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

Purpose of the Benchbook
The purpose of the Magistrate and Metropolitan Court Benchbook is to provide magistrate and metropolitan court judges with the information they need to perform their judicial duties. The benchbook is essentially a procedures manual rather than a treatise on the law. It is intended to provide a general explanation of the law and procedure, but not to serve as a direct reference for substantive law. The Courts of Limited Jurisdiction Rules Committee, which oversees revisions of the Benchbook, recommends the use of the uniform jury instructions for civil and criminal cases as a good source of substantive civil and criminal law even if the case is not a jury case.

The Benchbook should be used in conjunction with the rules of civil and criminal procedure for the magistrate and metropolitan courts, court approved forms, the New Mexico Rules of Evidence, laws enacted by the New Mexico legislature and case law. The benchbook does not replace these materials nor should it be considered as a substitute for the law and rules governing cases in the magistrate and metropolitan courts.

When referring to Metropolitan Court judges or Magistrate Court judges, the terms magistrate and judge are used interchangeably.

Court Structure
New Mexico has three main types of courts: (1) courts of limited jurisdiction (magistrate, metropolitan, municipal and probate courts); (2) courts of general jurisdiction (district courts); and (3) appellate courts (Court of Appeals and Supreme Court). Although the district courts are courts with general trial jurisdiction, they also serve as appellate courts for the magistrate and metropolitan courts. Judgments of magistrate and metropolitan courts may first be appealed to the district court and then from the district court to an appellate court. Courts of limited jurisdiction have only the powers and duties provided by law.

The Supreme Court has superintending authority over all courts and judges and the district courts have supervisory control over the metropolitan and magistrate courts within their districts. In addition, the Judicial Standards Commission has disciplinary authority over all judges.

New Mexico Laws, Court Rules, Court Forms and Jury Instructions
Magistrates and metropolitan judges are issued full or partial sets of the New Mexico Statutes Annotated 1978. These are updated annually in September or October. Periodically, rule amendments are mailed to the magistrates. In addition to the published forms, the Administrative Office of the Courts provides pre printed forms for use in the magistrate courts.

The New Mexico Compilation Commission prepares for all magistrates and metropolitan judges special volumes of the laws (NMSA 1978) which include the United States and New Mexico Constitutions; the Criminal Code; the Uniform Commercial Code (sales); the Code of Judicial Conduct; civil and criminal rules and forms; rules of evidence; civil and criminal jury instructions; landlord tenant (owner resident relations) laws; motor vehicle violations; and game and fish violations. In addition each magistrate district has been provided with a full set of the laws.

Citation Format
Citations in the Benchbook use the following format:

• Rules. Magistrate court rules are cited as Magis. Ct. R. __-___. Metropolitan court rules are cited as Metro. Ct. R. __-___. Uniform jury instructions are cited as UJI Civil 13-___ and UJI Criminal 14-____.
• Forms. Civil Forms are cited as Civil Form __ ___ and Criminal Forms are cited as Criminal Form __ ___. Most published forms contain a bracketed reference to the applicable magistrate or metropolitan court rule or statute in their top left hand corner.
• Statutes. Statutes are cited as Section __ __ ___. The citation consists of three sets of numbers separated by hyphens (e.g. 35 3 1). The first number refers to the chapter number (e.g. "35"); the second number is the article number (e.g. "3"); and the third number is the section number (e.g. "1").
• State Cases. Decisions of the New Mexico Supreme Court or Court of Appeals are cited as Name of Case, ___ N.M. ____ (year). Sometimes a parallel citation to the Pacific Reporter 2nd will be included, as in ____ P.2d ____. If the opinion is a Court of Appeals decision, "Ct. App." precedes the year of the opinion. In 1998, the Supreme Court adopted a “vendor neutral” citation style that uses opinion numbers assigned by the court. For example, a Supreme Court opinion may be cited as Name of Case, 1999-NMSC-047 and a Court of Appeals opinion may be cited as Name of Case, 1999-NMCA-034.
• Federal Cases. Occasionally a federal court may interpret or decide the constitutionality of New Mexico laws or court rules. Decisions of the U.S. Supreme Court are cited using one or more of the following: ___ U.S. ___ (year); ___ S. Ct. ___ (year); or ___ L. Ed.2d ___ (year). Decisions of the Tenth Circuit Court of Appeals are cited as ___ F.2d ___ (10th Cir., year). Published decisions of the U.S. District Court for the District of New Mexico are cited as ___ F. Supp. ___ (D.N.M., year).

History of the Benchbook
In 1975, the New Mexico Supreme Court appointed a special committee to prepare a New Mexico Magistrate Benchbook. The Institute of Public Law at the University of New Mexico School of Law was asked to staff the committee. The original benchbook was funded by a federal grant. Revisions were funded by general funds appropriated to the Supreme Court for rules and benchbook projects.

In 1979, the New Mexico Legislature enacted a Metropolitan Court consolidating the municipal, small claims and magistrate courts in Class A counties into a single Metropolitan Court. The Supreme Court appointed a special rules committee to draft rules of civil and criminal procedure for the Metropolitan Court. The rules approved for the Metropolitan Court did not track the Magistrate Court rules, necessitating the preparation of a separate benchbook for the Metropolitan Court.

In August, 1986, the Supreme Court revised former Miscellaneous Court Rule 8 (now 23-106) to create a permanent standing committee to be known as the Courts of Limited Jurisdiction Rules Committee with the responsibility for reviewing and recommending rules of procedure and forms for the Magistrate, Metropolitan and Municipal Courts. The Supreme Court directed this committee to submit uniform rules for all three courts insofar as the jurisdictional differences of these courts permitted.

During the years 1987 through 1990, the Courts of Limited Jurisdiction Rules Committee submitted more than 100 rule and civil form revisions to the Supreme Court. The committee recommended an additional 28 criminal forms that in many instances were also reviewed and recommended by the District Court Criminal Rules Committee. By the end of 1990, most rules of the Magistrate and Metropolitan Courts were almost identical. This permitted the 1991 consolidation of the Magistrate and Metropolitan Court Benchbooks into one benchbook.

In 1991, the Judicial Education Center was created at the Institute of Public Law. In 1993, the New Mexico legislature enacted Section 34-13-2, which formally delegated to JEC the responsibility for providing education and training to judges and court personnel. In 1994, JEC assumed responsibility for updating this Benchbook. In 1998, JEC made the Benchbook available over the Internet on the JEC web site, http://jec.unm.edu.

The 2004 revision eliminated the chapters on DWI, Traffic Offenses, and Domestic Violence because separate benchbooks are published on these subjects. As with this Magistrate and Metropolitan Court Benchbook, the New Mexico DWI Benchbook, the New Mexico Domestic Violence Benchbook, and the New Mexico Traffic Citations Manual are available on the JEC web site. In the 2004 revision, the Judicial Education Center added new material on the rules of evidence (Section 3.2-8).

The 2005 update has not eliminated or added any sections of the benchbook. Rather, the 2005 revision simply updates the benchbook so that it reflects the case law, statutes, and rules adopted since the 2004 edition.

The 2005 Revision
The year 2005 revisions of the New Mexico Magistrate and Metropolitan Court Benchbook incorporate any changes that apply to proceedings in the Magistrate and Metropolitan courts in the following sources of the law::

• Statutes, through the year 2005 legislative sessions.
• Civil and criminal rules and forms, as approved by the Supreme Court through May 31, 2005.
• Case law, through May 31, 2005.

Updates to the Benchbook are prepared by the New Mexico Judicial Education Center, with approval of the Courts of Limited Jurisdiction Rules Committee.

The Judicial Education Center welcomes your suggestions for improvement of the Benchbook. Please submit your comments to Paul Biderman, Director, 505-277-8789 or biderman@unm.edu; Pam Lambert, Senior Attorney, 505-277-1052 or plams@unm.edu; or Beth Gillia, Staff Attorney, 505-277-0710 or bgillia@unm.edu.