As Democratic lawmakers continue to propose bill that they say will protect constitutional rights, government officials across New Mexico are sounding the alarm in what they believe will be a multi-million dollar price tag that will ultimately be borne by taxpayers .
House Bill 4 sponsors, including spokesman Brian Egolf, D-Santa Fe, say claims that city and county governments are no longer insurable or exposed to financial disasters are based on guesswork and hypotheses.
“You are not allowed to pull out a cocktail napkin and write the word ‘evidence’ on it and then give it to the legislature and expect us to believe it,” said Egolf on Saturday.
The financial impact of the bill has become a major issue. So made the decision not to schedule it for a hearing before an appropriations or finance committee in the House of Representatives or the Senate.
“There is no question that the tax implications will be in the millions each year and it should be reviewed and examined by the committee whose job it is to do this,” said Grace Philips, general counsel for the New Mexico Counties Association of the district governments.
HB 4, known as the New Mexico Civil Rights Act, would remove “qualified immunity” as a legal defense against civil rights complaints against government agencies in state courts.
Qualified immunity is a legal doctrine introduced by the US Supreme Court in 1982. It protects government employees from personal liability under federal law when workers violate people’s constitutional rights.
To overcome this, an injured person must demonstrate that the government employee’s conduct violated “clearly defined” federal or constitutional rights. Laypeople say that government officials can only be held liable for violations of a person’s rights if those violations have been “clearly established” in a previous case with nearly identical facts, making it almost impossible, according to some, to hold the police accountable for wrongdoing to pull.
“This doctrine was based on the crazy idea that government employees, especially police officers, sit around reading federal court decisions. You look at the facts of these cases and say, ‘Oh, I’m in the know now. I’ve been told, ”said Lee McGrath, executive attorney for the Institute for Justice, a nonprofit libertarian public interest law firm.
The legislation has drawn the ire of local government officials, who say it would lead to higher costs, which could result in reduced benefits and a flurry of lawsuits.
Santa Fe County said the bill, as written, would “likely” reduce its law enforcement and general liability coverage from $ 10 million to $ 2 million and adversely affect health insurance availability, cost, or coverage.
“As a result, the county will be forced to divert more resources from essential services for everyone to claims and legal fees, or run the risk of having to collect property taxes in the event of a devastating verdict,” county spokeswoman Carmelina Hart wrote in an email .
Hart said the county receives law enforcement and general liability insurance through the New Mexico County Insurance Authority. The agency told the county that the law would likely result in agency reinsurance, which covers claims from $ 2 million to $ 5 million, and umbrella insurance, which covers claims from $ 5 million to $ 10 million, not to be renewed.
“NMCIA does not have the resources to fill the resulting gap in coverage. That means Santa Fe County (and all other counties that are members of NMCIA) are likely to have to self-insure claims over $ 2 million, “Hart wrote.
“Objective Financial Analysis”
During Friday’s Senate Health and Public Affairs Committee hearing on the bill, which was voted on a party line, government officials raised a long list of concerns, including some financial reasons that would benefit trial lawyers.
“I testified several times on that bill and I heard a lot of testimony,” said Steven Hebbe, Farmington Police Chief. “I haven’t heard a single boss or sheriff testify on this bill, and I haven’t heard a single plaintiff’s attorney testify against it, and it tells you almost everything you want to know to begin with.”
The bill has embroiled the lawyer Egolf in an ethics complaint. A retired judge filed a complaint against Egolf earlier this month, claiming he could benefit financially if the law goes into effect. Egolf’s lawyers filed a motion to dismiss the lawsuit on Friday.
Hebbe said the bill fails to address the causes of many claims against the government or how to improve the performance of government employees, particularly the police.
Another major problem is the financial impact on government agencies, which opponents say the sponsors do not address.
“I believe there is no question that this will expose schools and public institutions to significantly more claims and damages, which will increase settlement costs,” said Marty Esquivel, general counsel for the New Mexico Public Schools Insurance Authority, said the committee .
Esquivel and others requested an “objective financial analysis” of the bill, which was not tabled before the House Treasury and, despite the efforts of Senator Bill Sharer, a Farmington, not to be heard on the Senate Finance Committee, Republican.
When a replacement version of the bill was introduced in the Senate, Sharer asked for the third committee to be referred to the Senate Finance Committee.
During the floor session, Senate Majority Leader Peter Wirth, D-Santa Fe, who is making recommendations from the committee, said the bill contained no funds.
“An argument can be made in one direction. An argument can be put forward in the other direction, ”said Wirth at the time. “I think this bill, which gets the two recommendations it made, makes sense, and I don’t think it needs to go to the Senate Finance Department.”
Wirth didn’t respond to a request for comment, but a Senate Democratic spokesman Chris Nordstrum said Wirth proposed a review of the discussion on the February 17 session.
During that debate, Sharer advocated referral to the Senate Finance Committee, arguing that there would be at least potential financial repercussions.
“The request to be transferred for funding certainly does not harm the bill. It’s just trying to make it so that we can all understand and feel better, ”he said.
Another sponsor of the bill, Senator Joe Cervantes, D-Las Cruces, said he saw nothing in the bill that included “anything” in state finances.
“There’s nothing here that involves appropriation,” said Cervantes, who is also a lawyer. “There is no tax. No means. No additional costs. “
“To hell with everyone else”
Senate Finance Committee Chairman Senator George Muñoz, D-Gallup, said during the floor debate he trusted Cervantes to “tell us the truth”. But he asked Cervantes to let him know if the bill had a “financial impact” after being heard by the Senate Judiciary Committee, chaired by Cervantes.
“If we find out about this in the judiciary and I am convinced that there is evidence of the tax implications other than just guesswork or speculation, I will discuss this with you and the other leadership,” said Cervantes. “Everything we do here has tax implications, but you and your committee clearly haven’t gotten involved in all areas [bill]. ”
In a telephone interview on Friday, Sharer questioned Cervantes’ motivations.
“He doesn’t want to send it down a road where it might meet resistance,” he said.
Cervantes did not return any messages looking for a comment.
Muñoz said Friday he will keep an eye on the bill but will wait and see.
“Let’s see what happens in the judiciary, if it changes there, and then we can drag it into the finances,” he said.
Egolf said only bills that provide money from the general fund will be referred to the House Appropriations and Finance Committee. The House spokesman noted that on February 17, Muñoz had also voted not to send the bill to the Senate Finance Committee.
“I think Miss Philips is barking at the wrong tree here,” he said, referring to the general counsel for the Association of Counties.
“They talk about the dollars and cents,” he added. “They never talk about the rights, freedoms and freedoms of people that are guaranteed by the New Mexico Bill of Rights.”
Under the proposed law, complaints could be filed in the district court against government agencies for violating the state Bill of Rights. Such cases are currently being filed in federal court with reference to violations of the US Constitution.
Sharer said he did not want to offend his colleagues, but politics could play a role in a hasty attempt to get the law passed.
“It’s always been weird in the house [of Representatives]But it’s far more political in the Senate this year than it has been in decades, and that worries me, ”said Sharer.
“The Senate used to be the chamber where we sat down and talked about things and looked at those details, and this year it’s not like that,” he said. “It’s a blast this year because we have the votes and hell with everyone else.”