N.M. R. App. P. 12-504
N.M. R. App. P. 12-504
ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-011, effective December 31, 2016, prohibited the filing of a reply to a response to a petition for extraordinary writ without leave of the Supreme Court, provided the procedure for filing a motion seeking leave to file a reply, and made stylistic and technical changes; in the heading, deleted "Extraordinary" and added "Other extraordinary", after "writs", added "from the Supreme Court"; in Paragraph (A), after "Court of Appeals", deleted "pursuant to" and added "under", after "district courts", deleted "pursuant to" and added "under", and after "writs of error", added "under Rule 12-503 NMRA"; in Subparagraph (B)(1), in the introductory paragraph, after "'verified petition' is one", deleted "which" and added "that"; in Subparagraph (B)(1)(d), after "grounds", deleted "upon" and added "on"; in Subparagraph (B)(2), after the subparagraph designation, deleted "The petition shall have attached as exhibits any" and added "Any", after "transcripts", added a comma, after "matter in question", added "shall be attached to the petition", after "available.", deleted "The petition may have attached as exhibits any" and added "Any", and after "or other papers", deleted "that are" and added "may be attached if they are"; in Subparagraph (C)(1), added the last two sentences; in Subparagraph (C)(4), deleted "but" and added "and"; in Subparagraph (D)(1), added the last two sentences; in Subparagraph (D)(2)(c), after the subparagraph designation, added "the"; in Subparagraph (D)(3), after "granted", deleted "pursuant to" and added "under", and after "Court may act", deleted "thereon" and added "on the motion"; in Paragraph (E), after "shall be made", deleted "pursuant to" and added "under", after "NMRA", deleted "upon" and added "on the", after "petitioner", added "the", and after "Subparagraph", deleted "(c) of Subparagraph (1) of Paragraph B" and added "(B)(1)(c)"; in Subparagraph (G)(2), after "Subparagraph", deleted "(3) of Paragraph G" and added "(G)(3)"; in Paragraph (H), after "limitations of", deleted "subparagraph (2) of Paragraph G" and added "Subparagraph (G)(2)", after "limitations of Subparagraph", deleted "(3) of Paragraph G" and added "(G)(3)", and after "defined in Subparagraph", deleted "(1) of Paragraph G" and added "(G)(1)". The 2010 amendment, approved by Supreme Court Order No. 10-8300-027, effective December 3, 2010, in Subparagraph (1) of Paragraph C, added the second sentence; and added Paragraph G and Paragraph H. The 2008 amendment, approved by Supreme Court Order No. 08-8300-018, effective August 4, 2008, added the references to Rules 12-304 and 23-113 NMRA in Subsection A; added the provision in Subsection A that the statement need not be notarized; added the last sentence in Paragraph (2) of Subsection B; added Paragraph (3) of Subsection B; added Paragraphs (1) and (3) of Subsection C; deleted former Paragraphs (2), (3) and (4) of Subsection C, which provided procedures for an initial hearing and a final hearing on a petition; added the last two sentences of Paragraph (1) of Subsection D; added the reference to the attorney general in Paragraph (3) of Subsection D; deleted the provision of former Paragraph (4) of Subsection D, which provided that if the stay were vacated, the court could either hear the petition or deny the petition without hearing; deleted former Paragraph (5) of Subsection D, which provided that if a request for a stay were denied, the petition would be set for initial hearing unless the court denied the petition without hearing; deleted former Paragraph (1) of Subsection E which, provided for service on the respondent, interested parties and the attorney general; and added Subsection F. The 1997 amendment, effective January 1, 1997, substituted "fifteen (15) days" for "ten (10) days" in Subparagraphs C(4)(a), (b), and (c). The 1993 amendment, effective September 1, 1993, substituted "the petitioner's claim" for "his claim" in Subparagraph (2)(c) of Paragraph D. The 1991 amendment, effective for cases filed in the supreme court and court of appeals on and after September 1, 1991, in Subparagraph (1) of Paragraph B, inserted the second sentence. Mandamus to compel records center to publish regulations. - Where the chair of the environmental improvement board and the chair of the water quality control commission each transmitted regulations to the records center for filing and publication; the records center accepted the regulations for filing and scheduled them for publication; the acting secretary of the environment department asked the records center to delay publication of the regulations pursuant to the governor's executive order which suspended all proposed and pending rules and regulations under the governor's authority for ninety days; the powers and duties of the environmental improvement board, the water quality control commission, and the records center were independent of the governor and the secretary of the environment department; and the regulations of the state records administrator mandated that regulations filed with the records center be published within a specified time frame after being submitted by the issuing authority, the records center administrator had a clear, indisputable, and mandatory duty to publish the regulations, the governor and acting secretary did not have constitutional or statutory authority to order the records center not to publish the regulations, and mandamus was the appropriate remedy to compel the records center to publish the regulations. New Energy Econ., Inc. v. Martinez, 2011-NMSC-006, 149 N.M. 207, 247 P.3d 286. Standing to petition for writ of mandamus to compel records center to publish regulations. - Where the chair of the environmental improvement board and the chair of the water quality control commission each transmitted regulations to the records center for filing and publication; the records center accepted the regulations for filing and scheduled them for publication; the acting secretary of the environment department asked the records center to delay publication of the regulations pursuant to the governor's executive order which suspended all proposed and pending rules and regulations under the governor's authority for ninety days; and the petitioners actively participated in the administrative rule-making proceedings and raised the issue whether the governor and the acting secretary exceeded their constitutional authority by ordering the records center, an independent agency, to breach a clear, indisputable, and mandatory duty, petitioners had standing under the great public importance doctrine to petition for a writ of mandamus to compel the records center to publish the regulations. New Energy Econ., Inc. v. Martinez, 2011-NMSC-006, 149 N.M. 207, 247 P.3d 286. Ripeness for adjudication of petition for mandamus to compel records center to publish regulations. - Where the chair of the environmental improvement board and the chair of the water quality control commission each transmitted regulations to the records center for filing and publication; the records center accepted the regulations for filing and scheduled them for publication; the acting secretary of the environment department asked the records center to delay publication of the regulations pursuant to the governor's executive order which suspended all proposed and pending rules and regulations under the governor's authority for ninety days; and the filing of the regulations with the records center and publication in the New Mexico register controlled the right to appeal, the effective date of the regulations, and the validity and enforceability of the regulations, the dispute was ripe for adjudication in a proceeding for a writ of mandamus to compel the records center to publish the regulations. New Energy Econ., Inc. v. Martinez, 2011-NMSC-006, 149 N.M. 207, 247 P.3d 286. Prerequisites. - Under Rule 24 of the former Supreme Court Rules, court of review should not use prerogative writs as a substitute for appeal; unless the question was of great public interest or unless requiring an appeal would have been so futile as to result in grave injustice, such writs were withheld except to prevent nonjurisdictional acts. Baca v. Burks, 1970-NMSC-055, 81 N.M. 376, 467 P.2d 392. Since there was neither a jurisdictional question presented nor any showing that grave injustice would result if the case proceeded to trial, the matter was not one calling for the writ, and the alternative writ of prohibition having been improvidently issued was discharged under former Supreme Court Rules. Baca v. Burks, 1970-NMSC-055, 81 N.M. 376, 467 P.2d 392. If a court had jurisdiction of both the subject matter and the parties, ordinarily prohibition would not issue under Rule 24 of former Supreme Court Rules. Two exceptions to this rule were recognized: one was where a court had acted in excess of jurisdiction, and the other was where, under supreme court's power of superintending control, refusal to act would cause irreparable mischief, exceptional hardship, undue burdens of expense or appeal would be grossly inadequate. State ex rel. SCC v. Zinn, 1963-NMSC-048, 72 N.M. 29, 380 P.2d 182. Even where applications or petitions were required by statute, which also provided for liberal interpretation, certain minimum requirements had to be met under former Supreme Court Rules. Roberson v. Board of Educ., 1967-NMSC-176, 78 N.M. 297, 430 P.2d 868. Prohibition was not to be as means of obtaining piece-meal review, or as a substitute for appeal under former Supreme Court Rules. State ex rel. Anaya v. Scarborough, 1966-NMSC-009, 75 N.M. 702, 410 P.2d 732. Prohibition was preventive rather than corrective remedy, and it would not issue to vacate orders already entered under former Supreme Court Rules. State ex rel. Davis v. District Court, 1960-NMSC-071, 67 N.M. 215, 354 P.2d 145. Original jurisdiction of Supreme Court in mandamus proceeding. - A mandamus petition for an order precluding the governor from implementing compacts and revenue-sharing agreements with Indian tribes which would permit gaming on Indian lands pursuant to the federal Indian Gaming Regulatory Act was properly brought before the Supreme Court in an original proceeding. State ex rel. Clark v. Johnson, 1995-NMSC-048, 120 N.M. 562, 904 P.2d 11. Relator in mandamus action could question constitutionality of statute in a proper case under former Supreme Court Rules. State ex rel. Chavez v. Evans, 1968-NMSC-167, 79 N.M. 578, 446 P.2d 445. Final judgment. - Writ of prohibition issuing from state supreme court is final judgment within meaning of federal law, and review of all proceedings concerning such should be sought in the United States Supreme Court. Gibner v. Oman, 459 F. Supp. 436 (D.N.M. 1977 ). Writ properly issued. - Where conflict in New Mexico judicial districts as to constitutionality of death penalty existed, so that allowing the situation to remain would have resulted in unequal justice, a writ of prohibition to stop proceedings in conflicting cases until a determination of constitutionality was made was proper and would be made permanent, under former Supreme Court Rules. State ex rel. Serna v. Hodges, 1976-NMSC-033, 89 N.M. 351, 552 P.2d 787, overruled on other grounds, State v. Rondeau, 1976-NMSC-044, 89 N.M. 408, 553 P.2d 688. The question of whether the state was barred by the double jeopardy clause from prosecuting an individual for driving under the influence (DWI) once the individual had been subjected to an administrative hearing for driver's license revocation based on the same offense was one of great public importance requiring use of the Supreme Court's power of superintending control. State ex rel. Schwartz v. Kennedy, 1995-NMSC-069, 120 N.M. 619, 904 P.2d 1044. Writ denied. - Since relators had plain, speedy and adequate remedy at law, prohibition did not lie under former Supreme Court Rules. Carter v. Montoya, 1966-NMSC-021, 75 N.M. 730, 410 P.2d 951. That fairly unusual burdens of expense would have to be borne by relators, although unfortunate, was frequently a necessary adjunct to litigation of the type here involved and was therefore insufficient under former Supreme Court Rules to warrant issuance of a writ of prohibition. State ex rel. Oil Conservation Comm'n v. Brand, 1959-NMSC-038, 65 N.M. 384, 338 P.2d 113. Fact that the district court might decide matters wrongly was of no concern of the supreme court when merely investigating the jurisdiction, nor was it material that the supreme court might on review be compelled to reverse the case, and writ of prohibition was denied under former Supreme Court Rules. State ex rel. Oil Conservation Comm'n v. Brand, 1959-NMSC-038, 65 N.M. 384, 338 P.2d 113. Where intervenor-defendant had been ordered discharged from the custody of the warden of the penitentiary and the order was not appealed, it was accordingly final and as intervenor was being detained within the first judicial district, respondent-district court judge had jurisdiction to consider intervenor's petition for habeas corpus; the remedy of prohibition was thus not available to the state under former Supreme Court Rules. Rodriguez v. District Court, 1971-NMSC-101, 83 N.M. 200, 490 P.2d 458. Writ of certiorari. - Appeals and writs of error were not to be compared to certiorari, and, generally speaking, the presence of the right to appeal made inappropriate and unavailable the right to certiorari under former Supreme Court Rules. Roberson v. Board of Educ., 1967-NMSC-176, 78 N.M. 297, 430 P.2d 868. Absent exceptional circumstances, the time for application for a writ of certiorari was the same as for an appeal or writ of error. Breithaupt v. State, 1953-NMSC-012, 57 N.M. 46, 253 P.2d 585. Amicus curiae must accept the case on the issues as raised by the parties, and cannot assume the functions of a party in mandamus proceeding. State ex rel. Castillo Corp. v. New Mexico State Tax Comm'n, 1968-NMSC-117, 79 N.M. 357, 443 P.2d 850. Law reviews. - For article, "The Writ of Prohibition in New Mexico," see 5 N.M.L. Rev. 91 (1974). For note, "Mandamus Proceedings Against Public Officials: State of New Mexico ex rel. Bird v. Apodaca," see 9 N.M.L. Rev. 195 (1978-79). For article, "Separation of Powers and the Judicial Rule-Making Power in New Mexico: The Need for Prudential Restraints," see 15 N.M.L. Rev. 407 (1985). Am. Jur. 2d, A.L.R. and C.J.S. references. - 5 Am. Jur. 2d Appellate Review § 325 et seq. Inadequacy of remedy by appeal or writ of error as affecting right to mandamus, 4 A.L.R. 632. Propriety of certiorari to review decisions of public officer or board granting, denying or revoking permit, certificate or license required as condition of exercise of particular right or privilege, 102 A.L.R. 534. Legislature's express denial of right of appeal as affecting right to review on the merits by certiorari or mandamus, 174 A.L.R. 194. Applicability of statute of limitations or doctrine of laches to certiorari, 40 A.L.R.2d 1381. Plea of guilty in justice of the peace or similar inferior court as precluding appeal, 42 A.L.R.2d 995. Statute providing for judicial review of administrative order revoking or suspending automobile driver's license as providing for trial de novo, 97 A.L.R.2d 1367. 4 C.J.S. Appeal and Error § 8 et seq.