Copyright © 2021 Albuquerque Journal
SANTA FE – New Mexico would establish its own Civil Rights Act under a bill adopted by the state House on Tuesday – legislation that grew out of protests against racial injustice and police brutality.
The bill has drawn fierce opposition from city and county governments that argue they already face costly legal exposure for wrongdoing by law enforcement and correctional officers.
House Bill 4 now heads to the Senate as the 60-day session nears its midpoint. For the measure to be enacted, both chambers must pass identical legislation by March 20 to send the measure to Gov. Michelle Lujan Grisham.
It passed 39-29 Tuesday, with five Democrats crossing party lines to vote “no.”
The three-hour debate touched on whether lawyers who serve in the Legislature would have a conflict of interest and should be barred from filing claims under the act, an amendment that was rejected.
The legislation would allow lawsuits to be filed in state court seeking to recover financial damages for violations of rights under the New Mexico Bill of Rights. Unlike litigation in federal court, qualified immunity would be barred as a defense against claims filed under the act.
The bill would include a $2 million cap on damages for each claim, a limit that would also cover the award of legal fees. The public agency, not an individual employee, would have to pay.
Rep. Georgene Louis, an Albuquerque Democrat and co-sponsor of the bill, cited the abuse of 9-year-old Omaree Varela – who died in 2013 after his mother kicked him – as an example of why the proposal was necessary. A lawsuit filed on behalf of Omaree’s estate against two social workers was later dismissed in federal court.
After the case moved to state court, attorneys for the state Children, Youth and Families Department argued the claims were barred under the state Tort Claims Act. A confidential settlement was reached.
Families such as Omaree’s “deserve justice,” Louis said. “They deserve the New Mexico Civil Rights Act.”
The bill has emerged as one of the most fiercely debated in the first half of the legislative session.
The New Mexico Association of Counties warned about the possibility of counties losing some of their insurance coverage, leaving less money to pay out claims.
The Municipal League has argued that the bill is entirely punitive and would do nothing to prevent misconduct in the first place. Cities have argued instead for more funding for law enforcement training.
During the debate, Rep. Greg Nibert, R-Roswell, suggested the creation of a Civil Rights Act isn’t necessary. People can already file claims under the state Tort Claims Act against law enforcement, he said, with a roughly $1 million cap on damages.
In other words, the law already in place, Nibert said, “has allowed parties who have been injured by state actors to pursue those claims and recover significant judgments against the state.”
Debate over conflicts
House Bill 4 is sponsored by some of the most powerful members of the Legislature. Its sponsors include House Speaker Brian Egolf, D-Santa Fe; Louis, chairwoman of the House State Government, Elections and Indian Affairs Committee; and Sen. Joseph Cervantes, a Las Cruces Democrat and chairman of the Senate Judiciary Committee.
All three are lawyers.
Rep. 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.
Lane himself 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.
“This seems like a conflict of interest to me,” Lane said.
Egolf’s work as a private attorney includes civil rights law, among other topics. Louis said she practices in tribal government law. Cervantes focuses on personal injury and wrongful death.
Louis said she and other lawyers who serve in the Legislature should be permitted to choose their clients – in accordance with professional ethical standards – just as real estate agents or people in other careers do.
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.
Opponents of Lane’s amendment said it would violate the New Mexico judiciary’s right to set limits on lawyers in the state. Lane contended it would help maintain the public’s trust in legislators.
The amendment was rejected.
Backed by rights commission
House Bill 4 was endorsed by a state Civil Rights Commission established during a special legislative session last year, a month after the killing of George Floyd in Minneapolis. Retired state Supreme Court Justice Richard Bosson served as chairman of the commission, which worked on the legislation.
The death of Floyd, a Black man who died after a white police officer pressed a knee into his neck, triggered protests throughout the country, including in New Mexico.
Rep. Javier Martinez, D-Albuquerque, said the Civil Rights Act would be a step toward restoring trust in law enforcement. He mentioned by name a few of the New Mexicans shot and killed by Albuquerque police over the past decade.
“Sadly,” Martinez said, “there have been too many who have perished in front of our very eyes … people who didn’t deserve to die.”
The measure was adopted 39-29, with most Democrats in favor. All Republicans present and one independent opposed the bill.
Five Democrats crossed party lines and voted “no” – Ambrose Castellano of Las Vegas, Susan Herrera of Embudo, Derrick Lente of Sandia Pueblo, Willie Madrid of Chaparral and Candie Sweetser of Deming.
The bill now heads to the Senate, where Cervantes’ role as chairman of the Judiciary Committee will almost certainly influence whether the measure passes, or in what form.
He said Tuesday that the House made amendments to the bill that go a long way toward addressing the concerns of local governments, and he was pleased to see such hard work on the legislation.
The revised bill, Cervantes said, deserves and will receive “a great deal of scrutiny” in the Judiciary Committee.
Cervantes also has introduced legislation that would complement House Bill 4. He 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.