Overview

Keyword Index

SECTION 1.1
JURISDICTION; TIME LIMITS

1.1-1 Jurisdiction
A. General
B. Jurisdiction: Monetary Limit
C. Subject-Matter Jurisdiction: Exclusions
D. Subject-Matter Jurisdiction: Kinds of Actions
E. Territorial Jurisdiction
F. Venue of Actions
G. Personal Jurisdiction
H. Indian Jurisdiction

1.1-2 Time Limits for Bringing Actions
A. Computation of Time Limits
B. Time Limits in General
C. Other Time Limits
D. Determination That Time Limit Has Passed

SECTION 1.2
CIVIL PROCEDURE BEFORE TRIAL

1.2-1 Complaint
A. Filing of Complaint and Docketing of Action
B. Other Matters Related to Complaint

1.2-2 Summons
A. Purpose
B. Issuance
C. Service of Process - General
D. Service of Process - Methods of Service
E. Service by Mail
F. Who May Serve
G. Proof of Service of Process; Return

1.2-3 Answer, Counterclaim, Third-Party Complaint
A. General
B. Counterclaim or Setoff
C. Third-Party Complaint
D. Interpleader
E. Filing of Answer
F. Jury Demand by Defendant
G. Clarifying or Amending Complaint or Answer
H. Service of the Answer
I. Defenses
J. Default

1.2-4 Pleadings and Motions
A. Service and Filing of Papers
B. Pleadings
C. Motions
D. Motion for Judgment on the Pleadings
E. Motion for Summary Judgment

1.2-5 Parties
A. Who may Sue; Real Party in Interest
B. Minors and Incapacitated Persons
C. Death or Incapacity; Transfer of Interest
D. Joinder of Parties
E. Pro Se and Attorney Appearance
F. Other Authorized Appearances
G. Attorney Appearance
H. Withdrawal or Attorney Failure to Act

1.2-6 Dismissal
A. Definitions; General
B. Voluntary Dismissal Without Court Order
C. Voluntary Dismissal By Court Order
D. Involuntary Dismissal By Court Order
E. Counterclaims, Cross-Claims
and Third-Party Claims
F. Costs of Previously Dismissed Action
G. Filing; Service

1.2-7 Other Preliminary Matters
A. Discovery
B. Pretrial Conference
C. Notice of Trial
D. Recording of Trial
E. Appointment of Special Master, Arbitrator or Metropolitan Court Judge Pro Tempore

1.2-8 Joint and Separate Trials
A. Reasons
B. Motions; Order

SECTION 1.3
JUDGMENT; ENFORCEMENT; APPEAL

1.3-1 Judgment
A. Definition
B. Entry of Judgment
C. Multiple Claims or Multiple Parties
D. Damages
E. Interest to Date
F. Costs to be Reimbursed (Taxing Costs)
G. Satisfaction of Judgment
H. Relief from Judgment: Clerical Mistake
I. Relief from Judgment: Void Judgment

1.3-2 Default Judgment
A. Definition; Types
B. Entry of Default Judgment
C. Motion to Set Aside Default Judgment
D. Multiple Parties

1.3-3 Reserved

1.3-4 Determination of Judgment Debtor's Assets
A. Judgment Debtor Examination
B. Deposition

1.3-5 Appeal
A. Right of Appeal
B. Notice of Appeal
C. Record on Appeal
D. Stay of Proceedings to Enforce Judgment
E. Review and Remand

SECTION 1.4
EXECUTIONS AND GARNISHMENTS

1.4-1 Executions of Judgments
A. Definitions; General
B. Writ of Execution
C. Exemptions
D. Claim of Exemption for Satisfaction of Separate and Community Debts
E. Transcript of Judgment
F. Levy and Sheriff's Sale
G. Renewal of Execution
H. Examinations and Depositions to Aid Execution

1.4-2 Garnishment
A. Definitions; General
B. Types of Garnishment
C. Garnishment in Advance of Execution
D. Garnishment in Aid of Execution of Judgment
E. Garnishment in Aid of Execution of Judgment Entered in Another Court
F. Default Judgment Against Garnishee
G. Release of Garnishment
H. Miscellaneous
I. Appeals on Rulings on Claims of Exemptions

SECTION 1.5
SPECIAL PROCEEDINGS

1.5-1 Attachment
A. Definition
B. Constitutionality
C. Procedures
D. Attachment Service Response
E. Dissolution of Attachment
F. Exemptions from Attachmen
G. Appeals in Attachment

1.5-2 Replevin
A. Definition
B. Complaint; Limits
C. Judgment; Execution

1.5-3 Forcible Entry or Unlawful Detainer
A. Procedure; Complaint
B. Judgment
C. Execution
D. Appeal

1.5-4 Bankruptcy
A. Overview of the Bankruptcy Process
B. Effect of Bankruptcy on Civil Court Cases
C. Effect of Bankruptcy on Criminal Court Cases
D. Effect of Bankruptcy on Collection of Criminal Fees and Fines

SECTION 1.6
LANDLORD-TENANT PROCEEDINGS

1.6-1 Uniform Owner-Resident Relations Act
A. Important Note
B. Coverage; Application of Act
Chart: Obligations of Owner and Resident Under Owner-Resident Relations Act
C. Obligations of the Owner Under the Act
D. Obligations of the Resident Under the Act
E. Types of Actions Allowed Under the Act
Chart Owner Resident Relations Act
Causes of Action
F. Notice
G. Termination of Rental Agreements and Abatement of Rent
H. Actions for Possession
I. Actions for Damages
J. Petition by Owner for Restitution; Petition by Resident for Relief; Summons
K. Judgment; Writ of Restitution
L. Actions for Counterclaim
M. Appeal in Actions for Possession
N. Deposits
O. Disposition of Property Left on Premises

1.6-2 Mobile Home Act
A. Application of Act
B. Conflicts of Law
C. Obligations of Owner
D. Obligations of Tenant
E. Tenancy Requirements, Rental Agreements
F. Termination of Tenancy
G. Action for Termination/Forcible Entry/Detainer
H. Security Agreements/Deposits
I. Alternative Dispute Resolution
J. Conflicts of Law/Mediation

CRIMINAL CHAPTER

SECTION 2.1
MISDEMEANORS: GENERAL; PROCEDURES BEFORE TRIAL

2.1-1 General
A. Definitions
B. Jurisdiction
C. Venue
D. Time Limitations
E. Determination of Present Competency

2.1-2 Complaint; Summons; Arrest Warrant
A. Filing Complaint and Docketing of Action
B. Criminal Summons
C. Arrest without a Warrant
D. Preliminary Rights
E. Probable Cause Determination
F. Detention Hearing for Children
G. Arrest Warrant

2.1-3 Arraignment
A. Definition; General
B. Juveniles in the Magistrate and
Metropolitan Courts
C. Explanation of Rights
D. Representation by Counsel
E. Entry of Plea

2.1-4 Joint and Separate Trials
A. Joinder of Offenses
B. Joinder of Defendants
C. Consolidation
D. Severance; Separate Trials

2.1-5 Jury Trial
A. Right to Jury Trial
B. Exercise or Waiver of the Right to Jury

2.1-6 Dismissal
A. Definitions; General
B. Voluntary Dismissal by Prosecution
C. Dismissal for Failure to Prosecute
D. Refiled Complaints in Metropolitan Court

2.1-7 Sentencing Options
A. Deferral, Suspension and Probation

2.1-8 Other Preliminary Matters
A. Subpoenas
B. Discovery
C. Pretrial Conference
D. Motions
E. Recording of Trial
F. Service and Filing by Facsimile
G. Service and Filing by Electronic Transmission

SECTION 2.2
FELONIES

2.2-1 General
A. Definition
B. Authority of Court

2.2-2 Complaint and Arrest Warrant
A. Filing Complaint and Docketing of Action
B. Issuance of Arrest Warrant
C. Arrest and Return
D. Arrest Followed by Complaint
E. Amendment of Complaints

2.2-3 First Appearance
A. Definition; General
B. Explanation of Rights
C. Representation by Counsel
D. Determination of Indigency
E. Release; Bail
F. Explanation of Preliminary Examination and Grand Jury Indictment Process
G. Dialogue for First Appearance

2.2-4 Fugitive Actions
A. Fugitive Complaint
B. Arraignment and Commitment Hearing
C. Transfer of Actions

SECTION 2.3
MISDEMEANORS: JUDGMENT; SENTENCE; APPEAL

2.3-1 General
A. Judgment and Sentence; Written Orders
B. Right to Appeal

2.3-2 Sentencing
A. Pre-Sentence Report
B. Sentencing Options
C. Sentencing for Hate Crimes
D. Terms and Conditions of a Deferred or Suspended Sentence: Probation
E. Successful Completion of or Violation and Revocation of Probation

2.3-3 Court Costs and Fines
Payment of Court Costs and Fines

2.3-4 Appeal
A. Right, Notice and Docketing of Appeal
B. Transcript of Proceedings
C. Conditions of Release
D. Disposition; Time Limitations

SECTION 2.4
GAME AND FISH VIOLATIONS

2.4 Game and Fish Violations
A. Jurisdiction; Penalties
B. Arrest; Search Warrants; Citations
C. Prosecution

SECTION 2.5
SEARCH AND SEIZURE

2.5-1 Search Warrants
A. General
B. Sufficiency of Affidavit; Probable Cause

2.5-2 Searches Without Warrants
A. General
B. Searches of Persons and Places
C. Searches of Motor Vehicles

2.5-3 Motion to Suppress
A. General
B. Who May File Motion
C. Grounds for Suppression

2.5-4 Gambling: Search and Seizure
A. Affidavit
B. Search Warrant
C. Execution: Arrest

2.5-5 Inspection Orders
A. Administrative Inspection; Defined
B. Application for Inspectorial Search Order
C. Probable Cause for Issuance of Inspection Order
D. Exceptions to Requirement for Inspection Order

SECTION 2.6
RELEASE; BAIL

2.6-1 General
A. Right to Release; Purpose of Conditions
B. Factors to be Considered Prior to
Setting Conditions of Release
C. Conditions of Release to Assure Orderly Administration of Justice
D. Release Proceedings
E. Release Forms
F. Failure to Comply with Conditions of Release
G. Failure to Appear
H. Forfeiture of bail -- exoneration
I. Misdemeanors: Continuation and
Review of Release

2.6-2 Personal Recognizance and Bonds
A. Personal Recognizance
B. Bonds; General
C. Unsecured Appearance Bond
D. Appearance Bond: Cash Deposit.
E. Appearance Bond: 100 Percent Cash Deposit
F. Bail Bond
G. Bail Bond: Discharge of Surety
H. Bonds: Forfeiture

GENERAL CIVIL & CRIMINAL CHAPTER

SECTION 3.1
SUBPOENAS

3.1 Subpoenas
A. General
B. Issuance; General Rules
C. Service of Subpoena
D. Motion to Quash Subpoena
E. Failure of Appear

SECTION 3.2
JURY SELECTION AND TRIALS

3.2-1 Calling of Prospective Jurors
A. General
B. Request for Qualified Jurors
C. Excusing
D. Jury Costs

3.2-2 Trials General

3.2-3 Calling the Cause
A. Start of Trial
B. Readiness to Proceed with Trial
C. Motion to Quash Jury Array
Appendix
UJI Civil 13-106 7
UJI Criminal 14-101 10

3.2-4 Selection of Jury
A. Calling Jurors
B. Voir Dire: General
C. Challenges for Cause
D. Drawing Names
E. Peremptory Challenges
F. Additional Jurors
G. General
Appendix
   Voir Dire Instructions in Civil Cases
   Voir Dire Instructions in Criminal Cases

3.2-5 Oath to Jurors; Preliminary Instructions
A. Oath
B. Preliminary Instructions
C. Opening statement -- UJI Civil 13-108
Appendix
   Preliminary Instructions in Civil Cases
   Preliminary Instructions in Criminal Cases

3.2-6 Witness Oath; Exclusion Rules; Opening Statements
A. Witness Oath
B. Exclusion Rule
C. Opening Statements

3.2-7 Presentation of Evidence
A. Order of Presentation
B. Witnesses: Testimony
C. Defendant as Witness
D. Introduction of Documentary Evidence and Other Things
E. Objections
F. Confessions

3.2-8 Rules of Evidence
A. Overview
B. Application of the Rules of Evidence
C. Construction of the Rules of Evidence
D. General Principles of Evidence
E. Relevancy
F. Evidence on Specific Topics
G. Witness Testimony
H. Hearsay
I. Privileges

3.2-9 Instructions to Jury
A. General
B. Instructions in Criminal Cases
C. Instructions in Civil Cases
D. Requested Instructions

3.2-10 Closing Arguments
A. Definition
B. Order of Presentation

3.2-11 Jury Deliberation; Verdict; Trial by Court
A. Deliberation
B. Procedure When Jury Reaches Verdict
C. Failure of Jury to Reach Verdict
D. Trial by Court: Nonjury Trials

3.2-12 Motions for Directed Verdict or Dismissal During Trial
A. Motion for Directed Verdict
B. Motions for Dismissal

3.2-13 Motion for New Trial

3.2-14 Preservation and Disposition of Exhibits
A. Preservation
B. Return to Court for Appeal
C. Final Disposition

SECTION 3.3
BENCH WARRANT

3.3 Bench Warrant
A. General
B. Issuance
C. Execution; Return
D. Grounds for Issuing Bench Warrant

SECTION 3.4
CONTEMPT

3.4 Contempt
A. General; Definitions
B. Direct Contempt
C. Indirect Contempt
D. Notice
E. Hearing
F. Punishment; Appeal

SECTION 3.5
EXCUSAL, RECUSAL, INABILITY TO PROCEED

3.5-1 Excusal, Recusal, Inability to Proceed
A. Excusal
B. Recusal
C. Inability of a Judge to Proceed
D. Procedure for Replacing a Judge Upon Excusal or Recusal - Magistrate Court
E. Procedure for Replacing a Judge Upon Excusal or Recusal - Metropolitan Court

3.5-2 Recording of Proceedings
A. Record
B. Broadcasting and Photographs

SECTION 3.6
EFFECTIVE DATES OF STATUTES AND COURT RULES

3.6 Effective Dates of Statute and Court Rules
A. General
B. Exceptions

3.5-1 Excusal, Recusal, Inability to Proceed

A. Excusal (Magis. Ct. R. 2-106(A)-(D) and 6-106(A)-(E); Metro. Ct. R. 3-106(A)-(D) and 7-106 (A)-(E))

1. Whenever a party to any civil or criminal action or proceeding of any kind files a notice of excusal, the judge's jurisdiction over the matter terminates immediately. In criminal cases, "party" means the defendant, the state or an attorney representing the defendant or the state.
2. No party may excuse more than one judge.
3. A party may not excuse a judge after the party has requested the judge to perform a discretionary act other than:

   a. in civil cases, an order for free process, or a determination of indigency; or

   b. in criminal cases, conducting an arraignment or first appearance, setting initial conditions of release, or a determination of indigency.

4. No judge may be excused from conducting an arraignment or first appearance, or setting initial conditions of release.
5. A party exercising the statutory right to excuse a judge must file a notice of excusal with the court clerk as follows:

   a. The plaintiff or the plaintiff's attorney must file within 10 days after the filing of the complaint, or service by the court of a notice of assignment or reassignment of the case, whichever is later.

   b. Any other party or the party's attorney must file within 10 days after the party files an answer, or service by the court of notice of assignment or reassignment of the case, whichever is later.

   c. Each plaintiff and defendant in a restitution case, including an action for forcible entry or detainer, must file within 3 days after service.

   d. A party in a criminal case must file within 10 days after arraignment or filing a waiver of arraignment, or service by the court of notice or assignment or reassignment of the case, whichever is later.

   e. A defendant in a criminal case that has been filed, dismissed without prejudice, and then refiled, must exercise his or her right of peremptory excusal of the judge within 10 days of arraignment on the original charges. The time for exercising a peremptory right to excuse a judge does not begin anew from the date of arraignment on the refiled charges. Walker v. Walton, 2003-NMSC-014, 133 N.M. 766, 70 P.3d 756.

   f. A party seeking to excuse a judge scheduled to hold a preliminary hearing must file at least 4 days prior to the hearing.

   g. See subsection (B) below for notice of excusal based on judicial impartiality.

6. When a case is assigned to a judge, the court must give notice of the assignment to all parties. Any party electing to excuse a judge must serve notice of the election on all parties.

B. Recusal (Magis. Ct. R. 2-106(E) & (F) and 6-106(F) & (G); Metro. Ct. R. 3-106(E) & (F) and 7-106(F) & (G))

1. A judge may not sit in any action in which the judge's impartiality may be reasonably questioned under the state constitution or the Code of Judicial Conduct. N.M. Const. art. VI, §18; Code of Judicial Conduct Rule 21-400; Civil Form 4-104 (Notice of Recusal); Criminal Form 9-105 (Notice of Recusal). A judge must file a recusal in this event.
2. A judge shall recuse himself or herself in any proceeding in which the judge or the judge's spouse, or a person related to the judge by affinity or consanguinity within the degree of first cousin:

   a. is a party to the proceeding, or an officer, director or trustee of a party;

   b. is acting as a lawyer in the proceeding;

   c. is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; or

   d. is to the judge's knowledge likely to be a material witness in the proceeding.

3. A judge should recuse himself or herself in a proceeding in which the impartiality of the judge might reasonably be questioned, including but not limited to instances where:

   a. he or she has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceeding;

   b. he or she served as a lawyer in the matter in controversy, or a lawyer, with whom he or she previously practiced law, served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

   c. the judge knows that he or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has a financial interest in the subject matter in controversy or is a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding. Magis. Ct. R. 2-106(E) and 6-106(F); Metro. Ct. R. 3-106(E) and 7-106(F); Code of Judicial Conduct Rule 21-400; see also §35-3-8.

4. The judge is required to be informed about his or her own personal and fiduciary financial interest and make a reasonable effort to be informed about the personal financial interests of his or her spouse and minor children residing in the household. Code of Judicial Conduct Rule 21-400(B).
5. A judge disqualified by his or her financial interests may, instead of withdrawing from the proceeding, disclose on the record the basis of his or her disqualification. If, based on such disclosure, the parties and lawyers, independently of the judge's participation, all agree in writing that the judge's relationship is immaterial or that the financial interest is insubstantial, the judge is no longer disqualified, and may participate in the proceeding. The agreement, signed by all parties and lawyers, must be incorporated in the record of the proceeding.
6. A judge shall recuse himself from sitting in the action by giving notice to all parties.
7. If a party believes that the judge's impartiality may be reasonably questioned under the state constitution or the Code of Judicial Conduct, the party may file a notice of excusal. The notice must specifically state the ground alleged. Upon receipt of the notice, the judge must file a certificate of excusal or recusal in the action. If the judge fails or refuses to recognize the disqualification, then:

   a. any party may certify that fact by letter to the district court of the county in which the action is pending; and

   b. the district court must investigate as it deems warranted and enter an order either prohibiting the judge from proceeding further and designating another judge or striking the notice of excusal as ineffective or groundless.

8. Any judge who willfully attempts or presumes to act as judge in an action after his or her disqualification is guilty of a petty misdemeanor and shall be removed from office. Section 35-3-7(C).

C. Inability of a Judge to Proceed (Magis. Ct. R. 2-106(H) and 6-106(H); Metro. Ct. R. 3-106(H) and 7-106(H))

1. If a judge is unable to proceed after a trial or hearing has started, any other judge of the district may proceed with the action after certifying familiarity with the record and determining that there will be no prejudice to the parties by completing the proceedings. The successor judge may recall any witness.
2. If no other judge is available in the district, a party may certify that fact by letter to the district court of the county in which the action is pending. The district court may investigate as it deems warranted and, if it finds that the judge is in fact disabled or unavailable, designate another judge to preside over the case.

D. Procedure for Replacing a Judge Upon Excusal or Recusal--Magistrate Court (Magis. Ct. R. 2-105 and 6-105)

1. In magistrate districts that have a presiding magistrate, the procedures are:

   a. Upon receipt of a notice of excusal or recusal, the magistrate or court clerk must give written notice to the parties.

   b. Within 10 days of service of this notice, the parties or their counsel may agree to another judge of the magistrate district to try the case. If the parties fail to agree, the presiding magistrate must assign by random selection another judge to try the case.

   c. If all the judges in the district have been excused or have recused themselves, within 10 days after service of the notice of excusal or recusal the presiding magistrate must certify that fact by letter to the district court of the county in which the action is pending. The district court must designate another judge to conduct any further proceedings. The district court must send notice of its designation to the parties or their counsel, to the excused or recused judge, and to the designated judge. See Section 35-1-37 (defining "presiding magistrate").

2. In magistrate districts without a presiding magistrate, the procedures are:

   a. Upon receipt of a notice of excusal or upon recusal, the judge must give written notice to the parties. Within 10 days after service of this notice, the parties or their counsel may agree to another judge of the magistrate district to try the case.

   b. If the excused or recused judge has not received notice of an agreement within this time, the judge shall certify that fact by letter to the district court of the county in which the action is pending. The district court must designate another judge to conduct any further proceedings. The district court must send notice of its designation to the parties or their counsel, to the excused judge, and to the designated judge.

3. All subsequent proceedings must be conducted in the original magistrate court. The clerk of the original court continues to be responsible for the court file and must perform other further duties as required. Within 5 days after assignment or designation of a new judge, the clerk must make a copy of the court file for the designated judge.
4. At any time during the proceedings, if the assigned judge is unavailable, the parties may agree on another judge to hear any matter, including the merits of the case. The agreement is subject to the approval of the assigned judge and the judge agreed upon by the parties.

E. Procedure for Replacing a Judge Upon Excusal or Recusal--Metropolitan Court (Metro. Ct. R. 3-105 and 7-105)

1. Upon receipt of a notice of excusal or recusal, the judge or court clerk must give written notice to the parties.
2. Within 10 days of service of this notice, the parties or their counsel may agree to another judge of the metropolitan district to try the case. If the parties fail to agree, the chief metropolitan judge must assign by random selection another judge to try the case.
3. If all the judges in the district have been excused or have recused themselves, within 10 days after service of the notice of excusal or recusal the chief metropolitan judge must certify that fact by letter to the district court of the county in which the action is pending. The district court must designate another judge to conduct any further proceedings. The district court must send notice of its designation to the parties or their counsel and to the metropolitan court.
4. All subsequent proceedings must be conducted in the metropolitan court. The clerk of the metropolitan court continues to be responsible for the court file and must perform other further duties as required. Within 5 days after assignment or designation of a new judge, the clerk must make a copy of the court file for the designated judge.