JEC Municipal Benchbook

This chapter covers:

Petty misdemeanor procedural requirements, including jurisdiction, venue, time limits and competency to stand trial.
Initiation of a case, including criminal complaint, citation, summons, arrest, preliminary rights and probable cause determination.
Arraignment, including explanation of rights, legal representation and entry of plea.
Dismissal, including voluntary dismissal and dismissal for failure to prosecute.
Other preliminary matters, including discovery, pretrial conferences, motions, and filing and service by fax or electronic transmission.
Excusal and recusal of judges, including grounds and procedures for disqualification.

2.1 Petty Misdemeanor Procedural Requirements

2.1.1 Definition
According to §31-1-2(L) and §31-19-1(B) of state law, a crime is a petty misdemeanor if it is designated as such by law or if it is punishable by:

Imprisonment in the city or county jail for six months or less; and/or
Payment of a fine up to $500.

Note that penalties for driving while intoxicated offenses exceed those listed above. For a full discussion, see The New Mexico DWI Benchbook, published by the Judicial Education Center.

2.1.2 Jurisdiction
The municipal courts have jurisdiction in all petty misdemeanor offenses under ordinances legally adopted by the governing body of the municipality. §35-14-2.

2.1.3 Venue
Venue is the place where the charges are brought and the trial is held. A case will be heard in municipal court if the offense was committed within the municipal boundaries and is a violation of a municipal ordinance.

2.1.4 Time Limits
The time limits for bringing a criminal action (filing a criminal complaint) in municipal court is within one year from the time the crime was committed. §35-15-5. This is called a statute of limitations, which sets the time limit for filing charges. The time limit for bringing someone to trial once charges have been filed is addressed later in this chapter.

2.1.5 Determination of Competency
A person is competent to stand trial if he satisfies all of the following requirements:

Understands the nature and significance of the criminal proceedings against him.
Has a factual understanding of the criminal charges.
Is able to assist his attorney in his defense.

In municipal court, the issue of a defendant's competency to stand trial may be raised by motion or upon the judge's own motion at any stage of the criminal proceedings. If that happens, the case must be transferred to the district court for further proceedings pursuant to the Rules of Criminal Procedure for District Courts. Rule 8-507.

2.2 Initiation of a Case

2.2.1 Complaints and Citation

Under Rule 8-201, a case in municipal court begins by filing one of the following documents:

Criminal complaint: This is a signed statement charging a person with violating a municipal ordinance. It contains the facts of the violation, the common name of the offense that is charged, and the specific section number of the ordinance that was violated. See Criminal Form 9-202, Criminal Complaint.
- Complaints can be filed by municipal police officers, the city attorney or private citizens acting on their own behalf.
- Complaints can only contain charges that are within the jurisdiction of the municipal court.
- If there is more than one defendant, a separate complaint must be filed for each.
Criminal citation: This is a signed statement citing a person for violating a municipal ordinance. It contains the name and address of the person, the specific offense charged, the specific section number of the ordinance that was violated, and the time and place for the person to appear in court. Rule 8-201(A)(3).
- The citation is issued by an official authorized by law to do so, for example zoning violations are typically cited on criminal citations.
- A copy of the citation is given to the person cited. The original must be filed in municipal court as soon as practical.
- Unless the person requests an earlier date, the time specified in the citation for the person to appear in court must be at least three days after the citation is issued.
Traffic citation: (For a full discussion, see the New Mexico Traffic Citations Manual, published by the Judicial Education Center.) This is a standardized form known as the “uniform traffic citation” that is used statewide for enforcement of motor vehicle offenses. The content of this form is set by the Highway and Transportation Department in accordance with state law. §66-8-128. The form contains spaces for details about the person cited, the vehicle involved, the conditions at the time of the violation, the specific offense charged, and the police officer’s signature. The form also contains two options: (1) a notice for the person to appear in court; or (2) a choice to admit guilt, sign the form and pay a fine known as a “penalty assessment” without having to appear in court. §66-8-128, §66-8-117. Rule 8-201(A)(2).
- The uniform traffic citation is issued by either a state or local traffic enforcement officer.
- A copy of the uniform traffic citation is given to the person cited. The citation copy thus serves as a summons. The original must be filed in municipal court as soon as practical.

The procedures for filing the criminal complaint or uniform traffic citation and docketing (scheduling) the action are the same in all criminal actions.

If a person is arrested without a warrant, a copy of the complaint is given to him or her prior to transfer to a detention facility. If necessary, the complaint may be placed with the individual's personal belongings. There is no requirement that the complaint be sworn before a notary or judicial officer prior to being given to the person.

Some municipal courts have procedures for the filing of criminal complaints by private citizens. The procedures vary from court to court so it is important that the judge, the clerk, and the public be aware of local procedures.

2.2.2 Criminal Summons
The judge may issue a criminal summons for criminal actions within court jurisdiction. Rule 8-203. The criminal summons orders the defendant to appear before the judge at a stated time and place; no arrest of the defendant is made.

Service of a summons must be by mail unless the court directs by local rule that personal service be made. Rule 8-204. The summons and complaint are served together. An original and multiple copies of the summons are prepared (one copy each for the court and the prosecution).

The original summons is personally served on or mailed to the defendant along with the original complaint. The summons must contain the name of the court and city in which it is filed, the docket number of the case and the defendant to whom it is directed. It must also contain a direction to appear at a certain date and time, and the name and address of the law enforcement entity, prosecutor, or private citizen filing the complaint.
Service must be made at least 10 days before the defendant is required to appear. If service is made by mail, an additional three days are added. Service by mail is complete upon mailing.
Following personal service, the person making service completes the certificate of service and returns the original and a copy to the court.
The judge retains a copy of the complaint, summons and certificate of service.

2.2.3 Arrest Without a Warrant
In all municipal court cases, if the defendant is arrested without a warrant, a criminal complaint must be prepared and given to the defendant prior to transferring the defendant to the custody of the detention facility. Rule 8-201(E). If the defendant is in custody, the complaint should be filed with the municipal court at the time it is given to the defendant. If the court is not open at that time and the defendant remains in custody, the complaint must be filed the next business day. If the defendant is not in custody the next business day, the complaint is to be filed with the court as soon as practicable.

An officer may make a warrantless arrest for a petty misdemeanor only if the officer has probable cause to believe that the suspect is committing a misdemeanor in the officer's presence; that the suspect was present at the scene of a motor vehicle accident; or that the suspect is charged with a crime in another jurisdiction as further explained in §66-8-125. New Mexico statutes provide an exception to this rule in cases where an officer is at the scene of a domestic disturbance and has probable cause to believe that a person has committed an assault or a battery upon a household member. “Household member” is defined as a spouse, former spouse, family member (including a relative, parent, current or former step-parent, current or former in-law, child or co-parent of a child), or a person with whom the victim has had a continuous personal relationship. §31-1-7.

2.2.4 Preliminary Rights
The defendant has a number of rights prior to arraignment or first appearance. These preliminary rights include:

Telephone calls. The statutory right to three telephone calls beginning no later than 20 minutes after detention. §31-1-5(A).
Copy of criminal complaint. In warrantless arrest cases, the defendant has the right to be given a copy of the criminal complaint prior to transfer to a detention facility. See Section 2.2.3 above. The right to be given a copy of the complaint is the same right as provided by statute for those accused of motor vehicle violations. Under §66-8-123(A), the arresting officer must give the defendant a copy of a traffic citation.
The rules requiring that a copy of the criminal complaint be provided to a defendant arrested without a warrant prior to being taken to jail were adopted to ensure constitutional rights are protected. Article 2, Section 10 of the New Mexico Constitution requires a "written showing of probable cause" for the arrest of a person. A defendant who has been arrested without a warrant has a federal constitutional right to a prompt probable cause determination by a judge. Requiring a written criminal complaint at the time of arrest makes it possible to satisfy this constitutional requirement and avoid delays in making a judicial probable cause determination. A criminal complaint no longer must be sworn to before a notary or judicial officer before it is filed with the court. There is no absolute requirement that a copy of a criminal complaint be given to a defendant who, because of drugs, alcohol or rage, is unable to read and understand the charges. Rather, it is a better practice to place the complaint with other belongings of the defendant until such time as the defendant can understand the nature of the charges.

There is no precise definition as to the point in time at which a defendant is deemed to have been transferred to the custody of a detention facility. Nothing in court rules prevents the police from temporarily detaining a defendant in a detention facility pending completion of preliminary police investigatory procedures as long as the police have not transferred jurisdiction over the defendant to the detention facility. The police, however, must be free to release the defendant if charges are not filed after this preliminary investigation and screening.
Failure to comply. Under the Fourth Amendment to the United States Constitution, an accused who is detained and unable to meet conditions of release has a right to a probable cause determination. Delay in holding a probable cause determination is generally not grounds for voiding a conviction or dismissing the criminal proceedings. Failure to provide the defendant with access to a telephone within 20 minutes is generally not grounds for dismissing the charges. Unlike the 6-month trial rules, neither of these violations requires dismissal of the complaint. However, a municipal court may dismiss criminal charges for denial of the right to three hone calls, the right to a copy of the criminal complaint and the right to a prompt probable cause determination if all of the following conditions are met:
- The case is within the jurisdiction of the court.
- The court finds that the law enforcement officers acted in bad faith.
- The denial of one or more of these rights resulted in prejudice to the defendant.

2.2.5 Probable Cause Determination
Under the Fourth Amendment to the United States Constitution, an accused who is detained and unable to meet conditions of release has a right to a probable cause determination. To satisfy this constitutional requirement, the judicial determination of probable cause must be prompt, although delay up to 48 hours may be constitutionally permissible. The burden is on the government to prove a delay beyond 48 hours is reasonable. Weekends and holidays are not to be considered as permissible excuses for delays beyond 48 hours.

The probable cause determination is non-adversarial and may be held in the absence of the defendant and of counsel. A showing of probable cause must be based upon substantial evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing there is a factual basis for the information furnished. Witnesses are not necessary unless the court believes witnesses might be useful for finding no probable cause. In other words, the judge must find that there was probable cause to arrest the defendant without a warrant.

If the complaint and any attached statements fail to make a written showing of probable cause, the police officer or prosecutor may file either an amended complaint or a separate "statement of probable cause" which sets forth sufficient facts to detain the defendant. Rule 8-202(B).

If the court finds that there is no probable cause to believe that the defendant has committed an offense, the court dismisses the complaint without prejudice and orders the release of the defendant. If the court finds probable cause that the defendant committed an offense, the court reviews the conditions of release. If no conditions of release have been set and the offense is a bailable offense, the court sets bail. The court's finding of probable cause must be in writing. Rule 8-202.

2.2.6 Arrest Warrant
Although a criminal summons is the preferred method of acquiring jurisdiction over a defendant in a non-felony criminal action, the judge may determine, if good cause is shown, that the interests of justice will be better served by issuing an arrest warrant. Rule 8-203(B). See Chapter 5. If the defendant is arrested pursuant to a warrant, an additional probable cause determination is not necessary after arrest.

If the defendant fails to appear in person, or by counsel when it is allowed by statute, at the time and place specified in the summons, the judge may issue a type of arrest warrant known as a “bench warrant.” Rule 8-206. See Chapter 5.

2.3 Arraignment

2.3.1 Definition
The arraignment is the proceeding at which the defendant is brought before the judge for the first time after arrest or in response to a criminal summons. An arraignment may be waived by the defendant filing a written plea of not guilty no later than 48 hours before the arraignment. Rule 8-501.

2.3.2 Explanation of Rights
(For examples of how to do an arraignment see the scripts and checklists section of this Benchbook.) At the arraignment of the defendant, the judge must inform the defendant of all the following:

The offense charged.
The maximum penalty and any mandatory minimum penalty provided by law for the offense charged. If a specific penalty is not provided, the defendant is informed of the penalty for a petty misdemeanor, that is, 90 days in jail and/or a five hundred dollar fine.
The right to bail, if the person was arrested and is still in custody.
The right to see, hear, question and cross-examine the witnesses who testify against the defendant at the trial.
The right to call witnesses to testify for the defense and to have them subpoenaed and required to appear, at no cost to the defendant.
The right to the assistance of counsel at every stage of the proceedings, if a jail sentence is being considered by the judge.
The right to representation by an attorney at the municipality’s expense, if the defendant is an indigent and a jail sentence is being considered by the judge.
The right to remain silent and the fact that any statement made by the defendant may be used against him or her.
The right to testify at trial, but if the right is exercised the defendant is subject to cross-examination.

2.3.3 Representation by Counsel
After the explanation of rights, the judge determines whether the defendant is represented by counsel.

If the defendant is not represented by counsel, the judge may allow the defendant reasonable time and opportunity to make telephone calls to seek and consult with counsel before the proceedings continue.

If it appears that the defendant may be indigent, then the judge decides if a jail sentence may be imposed upon a plea of guilty or upon conviction.

If the judge decides that no imprisonment will be imposed, then all of the following apply:

The defendant is not entitled to appointed counsel.
No determination of indigency is necessary.
No waiver of counsel is necessary, except in the case of driving while intoxicated.

If the judge decides to reserve the option to impose a sentence of imprisonment, then a determination of indigency is necessary. In such case, an indigent defendant is entitled to appointed counsel.

In any case in which the judge reserves the option to sentence the defendant to incarceration, the defendant must be represented by counsel or must knowingly and intelligently waive counsel. If counsel is waived, a written waiver should be obtained before the defendant is allowed to appear on his or her own behalf.

Some offenses, for example driving while intoxicated, provide for an enhanced penalty if a defendant is convicted a second or subsequent time for the same offense. If the defendant was sentenced to jail for the first conviction, even if the sentence was suspended, the penalty for the second conviction can be enhanced only if the defendant had been represented by counsel or had waived counsel in the first case.

The judge should not accept a waiver of counsel without being satisfied that the waiver is knowingly, voluntarily and intelligently made and that the defendant is informed of the possible disadvantages of self-representation. In making this determination the judge must consider such factors as the person's age, education, familiarity with English and the complexity of the crime involved. The judge may not force a lawyer upon a criminal defendant when the defendant insists on conducting his or her own defense.

2.3.4 Entry of Plea
The defendant is required to plead to the complaint after receiving the explanation of rights and an opportunity to consult with counsel, if counsel is present, unless counsel is not required or is waived. Rules 8-302, 8-502.

If the defendant refuses to plead or stands mute, the judge enters a plea of not guilty for the defendant.

The plea must be one of the following:

Not guilty.
Not guilty by reason of insanity.
Nolo contendere (no contest), if permitted by the judge. This plea has the same legal effect as a plea of guilty for purposes of the case before the court, but the plea may not be used against the defendant as an admission of guilt in any collateral proceeding (e.g., a civil lawsuit).
Guilty.

Not Guilty Plea
If the defendant pleads not guilty, the case is set for trial as soon as possible.

At any point in the proceedings, the defendant may request to withdraw a not guilty plea and enter a guilty plea or, if permitted, a nolo contendere plea. In determining whether or not to accept the change of plea, the judge applies the standards of knowing and voluntariness discussed below.

Insanity or Incompetency
If the defendant pleads not guilty by reason of insanity, or if a question is raised about the competency of the defendant to stand trial, the judge must transfer the defendant to district court. Rule 8-507. The judge notes on the transcript of criminal proceedings that the case is being transferred to district court because the defendant has pled not guilty by reason of insanity to offense(s) within the municipal court jurisdiction or because the competency of the defendant was questioned by the judge.

The defendant may change a not guilty plea to not guilty by reason of insanity at any time before the beginning of trial. The defendant's competency may also be raised by the court's own motion at any time during the proceedings.

Nolo Contendere Plea
If the defendant pleads nolo contendere, before accepting the plea the judge must be sure that the plea is voluntarily made, that the defendant realizes that the plea of nolo contendre will have the same effect as a guilty plea in municipal court, and that the defendant understands the consequences of the plea. The defendant should be personally questioned for these purposes, even when represented by counsel.

Guilty Plea
Before accepting a guilty plea, the judge must make sure that the plea is voluntarily made, that the defendant realizes the consequences of the plea, and that there is a factual basis for the guilty plea. The defendant should be personally questioned for these purposes, even when represented by counsel. The factual basis that is required for the plea of guilty, but not for the plea of nolo contendere, may be established by simply asking the defendant: "What did you do that makes you believe you are guilty of this offense?" The answer the defendant gives should establish every element of the offense, including the criminal intent required.

Voluntary Nature of Plea
In the case of a nolo contendere plea or a guilty plea, the judge should use a checklist to make sure the plea is voluntary and otherwise acceptable and proper. Criminal Form 9-406 (Guilty Plea Proceeding) should be used as a checklist.

For a plea of guilty or nolo contendere to be voluntary, it must be of the defendant's own free will, with a full understanding of all rights and possible consequences. The plea must not have been induced by threats or by promises. A plea agreement is not considered a promise that renders the plea involuntary. The judge shall address the defendant personally, in open court, and ask the defendant both of the following questions:

Is your guilty plea (or plea of nolo contendere) voluntary and not the result of force or threats or promises apart from a plea agreement?
Is your willingness to plead guilty (or nolo contendere) the result of prior discussions between the attorney for the city and either you or your attorney?

Plea Agreement
A plea agreement should be in writing and presented to the judge for approval. If approved, the judge signs the plea agreement. The plea agreement is filed in the court file.

If the judge rejects the prosecutor's recommendations for reduced or dismissed charges or sentencing, if any, that have been accepted by the defendant, the defendant must be afforded the opportunity to withdraw a plea of guilty or no contest.

The judge has broad discretion to accept or reject a plea agreement and that discretion will not be disturbed unless abused. Rejection of a plea agreement is not an abuse of discretion.

When the court approves a plea agreement that includes a limitation on the sentence, it cannot at a later date increase the sentence without permitting the defendant to withdraw his plea of guilty or nolo contendere.

After a plea of guilty or nolo contendere has been accepted, the judge may order a pre-sentence investigation and report.

If the judge does not accept a plea of guilty or nolo contendere, a plea of not guilty is entered and the case is set for trial as soon as possible.

If a plea agreement is reached which is confirmed in writing on the standard Plea and Disposition Agreement form (Form 9-408A), the defendant waives certain rights. This includes the right to appeal unless constitutional invalidities are later alleged. The defendant also cannot be relieved of one provision of a plea agreement without giving up all of the other benefits received in the bargain.

2.4 Dismissal

2.4.1 Definitions
Dismissal with prejudice means that the offense which is dismissed may not be charged again in any court.

Dismissal without prejudice does not prevent the prosecution from charging the defendant again with the same offense. The prosecution is free to bring another action.

2.4.2 Voluntary Dismissal by Prosecution
The prosecution may file a notice of dismissal at any time before trial. Dismissal is without prejudice unless otherwise stated in the notice of dismissal. Rule 8-506(A).

The judge signs the notice of dismissal, and the original is filed with the court. The prosecution is responsible for serving the notice of dismissal on the defendant.

A specific count or charge in the complaint may be dismissed without dismissing the entire complaint. The notice of dismissal form is modified to indicate the count or charge that is being dismissed.

Additionally, the prosecution may file a document called a Nolle Prosequi. This document literally means that the prosecution declines to prosecute the case. It is a dismissal of all or some of the charges and does not require the judge’s signature. These dismissals are without prejudice unless otherwise stated.

2.4.3 Dismissal for Failure to Prosecute
The judge is required to dismiss a petty misdemeanor complaint with prejudice according to Rule 8-506(E) if all of the following conditions are met:

The charge has been pending for more than 182 days from the date of the arrest, the filing of the complaint, or the filing of a uniform traffic citation against the defendant, whichever is later, and
The trial has not commenced, and
The defendant was not responsible for the delay.

This is known as a violation of the six-month rule. If the judge determines, after a hearing, that the defendant was responsible for the failure of the court to commence trial, the judge must not dismiss the complaint for failure to prosecute.

If the defendant contributed to the delay by a motion for continuance but there was additional delay for which the defendant was not responsible, the court may add to the six-month period the length of the delay caused by the defendant. If in weighing all the factors that caused the delay the court determines that the defendant was not responsible for the failure to commence the trial within six months, the charges must be dismissed with prejudice.

Failure to strictly follow pretrial procedures is generally not in itself grounds for dismissal of a criminal complaint.

To calculate the 182-day period, use Rules 8-104, which covers computation of time in municipal courts, and 8-506(E). For example, if the defendant was arrested on Sunday, January 4, 2004, and the Uniform Traffic Citation was filed on Monday, January 5, 2004, the Court begins counting 182 days from January 6 (because the day from which the period runs is not be counted). The 182d day is Monday, July 5, a legal holiday, so it is not counted. The 182-day period therefore ends at the end of business on Tuesday, July 6, 2004, assuming no delays created by the defendant.

2.5 Other Preliminary Matters

2.5.1 Discovery
Discovery is governed by Rule 8-504. The prosecution must disclose and make available for inspection and copying any records, papers, documents or other tangible evidence in its possession, custody and control that meet one or more of the following conditions:

Is material to the preparation of the defense.
Is intended for use by the prosecution at trial.
Was obtained from or belongs to the defendant.

The defendant must disclose and make available to the prosecution for inspection and copying any records, papers, documents or other tangible evidence in the defendant's possession, custody or control that:

The defendant intends to introduce in evidence at trial.

The prosecution and defendant must exchange a list of the names and addresses of witnesses each intends to call at trial, along with any recorded statement made by the witness, no later than ten days prior to trial. If requested by a party, any witness on either list must be made available for interview prior to trial.

Each party has a continuing duty to promptly disclose any additional material or witnesses that the party would have previously been required to disclose.

If a party fails to comply with the discovery rule or an order issued pursuant to it, the court may take any of the following actions:

Order the party to disclose the information.
Grant a continuance.
Prohibit the party from calling an undisclosed witness or introducing undisclosed evidence at the trial.
Enter any other appropriate order, including holding an attorney or party in contempt of court.

All discovery must be completed no later than 10 days prior to the start of the trial.

2.5.2 Pretrial Conference
The purpose of a pretrial conference is to enable the judge to clarify the pleadings or consider other matters that may aid in the disposition of the case. Rule 8-505.

A pretrial conference may be ordered upon a motion by either party or upon the motion of the court.

At the request of a party, the court may issue subpoenas for witnesses to attend the pretrial conference.

Pretrial conferences are not required and many municipal courts never have them.

2.5.3 Motions
Any defense or objection that is capable of determination without trial of the general issue may be raised by motion before trial. Rule 8-304. For example:

A defendant challenging a search and seizure may make a motion for return of the property and suppression of its use as evidence in trial.
A defendant challenging a confession, admission or other evidence may make a motion to suppress its use as evidence in trial.

Motions can be made either orally or in writing, unless the court requires that they be in writing.

When a pretrial motion is made, the judge must set a hearing and give notice to the parties. The judge cannot rule on a pretrial motion without a hearing. Some motions may be heard as part of the trial with the judge hearing testimony relevant to the motion and ruling at the appropriate time. In this way, the evidence will be heard only once.

2.5.4 Filing and Service by Fax
Pleadings and other papers can be filed and served by facsimile in accordance with Rule 8-209. Fax transmissions can be used as follows:

A party may file a copy of any pleading or other paper by faxing it directly to the court. A fax copy has the same effect as any other filing for all procedural and statutory purposes. A document faxed to the court is acceptable only if all of the following conditions are met:
- No fee is required for filing.
- Only one copy of the pleading is required to be filed.
- The pleading is not more than 10 pages long.
- A cover sheet is included with the names and phone numbers of the sender and recipient.
The court may fax any notice, order, writ or receipt of an affidavit.
Parties may serve documents by faxing them to a party or attorney who has listed a fax number on papers filed with the court, listed a fax number on letterhead, or has agreed to be served by fax.

Proof of service by fax must include all of the following:

A statement that the pleading or paper was transmitted by fax and reported as complete.
The time, date and telephone numbers of both the sending and the receiving fax machines.
The name of the person who made the fax transmission.

A party has the right to inspect and copy the original of any faxed pleading or paper, if the document was signed under oath or affirmation or penalty of perjury.

A faxed document is properly signed if it has an original signature, a copy of an original signature, a computer-generated signature or any other legally authorized type of signature.

2.5.5 Filing and Service by Electronic Transmission
Pleadings and other papers may be filed and served by electronic transmission, which is the transfer of data from one computer to another, other than by fax. Rule 8-210. Electronic transmissions can be used as follows:

A party may file pleadings and papers electronically with the court if both of the following apply:
- The court has adopted technical specifications for electronic transmission.
- There is either no filing fee or payment is made at the time of filing.
  Note: Whenever a rule requires that multiple copies of a document be filed only a single transmission is necessary.
The court may send documents electronically to the following:
- Attorneys registered with the Supreme Court clerk as accepting documents by electronic transmission.
- Any other person who has agreed to receive documents electronically.
Parties may serve documents electronically to the following:
- Attorneys registered with the Supreme Court clerk as accepting documents by electronic transmission.
- Any other person who has agreed to service electronically.

Proof of service by electronic transmission must be made to the court by an attorney certificate or non-attorney affidavit and include all of the following:

The name of the person who sent the document.
The time, date and electronic address of the sender.
The electronic address of the recipient.
A statement that the document was successfully served by electronic transmission.

A party has the right to inspect and copy any document that was electronically filed or served, if the document was signed under oath or affirmation or penalty of perjury.

2.6 Excusal and Recusal

2.6.1 Excusal
Unlike in other courts in New Mexico where a party can excuse a judge as a matter of right, a party has no right, statutory or otherwise, to excuse a municipal judge. Rule 8-106(A). This means that no party has the automatic right to disqualify the judge from hearing a case to which that judge has been assigned. If a party asks the judge to excuse him or herself, the judge should inform the party that excusal is not allowed in municipal court. However, when judges feel that they should not hear a case, recusal is the method by which they remove themselves.

2.6.2 Recusal
A judge cannot hear any case where the judge is disqualified by the requirements of the state constitution or the Code of Judicial Conduct. Rule 8-106(B). In that event, the judge must give notice of recusal to all the parties.

Grounds for Disqualification and Recusal
The Code of Judicial Conduct states that a judge is disqualified and must recuse him or herself in any proceeding in which the “judge's impartiality might reasonably be questioned.” Rule 21-400(A).

Some of the circumstances described in the Code for when a judge must recuse him or herself are listed below. However, under the Code, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, even if the judge’s situation does not fall within any of the listed circumstances.

According to Rule 21-400(A), a judge must recuse him or herself from a case when any of the following circumstances apply:

The judge has a personal bias or prejudice concerning a party or a party’s lawyer.
The judge has personal knowledge of disputed evidentiary facts concerning the case.
The judge knows that the judge or the judge’s spouse, parent or child, or any other family member residing in the judge’s household, has one of the following:
- A financial interest in the subject matter in controversy.
- A financial interest in a party to the case.
- Any other significant interest that could be substantially affected by the outcome of the case.
The judge or the judge's spouse, or any person related to them within the third degree, or the spouse of any of those related people, meets one of the following:

Is a party to the case, or is an officer, director or trustee of a party.
Is acting as a lawyer in the case.
Is known by the judge to have a significant interest that could be substantially affected by the outcome of the case.
Is to the judge's knowledge likely to be a material witness in the case.

Judges are required to use reasonable efforts to keep informed about their own personal and fiduciary financial interests and the personal financial interests of their spouse and minor children residing in the household.

A judge who is disqualified for any reason other than personal bias or prejudice concerning a party can disclose this fact on the record and ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. The judge will be permitted to hear the case only if all the parties and their lawyers, without participation by the judge, agree in writing that the judge should not be disqualified. The agreement must be incorporated in the record of the proceeding. Without unanimous written agreement by all the parties and their lawyers, the judge remains disqualified and must recuse him or herself from the case.

Procedure for Questioning a Judge’s Impartiality
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 facts requiring recusal. The notice must specifically state the alleged reason for disqualification. Following receipt of the notice, the judge must file a response and take action accordingly. If a party believes the judge has failed or refused to acknowledge a valid disqualification, then:

Any party may certify that fact by letter to the district court of the county in which the case is pending.
The district court must investigate as it deems warranted and enter an order, either disqualifying the judge from proceeding further or striking the filed notice of excusal as insufficient or groundless.

2.6.3 Procedure for Replacing a Judge Upon Recusal
Upon recusal or disqualification of the original judge, the case will be assigned to the alternate (temporary) municipal judge if one has been appointed. If there is no alternate judge, or if the alternate judge is unable to hear the case, the governing body may appoint any registered voter of the municipality to serve as alternate judge to hear the case. §35-14-5. If the governing body does not do so, the municipal judge or any party may certify that fact by letter to the district court, which then must designate a qualified elector of the municipality to hear the case. Rule 8-105(A).

The recused or disqualified judge must give the alternate or designated judge a copy of all the proceedings in the case prior to its transfer. The new judge includes that copy in the case records and keeps a record of all the subsequent proceedings in the same manner as if the case had originally been filed with the new judge. Rule 8-105(B).