This chapter covers:

• New Mexico judicial system, including the types of courts.
• Municipal court jurisdiction, including ordinances, campus traffic regulations, search and arrest warrants, subpoenas, bench warrants, contempt, and performance of marriage ceremonies.
• Municipal court procedures, including court rules, conduct of proceedings, time periods, presence of the defendant, attorney representation, proceedings conducted using audio-visual equipment, and recording of proceedings.
• Municipal judge requirements, including qualifications, term of office, salary, training, responsibilities, vacancies, temporary judges and removal from office.
• Judicial ethics, including the Code of Judicial Conduct, oversight of the court and impartiality.
• Effective dates of ordinances and court rules.

1.1 New Mexico Judicial System

1.1.1 Courts of Limited Jurisdiction
The judicial system in New Mexico has three levels, beginning with courts of limited jurisdiction. Courts of limited jurisdiction are trial courts whose jurisdiction has been established by either the New Mexico constitution or the legislature. These courts can only do the things that the law gives them the authority to do, which is why they are called limited jurisdiction courts. Municipal courts are courts of limited jurisdiction. Metropolitan, Magistrate, and probate courts are also courts of limited jurisdiction.

1.1.2 Courts of General Jurisdiction
The next level in the judicial system is the court of general jurisdiction. District courts are courts of general jurisdiction. This means that district courts have wide ranging authority to hear cases, including criminal, civil, probate, family law and juvenile cases.

1.1.3 Appellate Courts
The highest level in the state judicial system is the appellate courts. These courts do not preside over trials, but instead hear appeals of decisions from the courts below them. An appeal is a review of the lower court proceedings to ensure the law was properly followed. The appellate court reviews the record or transcription of the prior proceedings, reviews briefs written by the attorneys for the parties, and hears arguments by the attorneys. Witnesses do not testify and no new information can be presented. However, see the next section for a discussion of appeals from the municipal courts to the district courts.

There are two appellate courts in New Mexico: the Court of Appeals and the Supreme Court. The Court of Appeals hears appeals of cases from the district court, and the Supreme Court hears appeals of cases from the Court of Appeals. There are a few exceptions to this rule. For example, if a defendant convicted in district court was sentenced to death or life imprisonment, the appeal would bypass the Court of Appeals and go directly to the New Mexico Supreme Court.

1.1.4 Appeals from Municipal to District Court
The district court is an appellate court for cases that are heard in the courts of limited jurisdiction. A defendant who is unhappy with a decision in municipal court can appeal to the district court, where the case would be heard de novo, meaning “anew.” A whole new trial will be held in the district court. The reason these appeals are heard de novo is because there is no record or transcription made of trials in the municipal courts. This appeal to the district court is not the same kind of appeal discussed above, where the appellate court only reviews the record to ensure the law was followed. Instead, the district court holds a new trial in which witnesses can testify and exhibits can be introduced. In fact, new witnesses and new evidence can be introduced in this proceeding since it is treated as if the trial in municipal court had never taken place. See Section 8.4 for an explanation of the appeal process.

1.2 Municipal Court Jurisdiction

The municipal court is a city/town/village court. It gets its authority from state law, but it is a part of the municipal government, not the county (as in magistrate court) or the state (as in district and appellate courts). As a part of municipal government, the jurisdiction of the municipal court is limited to offenses that violate municipal ordinances and that occur within municipal limits. §35-14-2.

1.2.1 Ordinances
The municipal court has authority to hear cases involving offenses for which the municipal government has adopted an ordinance. Specifically, the court has jurisdiction over criminal cases where the offense is a petty misdemeanor (up to six months imprisonment and/or a $500 fine, except for driving while intoxicated offenses which carry a more severe penalty). That is the limit of the court’s jurisdiction.

• The municipal court has no jurisdiction to hear criminal cases involving misdemeanors (up to one year imprisonment and/or $1000 fine).
• The municipal court has no jurisdiction to hear criminal cases involving felonies (more than one year imprisonment and/or more than $1000 fine).
• The municipal court has no jurisdiction to hear civil cases, such as landlord-tenant disputes or contract disputes.
• The municipal court has no jurisdiction to hear cases involving violations of state law.

The governing body of the municipality (e.g., city council, city commission) has the authority to adopt ordinances that are not inconsistent with the laws of the state. A municipal ordinance may be stricter than state law, but may not be more lenient. An ordinance may be exactly the same as the state law on the same subject. For example, a municipality may adopt a law prohibiting possession of a small amount of marijuana exactly like the state law does.

The governing body also can adopt certain state laws by reference, for example the state motor vehicle code. In that case, the state laws are incorporated into, and become part of, the municipal ordinances and may be prosecuted in municipal court as long as they involve only petty misdemeanor offenses.

1.2.2 Campus Traffic Regulations
If there is a written agreement between the board of regents of a state educational institution located within the municipality and the governing body of the municipality, then the municipal court has jurisdiction over campus traffic regulations. All monies collected in fines for violations of these regulations must be turned over to the educational institution.

1.2.3 Search Warrants
A municipal judge may issue a search warrant where the evidence to be seized will be used to prosecute a violation of a municipal ordinance. See Chapter 4.

1.2.4 Arrest and Bench Warrants
A municipal judge may issue arrest warrants for the appearance of defendants and bench warrants for violations of court orders. See Chapter 5.

1.2.5 Subpoenas
A municipal judge may issue subpoenas for the appearance of witnesses and the production of documents relevant to a case. See Chapter 6.

1.2.6 Contempt
A municipal judge has the authority to punish for contempt of court. See Chapter 9.

1.2.7 Marriage Ceremonies
Municipal judges are authorized by state law to perform marriage ceremonies, as are all judges. §40-1-2. Because a municipal judge has jurisdiction only within the city limits, any marriage ceremony performed by the judge must be held within those boundaries. The judge may not ask for any money or other gratuity for performing a marriage ceremony, but may receive an unsolicited gratuity for performing a ceremony outside of normal business hours. Code of Judicial Conduct, Commentary to Canon 21-600(B).

Samples of marriage ceremonies are readily available, either in the court or from other judges. The judge is required to sign the marriage certificate upon completion of the ceremony. Two witnesses are required to be present for the ceremony and to sign the marriage certificate. The certificate must be returned to the county clerk after the ceremony has been performed. Either the court can mail it or the newlyweds can see that the certificate is returned.

1.3 Municipal Court Procedures

1.3.1 Court Rules
The Rules of Procedure for the Municipal Courts, adopted by the New Mexico Supreme Court, govern the procedures for enforcement of municipal ordinances in municipal courts. The rules are to be “liberally construed to secure the just, speedy and inexpensive determination of every municipal court action.” Rule 8-101(B).

The municipal rules are found in Chapter 8 of the rules for the New Mexico courts, known as the “New Mexico Rules Annotated” or “NMRA.” The municipal rules consist of eight major subdivisions, called “articles,” and numerous subdivisions, which identify a specific rule. The eight articles are:

1. General Provisions.
2. Initiation of Proceedings.
3. Pleadings and Motions.
4. Release Provisions.
5. Arraignment and Preparation for Trial.
6. Trials.
7. Judgment and Appeal.
8. Special Proceedings.

Officially, the rules are cited by a reference to the article and specific rule number, then NMRA (New Mexico Rules Annotated) and the year, e.g. Rule 8-101 NMRA 2000. In this benchbook, an informal citation style is used, without reference to “NMRA.”

Rule 8-103(A) authorizes municipal courts to make and amend their own rules of practice, as long as they are consistent with law and the NMRA. The local rules can relate to office hours and procedures, the performance of clerical duties by clerical assistants, and other procedures for just, speedy and inexpensive resolution of cases. To be effective, local rules and amendments to those rules must be signed by the judge, filed with the clerk of the court and made readily available to the public.

Forms used in municipal court must be substantially in the form approved by the New Mexico Supreme Court. Rule 8-103(B). A number of these forms are located in Chapter 9 of the NMRA, called “Criminal Forms.”

1.3.2 Court Conduct
Judicial proceedings in municipal court “should be conducted with fitting dignity and decorum, in a manner conducive to undisturbed deliberation, indicative of their importance to the people and to the litigants and in an atmosphere that bespeaks the responsibilities of those who are charged with the administration of justice.” Rule 8-102(A).

1.3.3 Time Periods
Rule 8-104 describes the time periods for complying with the rules (for example, filing motions). Some of the provisions are:

• Calculation: The day of the act or event from which a time period starts to run is not counted. The last day of the time period is counted (except for weekends and holidays).
• Extension before the period ends: The court can extend the time period if a request based on cause is made before the period ends. The request can be made with or without motion or notice.
• Extension after the period ends: The court can extend the time period if a request based on cause is made by motion after the time period ends. The court cannot extend the expired time period for commencing a trial (Rule 8-506) or for appealing a case (Rule 8-703).
• Motions and affidavits: Written motions (other than those which can be heard ex parte) and notice of the hearing on the motion must be served at least five days before the hearing, unless the rules provide otherwise or the court orders otherwise. Any accompanying affidavit must be served with the motion, and any opposing affidavits must be served at least one day before the hearing, unless the court orders otherwise.
• Service by mail: When notice or documents are served by mail, three additional days are added to the time period by which the person served must respond or act.

For example, a defendant wishing to appeal the court’s judgment must file a notice of appeal within fifteen days after entry of the judgment and sentence. Rule 8-702. If the judgment is entered on Friday, May 21, 2004, the court begins counting the fifteen-day period on Saturday, May 22. The fifteenth day then falls on Saturday, June 5. Because the fifteenth day is a Saturday, the defendant has until the end of business on Monday, June 7 to file a notice of appeal.

1.3.4 Attorney Representation
An attorney who represents a defendant must file a written entry of appearance in the case, unless the court appointed the attorney by written order. The filing of any pleading signed by an attorney represents an entry of appearance. With the court’s permission, an attorney may enter an appearance orally with the court, provided a written entry of appearance is filed within three days. Rule 8-107(A), (B).

An attorney who has entered an appearance or been appointed by the court must continue to represent the defendant until relieved by the court. Rule 8-107(C).

1.3.5 Defendant’s Presence
The defendant must be present at the arraignment and every stage of the trial, including sentencing, except as otherwise specified in the rules. Rule 8-108(A).

Exceptions. The defendant does not need to be present in the following situations:

• With the defendant’s written consent, the court may permit the arraignment, plea, trial and sentencing in the defendant’s absence.
• A proceeding (including trial) can continue without the defendant, if:
  • The defendant was initially present at the proceeding; and
  • The defendant then either (1) is voluntarily absent from the proceeding, or (2) engages in conduct that justifies excluding the defendant from the proceeding.
• If the defendant is a corporation, it can appear by its attorney for all purposes.

Rule 8-108(B), (C).

1.3.6 Audio-Visual Proceedings
Audio, and audio-visual, communications are governed by Rule 8-109A. The court may permit a defendant or attorneys to appear through the use of simultaneous audio or audio-visual communication when it will legitimately serve justice. One of the considerations in making this determination is the economic needs of the parties. Rule 8-109A(A).

When an appearance is conducted through audio or audio-visual communication:

• Beforehand, the defendant must file a written request to appear in this manner. See Criminal Form 9-104A, Request for Audio or Audio-Visual Appearance.
  
• The court must conduct the proceeding in a place open to the public.
  
• The court may require the requesting party to pay the expense of the audio or audio-visual communication.

Under Rule 8-109A(B), the court can require the defendant to appear through the use of a simultaneous audio-visual communication for:

• Arraignment, initial appearance or bail hearing.
  
• Sentencing, unless the court needs to take testimony or a statement from someone other than the defendant.

When an audio-visual proceeding is required under Rule 8-109A(B), all of the following conditions must be met in accordance with Rule 8-109A(C):

• The defendant and his or her attorney, if any, must be able to communicate privately without being recorded.
  
• The judge, defendant and his or her attorney, if any, must be able to communicate and see each other through a two-way audio-visual communication between the court and the place of custody or confinement.
  
• The proceedings must be conducted in a place open to the public using audio-visual equipment that will allow the public to simultaneously see and hear the proceedings at the same time as the judge.

Rule 8-109A does not establish a right for anyone held in custody to appear by two-way audio-visual communication, nor does it prohibit other audio or audio-visual appearances as long as the person held in custody or confinement waives any right to be physically present for a proceeding. Rule 8-109A(D).

1.3.7 Recording of Proceedings
Municipal court is not a court of record. No official recording or transcript is made of any proceeding in municipal court. A party who wants to record or in any way transcribe the proceedings may do so only with prior approval of the judge. The party bears the expense of the recording or transcription and must make a copy of it available to all other parties in the proceeding. A recording or transcript may be used in district court only in accordance with the district court rules of procedure and may not be otherwise broadcast or reproduced. Rule 8-601(D).

In municipal court, taking photographs in the courtroom during judicial proceedings or recess, or recording or transmitting the proceedings for broadcasting by radio or television, is not permitted, except under the limited provisions of Rule 8-601. Rule 8-102(A).

Nonjudicial proceedings, such as weddings and other ceremonies, may be photographed or broadcast from the courtroom with the judge’s permission and supervision. Rule 8-102(B).

1.4 Municipal Judge Requirements

1.4.1 Qualifications
Municipal judges are elected officials. To be elected a municipal judge, the candidate must be a qualified elector of the municipality within which he or she is running. A qualified elector is a United States citizen eighteen years of age or older who has resided in the municipality for at least thirty days prior to the election and who is registered to vote in the municipality. N.M. Const. Art. VII, Sec. 1; §3-1-2(K). A municipal judge does not need to be an attorney.

1.4.2 Term of Office
The municipal judge is elected for a term of four years at the regular municipal election. Even if the election is to fill a vacancy in the office, regardless of the expiration date of the original judge’s term of office, the newly elected judge serves for a four year term. For information regarding the election process, see the city clerk.

1.4.3 Oath of Office
A municipal judge elected at the regular municipal election takes the oath of office along with any other officials elected at that time. The oath must be taken on the sixth day following the election, unless the judge is unable to be sworn in at that time. In that case, the judge can file an affidavit and take the oath at a later date. If the oath of office is not taken within the required time and no affidavit has been filed, the governing body must declare the office vacant and appoint someone to fill the vacancy according to law. Once the oath of office is taken, the judge has officially taken office. §3-8-33. Any questions regarding the oath of office should be directed to the city clerk.

1.4.4 Bond
The governing body may require that the municipal judge post bond for the faithful performance of duties, but the bond must be paid by the municipality. If the judge fails to qualify for the bond, the governing body may declare the office vacant and appoint someone to fill the vacancy according to law. The amount of the bond is set by ordinance of the municipality. §3-10-2.

1.4.5 Salary
The salary, if any, of the municipal judge is provided by ordinance. There is no requirement that the judge receive a salary. The ordinance may set the compensation on any basis deemed appropriate by the governing body, except that it may not be based on the number of convictions occurring in the court. Once a salary is set, it may not be increased or decreased during the judge’s current term of office unless additional non-judicial duties are imposed on the office of the judge. An increase in hours due to a larger caseload is not considered an increase in duties. However, a governing body may provide a salary for the judge during the current term of office if the judge had previously not received a salary. §35-14-3.

1.4.6 Training
All municipal judges must successfully complete an annual training as a condition of remaining in office. This training is conducted by the New Mexico Judicial Education Center. Failure to complete the training may result in removal from office. A judge can seek an exemption from the training by submitting a written request to the New Mexico Supreme Court. §35-14-10.

Newly elected judges must attend a week-long New Judge’s Orientation conducted by the Judicial Education Center. This training is held the week following the municipal election, after the judge has been sworn in but prior to taking the bench. Newly elected judges will be contacted by the Judicial Education Center with details.

Judges who are appointed to fill vacancies should contact the Judicial Education Center and request videotapes of the New Judge’s Orientation as soon as possible after appointment. These tapes must be viewed in their entirety for the new judge to fulfill the training requirement and be eligible to receive a salary.

Although annual training is not required for temporary or alternate judges, it is recommended that any person regularly serving as a temporary or alternate judge attend the training or view the videotapes.

1.4.7 Frequency of Court Sessions
There is no law requiring a judge to hold court for a certain amount of time each day or week or even month. Judges are required only to hold court frequently enough that arraignments are held in a timely manner and cases are heard within a reasonable period of time after the charges are filed. It is recommended that a judge examine the caseload of the court, look at past court practices and develop a schedule for when court will be open. Court hours should include time for people to schedule hearings and take care of payments with the court clerks, in addition to actual trial time. A judge may set specific court hours for trials with attorneys and those without. Additional sessions may need to be scheduled if people are waiting too long for their cases to be heard.

1.4.8 Vacancy in Office
A vacancy in office is created when the municipal judge is removed from office by the New Mexico Supreme Court, resigns, is unable to continue to serve due to incapacity, or dies. When one of these occurs, it is up to the governing body to fill the vacancy. The process of filling the vacancy should be contained in a city ordinance. The person selected to fill the vacancy serves until the next regular municipal election regardless of how much time was left on the original judge’s term of office.

1.4.9 Temporary or Alternate Judge
There are times when a municipal judge is temporarily unable to serve. This can be due to illness or vacation, or because the judge has a conflict and must disqualify him or herself from hearing a case. Any registered voter of the municipality may be appointed to fill the temporary vacancy. A temporary judge is authorized to hear and determine all cases that the municipal judge would hear. A temporary judge has all other powers of the municipal judge during the time the regular judge is absent.

The governing body may establish a procedure by ordinance for appointment of a temporary judge. §35-14-5. If there is no ordinance or other set procedure, the municipal judge or some other person may certify by letter to the district court that a temporary judge needs to be appointed. The district court will then make the appointment. Rule 8-105.

Some municipalities have a “permanent” alternate judge. This judge serves a specified term and acts at any time during the regular judge’s absence. Appointing an alternate judge saves the governing body from having to appoint a temporary judge each time the judge is absent. Having an alternate judge available keeps the court running smoothly in the event of an unexpected absence by the regular judge.

The temporary or alternate judge must be a qualified elector of the municipality, the same as the elected municipal judge. The governing body may, by ordinance, impose additional requirements. It is probably good practice to require that the temporary or alternate judge have at least the same qualifications as the elected judge and either attend training or review videos supplied by the Judicial Education Center.

1.4.10 Removal from Office
Although the state statutes provide for the removal of any elected official either by recall (if allowed by the municipal government) or by the district court, the New Mexico Supreme Court has determined that only it can remove a municipal judge from office. The Supreme Court may remove a judge for unlawful conduct, failure to perform the duties of office, or any other violation of the Code of Judicial Conduct. No other method of removal of judges is authorized. The other elected officials of the municipality (e.g., mayor, councilors, trustees, commissioners) have no authority to remove a municipal judge.

1.5 Judicial Ethics

1.5.1 Code of Judicial Conduct
The Code of Judicial Conduct governs the conduct of all judges, including municipal judges. The Code has many rules that a judge must follow when running for office and once elected. It provides standards for maintaining the integrity of the court system. It explains when judges must disqualify themselves from hearing cases and how judges must avoid conflicts between their private business activities and their official judicial duties.

The Code of Judicial Conduct is found in Chapter 21 of the rules for the New Mexico courts. It consists of nine rules, sometimes called “canons,” which contain specific details about the subject matter. The rules are followed by commentary that helps explain how they apply.

The preamble to the Code states: “An independent and honorable judiciary is indispensable to justice in our society. The provisions of this Code should be construed and applied to further that objective.” After the definitions in Rule 21-001, the specific rules are:

21-100. A judge shall uphold the integrity and independence of the judiciary.
21-200. A judge shall avoid impropriety and the appearance of impropriety in all the judge's activities.
21-300. A judge shall perform the duties of office impartially and diligently.
21-400. Disqualification.
21-500. A judge shall so conduct the judge's extra-judicial activities as to minimize the risk of conflict with judicial obligations.
21-600. Reporting quasi-judicial and extra-judicial activities and compensation.
21-700. Elections and political activity.
21-800. A judge shall refrain from campaign fund-raising activity which has the appearance of impropriety.
21-900. Violations.
21-901. Applicability.

According to Rule 21-901, the Code applies to all judges and candidates for judges in New Mexico, unless a specific exception applies. There are several exceptions for full-time municipal judges:

• A full-time municipal judge is not required to comply with Paragraph B (7)(b) of Rule 21-300, which requires that a judge give notice to the parties when the judge obtains advice from a disinterested expert on the law.
• A full-time municipal judge is not required to comply with Paragraph E of Rule 21-500, which addresses a judge’s fiduciary activities.

There are also several exceptions for part-time municipal judges. See Rule 21-901(C) for the details.

It is important to note that while a municipal judge may not be required to comply with a certain part of the Code of Judicial Conduct, there is nothing prohibiting from the judge from complying. A municipal judge may decide, as a matter of personal or professional ethics, to comply with all of the requirements of the Code, not just the parts that are mandatory.

1.5.2 Oversight of the Court
The New Mexico Supreme Court has superintending control over all the courts in New Mexico. This means that the Supreme Court has oversight and management power over municipal courts. The Supreme Court has the authority to issue directives to municipal courts and oversee their details of operation.

The Judicial Standards Commission reviews complaints against judges and recommends sanctions to the Supreme Court, which makes the final determination. Only the Supreme Court can remove a judge from office for misconduct.

1.5.3 Impartiality
The municipal judge is not elected or appointed to serve as the general problem solver for the community. Before a judge can become involved in a matter, there must first be a charge that a specific ordinance has been violated. The judge should not participate in the decision as to what charge should be filed, if any, and the judge must not be perceived as assisting in any way in either the prosecution or defense of a case.

The municipal judge is not an arm of the police department and must remain completely impartial, not only in protecting the rights of both the defendant and the city, but also in enforcing the legal obligations of both. The judge must hear and fairly consider the testimony and arguments of both parties, examine the evidence, determine the facts, and apply the law to those facts to arrive at a decision as to guilt or innocence.

1.6 Effective Dates of Ordinances and Court Rules

No new or revised ordinance enacted by a municipality, law enacted by the legislature, or rule of procedure enacted for the courts, can affect the right or remedy of any party in a pending case. New and amended ordinances and court rules apply only to cases filed after the ordinance or rule is effective. A case that is pending at the time an ordinance or rule becomes effective is governed by the ordinance or rule in effect at the time the case was filed.

Municipalities and the state legislature are prohibited from enacting ex post facto laws (after the fact) or bills of attainder (laws that applies to specifically named or identified individuals). An ordinance that makes it a criminal offense to perform an act which previously was not a criminal offense or that increases the punishment for an act applies only to offenses committed after the effective date of the ordinance.

The effective date of an ordinance should be specified in the ordinance itself or in another municipal ordinance that addresses effective dates generally. The effective date of a court rule is listed in the Supreme Court Order adopting the rule and at the end of the rule when it is published. In addition, new and amended court rules are published in the New Mexico State Bar Bulletin.