State ex rel. Hannah v. Armijo

• Decision Date: 14 October 1933
• Docket Number: No. 3930.,3930.
• Parties: STATE ex rel. HANNAH et al.v.ARMIJO, Judge of Fourth Judicial District.
• Court: New Mexico Supreme Court

38 N.M. 73

28 P.2d 511

STATE ex rel. HANNAH et al.

v.ARMIJO, Judge of Fourth Judicial District.

No. 3930.

Supreme Court of New Mexico.

Oct. 14, 1933.

Proceeding for a writ of prohibition by the State, on the relation of James D. Hannah and another, against Hon. Luis E. Armijo, Judge of the Fourth Judicial District.

Writ made absolute.

When affidavit of disqualification of judge is timely made and is in substantial compliance with statute, no discretion is vested in judge, and his disqualification is thereby accomplished. Laws 1933, c. 184.

See, also, 24 P.(2d) 274.

James L. Briscoe, of Tucumcari, Irwin S. Moise, of Santa Rosa, and A. T. Hannett, of Albuquerque, for relators.

A. T. Rogers, Jr., and M. E. Noble, both of Las Vegas, and F. Faircloth, of Santa Rosa, for respondent.Jesse G. Northcutt, of Trinidad, Colo., and Reed Holloman and Gilbert & Hamilton, all of Santa Fé, amici curiæ.

BICKLEY, Justice.

The relators are members of the school board of the Santa Rosa municipal school district. An action was commenced in the district court for the removal of relators from office. The relators filed in said action an affidavit of disqualification of the district judge as provided for in chapter 184 of Session Laws 1933. The district judge ignored the affidavit, and was about to proceed with the case when application was made here for our writ of prohibition, and an alternative writ was issued. The sole question before us for decision is the constitutionality of the statute.

In general, the same principles apply in cases where a judge may be disqualified from presiding over the trial of a particular case, as apply in cases where a change of venue is accorded under the statute, or the Constitution, on account of the disqualification of the presiding judge.

Ever since 1851, in New Mexico, the interest of the judge has been a ground for changing the venue in all cases both civil and criminal, as shown by section 17, chapter 27, art. 12, R. S. of N. M. 1865, chapter 9, Laws 1882, section 5571, Code 1915, Act of 1889, c. 77, § 1, section 5573, Code 1915. See, also, chapter 60, Laws 1929.

It will be noticed that section 5571, Code 1915, did not provide any method for presenting to the court any of the causes a party to the action might believe existed for a change of venue. And it is further to be observed that, while the acts of 1889 and 1929 make certain requirements as to a showing by motion and supporting affidavits, when the ground for change of venue is stated to be because such party cannot obtain a fair trial in the county wherein the cause is then pending, either because the adverse party has an undue influence over the minds of the inhabitants of such county or the inhabitants of such county are prejudiced against such party, or because by reason of public excitement or local prejudice in such county an impartial jury cannot be obtained in such county to try the same, such requirements do not extend to the presentation of the ground for change of venue of interest of the judge in the result of the case. Under sections 5571 and 5573, considerations of punctuation and context plainly so indicate, and this is emphasized by chapter 60, Laws 1929, particularly by the italicized portion thereof dealing with the cause for change when the judge is interested in the result of the case. The reason for this distinction seems clear. Under section 5573, Code 1915, it was within the power of the trial judge to decide as to the interest and the knowledge of the compurgators who asserted grounds for change of venue, exclusive of the interest of the judge. See State v. Buck, 33 N. M. 334, 266 P. 917. But the Legislature did not require the allegation and proof of facts to establish the interest of the judge or any determination by the judge of his own interest in the result of the case.

Likewise chapter 60, Laws 1929, does not require any evidence in support of the motion for change of venue when based upon the interest of the judge, and dispenses with any findings by the judge upon that question.

In the case at bar, the statute in question is as follows:

“Section 1. Whenever a party to any action or proceeding, civil or criminal, shall make and file an affidavit that the Judge before whom the action or proceeding is to be tried or heard cannot, according to the belief of the party to said cause making such affidavit, preside over the same with impartiality, such Judge shall proceed no further therein, but another Judge shall be designated for the trial of such cause either by agreement of counsel representing the respective parties or upon the failure of such counsel to agree, then such facts shall be certified to the Chief Justice of the Supreme Court of the State of New Mexico, and said Chief Justice of the Supreme Court of the State of New Mexico, shall thereupon designate the Judge of some other District to try such cause.

“Sec. 2. Such affidavit shall be filed not less than ten (10) days before the beginning of the term of Court, if said case is at issue.” Chapter 184, Laws 1933.

[1] It is conceded that the language of this statute is absolute and mandatory. No discretion is vested in the judge against whom the affidavit is filed as to his disqualification. When an affidavit is timely made and in substantial compliance with the statute, the disqualification of the judge is accomplished so far as proceeding further in that particular case is concerned. There is no issue of law or fact to be determined by the judge sought to be disqualified.

[2] Respondent claims that the statute offends article 3 of our Constitution, which provides: “The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments, shall exercise any powers properly belonging to either of the others, except as in this constitution otherwise expressly directed or permitted.”

Did the Legislature go beyond its constitutional power in enacting this statute and thereby invade the province of a co-ordinate branch of the government? The Supreme Court of Oregon, in U'Ren v. Bagley, 118 Or. 77, 245 P. 1074, 1076, 46 A. L. R. 1173, in 1926, satisfactorily answered this question in the negative in a well considered and supported opinion, and we hold in accordance with the principles and decisions there announced.

It is no invasion of judicial power for the Legislature to say that such power shall not be exercised by judges who are believed by litigants to be partial. There can be no vestiture of judicial power in judges who are partial. Broom's Legal Maxims, page 85, credits Hobart, C. J., with the statement that even an act of Parliament made against natural equity, as to make a man a judge in his own case, is void in itself, because the laws of nature are unchangeable. It is going but a step further for the Legislature as a matter of policy to dispense with proof of the fact of partiality where the litigant asserts its existence. Our Legislature in effect has said that a judge, even though blessed with all of the virtues any judge ever possessed, shall not be permitted to exercise judicial power to determine the fact of his own disqualifications, not because the judge in doing so would attempt to act otherwise than conscientiously, but because in their legislative judgment it is not fitting for him to make such attempt, and it is better that the courts shall maintain the confidence of the people than that the rights of judge and litigant in a particular case be served.

Respondent claims that too much power is placed by the statute in litigants. In this connection, it would be well to remember that the canons of judicial ethics adopted by the American Bar Association, “as a proper guide and reminder for judges, and as indicating what the people have a right to expect of them,” *** declare: “Courts exist to promote justice and thus serve the public interest *** he (the judge) should avoid unconsciously falling into the attitude of mind that litigants are made for the courts instead of courts for the litigants *** a judge's official conduct should be free from impropriety and the appearance of impropriety.”

Similar ideas are expressed in the opinion in U'Ren v. Bagley, supra, which we have approved.

[3] Incidently, the Oregon court answered in the negative the suggestion made here, that a judge has a vested right to sit in a particular case and a litigant a vested right to have his case heard by a particular judge. We hold that the statute does not deny due process of law and does not violate section 18 of article 2 of the Constitution.

It is urged that the statute is deficient because it does not require a statement of facts upon which the party affiant bases his belief that the judge cannot preside over his case with impartiality. Some statutes contain such provisions. This, however, was a question of legislative policy, and there exists difference of opinion as to which is the better policy. The Oregon court in U'Ren v. Bagley, supra, pertinently inquires: “What if the statute required the affiant specifically to allege the facts constituting the prejudice of the judge? Who would pass on such facts? Would the judge pass on his own qualifications? It would, indeed, be a strange judicial proceeding for a judge to determine his own state of mind and whether he was prejudiced or not. It is fundamental that no man should act as judge in his own case.”

Such requirements of allegations of specific facts as to the interest of the judge are of doubtful efficacy. The following criticism written by Mr. Renzo D. Bowers, a member of the New Mexico Bar, and appearing at section 123 of his work on “Judicial Discretion of Trial Courts,” so demonstrates:

“As the object of all laws and rules of procedure is to further the interests of justice, it is not logical that...