State ex rel. Anaya v. Scarborough

• Decision Date: 17 January 1966
• Docket Number: No. 7980,7980
• Citation: 410 P.2d 732,1966 NMSC 9,75 N.M. 702
• Parties: STATE of New Mexico, ex rel. Gilbert Joe ANAYA, Petitioner, v. James M. SCARBOROUGH, District Judge, Respondent.
• Court: New Mexico Supreme Court

Page 732

410 P.2d 732

75 N.M. 702

STATE of New Mexico, ex rel. Gilbert Joe ANAYA, Petitioner, v. James M. SCARBOROUGH, District Judge, Respondent.

No. 7980.

Supreme Court of New Mexico.

Jan. 17, 1966.

Bertrand B. Prince, Santa Fe, for petitioner.

Alfonso G. Sanchez, Sante Fe, for respondent.

MOISE, Justice.

Petitioner claims respondent Judge has an 'interest' in the proceeding so as to disqualify him from sitting in this cause under the provisions of Art. VI, Sec. 18, N.M. Const., which reads:

'No judge of any court nor justice of the peace shall, except by consent of all parties, sit in the trial of any cause in which either of the parties shall be 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.'

In State ex rel. Hannah v. Armijo, 38 N.M. 73, 28 P.2d 511, this court held that a judge is presumptively partial or biased if he is related to any party to the proceeding, if he has served as counsel or presided as a judge in the trial of the cause in a lower court, or if he has a pecuniary interest, but the court specifically did not decide if 'interest' was limited to 'pecuniary interest.' This is the first problem which must be met here since respondent is not related to any of the parties, has not served as counsel, did not sit as judge in any trial in an inferior court, and does not have a pecuniary interest.

In Moruzzi v. Federal Life & Casualty Co., 42 N.M. 35, 75 P.2d 320, 115 A.L.R. 407, Mr. Justice Bickley, in a special concurring opinion, stated his view that 'interest' as used in Art. VI, Sec. 18, supra, could arise from other than pecuniary considerations and that any judge who cannot preside over a case with impartially has such an 'interest.' However, there is nothing to indicate that the other four members of the court agreed with this position, and there has been no direct holding on the question by this court.

We now declare, in accord with what appears to be the American rule, that an 'interest' necessary to disqualify a judge must be a present pecuniary interest in the result, or actual bias or prejudice, and not some indirect, remote, speculative, theoretical or possible interest. See cases cited in note, 10 A.L.R.2d 1307, 1313, 1317.

Even though we hold respondent not disqualified as above set forth, there remains for consideration, petitioner's argument that the writ heretofore issued should be made permanent under our superintending control over inferior courts, as provided in Art. VI, Sec. 3, N.M.Const.

In State ex rel. Transcontinental Bus Service, Inc. v. Carmody, 53 N.M. 367, 378, 208 P.2d 1073, 1080, the cases where it was sought to invoke this court's superintending control were reviewed and the following pronouncement made:

'It is not often we have been called on to consider the conditions under which we will exercise this power of superintending control. State ex rel. Harvey v. Medler, 19 N.M. 252, 142 P. 376; State ex rel. Meyers Co. v. Raynolds, 22 N.M. 473, 164 P. 830; State v. Roy, 40 N.M. 397, 60 P.2d 646, 110 A.L.R. 1; Albuquerque Gas & Electric Co. v. Curtis, 43 N.M. 234, 89 P.2d 615. The matter has been considered often enough in the cases cited, however, for us to reach some definite conclusions as to when it is appropriate to exercise the power and the means of doing so. It can be taken as settled that this control may not be invoked to perform the office of an appeal. State v. Medler, supra. On the other hand, even though the trial court be moving within its jurisdiction and the threatened action be error only, as distinguished from a want of jurisdiction as well, this court may intervene by an appropriate writ in an exercise of its power of superintending control, if the remedy by appeal seems wholly inadequate. State v. Raynolds, supra; or where otherwise necessary to prevent irreparable mischief, great, extraordinary, or exceptional hardship; costly delays and unusual burdens of expense. Albuquerque Gas & Electric Co. v. Curtis, supra.'

For a thorough and instructive discussion of the basis for superintending control, and the rules to be applied when it is invoked, see State ex rel. Lemke v. District Court, 49 N.D. 27, 186 N.W. 381.

We have been most reluctant to invoke our power of superintending control as a basis for interfering with a court in the exercise of its jurisdiction as witness the fact that since adoption of our constitution we have done so only five times, in the following cases: State ex rel. Harvey v. Medler, 19 N.M. 252, 142 P. 376; State ex rel. Transcontinental Bus Service v. Carmody, supra; State ex rel. De Moss v. District Court of the Sixth Judicial District, 55 N.M. 135, 227 P.2d 937; Montoya v. McManus, 68 N.M. 381, 362 P.2d 771, and most recently in Flores v. Federici, 70 N.M. 358, 374 P.2d 119, where a writ of mandamus was made permanent under superintending control, although not specifically so stated. However, we recognize the power as one separate and distinct from other power and jurisdiction granted this court in the constitution. One of the reasons for placing the power in the Supreme Court must have been to make the Supreme Court responsible to see that inferior courts do not depart from proper judicial activity, become dictatorial or oppressive in their conduct, or otherwise behave improperly so as to interfere with or reflect upon the court system, or shake public confidence in the administration of justice and the judiciary. See note, 112 A.L.R. 1351, and cases cited therein; see also. In re Assignment of Huff, 352 Mich. 402, 91 N.W.2d 613; Ransford v. Graham, 374 Mich. 104, 131 N.W.2d 201. We have determined that the right will be exercised sparingly, and only where the remedy by appeal is wholly inadequate, or where it is necessary to prevent irreparable mischief, great, extraordinary or exceptional hardship, costly delays and unusual burdens of expense. Montoya v. McManus, supra.

Petitioner asserts that respondent is biased and prejudiced against him. He bases his contention in this regard upon the following facts: (1) that respondent actively participated in efforts to get petitioner to plead guilty to second degree murder or voluntary manslaughter if the prosecutor would accept such a plea, and in so doing, stated that in his opinion the state could probably establish a prima facie case of first degree murder; (2) that respondent held a pre-trial conference although none is provided for by our rules, at which conference respondent obtained from petitioner's court appointed counsel certain admissions and concessions which were not required to be made, and (3) that respondent held a hearing wherein he denied petitioner the attorney of his choice, and at which petitioner was required to answer questions under threat of being held in contempt. In fact, petitioner was held in contempt of court and a sentence of 30 days in jail was imposed.

As regards item (2), it should be noted that respondent assured petitioner's employed counsel that any concessions or agreements made at the so-called pre-trial conference could be withdrawn and that petitioner would in no way be held to any of them or be prejudiced thereby. There is no provision in our statutes or rules wherein a pre-trial conference in criminal proceedings is permitted or contemplated. Indeed, it is difficult to imagine how the constitutional guaranties to one charged with a crime can be made effective in any kind of proceeding wherein admissions, concessions or agreements of any kind are made by an accused before proof is presented to establish a prima facie case. It was accordingly error for the court to hold a pre-trial conference. However, under the circumstances, it is doubtful whether this alone is ground for relief.

The disposition of items (1) and (3) noted above, presents more difficult and vexatious problems. In State ex rel. Hannah v. Armijo, supra, we find the following:

'* * * [I]nterest of the judge in the result of the case has always been a ground for change of venue in New Mexico, and 'interest' of the judge is a constitutional disqualification. The nature of such 'interest' has never been defined by our court. By the common law, the slightest pecuniary interest would disqualify a judge, and with logical consistency the English courts hold that a judge is rendered incompetent upon a showing of a real possibility of bias. Accordingly, it has been held that personal animosity between judge and party is sufficient for recusation. King v. Justices of Queen's County, [1908] 2 Ir. R. 285; King v. Justices of County Cork [1910] 2 Ir. R. 271; King v. Rand, [1913] 15 D.L.R. 69. There has been a wholesome recognition that human frailty may not be overcome by trained habits of impartiality, that human limitations of the presiding judge may result in the deprivation of a just hearing, and that the stimulation of public confidence in the integrity of the judiciary demands that the judge be not only actually fair minded, but above all suspiction to the contrary.'

In that case we also had the following to say:

'Would any one suppose for a moment that a deprivation of life, liberty, or property by a court presided over by a judge who is partial to one party and hostile to the other is with due process of law?'

Concerning the complaint that respondent stated an opinion that the state could probably establish a prima facie showing of first degree murder, we conclude that the respondent judge was not disqualified because of such expressed opinion. The respondent's opinion arose out of reading the transcript of the preliminary hearing in connection with a motion by petitioner that he be admitted to bail. Respondent did not state if, in his opinion, petitioner was guilty. Any judge would indeed be an unusual person if he formed no opinion, and certainly he had to make a decision since the question of...