State v. Doe , 91 N.M. 57 ( 1977 )

OPINION

WOOD, Chief Judge.

Judge Ryan removed himself from this Children’s Court case. Thereafter Mary Walters, sitting as “Judge Designate of the Children’s Court” dismissed the petition alleging delinquency. The state appealed. Our calendar assignment, see N.M.Crim. App. 207, stated that the parties should brief the question of Mary Walters’ authority to preside. Briefs have been filed. We hold that Mary Walters had no authority to preside as judge in this case.

1. The Facts

The petition was filed in January, 1977; the child was arraigned before Judge Ryan in February, 1977. Judge Ryan ruled on various motions on March 7, 1977. Trial was scheduled before Judge Ryan on March 16,1977 but was continued at the request of the child’s counsel. On March 14, and 21, 1977 Judge Ryan continued the hearing on additional motions. The order of continuance on March 21, 1977 recites a trial date of March 23, 1977.

The parties stipulated:

“4. Thereafter, on March 23, 1977 the Honorable Joseph C. Ryan orally removed himself as trial judge in this cause, without disqualification or recusal.

“5. No District Court judge was available in the Second Judicial District to preside in the cause, and as a result, Judge Ryan suggested the parties select a member of the bar of this state to preside as judge.

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“8. Counsel for each party agreed to have Mary Walters sit as judge pro tempore in this cause.

“9. Judge Ryan then telephoned Mary Walters and inquired whether she would be available to preside in this cause and advised her that counsel for the parties had agreed to her as judge pro tempore.

“10. Judge Ryan did not participate in the cause thereafter.

“11. Trial of the cause began on March 23,1977 with Mary Walters presiding as judge pro tempore.

“12. At the beginning of the proceedings on March 23, 1977, counsel for the parties again represented to Mary Walters that they had agreed upon her as judge pro tempore.

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“16. Mary Walters has been a district judge for Bernalillo County and is now the Probate Court Judge for Bernalillo County.

“17. Neither jurisdictional questions nor waiver of jurisdictional questions were raised at anytime by any party.”

2.Judicial Authority

Judicial power can only be conferred upon a person by the authority of the law. State v. Trimble, 317 Mo. 751, 297 S.W. 378 (1927); see Lewis v. Harris, 238 N.C. 642, 78 S.E.2d 715 (1953).

Mary Walters attempted to exercise the power of a Children’s Court judge. In this case, the Children’s Court was a division of the district court. Sections 13-14-3(C) and 13-14-4, N.M.S.A.1953 (Repl. Vol. 3, pt. 1); see Peyton v. Nord, 78 N.M. 717, 437 P.2d 716 (1968). Thus, Mary Walters attempted to exercise the power of a district court judge.

New Mexico Constitution, Article VI, § 15 states:

“Any district judge may hold district court in any county at the request of the judge of such district.

“Whenever the public business may require, the chief justice of the Supreme Court shall designate any district judge of the state, or any justice of the Supreme Court when no district judge may be available within a reasonable time, to hold court in any district, and two or more judges may sit in any district or county separately at the same time. If any judge shall be disqualified from hearing any cause in the district, the parties to such cause, or their attorneys of record, may select some member of the bar to hear and determine said cause, and act as judge pro tempore therein.”

In connection with the above-quoted constitutional provision, State v. McGhee, 41 N.M. 103, 64 P.2d 825 (1937) states:

“It is the public policy of this state, as evidenced by its Constitution and laws, that regularly elected or appointed district judges shall preside over its district courts unless, because of the disqualification of the trial judge, the parties to a suit agree that a member of the bar may try a particular case as judge pro tempore. No other means is provided for the trial of causes in the district courts of this state.”

See Moruzzi v. Federal Life & Casualty Co., 42 N.M. 35, 75 P.2d 320 (1938), 115 A.L.R. 407 (1938). “District judges alone are authorized to preside in the trial of causes in the district court except as provided by section 15 of article 6 of the Constitution . .” State v. McGhee, supra.

3. De Facto Judge

The child asserts that Mary Walters was a de facto district judge. The three requisites for a, de facto officer are: “1. The office held by him must have a de jure existence, or at least one recognized by law; (2) he must be in actual possession thereof; and (3) his holding must be under color of title or authority.” State v. Blancett, 24 N.M. 433, 174 P. 207 (1918), dismissed, 252 U.S. 574, 40 S.Ct. 395, 64 L.Ed. 723 (1920).

Under this definition, Mary Walters was not a de facto district judge. Paragraph 16 of the stipulation shows that she was not “holding” the office of district judge and was not in possession of such office. Paragraph 8 of the stipulation shows that she was sitting pro tempore. A person sitting as judge pro tempore “does not assume to have any title to the office.” National Bank of Washington v. McCrillis, 15 Wash.2d 345, 130 P.2d 901 (1942). Acting pro tempore, Mary Walters was to hear only this particular case. “The temporary character of the authority of a judge pro tem and the fact that only the parties litigant are concerned with his right to act, in our opinion destroy the basis for the normal rules concerning de facto judges.” National Bank of Washington, supra.

4. Judge Pro Tempore

The child asserts that Mary Walters was a judge pro tempore. She was a judge pro tempore only if she came within the provision of N.M.Const., Art. VI, § 15. State v. McGhee, supra. Not being a district judge, the only basis for her being a judge pro tempore is the last sentence of the constitutional provision which reads: “If any judge shall be disqualified from hearing any cause in the district, the parties to such cause, or their attorneys of record, may select some member of the bar to hear and determine said cause, and act as judge pro tempore therein.” [Our emphasis.]

The right of the parties to agree on a member of the bar to sit as judge pro tempore comes into existence only “because of the disqualification of the trial judge”. State v. McGhee, supra. Paragraph 4 of the stipulation states that Judge Ryan removed himself “without disqualification”.

The child asserts that “disqualified” in N.M.Const., Art. VI, § 15 should be given an expansive meaning; that disqualification can result for a variety of reasons other than those specified in N.M.Const., Art. VI, § 18 or § 21-5-8, N.M.S.A.1953 (Repl. Vol. 4). See also §§ 13-14-27(D) and 13-14-33(F), N.M.S.A.1953 (Repl. Vol. 3, pt. 1). We assume, but do not decide, that “disqualified” means any valid reason why a judge should not hear the case. Giving an expanded meaning to “disqualified” does not aid the child. Whatever the meaning of “disqualified”, it is stipulated that Judge Ryan removed himself “without disqualification”.

The child asserts that Judge Ryan’s action in removing himself “should be considered as a disqualification” within the meaning of N.M.Const., Art. VI, § 15. The child asserts that New Mexico reports are replete with cases where the judge has withdrawn “without the slightest hint of the underlying reason, and without exception the appellate opinions refer to the act of withdrawal as disqualification.” In Midwest Royalties v. Simmons, 61 N.M. 399, 301 P.2d 334 (1956) the district judge announced in open court that he was disqualified. In State v. Encinias, 53 N.M. 343, 208 P.2d 155 (1949) the district judge entered an order disqualifying himself. In Chavez v. Baca, 47 N.M. 471, 144 P.2d 175 (1943) one district judge was disqualified by the affidavit of a party; another district judge entered an order disqualifying himself. In State v. Lujan, 45 N.M. 103, 111 P.2d 541 (1941) the local district judge entered an order disqualifying himself.

In each of the cases relied on by the child, the district judge was disqualified to act; these cases do not support the argument that a withdrawal, without more, is a disqualification. The answer to the child’s argument is that it is stipulated that Judge Ryan withdrew from the case “without disqualification”. With this stipulation, we cannot hold that a withdrawal without disqualification is to be treated as a disqualification.

Compere v. Grand, 42 S.W.2d 278 (Tex. Civ.App.1931) states that in the absence of an indication to the contrary, the Texas appellate court would presume that the regular judge was disqualified. We do not consider whether such a presumption exists in New Mexico. Here there is an indication to the contrary — the stipulation that Judge Ryan removed himself without disqualification.

Judge Ryan not being disqualified, the parties had no right to agree upon Mary Walters to hear the case and Mary Walters was not a judge pro tempore under N.M. Const., Art. VI, § 15.

5. Waiver and Jurisdiction

The child points out that the parties agreed that Mary Walters should sit as a judge pro tempore. It is stipulated that no issue as to jurisdiction was raised by the parties. The parties litigated, before Mary Walters, the matter which the State has appealed. In these circumstances, the child asserts “that the State has waived any objection it might have to her qualifications to act as judge in this cause.”

A jurisdictional essential necessary to the validity of every judgment is the power or authority to decide the particular matter presented. Heckathorn v. Heckathorn, 77 N.M. 369, 423 P.2d 410 (1967). The power or authority to sit as a judge was considered a jurisdictional matter in Moruzzi v. Federal Life & Casualty Co., supra.

State v. Branaman, 204 Ind. 238, 183 N.E. 653 (1932) states:

“ . . . parties cannot by agreement confer upon a person a power which can come only from the sovereign and only in accordance with a fixed procedure. In case of a change from a regular judge, parties may by agreement select the person who is to become a special judge, but they cannot by agreement make him a judge. In short, they may waive the privilege of a certain method of selecting the person who is to become a special judge, but they cannot by agreement invest this person with judicial power. That can come only from the sovereign people in the method prescribed by law.” State v. Trimble, supra, states:

“It is axiomatic that judicial power can only be conferred upon a court or a person by the authority of the law . . . The act of the parties in their attempt to confer judicial power being futile, their consent to the selection of judges, regardless of its form, will not estop them from denying the jurisdiction of the court. There can be no waiver where a court is without power to hear and determine the facts.”

The authority of a person to sit as judge pro tempore being a jurisdictional requirement, it may be raised at any time and was not waived by the State. National Bank of Washington v. McCrillis, supra.

The child cites two New Mexico cases as supporting the view that waiver may occur. The first case, Albuq. & C. C. Co. v. Lermuseaux, 25 N.M. 686, 187 P. 560 (1920), was concerned with the venue of workmen’s compensation claims. The opinion states that the bringing of an action in an improper county is not a jurisdictional defect where the court has general jurisdiction over the subject matter. Our concern is not with venue, but with Mary Walters’ authority to act as a judge. As to this, the opinion states:

“Want of jurisdiction because the court has no power and authority to adjudicate upon the subject involved in the action may be raised at any time and at any stage of the proceeding, for consent could not confer jurisdiction upon a tribunal to determine questions, the decision of which the Legislature had not intrusted to such tribunals.”

This decision is consistent with and supportive of the above-cited authorities.

The second case, State Bank of Alamogordo v. McNew, 32 N.M. 225, 252 P. 997 (1927) discusses presumption and waiver in connection with the settling of a bill of exceptions by a designated judge sitting for the resident judge. The case does not involve the absence of judgment authority, but the apportionment of judicial power between the designated judge and the resident judge. This decision does not support the child.

The child asserts the rule is almost universal that failure to object to a pro tempore judge on the ground of lack of authority is considered to be a waiver of any objection to the judge’s qualification. We do not agree. The cases relied on, which we do not cite, do not go to the total absence of judicial authority such as exists in this case.

The lack of authority to sit as a judge is a jurisdictional requirement which can be raised at any time. Since it can be raised at any time, the issue was not waived by consenting that Mary Walters act as judge pro tempore and in participating in a hearing before her without challenging her authority. See Annot., 144 A.L.R. 1207 at 1222.

Although we have discussed this contention in terms of the child’s argument that the State had waived any objections to Mary Walters sitting as judge pro tempore, we point out that the issue was raised by this Court on its own motion. We did so because the authority of Mary Walters to act as judge in this case was a jurisdictional question; such questions may be raised by the appellate court on its own motion, State v. Foster, 87 N.M. 155, 530 P.2d 949 (Ct. App.1974).

6. Authority of the Court of Appeals to Decide Mary Walters’ Authority

The child asserts that this Court has no authority to decide the question of Mary Walters’ authority. The child relies on State v. Blancett, supra, which involves a de facto judge. Mary Walters was not a de facto judge; Blancett is not applicable.

The applicable rule is stated in Annot., 144 A.L.R. 1207 at 1214, as follows:

“The necessities upon which the general rule that the title or authority of a de facto judge cannot be challenged by a litigant in litigation before him are not present, at least to the same extent, where one other than the regular judge presides, inasmuch as in such case, there is no profession of right to the particular judgeship or authority to exercise the functions thereof, except by special election or appointment. Accordingly, upon this theory, cases of special, substitute, or pro tern judges have been recognized as exceptions to the general rule (supra II a), and objections to their authority may be made in the court in which the challenged judge sits, in a proper and timely manner, and, if overruled, may be assigned as error upon appeal.”

This Court has authority, on appeal, to review the question of Mary Walters’ judicial authority, she not being a de facto judge.

Mary Walters had no judicial authority in this case. Her order of dismissal is a nullity. The cause is remanded to the Children’s Court with instructions to set aside the order of dismissal entered by Mary Walters as judge designate, and to proceed in accordance with this opinion.

IT IS SO ORDERED.

LOPEZ, J., concurs. SUTIN, J., dissenting.