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09-22-2010, 06:03 PM
A litigant has the perfect legal right to formally ask any judge before whom he/she appears in open court whether he has coverage of a penal bond binding him to the oath of office he takes. Article VI, Clause 3, Constitution of the USA; Article XXII, Section 19, Constitution of NM; and Sections 10-2-5, 6, 7, and 9 may be used as justification of the litigant's inquiry.

The query has to be done in that manner because the person sitting as judge has been informed that his liability insurance is also a penal bond. It is not because the penal bond insurance binds him to the oath he/she takes; the liability bond insurance covers him for abuses of the duties of the office. Since Section 10 -2-9 does not permit him/her to discharge the duties of office until the penal bond is filed in the Office of the Secretary of State.

Section 10-2-9. [Recording as prerequisite to discharging duties of office.] (1893) [Notice the law was passed while we were a territory under the control of the U.S. Congress and a treaty, the supreme law of the land.]

Statute text

Each and every person who may hereafter be elected or appointed to office in this state, required by law to give bond, shall file the same for record before entering upon the discharge of the duties of the office.

History: Laws 1893, ch. 56, 5; C.L. 1897, 3190; Code 1915, 519; C.S. 1929, 17-115; 1941 Comp., 10-209; 1953 Comp., 5-2-9.

Therefore, if the judge's penal bond is not filed with the Office of Secretary of State, then his/her court is incompetent and has no jurisdiction.