The New Mexico Supreme Court opinion in Quality Automotive Center, LLC v. Arrieta, 2013-NMSC-041, involved the peremptory challenge to excuse a judge found at NMSA 1978, Section 38-3-9 (1985). The Supreme Court announced that the right embodied in the statute was procedural in nature and therefore the Court could amend or abolish the right. The Court then proposed new rules of procedure which limited a litigant’s ability to exercise Section 38-3-9. This article traces the history of judicial disqualification statutes in New Mexico from territorial days through early statehood to the present as well as the evolution of judicial rule-making as a function of the legislative branch and the judicial branch of government. This article then demonstrates that the Legislature and judiciary reached a compromise on the peremptory excusal of judges in 1985 that the judiciary sought to withdraw from in 2013. This article further examines the problems those Proposed Rules of 2013 would have created, the bar members’ reaction to the proposed rules, and the Judiciary’s solution by enacting newly proposed rules in 2015. Finally, this article argues that the Legislature does have a role to play in judicial rule-making. The Supreme Court should address its concerns about Section 38-3-9 along with its recommended solution to the Legislature and allow the Legislature to remedy the problem or alternatively recognize that Section 38-3-9 contains a substantive right to excuse a judge along with the procedural aspects which the Supreme Court now seeks to amend.



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