N.M. Sup. Ct. Order No. 22-8500-023

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1

May 10, 2022 2

NO. 22-8500-023 3

IN THE MATTER OF REVISED 4

REQUIREMENTS FOR THE USE OF 5

SETTLEMENT CONFERENCES 6

IN THE DISTRICT COURTS 7

TO STREAMLINE THE PROCESSING 8

OF CRIMINAL CASES 9

ORDER 10

WHEREAS, Order No. 22-8500-002 enumerated certain guidelines for the 11

implementation of settlement conferences to streamline the processing of criminal 12

cases in the district courts; 13

WHEREAS, under Order No. 22-8500-002, the settlement judge, parties, and 14

attorneys were prohibited from communicating any of the substance of the plea 15

discussions during a settlement conference to any other person, including a judge 16

who is presiding or will be presiding over any phase of the criminal case; 17

WHEREAS, the Court has been advised that it would be beneficial to counsel 18

for both the prosecution and the defense if they were permitted to communicate the 19

substance of the plea discussions with other members of their respective offices; 20

WHEREAS, the Court has also been advised that it would be beneficial to 21

crime victims if they were permitted to learn the substance of the plea discussions; 22

WHEREAS, Order No. 22-8500-002 further requires that a case sha ll be 1

returned to the assigned judge following a settlement conference and that judge shall 2

either accept or reject the plea or conduct further proceedings; 3

WHEREAS, some judicial districts may wish to implement a procedure 4

whereby, following settlement conference, the case is assigned to a judge other than 5

the originally-assigned judge to either accept or reject the plea or conduct further 6

proceedings; and 7

WHEREAS, the Court having considered the foregoing and being sufficiently 8

advised, Chief Justice C. Shannon Bacon, Justice Michael E. Vigil, Justice David K. 9

Thomson, Justice Julie J. Vargas, and Justice Briana H. Zamora, concurring; 10

NOW, THEREFORE, IT IS ORDERED that Order No. 22-8500-002 shall be 11

WITHDRAWN and REPLACED with this order, effective May 10, 2022; 12

IT IS FURTHER ORDERED that New Mexico’s prohibition on judicial 13

participation in plea discussions remains SUSPENDED in the district courts to allow 14

for the implementation of meaningful criminal settlement conference programs; 15

IT IS FURTHER ORDERED that a judge assigned to a criminal case shall 16

have the authority to assign another judge or judge pro tempore (settlement judge) 17

to participate in a settlement conference to assist the parties in resolving the case in 18

a manner that s erves the inter ests of justice, provided that the judge who presides 19

over an y phase of the criminal case shall not participate in plea discussions 20

pertaining to that criminal case; 1

IT IS FURTHER ORDERED that prior to a case being assigned to a 2

settlement judge, the judge assigned to the case shall ensure that the parties have had 3

a meaningful opportunity to engage in discovery. To that end, each judicial district 4

may set a deadline by which all written discovery must be completed before the date 5

of the scheduled settlement conference. Each judicial district may impose a deadline 6

for written discovery that makes sense for that district, such as fifteen (15) days or 7

ten (10) days prior to the scheduled settlement conference; 8

IT IS FURTHER ORDERED that amendments to Rule 5-304 NMRA remain 9

PROVISIONALLY APPROVED until further order of the Court to allow for 10

judicial participation in plea discussions consistent with this order; 11

IT IS FURTHER ORDERED that a criminal settlement conference program 12

adopted in any judicial district shall adhere to the following non-exhaustive list of 13

guidelines: 14

1. Counsel for the prosecution and defense —each with full authority to 15

act in all matters pertaining to the settlement conference and being prepared to 16

engage in negotiations—shall appear at the settlement conference either in person at 17

the courthouse or virtually, as ordered by the settlement judge. 18

2. The defendant need not appear at the settlement conference, but must 20

be available for co nsultation with defense counsel. Defendants who are not in 21

custody may appear or consult with counsel in person at the courthouse, or virtually. 22

Defendants who are in custody shall appear or consult with counsel remotely from 23

the detention facility via videoconference. 24

3. The settlement conference shall not be recorded. 26

4. The State is not required to make a plea offer and t he defendant is not 2

required to accept a plea offer. If the State does not intend to offer a plea and has 3

knowledge of this prior to the scheduled settlement conference, then the State must 4

notify the judge assigned to the case and opposing counsel in writing at least five (5) 5

days prior to the scheduled settlement conference. Upon notice that the Sta te does 6

not intend to offer a plea, the judge assigned to the case shall vacate the settlement 7

conference, set the case for trial, and issue a scheduling order. 8

5. The settlement judge, parties, and attorneys shall not communicate any 10

of the substance of the plea discussions to a judge who is presiding or will be 11

presiding over any phase of the criminal case. 12

6. No statement made by a participant in the settlement conference shall 14

be admissible at the trial of a defendant in the case. 15

7. Unless otherwise agreed to by the parties, if plea discussions result in a 17

tentative plea agreement, the settlement judge shall not take the plea, but shall return 18

the case to the referring judge, or transfer the case to another designated judge, to 19

accept or reject the plea. 20

8. If plea discussions do not result in a plea agreement, the case must be 22

returned to the referring judge or transferred to another designated judge for further 23

proceedings. 24

IT IS SO ORDERED. 26

WITNESS, the Honorable C. Shannon Bacon, Chief

Justice of the Supreme Court of the State of New

Mexico, and the seal of said Court this 10th day of

May, 2022.