(dissenting).
I respectfully dissent. The New Mexico Legislature has granted a party the right to disqualify automatically a judge whom he believes cannot preside over his case with impartiality, on the proper filing of an affidavit of disqualification. Section 38-3-9, N.M.S.A.1978. Over the years, the Legislature has enlarged the time for filing the affidavit. See N.M.Laws 1933, ch. 184, § 2; N.M. Laws 1971, ch. 123; N.M. Laws 1977, ch. 228, § 2. Until the 1977 amendment, it was possible for the statutory time limit for disqualification to expire before the parties knew which judge was assigned to the case. While refusing to require the trial court judge to honor a late affidavit in this situation, the Supreme Court suggested that the party could protect himself by filing a provisional affidavit of disqualification. Notargiacomo v. Hickman, 55 N.M. 465, 235 P.2d 531 (1951). In this and in all subsequent cases where the use of a provisional affidavit was suggested, the parties did not know which judge would be hearing the case before the time limit, as then in effect, for filing a statutory affidavit of disqualification hád expired. Gray v. Sanchez, 86 N.M. 146, 520 P.2d 1091 (1974); State v. Sanchez, 86 N.M. 68, 519 P.2d 304 (Ct.App. 1974); State v. Baca, 81 N.M. 686, 472 P.2d 651 (Ct.App.), cert. denied, 81 N.M. 721, 472 P.2d 984 (1970). The provisional affidavit was suggested only in those circumstances where it was impossible for the party to file an affidavit of disqualification within the statutory period. Such circumstances were not present in the case at bar. The 1977 amendment has obviated the need in such circumstances for the provisional affidavit by enlarging the time limit for filing a statutory affidavit to “within ten days after the judge sought to be disqualified is assigned to the case * * * ” N.M. Laws 1977, ch. 228, § 2, codified as § 38-3-10, N.M.S.A.1978.
The right to disqualify is a substantive right granted by the legislature, not a court made rule. Gerety v. Demers, 92 N.M. 396, 589 P.2d 180 (1978). An affidavit of disqualification filed prematurely need not be honored. Talbot v. Taylor, 51 N.M. 160,181 P.2d 159 (1947). The Martinez affidavit was filed before Judge Wright was assigned to the case, and so was premature. Such a provisional affidavit should not be effective when it would have been possible to file a timely affidavit under the statute. By allowing parties to use provisional affidavits in any but extreme circumstances when compliance with the statutory time limit is impossible, this court renders the statutory time limit meaningless, and so trespasses into the province of the legislature. In the facts of this case, Judge Wright should be allowed to refuse to honor the provisional affidavit.
I believe, however, that the judgment should be reversed, because summary judgment was granted erroneously. If there is a reasonable doubt as to whether a genuine issue of material fact is in dispute, summary judgment is improper. Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972). Plaintiffs allege that Carmona’s negligent operation of his truck was a proximate' cause of the accident. There is a genuine issue as to the speed he was traveling, and this bears upon the question of whether he was negligent in the circumstances surrounding the accident. Since it was alleged that Romero employed Carmona and that Carmona was acting within the scope of his employment at the time of the accident, summary judgment should not have been granted with respect to these two defendants.