court had original jurisdiction at instance of individual voter to mandamus secretary of state to publish proposed amendments to state constitution. Hutcheson v. Gonzales, 1937-NMSC-047, 41 N.M. 474, 71 P.2d 140.
Mandamus was proper remedy for attacking constitutionality of statute in view of the possible inadequacy of other remedies and the necessity of an early decision on question of great public importance. Thompson v. Legislative Audit Comm'n, 1968-NMSC-184, 79 N.M. 693, 448 P.2d 799.
Constitutionality of legislative act may be determined in mandamus action. State ex rel. Shepard v. Mechem, 1952-NMSC-105, 56 N.M. 762, 250 P.2d 897.
Mandamus was proper remedy to prohibit unconstitutional official action. — Where petitioners, a class of public officers affected by the election deferral provisions of HB 407, passed by the 2019 legislature, filed petitions for writs of mandamus challenging the constitutionality of HB 407 to the extent it postponed the times of election and extended the constitutionally mandated terms of certain public offices, prohibitory mandamus was an appropriate means of addressing the constitutional claims because the electoral timing and term of office provisions of HB 407 presented issues of public importance which implicated citizens' fundamental right to vote. State ex rel. Sugg v. Toulouse Oliver, 2020-NMSC-002.
Unconstitutional alteration to the terms of office. — Where petitioners, a class of public officers affected by the election deferral provisions of HB 407, passed by the 2019 legislature, filed petitions for writs of mandamus challenging the constitutionality of HB 407 to the extent it postponed the times of election and extended the constitutionally mandated terms of certain public offices, the New Mexico supreme court issued writs of mandamus prohibiting the implementation of the affected provisions because they impermissibly altered the constitutionally prescribed terms of office of the petitioning groups. State ex rel. Sugg v. Toulouse Oliver, 2020-NMSC-002.
Mandamus was the appropriate remedy where the New Mexico public regulation commission refused to follow a nondiscretionary duty. — Where the New Mexico public regulation commission (commission) entered an order initiating an abandonment proceeding related to public service company of New Mexico's (PNM) abandonment of units one and four of the San Juan generating station (San Juan), and where the commission refused to make a decision as to whether it would apply the Energy Transition Act (ETA), 62-18-1 to 62-18-23 NMSA 1978, to the abandonment proceedings, mandamus was the appropriate remedy in this matter because the matter concerned a purely legal question whether the commission followed its nondiscretionary duty of applying the ETA to the San Juan abandonment proceedings, the matter implicated issues of great constitutional importance because the commission's actions ultimately encroached upon legislative authority, thus violating provisions of the New Mexico constitution, and petitioners demonstrated that irreversible harm was likely to occur from the commission's equivocation on application of the ETA to the abandonment proceedings. State ex rel. Egolf v. N.M. Pub. Regulation Comm'n, 2020-NMSC-018.
Right to tenure is not enforceable by mandamus, as in absence of positive provision of law it is not a clear legal right. Lease v. Board of Regents of N.M. State Univ., 1972-NMSC-042, 83 N.M. 781, 498 P.2d 310.
No jurisdiction to mandamus election recount by district judge. — The supreme court is without jurisdiction to mandamus a district judge to certify that a recount of ballots was made in his presence, since he is not a state officer, board or commission, or of an inferior court, but only a recount official performing a ministerial function. State ex rel. Scott v. Helmick, 1930-NMSC-103, 35 N.M. 219, 294 P. 316. But see, 1-14-21 NMSA 1978.
Prohibition defined. — The writ of prohibition is best defined as an extraordinary writ, issued by a superior court to an inferior court to prevent the latter from exceeding its jurisdiction, either by prohibiting it from assuming jurisdiction of a matter over which it has no control, or from going beyond its legitimate powers in a matter in which it has jurisdiction. State ex rel. Harvey v. Medler, 1914-NMSC-055, 19 N.M. 252, 142 P. 376.
State corporation commission (now public regulation commission) is not an inferior court. — Since state corporation commission (now public regulation commission) is not an "inferior court", supreme court's original jurisdiction does not extend to a prohibitory action against such commission. Atchison, T. & S.F. Ry. v. State Corp. Comm'n, 1939-NMSC-055, 43 N.M. 503, 95 P.2d 676.
When writ of prohibition issued. — Even though the issuance of a writ of prohibition is within supreme court's discretion, the writ is issued almost as a matter of right when the trial court is totally lacking in jurisdiction, or has exceeded its jurisdiction or is about to do so. When the order has already been issued, or when the court has jurisdiction but the order is erroneous, arbitrary and tyrannical, or would be gross injustice, or might result in irreparable injury, and there is no plain, speedy and adequate remedy unless it is issued, the supreme court may do so under power of superintending control by virtue of this section. State v. Zinn, 1969-NMSC-138, 80 N.M. 710, 460 P.2d 240.
If the inferior court or tribunal has jurisdiction of both the subject matter and of the person, where necessary, the writ of prohibition will not issue, but lacking such jurisdiction the writ will issue as a matter of right. State Game Comm'n v. Tackett, 1962-NMSC-154, 71 N.M. 400, 379 P.2d 54; Gilmore v. District Court, 1930-NMSC-084, 35 N.M. 157, 291 P. 295.
Where jurisdiction of both the subject matter and the parties is present, ordinarily prohibition will not issue; the question is not whether the court had a right to decide the issue in a particular way, but whether it had the right to decide it at all. State Racing Comm'n v. McManus, 1970-NMSC-134, 82 N.M. 108, 476 P.2d 767; State ex rel. Kermac Nuclear Fuels Corp. v. Larrazolo, 1962-NMSC-134, 70 N.M. 475, 375 P.2d 118.
Prohibition is properly invoked only against an inferior court to prevent such a court from acting either without jurisdiction or in excess of its jurisdiction. State ex rel. Bird v. Apodaca, 1977-NMSC-110, 91 N.M. 279, 573 P.2d 213.
Prohibition invokable under exceptional circumstances. — Supreme court's power of supervisory control will be invoked by writ of prohibition where the remedy by appeal is inadequate or where irreparable mischief, great, extraordinary or exceptional hardship, costly delay and unusual burdens of expense would otherwise result. State ex rel. Transcontinental Bus Serv., Inc. v. Carmody, 1949-NMSC-047, 53 N.M. 367, 208 P.2d 1073.
Judicial discretion. — Prohibition is not a writ of right, granted ex debito justitiae, but rather one of sound judicial discretion, to be granted or withheld according to the circumstances of each particular case; it is to be used with great caution for the furtherance of justice when none of the ordinary remedies provided by law are applicable. State ex rel. Harvey v. Medler, 1914-NMSC-055, 19 N.M. 252, 142 P. 376.
Writ of prohibition may not be utilized for piecemeal review, or as a substitute for an appeal and an even greater violation of the judicial process would be to use it with an incomplete record to substitute supreme court's judgment for that of the trial court. State v. Zinn, 1969-NMSC-138, 80 N.M. 710, 460 P.2d 240.
Undoing of act performed is not purpose of prohibition in its usual sense. State Game Comm'n v. Tackett, 1962-NMSC-154, 71 N.M. 400, 379 P.2d 54.
Use of prohibition limited. — Generally, writ of prohibition cannot be used to correct mere irregularities, or to perform functions of an appeal or writ of error. State ex rel. Harvey v. Medler, 1914-NMSC-055, 19 N.M. 252, 142 P. 376.
Jurisdiction over state officers limited. — The supreme court's original jurisdiction over state officers is confined to mandamus and quo warranto; prohibition will not lie against the state corporation commission (now public regulation commission) at least in absence of controlling necessity therefor. Atchison, T. & S.F. Ry. v. State Corp. Comm'n, 1939-NMSC-055, 43 N.M. 503, 95 P.2d 676.
District court is an "inferior court" within meaning of this section giving to supreme court jurisdiction to grant writ of prohibition. State ex rel. Harvey v. Medler, 1914-NMSC-055, 19 N.M. 252, 142 P. 376.
Prohibition to stay court proceedings pending adjudication of constitutionality. — Where conflict existed in New Mexico judicial districts as to constitutionality of death penalty and allowing the situation to remain would result in unequal justice, a writ of prohibition to stop proceedings in conflicting cases until a determination of constitutionality could be made in the instant case was proper and would be made permanent. State ex rel. Serna v. Hodges, 1976-NMSC-033,89 N.M. 351, 552 P.2d 787, overruled on other grounds by State v. Rondeau, 1976-NMSC-044, 89 N.M. 408, 553 P.2d 688.
Issuance of writ proper. — The presence of an unauthorized person before the grand jury requires dismissal of the indictment without the necessity of showing prejudice, and writ of prohibition was properly issued under such circumstances. Davis v. Traub, 1977-NMSC-049, 90 N.M. 498, 565 P.2d 1015.
Although writ of prohibition should not interfere with discretion of trial judge, where respondent trial judge had not exercised his discretion but had ruled that the defendants were entitled to grand jury testimony, police reports and witness statements as a matter of law, the writ was proper. State v. Zinn, 1969-NMSC-138, 80 N.M. 710, 460 P.2d 240.
Resort to power of superintending control. — Where problem was of importance to the state, and the supreme court's refusal to entertain jurisdiction might amount to a denial of justice, it would resort to the extraordinary writ and examine the entire matter in order to determine what result should have been reached, under its power of superintending control, as a true writ of prohibition would not be the proper remedy, since the court could not prohibit that which had already been done. State Racing Comm'n v. McManus, 1970-NMSC-134, 82 N.M. 108, 476 P.2d 767.
Expense burden insufficient rationale for writ. — Fact that fairly unusual burdens of expense will have to be borne by relators, though unfortunate, was frequently a necessary adjunct to litigation of the type involved and was therefore insufficient to warrant issuance of a writ of prohibition. State ex rel. Oil Conservation Comm'n v. Brand, 1959-NMSC-038, 65 N.M. 384, 338 P.2d 113.
Potential for wrong decision. — Fact that the district court might be about to decide matters wrongly was of no concern of the supreme court in merely investigating jurisdiction, nor was it material that the supreme court might on review be compelled to reverse the case. State ex rel. Oil Conservation Comm'n v. Brand, 1959-NMSC-038, 65 N.M. 384, 338 P.2d 113.
Writ not available. — Where judgment and order was entered in habeas corpus proceeding on June 15, 1971, requiring petitioner's unconditional release unless prior to June 30 he was allowed his right to appeal his conviction based upon a timely motion for appeal filed pro se the previous November, and due to the state's neglect the requisite order of the district court permitting an appeal came too late, being entered on June 30, and furthermore, the state did not attempt by motion to seek relief from the June 15 order until September 27, 1971, petitioner would be released; writ of prohibition seeking to prohibit his discharge was not available to the state. Rodriguez v. District Court, 1971-NMSC-101, 83 N.M. 200, 490 P.2d 458.
Person seeking writ must prove essential allegations of petition; the court will presume that the action of the inferior court was correct and within the scope of its authority. State v. Zinn, 1969-NMSC-138, 80 N.M. 710, 460 P.2d 240.
Application for writ of prohibition should recite grounds for granting of the relief to the exclusion of allegations of evidence heard by the trial court. State v. Zinn, 1969-NMSC-138, 80 N.M. 710, 460 P.2d 240.
Even though a habeas corpus petitioner may not directly appeal a district court’s adverse ruling to the supreme court, a habeas corpus petitioner may seek review in the supreme court by writ of certiorari. Cummings v. State, 2007-NMSC-048, 142 N.M. 656, 168 P.3d 1080.
Section gives supreme court original jurisdiction in habeas corpus proceedings. Peyton v. Nord, 1968-NMSC-027, 78 N.M. 717, 437 P.2d 716.
Exercise of habeas corpus jurisdiction. — In absence of controlling necessity, the concurrent jurisdiction of this court in habeas corpus will not be exercised, and the petitioner will be relegated to an application in district court of county where he is restrained. Ex parte Nabors, 1928-NMSC-025, 33 N.M. 324, 267 P. 58.
Prisoner must apply to district court for habeas corpus before an original proceeding may be brought in the New Mexico supreme court. Cox v. Raburn, 314 F.2d 856 (10th Cir. 1963), cert. denied, 374 U.S. 853, 83 S. Ct. 1920, 10 L. Ed. 2d 1074 (1963).
New habeas proceeding in supreme court after petitioner's remand below. — An appeal from district court order in habeas corpus, remanding relator to sheriff's custody, will not lie in absence of statute, but relator may institute an original proceeding in habeas corpus under this section. In re Forest, 1941-NMSC-019, 45 N.M. 204, 113 P.2d 582.
Remand of petitioner by district court not res judicata. — That district court remands petitioner for habeas corpus is not a bar to, nor res judicata in, a like proceeding in supreme court. Ex parte Nabors, 1928-NMSC-025, 33 N.M. 324, 267 P. 58.
Removal or discipline of judges. — This section and N.M. Const., art. VI, § 32, provide for removal or discipline (but not recall) of any justice, judge or magistrate for willful misconduct in office, willful and persistent failure to perform his duties or habitual intemperance. 1973 Op. Att'y Gen. No. 73-03.
The superintending control of the supreme court over inferior courts affords a present avenue for removal of any municipal judge should the situation so warrant. 1973 Op. Att'y Gen. No. 73-03.
Law reviews. — For article, "Prisoners Are People," see 10 Nat. Resources J. 869 (1970).
For article, "Mandamus in New Mexico," see 4 N.M. L. Rev. 155 (1974).
For article, "The Writ of Prohibition in New Mexico," see 5 N.M. L. Rev. 91 (1974).
For article, "Medical Malpractice Legislation in New Mexico," see 7 N.M. L. Rev. 5 (1976-77).
For comment on Sender v. Montoya, 73 N.M. 287, 387 P.2d 860 (1963), see 4 Nat. Resources J. 413 (1964).
For article, "Habeas Corpus in New Mexico," see 11 N.M. L. Rev. 291 (1981).
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).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 20 Am. Jur. 2d Courts §§ 72 et seq.
Propriety of federal court's considering state prisoner's petition under 28 USC § 2254 where prisoner has exhausted state remedies as to some, but not all, claims in petition, 43 A.L.R. Fed. 631.
21 C.J.S. Courts § 12 et seq.