The Roundhouse in Santa Fe. Post file photo
By DANIEL J. CHACÓN
A civil rights bill that has sparked fears of financial calamity from local governments across New Mexico and ensnared the top-ranking Democrat in the state House of Representatives in an ethics complaint narrowly cleared the Senate Judiciary Committee on a 5-4 vote late Wednesday.
The committee chairman and Senate sponsor of House Bill 4, Sen. Joe Cervantes, broke a tie vote after a nearly 2 1/2-hour discussion and debate on the contentious measure.
“Do I see a 4-4 vote?” the Las Cruces Democrat asked the committee secretary just before 9 p.m. “I vote yes.”
Sen. Daniel Ivey-Soto, an Albuquerque Democrat, sided with three Republicans on the committee in voting to oppose the measure, which advanced out of the House floor almost a month ago and is now headed to the full Senate for what promises to be a lively deliberation. But because the measure has been amended, it would still have to go back to the House for a vote.
“I think we need to listen to some of the concerns of people who’ve been trying to offer some constructive commentary about the bill,” Ivey-Soto said, who offered a series of amendments Wednesday, some of which were adopted by the committee.
The bill, known as the New Mexico Civil Rights Act, would eliminate “qualified immunity” as a legal defense to civil rights complaints filed against government agencies in state court. Currently, such claims must be filed in federal court.
The proposal to prohibit the use of qualified immunity in civil rights cases has generated some of the biggest concerns.
Qualified immunity, a legal doctrine created by the U.S. Supreme Court in 1982, 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.
The bill triggered an ethics complaint against House Speaker Brian Egolf. The Santa Fe Democrat, one of the primary sponsors of the bill, is a private-practice attorney. The complaint alleges Egolf stands to benefit financially from the measure if it becomes law. Egolf has called the complaint baseless and filed a motion to dismiss the complaint last month.
During Wednesday’s committee hearing, Egolf said he’s “done exactly one civil rights case” since he obtained his law license.
“Some of my law partners have done a few, but I myself did one,” he said.
In a statement issued after the vote, Egolf said, “We are one step closer to giving the people of New Mexico a meaningful way to vindicate their rights under the New Mexico Bill of Rights.”
Egolf and co-sponsors of the bill have said it is designed to protect New Mexicans’ constitutional rights.
“The arc of this bill has been, from the first hearing, to narrow the focus so that hopefully the only claims that are brought under this are meritorious, true civil rights violations,” Egolf told committee members. “The reason that’s important to me is because when you bring a civil rights claim, you have heightened standards of evidence, you have heightened standards of proof and you have heightened standards beyond what in a tort claim would be simple negligence. In a civil rights claim, you have to show higher standards of misconduct.”
Rep. Georgene Louis, (D-Albuquerque), said the bill seeks to provide “fair, just and equal treatment under the law” regardless of class or background.
“Its introduction shows that we are listening to our communities that are demanding accountability for bad actors,” she said.
Louis said the proposed civil rights bill is a product of the New Mexico Civil Rights Commission, which was created by the Legislature during the 2020 special session.
“With a New Mexico Civil Rights Act, we can hold public officials accountable when acts of wrongdoing are committed and guarantee that every community gets fair and equal treatment under the [New Mexico] Bill of Rights provided by our state constitution,” she said.
Members of the Senate Judiciary Committee considered various amendments, including eliminating mandatory attorneys’ fees if monetary damages are awarded in a case and changing the statute of limitations from three years to two — neither of which passed. The committee, however, adopted a new section to make it clear that provisions of the bill would apply to claims of conduct on or after July 2021.
Senators also briefly entertained an amendment that would make local governments eligible for insurance through the state Risk Management Division if the bill caused them to lose the ability to purchase reinsurance. But the proposed amendment was eventually withdrawn.
The bill has generated support from unlikely allies, such as the New Mexico chapter of Americans for Prosperity, a conservative-leaning organization, and the ACLU of New Mexico.
Brenda Boatman, community engagement director for Americans for Prosperity, said the bill would allow New Mexicans whose rights have been violated to have their day in court.
“When someone acting in an official government capacity violates the citizens’ constitutional rights, certain laws and immunities protect them from liability, regardless of the damage they’ve caused to regular New Mexicans,” she said. “This undermines individual rights, allows wrongdoers to escape accountability and leaves victims with no way to address the injustice in court. Further, it tarnishes the reputation of the many upstanding police officers who dutifully serve and protect and erodes the trust between good officers and the communities they serve.”
Government representatives, however, say the bill could lead to increased costs that would ultimately be passed on to taxpayers.
The bill caps damages at $2 million, but the liability is for each claim, though the committee approved an amendment to ensure the cap was for each “occurrence.”
Santa Fe County Attorney Greg Shaffer raised concerns about higher insurance rates. He said county commissioners adopted a resolution urging lawmakers to amend the bill to replicate the balance struck in the Tort Claims Act “between compensating victims and ensuring government has the resources to provide essential services.” He said the resolution reflected their beliefs that the “principal objectives” of the bill can be achieved without exposing local governments to “potentially crippling risk.”
“In the simplest of terms, more money for insurance and claims means less money for essential services and or higher taxes,” he said.
Farmington police Chief Steve Hebbe, who has testified against the bill before, said the bill would not improve policing. He urged lawmakers to instead support Senate Bill 375, which would implement new training requirements for law enforcement officers, among other things.
“This bill will hurt small communities across New Mexico, and it will not accomplish the fundamental goal we started with when George Floyd was killed, and that is to hold bad actors accountable,” he said. “Instead, we need to invest in our good officers. We need to make policing be the profession that it should be: one of service, one of respect, one of loyalty, one of helping our communities.”