On Tuesday February 9, the New Mexico House of Representatives enacted House Bill 4 establishing the New Mexico Civil Rights Act. It passed 39 voting yeas and 29 voting no with 5 Democrats crossing party lines to vote “no” with 24 Republicans present. HB 4 has now been referred to the State Senate with further committee hearing held, including the Senate Judiciary Committee.
The New Mexico Civil Rights Act would allow plaintiffs to file a new cause of action in state court against a public body to recover financial damages caused by a government employee for violations of rights under the New Mexico Bill of Rights over alleged infringements of free speech, freedom of religion and other constitutional rights. Unlike litigation in federal court, qualified immunity would be barred as a defense against claims filed under the new act.
The bill will prohibit “qualified immunity” as a defense to legal claims filed against government agencies. The substitute bill caps damages at $2 million. Legal claims brought under the proposed New Mexico Civil Rights Act could only be filed against a government agency, not an individual employee. The revised Bill passed by the house also prohibits public employees from using the Civil Rights Act to bring claims against their public employer.
One major change made to the original house bill was that attorneys fees and costs would be taken directly out of any settlement or judgement and not be an add on expense. Attorney fees and cost would not be added to a judgement nor settlement. Attorneys fees in civil causes of action for damages are usually one third of the total recovery made.
HB 4 was strenuously opposed by city and county governments as well as public employees, especially law enforcement. The New Mexico Association of Counties that counties would lose insurance coverage over insurance cancellations for the risk thereby leaving the counties responsible for all liability found and with less money to pay out claims. The Municipal League argued that the bill is entirely punitive and would do nothing to prevent misconduct in the first place. Cities argued there is more of a need for law enforcement training.
During the debate, Republican Representative Greg Nibert, R-Roswell, argued the creation of a Civil Rights Act was not necessary. Nibert argued that aggrieved people can already file claims under the state Tort Claims Act against law enforcement that has a roughly $1 million cap on damages.
CONFLICTS OF INTERESTS ALLEGED AGAINST SPONSORS
House Bill 4 drew sharp debate because it is sponsored by some of the most powerful members of the Legislature. The sponsors include House Speaker Brian Egolf, D-Santa Fe and Rep. Georgene Louis, an Albuquerque Democrat, chairwoman of the House State Government, Elections and Indian Affairs Committee. Senator Joseph Cervantes, a Las Cruces Democrat is also a sponsor and Chairman of the Senate Judiciary Committee. All 3 legislators are lawyers.
State Representative Ryan Lane, R-Aztec, introduced an amendment that would prohibit legislators who practice law from representing clients who bring claims under the act while they’re in office or for three years after they leave the Legislature. Republican Representative Lane is a lawyer and questioned whether it would be appropriate for a member of the Legislature to file suit under the act and profit from it, declaring it a conflict of interest.
New Mexico Speaker of the House Brian Egolf is a prominent Santa Fe trial attorney and his practice includes civil rights law. Rep. Georgene Louis practices in tribal government law. Senator Joseph Cervantes is a highly successful trial attorney who focuses on personal injury and wrongful death and has secured historically high judgements in the millions.
Opponents of Lane’s amendment to prohibit legislators who practice law from representing clients who bring claims under the act made two major arguments:
1. It would violate the New Mexico judiciary’s right to set limits on lawyers in the state while Lane argued it would help maintain the public’s trust in legislators
2. The state Legislature is a part-time body, and members don’t draw salaries. Most lawmakers are either retired or have other full-time jobs.
The Lane proposed amendment failed.
Senator Joseph Cervantes for his part said HB 4 deserves and will receive “a great deal of scrutiny” in the Judiciary Committee that he chairs. Cervantes has introduced legislation that would complement House Bill 4. Cervantes is sponsoring Senate Bill 376, which would make changes to the state Tort Claims Act and prohibit the use of qualified immunity in some instances.
ETHICS COMPLAINT FILED AGAINST EGOLF BY FORMER JUDGE
On February 17, it was reported that retired State District Court Judge Sandra Price of Farmington, New Mexico has filed an ethics complaint with the new State Ethics Commission that is deals with all elected state officials, including all legislatures. Former Judge Price was a district court judge in the Eleventh Judicial District of New Mexico. Price joined the court in January 2005 after winning the November 2004 election and he retired from the bench on December 31, 2017.
The four-page ethics complaint alleges Egolf failed to disclose as a cosponsor of HB 4 conflicts of interest and would obtain personal benefit from passage of House Bill 4. Speaker Egolf’s work as a private attorney includes personal injury, medical malpractice, civil rights and other civil litigation. Egolf did file a state disclosure form reporting that he has a civil law practice and has represented clients before the Health Department and the Taxation and Revenue Department, in addition to the state engineer. Egolf did not report that his work also includes civil rights work.
The link to the Egolf law firm web page is here:
THE ETHICS COMPLAINT
The Governmental Conduct Act calls for legislators to use “the powers and resources of public office only to advance the public interest and not to obtain personal benefits or pursue private interests.” It prohibits legislators from requesting or receiving “any money, thing of value or promise” in exchange for an official act.
The ethics complaint filed by former Judge Price is a mere 4 pages long and it alleges Egolf’s sponsorship of the Civil Rights Act violates ethical standards in state law, including a prohibition on elected officials using their powers to obtain personal benefit or pursue private interests. The complaint points to an online legal profile that estimates about 20% of Egolf’s legal practice is civil rights claims and 40% is civil litigation on behalf of plaintiffs. Price contends in her ethics complaint that Egolf should have made full disclose to other legislators. According to complaint:
“If passed [Speaker Egolf] will now have greater access to receiving payments from New Mexico’s local and state governments. … [The laws legal provision “clearly and unequivocally benefit the private practice of Speaker Egolf.”
Price’s complaint is pending with the State Ethics Commission, an independent agency.
In a written statement, Speaker Egolf responded to the complaint and said:
“The complaint is baseless and clearly designed to distract me from my work and to discourage me from fighting for the people of New Mexico”.
Private attorney Andrew Schultz who is representing Speaker Egolf said he will seek dismissal of the complaint. According to Schulz, one of the two sections in the law cited by Price does not apply to legislators and another would prohibit almost any lawyer from serving in the Legislature if it were read the way Price suggests.
According to Schultz:
“I don’t believe this is a gray area at all. … I think the claims filed against the speaker have no factual basis, and they have no legal basis under the Governmental Conduct Act, which is the only law cited in the complaint that the speaker was supposed to have violated.”
NOT THE FIRST TIME
In the past, Egolf has made a distinction between laws that affect the public more broadly and bills with an immediate impact on specific pending litigation he is working on. Just last year, Egolf recused himself from voting on a bill that clarified who may enroll in New Mexico’s medical marijuana program. Egolf said the legislation might affect a pending appeal and underlying case he had filed on how to define a qualified patient for the program.
COMMENTARY AND ANALYSIS
At the absolute center of the debate on HB 4 enacting a Civil Rights Act is whether the State Of New Mexico should go out of its way to create a whole new cause of action for violation of civil rights under state laws and state constitutional rights to ease the burden of proof to recover damages in a court of law free of any “qualified immunity” defense. It should come as no surprise that plaintiff’s lawyers, such as Speaker of the House Brian Egolf and Senator Joseph Cervantes are in favor of enactment of a Civil Rights Act and getting rid of the qualified immunity defense.
To put it mildly, plaintiff’s lawyers simply do not like the “qualified immunity defense” created by the Federal Courts because it makes it much more difficult to recover damages in civil rights cases filed against law enforcement. It is not as much about “holding government employees accountable for misconduct” as it is making it a lot easier to prove a case and recover a larger judgment against a “deep pocket” such as government agencies.
Many argue that a New Mexico Civil Rights Act is needed to stop the “culture of aggression” or systemic racism and stop the excessive use of force or deadly force by law enforcement. When it comes to the Albuquerque Police Department (APD), the city is already getting a handle on the problem. For the past 6 years, APD has been under a federal court consent decree that mandates 271 reforms that APD and the city are still struggling to implement under the watchful eye of a federal judge and a federal court appointed monitor. Albuquerque has paid out upwards of $64 million dollars over the last 10 years for excessive use of force and deadly for cases and civil rights violations stemming from a “culture of aggression” found by the Department of Justice (DOJ).
From a practical standpoint, it makes little or no sense to enact a Civil Rights Act that creates a new cause of action for violations of state constitutional rights by government employees, abolishing qualified immunity only to have a Tort Claims Act that mandates a defense and payment of judgments for damages. It appears with the enactment of a Civil Rights Act as proposed, damage to a plaintiff, the liability of a government employee and the taxpayer wind up in the exact same place as to who pays for the damages under the Tort Claims Act. The only benefit of such legislation is to make recovery in state court a lot easier than in federal court.
NO INDIVIDUAL ACCOUNTABLITY PROVISIONS
Absent from the Civil Rights Act passed by the House is any provision that would actually hold a government employee truly liable and accountable for damages they have caused another. All the act does is create a cause of action, prohibits qualified immunity and mandates government to pay. There is no personal liability nor other types of penalties to hold the individual employee accountable for wrongful conduct and violations of civil rights and constitutional rights.
Absent from the legislation is any preventative measures directed at the government employee or services such as training, expanded behavioral health services and decertification’s and terminations of the employee. All that the legislation provides for is to pay out claims with no provisions that would prevent violations from happening in the first place.
Then there is the matter as to what extent do you want to hold a government employee personally liable for violations of constitutional rights? Do you make that person individually, jointly or severally liable to pay damages awarded? Should government pensions be forfeited? There are options many would likely feel go too far and are just punishment and not restitution while others would say it is justified if a person is dead because of the negligent conduct of the government employee.
Other types of penalties could easily be included such as mandatory termination from government employment, suspension of professional licenses such as licenses to practice law, medical licenses, teacher licenses, law enforcement licenses and certifications and trade licenses all issued and regulated by the state under existing law.
As it stands now under the proposed civil rights act, government will still bear the responsibility to defend and pay the judgments and settlements, and in turn its the taxpayer who is paying. If accountability is truly what the Civil Rights Act is intended for, and what plaintiff trial attorneys want, it sure does look like the real goal is to make recover a lot easily from a deeper pocket without having to prove a case in court before a judge and jury.
APPEARANCES ARE EVERYTHING IN THE COURT OF PUBLIC PERCEPTION
What cannot be dismissed lightly and that should not be ignored, is that New Mexico Speaker of the House Brian Egolf is a New Mexico plaintiff’s trial attorney and a very successful and prominent one at that. He and his firm over the years has represented many a client plaintiff adverse to government entities in a courtroom.
Lest anyone forget, attorney at law Brian Egolf sued the state of New Mexico just a few years ago over the medical marijuana residency requirements. Egolf voted on amendments to the medical marijuana law then turned around and sued the state over the changes in the law. Egolf’s actions as an attorney then as now with the Civil Rights acts raises more than a few questions of “conflict of interest” and the “appearance of impropriety” in the courtroom of public perception.
Speaker of the House Egolf in no way can be considered average run of the mill New Mexico House Representative and is view by many as the second most powerful State elected official. His sponsorship means something and appearances of impropriety should be avoided at all costs even if it means recusing himself from sponsorship or voting. The State Ethics Commission needs to use the complaint against Speaker Egolf as an opportunity to issue far more guidance on the restrictions that elected officials need to follow when it comes to the legislation they sponsor or vote on.
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