Norton v. Reese
| Decision Date | 25 July 1966 |
| Docket Number | No. 8075,8075 |
| Citation | 76 N.M. 602,1966 NMSC 154,417 P.2d 205 |
| Parties | Merrill NORTON and Barton L. Ingraham, Petitioners, v. The Honorable George L. REESE, Jr., Judge of the District Court of the FifthJudicial District of the State of New Mexico, Respondent. |
| Court | New Mexico Supreme Court |
This is an original prohibition proceeding in the Supreme Court by Merrill Norton and Barton L. Ingraham seeking to prohibit the Honorable George L. Reese, Jr., Judge of the Fifth Judicial District, from presiding at the trial of a criminal contempt action against them.
Norton and Ingraham, attorneys at law, are charged by criminal information in Eddy County with having unlawfully and willfully impeded the orderly administration of justice in the district court of Eddy County by (1) filing a petition in Otero County seeking an injunction to restrain a receiver appointed by the Eddy County district court from selling and conveying certain real estate; (2) obtaining a temporary restraining order from the district court of Otero County; and (3) procuring service of the restraining order on the receiver in Eddy County.
Norton and Ingraham timely filed an affidavit pursuant to § 21--5--8, N.M.S.A. 1953, seeking to disqualify Judge Reese and prevent him from further action in the contempt proceeding. The statute, as amended by § 2, Ch. 165, Laws 1965, effective March 25, 1965, so far as pertinent, reads:
'Whenever a party to any action or proceeding, * * * including proceedings for indirect criminal contempt arising out of oral or written publications, * * * shall make and file an affidavit that the judge before whom the action or proceeding is to be tried and heard, * * * that judge shall proceed no further. * * *'
Judge Reese refused to honor the disqualification upon the ground that the contempt, as charged in the information, is not one arising out of an oral or written publication. If this is an action for which a judge may be disqualified by the timely filing of the statutory affidavit, the judge was ipso facto divested of all further jurisdiction in the case, and his subsequent proceedings were without jurisdiction and null and void. Rivera v. Hutchings, 59 N.M. 337, 284 P.2d 222, 225.
It appears to be agreed that the criminal information charges the relators with an indirect or constructive criminal contempt. The respondent, however, denies that it is one 'arising out of an oral or written publication,' and that the presiding judge can, therefore, be disqualified by filing the statutory affidavit. Respondent asserts that it was merely the filing of the complaint in the Otero County case which, together with securing the restraining order and its service on the receiver, impeded the administration of justice and constituted the contempt. We cannot agree. The real basis of the alleged contempt was not merely the act of handing the complaint in the Otero County case to the clerk of that court for filing, but it was relators' act in securing an order of the Otero County court interfering with the actions of the officer appointed by and carrying out the directions of the Eddy County court. We take judicial notice that a written pleading is a prerequisite to obtaining a restraining order. We are clear that under the facts here present the contempt charged in this case is an indirect criminal contempt arising out of a written publication--the written complaint filed by relators in the Otero County court. As further evidence that the action is one arising out of the written complaint filed in Otero County, the district attorney, in response to a demand for a bill of particulars, stated into the record in this case:
Thus, the criminal information, as supplemented by...
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State v. Cutshaw
... ... at 133, 118 P.2d at 93 ... This is in accord with the view taken by our sister state of New mexico. Norton v. Reese, 76 N.M. 602, 417 P.2d 205, 207 (1966); and State v. Roy, 40 N.M. 397, 60 P.2d 646, 657, 110 A.L.R. 1 (1936); accord, Commonwealth v. Burke, ... ...
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United Nuclear Corp. v. General Atomic Co.
...impartially. Under this section a judge is automatically disqualified upon the filing of such an affidavit. Norton v. Reese, 76 N.M. 602, 604, 417 P.2d 205, 207 (1966); Rivera v. Hutchings, 59 N.M. 337, 341, 284 P.2d 222, 225 (1955). Thus, mere suspicion of bias or prejudice is a sufficient......
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State v. Lindsey
... ... Norton v. Reese, 76 N.M. 602, 417 P.2d 205 (1966); State v. Roy, 40 N.M. 397, 60 P.2d 646, 110 A.L.R. 1 (1936); State v. Putman, 78 N.M. 552, 434 P.2d 77 ... ...
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Concha v. Sanchez
...The contempt orders provided no fair notice of each Petitioner's allegedly contemptuous behavior. See Norton v. Reese, 76 N.M. 602, 605, 417 P.2d 205, 207 (1966) (observing that a contempt defendant has a right under Article II, Section 14 of the New Mexico Constitution to be given notice o......