Rule 5-106. Peremptory challenge to a district judge; recusal; procedure for exercising.

A. Definition of parties. “Party,” as used in this rule, shall mean a defendant, the state, or an attorney representing the defendant or the state. A party may not excuse a judge after the party has requested that judge to perform any discretionary act. B. Extent of excuse or challenge. No judge may be excused from conducting an arraignment or first appearance, setting initial conditions of release, reviewing a lower court’s order setting or revoking conditions of release, or presiding over a pretrial detention hearing or a preliminary examination in a case where a pretrial detention motion has been filed. No party shall excuse more than one judge. C. Mass reassignment. A mass reassignment occurs when one hundred (100) or more pending cases are reassigned contemporaneously. D. Procedure for excusing a district judge. The statutory right to excuse the judge before whom the case is pending must be exercised by a party filing a peremptory election to excuse with the clerk of the district court within ten (10) days after the later of (1) arraignment or the filing of a waiver of arraignment; (2) service by the clerk of notice of assignment or reassignment of the case to a judge; (3) completion of publication of notice of reassignment in the case of a mass reassignment; or (4) filing of a notice of appeal from a lower court. E. Notice of reassignment. After the arraignment or the filing of a waiver of arraignment, if the case is reassigned to a different judge, the clerk shall give notice of reassignment to all parties. When a mass reassignment occurs, the clerk shall give notice of the reassignments to all parties by publishing notice for four (4) consecutive weeks on the State Bar website and in two (2) consecutive issues of the New Mexico Bar Bulletin. Service of notice by publication is complete on the date printed on the second issue of the Bar Bulletin. F. Service of excusal. Any party electing to excuse a judge shall serve notice of that election on all parties. G. Misuse of peremptory excusal procedure. Peremptory excusals are not to be exercised to hinder, delay, or obstruct the administration of justice. If it appears that an attorney or group of attorneys may be using peremptory excusals for improper purposes or with a frequency that impedes the administration of justice, the Chief Judge of the district shall send a written notice to the Chief Justice of the Supreme Court and shall send a copy of the written notice to the attorney or group of attorneys believed to be improperly using peremptory excusals. The Chief Justice may take appropriate action to address any misuse, including issuance of an order providing that the attorney or attorneys or any party they represent may not file peremptory excusals for a specified period of time or until further order of the Chief Justice. H. Recusal. No district judge shall sit in any action in which the judge’s impartiality may reasonably be questioned under the provisions of the Constitution of New Mexico or the Code of Judicial Conduct, and the judge shall file a recusal in that action. On receipt of notification of recusal from a district judge, the clerk of the court shall give written notice to each party. I. Disability during trial. If by reason of death, sickness, or other disability the judge before whom a jury trial has commenced is unable to proceed with the jury trial, any other judge regularly sitting in or assigned to the court, on certifying familiarity with the record of the jury trial, may proceed with and finish the jury trial or, if appropriate, may grant a mistrial. In a nonjury trial, on motion of the defendant, a mistrial shall be granted on disability of the trial judge. J. Disability after verdict or finding of guilt. If by reason of death, sickness, or other disability the judge before whom the defendant has been tried is unable to perform the duties to be performed by the court after a verdict or finding of guilt, any other eligible judge may perform those duties on certifying familiarity with the record of the trial.