Doe v. State, 11574
| Decision Date | 21 September 1977 |
| Docket Number | No. 11574,11574 |
| Parties | John DOE, a child, Petitioner, v. STATE of New Mexico, Respondent. |
| Court | New Mexico Supreme Court |
The Honorable Joseph C. Ryan, District Judge of the Children's Court of the Second Judicial District, removed himself from a case involving delinquent acts on the part of a minor. Thereafter, by consent of the parties, Mary Walters was appointed to sit as judge designate of the case; and, while sitting as judge designate, she dismissed the petition alleging delinquency. The State appealed the dismissal to the Court of Appeals. That court then instructed the parties to brief the issue of Mary Walters' authority to preside over the case, and held that she acted without the requisite authority.
The State's petition was filed in January 1977, alleging certain delinquent acts by the defendant minor. The minor was arraigned before the children's court, Judge Ryan presiding. Judge Ryan ruled on various motions on March 7, 1977. Trial was scheduled before Judge Ryan on March 16, 1977, but because of motions granted the case was twice rescheduled. It was finally heard on March 23, 1977.
The following stipulations were entered into by the parties:
4. Thereafter, on March 23, 1977 the Honorable Joseph C. Ryan orally removed himself as trial judge in this cause, without disqualification or recusal.
5. No District Court judge was available in the Second Judicial District to preside in the cause, and as a result, Judge Ryan suggested the parties select a member of the bar of this state to preside as judge.
8. Counsel for each party agreed to have Mary Walters sit as judge pro tempore in this cause.
9. Judge Ryan then telephoned Mary Walters and inquired whether she would be available to preside in this cause and advised her that counsel for the parties had agreed to her as judge pro tempore.
10. Judge Ryan did not participate in the cause thereafter.
11. Trial of the cause began on March 23, 1977 with Mary Walters presiding as judge pro tempore.
12. At the beginning of the proceedings on March 23, 1977, counsel for the parties again represented to Mary Walters that they had agreed upon her as judge pro tempore.
16. Mary Walters has been a district judge for Bernalillo County and is now the Probate Court Judge for Bernalillo County.
17. Neither jurisdictional questions nor waiver of jurisdictional questions were raised at anytime by any party.
The Court of Appeals, in essence, held that since Judge Ryan only removed himself from the case and was never properly disqualified, then Mary Walters' appointment as a judge pro tempore was invalid, and therefore she was without authority to preside over the case.
The New Mexico procedure for the appointment of a judge pro tempore is embodied in N.M.Const., art. VI, § 15 which states in part:
If any judge shall be disqualified from hearing any cause in the district, the parties to such cause, or their attorneys of record, may select some member of the bar to hear and determine said cause, and act as judge pro tempore therein. (emphasis added).
The issue then becomes: Did Judge Ryan's act of orally removing himself from this case substantially comply with our laws which address the disqualification of judges? The answer to this question determines whether Mary Walters had authority to preside in the case.
Section 21-5-8, N.M.S.A.1953, in essence, allows for the disqualification of a district court judge by the filing of an affidavit from one of the parties when the party believes the judge cannot preside over the action with impartiality. This section only addresses itself to the issue of a party disqualifying a judge and it appears to be the exclusive method by which a party may disqualify the presiding judge.
A companion to the above constitutional section is N.M.Const., art. VI, § 18 which states:
No justice, judge or magistrate of any court shall, except by consent of all parties, sit in any cause in which either of the parties are related to him by affinity or consanguinity within the degree of first cousin, or in which he was counsel, or in the trial of which he presided in any inferior court, or in which he has an interest.
The New Mexico Code of Judicial Conduct, in portions of Canons 2 and 3, sets forth reasons which allow judges to disqualify themselves. Canon 2(B) (§ 16-11-2(B), N.M.S.A.1953 (Repl. Vol. 4, 1975 Supp.)), states:
A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment.
Canon 3(C) (§ 16-11-3(C), N.M.S.A.1953 (Repl. Vol. 4, 1975 Supp.)) states:
(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including, but not limited to instances where:
(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(b) he served as lawyer in the matter in controversy, or a lawyer with whom he 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;
Therefore, if a judge should avoid any hint of impropriety in his activities, he should use his discretion and remove himself from a particular case when he believes he will not be able to remain impartial.
The State urges "that the disqualification of the trial judge must either be by affidavit of disqualification pursuant to Section 21-5-8, N.M.S.A.1953, or based upon constitutional grounds." Moruzzi v. Federal Life & Casualty Co., 42 N.M. 35, 75 P.2d 320 (1938). The State also contends that "(t)he record below is also silent as to whether Judge Ryan removed himself because of any constitutional grounds . . . and because of this it is assumed,...
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