As Democratic lawmakers continue to advance a bill they say would protect constitutional rights, government officials across New Mexico are sounding the alarm over what they contend will be a multimillion-dollar price tag that ultimately would be shouldered by taxpayers.

Sponsors of House Bill 4, including Speaker Brian Egolf, D-Santa Fe, say the “sky is falling” assertions that city and county governments will become uninsurable or face financial calamity are based on conjecture and hypothesis.

“They don’t get 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,” Egolf said Saturday.

The financial impact of the bill has become a major source of contention. So has the decision to not schedule it for a hearing before an appropriations or finance committee in either the state House of Representatives or Senate.

“There is no question that the fiscal impact will be in the millions of dollars per year, and it should be reviewed and considered by the committee whose job it is to do that,” said Grace Philips, general counsel at New Mexico Counties, an association of county governments.

Government accountability

Known as the New Mexico Civil Rights Act, HB 4 would eliminate “qualified immunity” as a legal defense to civil rights complaints filed against government agencies in state court.

Qualified immunity is a legal doctrine created by the U.S. Supreme Court in 1982. It shields government workers from personal liability under federal law when workers violate people’s constitutional rights.

To overcome it, an injured person must show the government worker’s conduct violated “clearly established” federal statutory or constitutional rights. In layman’s terms, government workers can only be held liable for violating someone’s rights if those violations are “clearly established” in an earlier case with a nearly identical set of facts, which some say makes it almost impossible to hold police accountable for wrongdoing.

“This doctrine was based on the loony idea that government workers, particularly police, sit around and they read federal court decisions and they look at the facts of these cases and they say, ‘Oh, I’m now on notice. I’ve been told,’ ” said Lee McGrath, managing 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 service reductions and unleash a flood of lawsuits.

Santa Fe County said the bill as written would “likely reduce” its insurance coverage for law enforcement and general liability from $10 million to $2 million and negatively impact the availability, cost or coverage of medical malpractice insurance.

“As a result, the county will be forced to divert more resources from essential services for all to claims and attorney fees or run the risk that property taxes will need to be imposed in the event of a devastating judgment,” county spokeswoman Carmelina Hart wrote in an email.

According to Hart, the county obtains law enforcement and general liability coverage through the New Mexico County Insurance Authority. The authority informed the county the law would likely cause the authority’s reinsurance, which covers claims from $2 million to $5 million, and its umbrella coverage, which covers claims from $5 million to $10 million, to not be renewed.

“NMCIA does not have the resources to fill the resulting gap in coverage. That means that Santa Fe County (and all other counties who are members of NMCIA) will likely have to self-insure claims above $2 million,” Hart wrote.

‘Objective financial analysis’

During Friday’s Senate Health and Public Affairs Committee hearing on the bill, which passed on a party-line vote, government officials raised a long list of concerns, including what some described as financial motivations that would benefit trial attorneys.

“I’ve testified several times on this bill, and I’ve listened to a lot of testimony,” Farmington police Chief Steven Hebbe said. “I have not heard one single chief or sheriff testify in favor of this bill, and I have not heard one single plaintiff attorney testify against it, and it almost tells you everything you want to know from the start.”

The bill has ensnared Egolf, an attorney, in an ethics complaint. A retired judge this month filed a complaint against Egolf, claiming he stands to benefit financially if the bill is passed into law. Attorneys for Egolf filed a motion Friday to dismiss the claim.

Hebbe said the bill fails to address the root causes of many claims against government or how to improve the performance of government workers, especially police.

Another big concern is the financial impact on government agencies, which opponents say the sponsors are refusing to address.

“I don’t think there’s any question that this is going to expose schools and public entities to significantly more claims and higher damage awards, which will increase the cost of settlements,” Marty Esquivel, general counsel for the New Mexico Public Schools Insurance Authority, told the committee.

Esquivel and others requested an “objective financial analysis” on the bill, which didn’t go before the House Appropriations and Finance Committee and isn’t scheduled to be heard by the Senate Finance Committee, despite efforts by Sen. Bill Sharer, a Farmington Republican.



When a substitute version of the bill was introduced in the Senate, Sharer asked for a third committee referral to the Senate Finance Committee.

During the floor session, Senate Majority Leader Peter Wirth, D-Santa Fe, who makes committee referrals, said the bill didn’t include an appropriation.

“An argument can be made one way. An argument can be made the other way,” Wirth said at the time. “I think this bill getting the two referrals that it did makes sense, and I don’t think it needs to go to Senate Finance.”

Wirth did not respond to a request for comment, but a spokesman for Senate Democrats, Chris Nordstrum, said Wirth suggested a review of the Feb. 17 floor session discussion.

During that debate, Sharer made the case for a referral to the Senate Finance Committee, arguing there would be at least a potential financial impact.

“The request to be referred to finance certainly doesn’t harm the bill. It just tries to make it so that all of us understand it and feel better about it,” he said.

Another sponsor of the bill, Sen. Joe Cervantes, D-Las Cruces, said he didn’t see anything in the bill that “implicates anything” in state finances.

“There’s nothing in here that involves an appropriation,” said Cervantes, who is also an attorney. “There’s no tax. No funds. No additional expenses.”

‘The hell with everybody else’

The chairman of the Senate Finance Committee, Sen. George Muñoz, D-Gallup, said during the floor debate that he trusted Cervantes “to tell us the truth.” But he asked Cervantes to let him know if the bill had a “financial implication” after it was heard by the Senate Judiciary Committee, which Cervantes chairs.

“If we get this in judiciary and I’m persuaded, the committee’s persuaded, that there is a demonstrable fiscal impact other than just guessing or speculation, then I’ll be certain to discuss that with you and the other leadership,” Cervantes said. “Everything we do here has a fiscal impact, but clearly you and your committee did not become engaged in every [bill].”

In a telephone interview Friday, Sharer questioned Cervantes’ motivations.

“He doesn’t want to send it down any road where it might hit resistance,” he said.

Cervantes did not return messages seeking comment.

Muñoz said Friday he will keep a close eye on the bill but that he’s taking a wait-and-see approach.

“Let’s see what happens in judiciary, see if it gets modified there, and then we may pull it into finance,” he said.

Egolf said only bills appropriating money from the general fund are referred to the House Appropriations and Finance Committee. The House speaker noted that Muñoz had also voted Feb. 17 to not send the bill to the Senate Finance Committee.

“I think Miss Philips is barking up the wrong tree on this,” he said, referring to the general counsel for the association of counties.

“They talk about the dollars and cents,” he added. “They don’t ever talk about people’s rights, liberties and freedoms secured by the New Mexico Bill of Rights.”

Under the proposed law, complaints could be filed in state District Court against government agencies over violations of the state Bill of Rights. Currently, such cases are filed in federal court and cite violations of the U.S. Constitution.

Sharer said he didn’t want to offend his colleagues but that politics may be at play in a rushed attempt to pass the law.

“It’s always been weird in the House [of Representatives], but this year it’s far more political in the Senate than it’s been in decades, and that troubles me,” Sharer said.

“The Senate used to be the chamber where we sat down together and we talked about stuff and we looked at those details, and this year, it’s not like that,” he said. “This year it’s slam stuff through because we have the votes and the hell with everybody else.”

Follow Daniel J. Chacón on Twitter

@danieljchacon.

(11) comments

RJ Sanchez

What is the real issue? New Mexican’s Bill of Rights! This is the issue and especially here in Santa Fe! When the government and their employees infringe on people’s rights without recourse is the issue! You all fail and live in a world where big bother knows best no matter what they do even if they violate your constitutional rights! This is a bill that makes government accountable! I support this bill, and this is a no-brainer, and should be supported by all New Mexicans who believe in their Bill of Rights!

Thank you Cervantes, Egolf, and other elected officials who are standing up for our Bill of Rights! Even if down the road these attorneys make some money protecting New Mexican’s rights! Thats not a conflict of interest if they are protecting us! If you speak against this bill you must be a government worker, and afraid of being held accountable for infringing on somebody’s rights or a believer that government is more important that people’s rights....

Lupe Molina

Is it contentious? Because 3 days later, this article still doesn't have a comment from the sponsor. And it says he couldn't be reached for comment and yet he commented below. This bill and sensationalism is popular, but mundane news and consensus is not.

paul pacheco

Can anyone really explain what all this means to the taxpayers? Isn’t education and formal training [which helps prevent] frivolous lawsuits from potential negligent actions by government agencies and workers enough? Doesn’t qualified immunity protect government(s) from unjust lawsuits? And isn’t QI an answer to prevent police from using unnecessary force? Will this new bill keep government from wasted time and money in court? New Mexico lawmakers are always trying to be first in new laws but do they really do their homework and protect the public as a whole? I’d like to know how much money was paid out in real negligent and liability cases in the year 2019! Just so you know, that was our money that was paid out! NM lawmakers or 3-stooges officials? Here’s your chance!

Richard Reinders

What it means to tax payers is higher property tax to pay for all the suits that will occur with a $2,000,000.00 carrot hanging on them. The ones who really benefit are the lawyer legislators.

Chris Mechels

The real problem with this bill is that it doesn't go far enough. It doesn't directly address the problems with our poorly trained, poorly led police forces in New Mexico.

Our state, county and local governments have shown an unwillingness to deal with the problem. As a result the policy violations by SFPD, SF Sheriff, and other police agencies, does not lead to discipline, or dismissal, of violators. This is worst at the Sheriffs because they are elected and thumb their nose at oversight. So, policies and laws, which the officers are "sworn" to have no effect. We play "pass the trash" with troubled officers. This is party due to Police Unions who protect bad officers.

Failing to do the needed oversight by our elected bodies, who are NOT interested in taking on the Police Problem, we are left with Tort Suits, something like spanking the parent for the kids behavior. This is NOT effective.

So, this bill is a BAD idea, which ignores the problem. At best it might make the ignored problem a bit more painful, but don't bet on it.

Not mentioned is the ILLEGAL NM police training, by the Law Enforcement Academy, where the Board is chaired by AG Hector Balderas, and dominated by the Department of Public Safety. The Board has the power, but not the will, to take on the very real problem of illegal police training and policies. The Legislature also will not take this on, because the cops fight back, as this Bill shows.

It is an outright failure of governance, by elected officials who "count votes" and violate our laws, and condone violation of our laws by the cops and others. We live in a corrupt, scofflaw, state which can't be reformed because laws have little effect.

The name for this is "nihilism", and our Governor and Egolf are nihilists.

This bill will solve nothing, but offers political cover. Passing laws that are not enforced has little effect. The "Safe Pursuit Act" is one such...

Francisco Carbajal

It appears that Egolf and Cervantes are pushing their political agenda down the throats of all New Mexican's. If this House Bill 4 (anti-police) legislation is approved from both House & Senate Chambers and signed off by the Governor without an appropriations impact study, then, "the sky will be falling" when all the lawsuits of this bill is challenged after signature in the judicial system of New Mexico. Sen. Joe Cervantes, D-Las Cruces states: "There's no tax, no funds, no additional expense." Seriously, everything that is voted for approval via New Mexico State Legislature and signed by the Governor has an adverse impact on a negative or positive. Who does Egolf and Cervantes think they are fooling? The true intent of the House Bill 4 language design in written format is to hide in a covert manner of "defunding the police" tactics without Egolf and Cervantes opening their mouth's that it truly is. Again, the Supreme Court of the United States continues to refuse to address this specific subject matter in their chambers and why is that? It is because it will not pass "constitutional muster." Of course, Egolf and Cervantes (both attorney's at law) know it. By the way, where is the legal opinion from the New Mexico Attorney General Hector Balderas on this (anti-police) HB4 legislation? Isn't he "the Chief Law Enforcement Officer" of the State of New Mexico? If he made some type of legal opinion on the Fiscal Impact Report, then, it was also lame-duck driven.

Lupe Molina

Republicans: "The governor has too much power! She's trying to save our lives but won't let us breathe in each other's faces!"

Also Republicans: "Oh, if we're talking about police that are never held accountable, then too much power is totally cool."

Jake Greene

Poor Chief Hebbe - he doesn't know how to run his department without a law telling him. Here's how the Chief can deal with the root causes of the problems this law seeks to address and improve performance in his department. First, when it comes up for renewal, negotiate a bargaining agreement that has no provision for wiping the slate clean if an officer keeps his/her nose clean for a year after engaging in misconduct. Next, hire intelligently and avoid officers who have failed their probation elsewhere or other gotten in trouble during their previous employment. Then, train and continually train your officers. Reward the behavior you want and discourage the behavior you seek to avoid. Finally, discipline your officers when they violate policies or laws. In other words, Chief Hebbe, do your job running your department. It doesn't take a law to do that, but it does take effort.

Lupe Molina

Great points. Unfortunately, your method of reasoned, well-supported argumentation is not something the Chief is familiar with. His union prefers to rend their shirts in exaggerated disgust because they're afraid of being held accountable.

Joseph Cervantes

Mr. Chacon your story reports I did not return your messages. Please let me know when and how you left me messages. I have none on my mobile phone, which is how all reporters reach me including others with the New Mexican.

Lupe Molina

It's common with these articles. I think they decide on their angle in the morning and if you don't respond by early afternoon, you don't get a comment. Heck of a way to do balanced news, huh?

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