N.M. R. App. P. 12-210
The case will be submitted to the Court and decided on legal issues.
N.M. R. App. P. 12-210
Committee commentary. - The 2017 amendments to this rule clarify that the calendaring assignments covered by this rule are generally used only in direct appeals from either the district court or an administrative agency to the appellate courts, including the majority of the cases heard by the Court of Appeals. The majority of cases that reach the Supreme Court are governed by the rules governing writs, including matters invoking the original jurisdiction of the Supreme Court, see Rule 12-504 NMRA, and matters seeking discretionary review of decisions of either the district court, see Rule 12-501 NMRA, or the Court of Appeals, see Rule 12-502 NMRA. The 2017 amendments also eliminated the legal calendar for the Supreme Court, where it is no longer utilized.
The summary calendar described in Paragraph D of this rule is used primarily by the Court of Appeals but may be used occasionally by the Supreme Court.
The expedited bench decision program described in Paragraph F of this rule is used only by the Court of Appeals. Although the Supreme Court does not use an expedited process to dispose of direct appeals, the Supreme Court may expedite the briefing and oral argument schedule for certain categories of time-sensitive cases in which the Court has granted a petition for writ of certiorari, as described in Rule 12-502(M) NMRA.
[Adopted by Supreme Court Order No. 17-8300-015, effective for all cases pending or filed on or after December 31, 2017.]
.ANNOTATIONS The 2017 amendment, approved by Supreme Court Order No. 17-8300-015, effective December 31, 2017, added a provision specifying the scope of the rule, clarified certain provisions related to calendaring assignments covered by this rule, rewrote certain provisions related to the summary calendar, and added the committee commentary; added new Paragraph A and redesignated former Paragraphs A and B as Paragraphs B and C, respectively; in Paragraph B, added the first sentence, after "After", deleted "the docket fee has been paid in accordance with Rule 12-208 NMRA or free process has been granted in accordance with Rule 12-304 NMRA or Rule 23-114 NMRA, based upon" and added "the filing of", after the first occurrence of "docketing statement", added "in the Court of Appeals", after "statement of the issues", added "in the Supreme Court, as provided in Rule 12-208 NMRA", deleted "and record proper", after "general", added "summary, or", after "legal", deleted "or summary", after "judge or justice", added "and shall be based on the record proper and either the docketing statement or the statement of the issues", and deleted "If the clerk mails the notice, Paragraph B of Rule 12-308 NMRA applies."; in Paragraph C, added the first sentence, after the first sentence, deleted "If the case is placed on" and added "The following provisions apply to a case assigned to", in Subparagraph C(1), added the subparagraph heading, after "proceedings", added "depositions, and exhibits", after "shall be", added "designated and", and after "12-211", added "and 12-212", in Subparagraph C(2), added the subparagraph heading, deleted "except for cases assigned to the expedited bench decision program in the Court of Appeals under Paragraph F of this rule," and added the new introductory paragraph, added new subparagraph designations "(a)" through "(d)", in Subparagraph C(2)(a), after "transcript of proceedings", deleted "as designated by any party or as required under Subparagraph (1) of Paragraph (B) of Rule 12-211 NMRA", after "under", deleted "Subparagraph (1) of Paragraph (C) of", and after "Rule 12-211", added "(C)(1)", in Subparagraph C(2)(d), deleted "The time limits for", after "cross-appeals", deleted "are set forth in Rule 12-213 NMRA" and added "shall be filed and served as provided in Rule 12-318 NMRA", deleted former Subparagraph C(3), which provided "if filed in the Court of Appeals, the case shall be submitted for decision to a randomly chosen panel of three judges" and added new Subparagraph C(3); added new Paragraph D and redesignated former Paragraph C as Paragraph E; in Paragraph E, deleted "If the case is placed on the" and added "The Court of Appeals uses the legal calendar. The following provisions apply to a case assigned to", in Subparagraph E(1), added the subparagraph heading, added "No", deleted "a" and after "transcript of proceedings", added "depositions, or exhibits", after "shall", deleted "not", deleted the subparagraph designation "(2)" and redesignated former Subparagraph E(3) as Subparagraph E(2), and after "will be submitted", added "to the Court and decided", in Subparagraph E(2), added the subparagraph heading and added "The parties shall submit briefs prior to decision on the legal calendar, and", after "Paragraph", deleted "E" and added "F", after "calendar assignment.", added "Unless otherwise ordered by the Court", and added subparagraph designations "(a)" through "(d)", in Subparagraph E(2)(d), deleted "The time limits for", after "cross-appeals", deleted "are set forth in Rule 12-213 NMRA; and" and added "shall be filed and served as provided in Rule 12-318 NMRA.", added new Subparagraph E(3), and deleted former Subparagraph E(4); deleted former Paragraph D and redesignated former Paragraph E as Paragraph F; in Paragraph F, deleted "Cases assigned to the" and added "The Court of Appeals may assign a case to its", after "version of the", deleted "miscellaneous", after "order", deleted "governing the expedited bench decision program", and deleted http://coa.nmcourts.gov/ and added https://www.nmcourts.gov/Court-of-Appeals/; and deleted former Paragraphs F and G. The 2012 amendment, approved by Supreme Court Order No. 12-8300-035, effective January 7, 2013, required the brief in chief to be filed within forty-five days after the court gives notice that all transcripts have been filed or after the appellant serves notice of nondesignation of transcript; and in Subparagraph (2) of Paragraph B, in the first sentence, after "brief in chief within forty-five (45) days after", deleted "the date" and added "service of notice by the appellate court that", after "as designated by any party are", added "or as required under Subparagraph (1) of Paragraph (B) of Rule 12-211 NMRA have been", after "if no transcript is filed" added "either because appellant does not deem any part of the proceedings necessary for the appeal or because no proceedings were held in the district court", and after "district court, within forty-five days after the", deleted "appellant's notice of nondesignation of transcript is filed in the appellant court" and added "appellant serves its notice of nondesignation of transcript pursuant to Subparagraph (1) of Paragraph (C) of rule 12-211 NMRA". The 2010 amendment, approved by Supreme Court Order No. 10-8300-045, effective February 9, 2011, in Paragraph A, in the first sentence after "Rule 12-208 NMRA", added "or free process has been granted in accordance with Rule 12-304 NMRA or Rule 23-114 NMRA"; in Paragraph B(2), at the beginning of the first sentence, added "except for cases assigned to the expedited bench decision program of the Court of Appeals under Paragraph E of this rule"; in Paragraph C(3), at the beginning of the sentence, added "except for cases assigned to the expedited bench decision program of the Court of Appeals under Paragraph E of this rule"; and added Paragraphs E, F, and G. The 2000 amendment, effective September 15, 2000, substituted "all transcripts of proceedings, as designated by any party, are" for "the transcript of proceedings is" and added "or if no transcript is filed, within forty-five (45) days after the appellant's notice of nondesignation of transcript is filed in the appellate court" in the first sentence of Paragraph B(2). The 1999 amendment, effective for cases filed on and after January 1, 2000, inserted at the beginning of Paragraph A, "After the docket fee has been paid in accordance with Rule 12-208", and "or statement of the issues" following "docketing statement", and added the second sentence; in Paragraph B(2), substituted "and file" for "file and"; added Paragraph B(3); in Paragraph C(3), substituted "thirty (30)" for "twenty (20)", added Paragraph C(4); in Paragraph D(3), inserted "serve and" following "disposition to" in the first sentence, added "or statement of the issues" following "docketing statement" in the second sentence, added the last sentence, added Paragraph D(5) and redesignated former Paragraph D(5) as Paragraph D(6). The 1997 amendment, effective January 1, 1997, in Subparagraph B(2), substituted "a brief in chief" for "his brief" and "forty-five (45) days" for "thirty (30) days" in the first sentence, substituted "an answer brief" for "his brief" and "forty-five (45) days" for "thirty (30) days" in the second sentence, and substituted "twenty (20) days" for "ten (10) days" in the last sentence; in Subparagraph C(3), substituted "a brief in chief" and "an answer brief" for "his brief", and substituted "twenty (20) days" for "ten (10) days"; and substituted "twenty (20) days" for "ten (10) days" in Subparagraph D(3). The 1992 amendment, effective for cases filed in the supreme court and court of appeals on or after August 1, 1992, added the last two sentences in Paragraph A. Compiler's notes. - The bracketed material was inserted by the compiler and is not part of the rule. Pursuant to Supreme Court Order No. 16-8300-011, 12-213 NMRA was recompiled and amended as 12-318 NMRA, effective December 31, 2016. I. GENERAL CONSIDERATION. Paragraph B(3) does not create substantive rightto a panel of randomly chosen judges. Mannick v. Wakeland, 2005-NMCA-098, 138 N.M. 113, 117 P.3d 919, cert. granted, 2005-NMCERT-001. Exception to panel of randomly chosen judges. - The consolidation of cases authorized by Paragraph F(2) of this rule would be an exception to the right to a panel of randomly chosen judges under Paragraph B(3) of Rule 12-210 NMRA. Mannick v. Wakeland, 2005-NMCA-098, 138 N.M. 113, 117 P.3d 919, cert. granted, 2005-NMCERT-001. No right to assignment on a given calendar. - Neither equal protection clause nor due process clause requires assignment of a case to either the summary calendar or the general calendar, and is it necessary for the court to provide reasons for its assignment of a case to the general calendar. Udall v. Townsend, 1998-NMCA-162, 126 N.M. 251, 968 P.2d 341. Citation in brief to calendar notice. - It is inappropriate to cite a calendar notice as controlling authority; however, if counsel concludes that language in a memorandum opinion or calendar notice is persuasive, we see no reason why it cannot be presented to the court for consideration if the language is presented without reference to its source. State v. Gonzales, 1990-NMCA-040, 110 N.M. 218, 794 P.2d 361, aff'd, 1991-NMSC-015, 111 N.M. 363, 805 P.2d 630. Contempt proceedings were deemed proper for a violation of former Rule 207, N.M.R. App. P. (Crim.) (see now this rule). In re Avallone, 1978-NMSC-056, 91 N.M. 777, 581 P.2d 870. Failure to file reply brief in timely manner excusable. - Where an attorney filed an answer brief eight days late due to a scheduling error after the birth of a baby, it was not appropriate to award costs and fees to the opposing party. Gill v. Public Employees Ret. Bd., 2003 -NMCA-038, 2003-NMCA-038, 133 N.M. 345, 62 P.3d 1227. II. LIMITED CALENDAR. Where all facts of appealed case are undisputed, case should not be placed on "limited" calendar. Garrison v. Safeway Stores, 1984-NMCA-116, 102 N.M. 179, 692 P.2d 1328. III. LEGAL CALENDAR. Case on legal calendar reviewed on basis of facts stated in docketing statement. - Where a case was assigned to the legal calendar pursuant to former Rule 207, N.M.R. App. P. (Crim.) (see now this rule), the facts as stated in the docketing statement were the facts for purposes of review on appeal, unless the state objected to the recitation of facts contained therein. State v. Clark, 1976-NMCA-109, 89 N.M. 695, 556 P.2d 851. And facts in docketing statement presumptively true. - When a cause was placed on the legal calendar pursuant to former Rule 207, N.M.R. App. P. (Crim.) (see now this rule), the facts set forth in the docketing statement were accepted as true unless challenged. State v. Rivera, 1978-NMCA-089, 92 N.M. 155, 584 P.2d 202. IV. SUMMARY CALENDAR. Summary calendar system of appeal constitutional. - There was no factual or legal basis for defendant's allegation of a due process violation due to New Mexico's summary calendar system of appeal, since assignment of a case to the summary calendar, which strictly limits the length of and time for submissions to the appellate court, does not violate due process as long as the defendant is able to properly present issues raised on appeal. State v. Ibarra, 1993-NMCA-040, 116 N.M. 486, 864 P.2d 302, cert. denied, 513 U.S. 1157, 115 S. Ct. 1116, 130 L. Ed. 2d 1080 (1995). This rule does not violate N.M. Const., art. VI, § 28. That section does not require a full panel of judges to make a calendaring decision, it only requires a majority of judges to concur in a judgment of the court. Because three judges concurred in summary affirmance in this case, there was no violation. State v. Simpson, 1993-NMSC-073, 116 N.M. 768, 867 P.2d 1150. When assignment to summary calendar proper. - Assignment to the summary calendar, as provided for in Subdivision (d) of former Rule 207, N.M.R. App. P. (Crim.) (see now Paragraph E of this rule) was proper in cases where the application of legal principles to the facts involved was clear and where no genuine issue of substantial evidence was involved. State v. Anaya, 1982-NMSC-073, 98 N.M. 211, 647 P.2d 413. Matter of first impression or matter requiring formal opinion under former Rule 601, N.M.R. App. P. (Crim.) (see now Rule 12-405 NMRA) may be disposed of on a summary calendar. Garrison v. Safeway Stores, 1984-NMCA-116, 102 N.M. 179, 692 P.2d 1328. Facts in docketing statement accepted unless challenged. - When a case is assigned to summary calendar, the facts in the docketing statement are accepted as true unless contested. State v. Sisneros, 1982-NMSC-068, 98 N.M. 201, 647 P.2d 403. Facts in a docketing statement which are not challenged are to be accepted as the facts of the case. State v. Anaya, 1982-NMSC-073, 98 N.M. 211, 647 P.2d 413. The party opposing summary disposition must come forward and specifically point out errors in fact and in law. State v. Sisneros, 1982-NMSC-068, 98 N.M. 201, 647 P.2d 403. Response to calendar assignment not required. - While this rule gives a party ten days to file a response to a calendar notice, it does not require the party to file a response. Thus, the Supreme Court was not required to remand the case to the Court of Appeals, and could review the calendar decision without the response. State v. Simpson, 1993-NMSC-073, 116 N.M. 768, 867 P.2d 1150. Failure to file memorandum in opposition in accordance with Paragraph D(3) constitutes acceptance of the disposition proposed in the calendar notice. Frick v. Veazey, 1993-NMCA-119, 116 N.M. 246, 861 P.2d 287). Replies to memoranda. - These rules do not provide for the filing of responses and replies back and forth between the parties to their memoranda in support of, or in opposition to, a calendar notice. Landavazo v. New Mexico Dep't of Human Servs., 1988-NMCA-002, 106 N.M. 715, 749 P.2d 538. Motion to amend docketing statement on summary calendar. - In cases assigned to a summary calendar, a motion to amend the docketing statement (when asserting other than fundamental error or jurisdictional issues) will be granted only if: (1) it is timely; (2) it states all facts material to a consideration of the new issues attempted to be raised; (3) it states those issues and how they were preserved or shows why they did not have to be preserved; (4) it states the reason why the issues were not originally raised and shows just cause or excuse for not originally raising them; and (5) it complies in other respects with the appellate rules insofar as necessary under the circumstances of the case. State v. Rael, 1983-NMCA-081, 100 N.M. 193, 668 P.2d 309. Second motion held untimely where time to oppose summary calendar had expired. - Defendant's second motion to amend was untimely filed where the time to file a memorandum in opposition to the initially proposed summary calendar had expired. State v. Smith, 1985-NMCA-007, 102 N.M. 350, 695 P.2d 834, overruled on other grounds Gillespie v. State, 1988-NMSC-068, 107 N.M. 455, 760 P.2d 147. Summary affirmance due. - Summary affirmance was due an order transferring a juvenile from children's court to be tried as an adult even though juvenile filed a timely memorandum in opposition to affirmance, and, though continuing to contest summary disposition, he provided no reasons why the summary disposition should not be made. State v. Greg R., 1986-NMCA-096, 104 N.M. 778, 727 P.2d 86. Law reviews. - For comment, "A Comment on State v. Montoya and the Use of Arrest Records in Sentencing," see 9 N.M.L. Rev. 443 (1979). For annual survey of civil procedure in New Mexico, see 18 N.M.L. Rev. 287 (1988). For article, "New Mexico's Summary Calendar for Disposition of Criminal Appeals: An Invitation for Inefficiency, Ineffectiveness and Injustice," see 24 N.M.L. Rev. 27 (1994). Am. Jur. 2d, A.L.R. and C.J.S. references. - Acceptance by United States district court of notice of appeal in criminal case untimely filed, as grant of additional time to file notice, under Rule 4(b) of Federal Rules of Appellate Procedure, 43 A.L.R. Fed. 815. 5 C.J.S. Appeal and Error § 662 et seq.